E&O Weekly Prevention
Strategies for the Professional Agent
January 31, 2013


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Letter from the Editor

AgentsofAmerica.ORG announces a new "Strategic Partnership" BenefitPlace & BPTradeShow


With Obamacare now a reality, Insurance Agents and their insurance clients of all sizes and every industry have questions about many employee benefits issues, BenefitPlace & BPTradeShow offer new "Strategies and Solutions" dealing with this complex and evolving issue. Each month, Phil Eibe, President of BenefitPlace & BPTradeShow will provide us new strategies and solutions to assist agents and brokers in meeting the new demands of the Insurance and Benefits marketplace in 2013 and beyond by shortening selling cycles, providing strategies and solutions, reducing marketing costs, and increasing their revenues. Check out Phil latest Tip below, "Dealing with Employee Benefits in 2013 and Beyond! The Problem - The Times They Are A Changing! The Question - Are You?"  


"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 Curtis M. Pearsall 


Sweeping the Nation-The Unrelenting Tide of the Duty to Defend

By Brian K. Steward, Esq. & Kevin J. Engelien, Esq. 


By Frank Alvarez, Esq. & Joe Lynett, Esq.


Use of Hurricane Deductibles in the Northeast States

By Fred Pomerantz, Esq. & Robert P. Suglia[1] SVP

Check out todays edition of World Risk & Insurance News at 
WRIN.tv. Listen to Insurance Expert George Nordhaus "Monday Morning". Also available, Mike Volpe Blog, "The 6 Marketing Metrics Your CEO Actually Cares About [Cheat Sheet]


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"

Angelo J Gioia





AOA Tips, Views, News & More


By Marc J Zimet, Esq. of Jampol Zimet LLP

Reducing your client's litigation costs should be one of your primary goals if you want repeat business and referrals. Planning ahead and maintaining good communication with your client are key.

Establishing your overall case strategy early on lays the necessary foundation for efficient and cost-effective lawyering. First, conduct a thorough pre-filing investigation, making as much use as possible of your client's staff resources and prior investigations already conducted by your client. Do not ask your client to pay you and your staff to re-do work their staff has already done. Letting your client know that you are looking out for their bottom line will be appreciated and is a mark of your professionalism, for which they will be grateful. For example, it may be more cost-effective for your client if an adjuster on their staff handled "non-lawyer" tasks such as ordering and obtaining items in investigation, and conducting negotiations, thus freeing outside counsel to devote time and energy to the legal work of preparing pleadings and interrogatories, appearing at trials and motions, and taking or defending depositions.

Next, use the relevant jury instructions to quickly identify what you will need to prove at trial (or prevent the plaintiff from proving). Determine whether you have the evidence you need to reach that goal. Based on your overall strategy, take the time to develop a discovery plan. Creating a roadmap for discovery will prevent redundancies as well as missed deadlines and last minute panics. Use form-interrogatories and well-crafted specially-prepared interrogatories that will withstand the inevitable objections from opposing counsel. Asking clear and concise questions in your interrogatories as well as in your requests for documents will reduce wrangling with opposing counsel and may help reduce the number and length of expensive depositions. Your discovery plan should include requests for admissions, which of all discovery devices have the most potential for saving money, time and effort, if used correctly. Once a fact is admitted, it is conclusively established. (CCP section 2033.410(a); Murillo v. Sup. Ct. (2006) 143 Cal.App.4th 730.) Admissions are fertile for impeachment since they cannot by easily explained away. They may also give you ammunition to prevail on a motion for summary judgment or summary adjudication.

Depositions and expert witnesses are expensive. Use the responses to written discovery to assess which parties or witnesses are worth your client's money to depose. Plan lines of questioning or defense ahead of time, based on the written discovery. Select expert witnesses carefully, based on experience and cost. Consider whether the cost to procure expert testimony is really justified in light of the complexity of the case and the strength of the other, less expensive, evidence.

