E&O Weekly Prevention
Strategies for the Professional Agent
January 24, 2013


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Letter from the Editor


"Insurance Agency Risk Management: A Comprehensive Guide to Avoiding E&O Claim - Book One" is now available!  



"A Comprehensive Guide to Avoiding E&O Claims" addresses issues that Insurance Agents & Brokers encounter every day. One of the most important assets an agent has is their reputation; it takes years to build a business and only one mistake to ruin it. "Book One" is a practicable guide and resource that every Insurance Agency should read and use as an effective risk management tool. "Book One" is now available on Barnes & Noble.

This week's edition of AOA E&O Prevention:


Table of Contents    


By Michael L. Zigelman, Esq. & Eric B. Stern, Esq.

By Dario J. Badalamenti, Esq. 




Check out todays edition of World Risk & Insurance News at 
WRIN.tv. Listen to Insurance Expert George Nordhaus " Monday Morning", discussion on, "Are You Too Long-Winded? ...and...What's in a  Name?"


AgentsofAmerica.ORG has partnered with WebCE, a leading nationwide provider of Continuing Education for insurance professionals, to provide you with state-approved self-study CE courses to satisfy your CE requirements online! Check out your  CE State Requirements.


Also available is our most recent edition of "AOA Tips, Views, News & More," including our new feature "Insurance Resources." & "Recommended Reading".  Remember that membership in AgentsofAmerica.ORG is FREE! Also if you have any thoughts, comments or suggestions, please email me at info@agentsofamerica.org.



"Bringing the Best Together"

 Britton D. Weimer, Esq.




AOA Tips, Views, News & More



Let's Address Mental Health in the Workplace "Head-On"

By Deborah Dutton-Lambert, MBA, PC, CRC &  Dr. Daina  Dennis  of Encompass Training 


One in four! That's right, one in four of us will experience a mental health condition this year (http://www.mentalhealthamerica.net/go/may).  The next time you attend a party or go out to dinner, look around you and pick out four people.  Chances are that one of those four is currently struggling with a mental health condition.


With so many people struggling with a mental health condition, why are so few U.S. companies addressing it head-on?  Clearly, many companies have addressed physical conditions such as heart disease, diabetes, obesity, and smoking through their wellness initiatives.  A number of companies have recognized that mental health needs to be an integral part of their wellness programs and even EAP's offer helpful tips on how to deal with stress during difficult times like the holidays.  However, many of these companies are hiding behind the word "STRESS" because they fear an open dialogue using the words mental health and mental illness.  They believe that their employees will not acknowledge or respond to these words due to the stigma surrounding them.


We certainly do not want to discourage companies from addressing stress in their wellness programs.  In fact, stress can be a trigger for mental health conditions.  But, by addressing stress alone, companies are misleading themselves about the real problem of mental health in the workplace.   They are failing to see the complete picture. Until companies understand that mental health conditions are neurobiological in nature and not easily treated with exercise, yoga and meditation, true medical treatment will not be embraced.  Companies have to feel comfortable using the words mental health and mental illness just as they feel comfortable using the words cancer, diabetes and heart disease. Employees who are struggling with depression and anxiety will not just "snap out of it" with traditional wellness initiatives for healthy eating, exercising, and alternative treatments.  An employee who is struggling with depression during the holidays will not necessarily benefit from the "Ten Tips To Reduce Stress" from the EAP newsletter. These individuals require real medical treatment from qualified professionals.  But, in order to get medical treatment they have to be willing to seek treatment.


The fact is that only one-third of those struggling with a mental health condition in the workplace seek treatment.  Many do not disclose to their physician, family members or even their partners.  Until a new vocabulary is in place that promotes a stigma free workplace where any employee can request help without the fear of lost opportunity and ridicule, people will continue to struggle in silence.  The opportunity for early identification and treatment of mental health conditions will be lost until we face mental illness head-on and create a culture that fosters a mental health receptive workplace.


The key component for creating a mental health receptive workplace is education.  In a mental health receptive workplace all employees are educated on common mental health conditions and available resources, policies and procedures are supportive, disclosure does not result in stigma or discrimination in work assignments and promotion, and supervisors know how to openly communicate with their employees who are experiencing performance issues related to a mental health condition.


We believe that a paradigm shift in thinking must first occur within our companies in order to effect a cultural change in how we view people with mental health conditions in society.  We equate this to the shift that occurred in cultural awareness and competency as a result of cultural diversity training in the 1970's.  Just as companies continue to educate all employees on cultural diversity, we would like to see all employees trained on mental health. Yes, stress management is a part of this, but only a part.  The real work is to understand mental illness as a neurobiological disorder with effective treatments in the same way we understand cancer, diabetes, and heart conditions.  In tandem with the understanding is a vocabulary that is non-discriminatory.  Do we make disparaging comments about people who are getting chemotherapy?  Do we tell jokes about or ridicule people with severe heart conditions?  Of course not! People with mental health conditions are not crazy, not lunatics, not wacko, not just stressed out, but are physically ill.  They deserve the same respect we give to those who have cancer or heart disease.


One in Four!  Treatment works!  Let's work together to create mental health receptive workplaces for healthier people, healthier organizations, and a discrimination free society.


For additional information go to "Encompass Training Program" or to contact Debbie & Daina go to "Contact Us"




The New Form I-9, A Gift Employers Don't Want for the Holidays

By Davis C. Bae, Esq. of Jackson Lewis LLP                          


The Form I-9 must be executed by retail and other employers to show they have verified the lawful work status of their employees. The Form has become the Obama Administration's main vehicle to enforce immigration compliance through employers. This seemingly simple one-page form is accompanied by a manual of almost 70 pages of instructions and frequently-asked-questions. Failure to execute the Form I-9 or comply with its complex requirements has resulted in millions of dollars of sanctions against employers.


The current Form I-9 was set to expire on August 31, 2012, but the United States Citizenship and Immigration Service (USCIS) has issued guidance extending the validity of the current form until further notice.


Why the extension? During the original 60-day comment period after it released the proposed Form I-9, the USCIS received over 6,200 comments. Reasons for the extension include public concern over the proposed changes and the proposal's failure to correct issues in the older version. After extending the public comment period several times, the comment period ended on October 15, 2012. Of course, employers have been vocal about the additional paperwork, photocopying and retention burdens under the proposed Form I-9. Now, questions involve the format and timing of the release of the new Form I- 9. Jackson Lewis has learned of concerns from many human resources associations and clients on the proposed revisions to the Form I-9.


The National Retail Federation and others industry associations have expressed legitimate concerns as to whether USCIS will consider the practical consequences of major changes to the Form and timing of the roll out. Retail and hospitality industry employers around the country in particular have expressed alarm over a new Form I-9 emerging during high levels of seasonal hiring. A successful holiday season can make a material difference to employers in these industries and in the performance of the U.S. economy. Therefore, the timing of a release of the new Form I-9 potentially intersecting with year-end is a cause of anxiety among employers focused on increasing revenue during a crucial period.


Employers are seeking 180 days' advance notice to phase in the new Form. This would allow both the current and the new versions of the Form to be used for a limited time. This approach is not unprecedented. It was allowed by the USCIS as recently as 2009. It would permit employers time to learn about the new form, train managers and employees on its completion, and to adapt information technology to the changes. This could avoid unforeseen and troubling consequences for businesses during the holiday season. Small business owners tend to have access to fewer legal resources. They especially may be adversely affected by the proposed changes. Larger employers may face difficulties, too. Employers with thousands of employees may need to implement new software and process changes, potentially taking their focus away from critical business objectives. In addition, with the number and type of changes that are being suggested to the Form I-9, many corporate compliance systems will require rapid, large-scale changes, which will compete for resources with other internal technology developments. This is especially true of companies that utilize an electronic I-9 system or E-Verify.


While the new Form I-9 provides some welcome changes, it may present additional implementation problems for employers. Jackson Lewis hopes USCIS will give employers time to adapt to the new Form so as not to impede business during economic recovery.


Please contact Davis C. Bae, BaeD@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work if you have any questions.



Insurance Coverage Tip

By Alison Slezak of Martin & Company


New Year, New Fitness Program


Fitness is among the top New Year Resolutions made every year. Staying in front of the fitness craze, Star Insurance Company recently introduced a new FitnessEdge Program which provides Property, Inland Marine and General Liability coverage to the Fitness and Health Club Industry. The Program offers Silver, Gold and Platinum Property Enhancement coverage's, Abuse & Molestation coverage, as well as coverage for Swimming Pools and Liquor Liability. The new Program will be similar to a non-admitted MGA program Star currently writes but will be on a direct and admitted basis.


For additional information, contact Alison at aslezak@martincompanyus.com  or Tel: (610) 325-4455. To view more "hot trends" in the Property & Casualty Insurance Marketplace, visit:

Martin & Company's Market Trends & Updates
























Firebrand Social Media   












Insurer Disclaimer Upheld Under New York's New Notice-Prejudice Law 

By Michael L. Zigelman, Esq. & Eric B. Stern, Esq. of KDVG LLP


In what appears to be the first reported decision applying New York's new "Notice-Prejudice" rule, in
Atl. Cas. Ins. Co. v. Value Waterproofing, Inc., 2013 U.S. Dist. LEXIS 6044 (S.D.N.Y. Jan. 15, 2013), the Southern District of New York held that the insurer's lost ability to investigate was sufficiently prejudicial so as to support the insurer's late notice coverage defense with respect to the underlying accident.  Moreover, the Court held that subsequent opportunities to procure investigative materials through discovery did not relieve the prejudice.  







Allocation of liability among respondents. A questionable application of the Peterson Doctrine.

By Dario J. Badalamenti, Esq. of Marshall Dennehey Warner Coleman & Goggin, P.C.


Allison v. L&J Contracting Co., Inc., Docket No. A-1352-11T4, 2012 N.J. Super. Unpub. LEXIS 2197 (App. Div., decided September 27, 2012)


The petitioner was employed as a tile finisher with the respondent. On July 27, 2006, the petitioner fell in a hole while in the course of his employment and sustained injury to his lumbar spine. The petitioner filed a claim for workers' compensation benefits. The respondent filed a motion to join the petitioner's subsequent employer, with whom the respondent alleged the petitioner had sustained two subsequent accidents. The Judge of Compensation granted the respondent's motion, and the subsequent employer was joined as a party to the claim. The petitioner thereafter filed a separate claim for workers' compensation benefits against his second employer. A consolidated trial of these claims ensued.

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