Use your overall plan to identify your goals before engaging in motion practice. Consider foregoing motions to dismiss, which are expensive, reveal your strategy, and will most likely result in no more than an amended complaint which your client will need to answer. When do file or reply to a motion, save costs and impress the court by presenting only your best arguments.

Bear in mind than an unprofessional or overly combative relationship with opposing counsel nearly always results in much higher litigation costs for your client, not to mention stress for you and erosion of your most valuable asset - your reputation.

Consider using mediation or Alternative Dispute Resolution, each of which typically produce lower legal fees and are decided in a much shorter time.

When choosing a court, where possible, consider that trying a case in federal court may be more expensive due to costly summary-judgment motions and the cost of defending against motions to disqualify your experts.

Finally, at the outset, communicate with your client. Ask questions about their past cases, including facts, experts, jurisdiction, legal theories and outcomes. They may already have encountered the issue at hand in another case. Be certain that your client is on board with your strategy before you invest time, energy and billable hours into it. Stay in communication with your client throughout the process, keep them apprised of costs as well as cost-saving measures you are taking.

For additional information, contact Marc at mzimet@jampolzimet.com or (213) 689-8500


dealing"Dealing with Employee Benefits in 2013 and Beyond! The Problem - The Times They Are A Changing! The Question - Are You?" 

By Philip W. Eide, President of BenefitPlace.biz and BPTradeShow.com


The World of Insurance and Benefits is changing for all parties - the Brokers, Carriers, Service Providers, Employees, and Individuals. To stay in business and remain profitable, Agents and Brokers must position themselves as informed Trusted Advisors providing Strategies and Solutions. Most Employers, Employees, and Individuals are looking for Sound Advice combined with Value Added Services.


The Problems Agents and Brokers face include:


  PPACA is here to stay and Health and Human Services (HHS) continues to roll-out Regulations and Guidelines.

  Traditional Health Plans are being replaced by Qualified Health Plans (QHPs) including the Essential Health Benefits (EHBs).

  Commissions on Health Plans are disappearing.

  Renewals from existing accounts may be gone.

  Greater administration and reporting may be required with less compensation. 

  Individual coverage for health Insurance is in greater demand and may need to be blended into the Employee Benefit Plan Design.

  There is a lot to learn withlittle time. Traditional expertise is becoming obsolete.

  Existing and potential clients are worried! They have many non-traditional questions!

  Employers, Employees, and Individuals are looking for Solutions and Strategies that do not fit traditional models.


Here are some of the questions you should be considering:


1) What are you doing to prepare your organization for the changes created by

the PPACA/Obamacare driven markets?

2) How are you going to help your clients prepare their organizations for

the required changes under PPACA/Obamacare?

3) How are you going to replace lost revenues?

4) What are you doing to Build Trust and Add Value with current and potential clients

when marketing your organization?

5) Are you discussing the Problems and providing Solutions?

6) What internal Organizational Changes will you need to make to meet new

Employer Demands?

7) Are there Strategic Alliances that would strengthen your marketing efforts?


Here's a Short List of Actions that may improve your position in 2013 and Beyond:


A) Learn as much as possible about PPACA and the HHS Guidelines.

B) Become aware of the PPACA Timelines and their Changes.

C) Thoroughly understand the set-up and role of Federal, State, and Private Exchanges

           (now referred to as Marketplaces by HHS).     

D) Prepare to discuss and offer Private Exchange (Marketplace) options.

E) Gain an understanding about Defined Contribution Models for Benefit Plan Design.

F) Prepare to discuss and offer Defined Contribution Plan Designs.

G) Shift from being sales oriented to becoming a "Trusted Advisor".

H) Consider a shift to a Fee Based compensation model.

I)  Gain a greater understanding of the Voluntary and Ancillary Benefit markets to better

            serve Clients and replace lost revenues.

J) Partner with professionals or gain the capacity to offer: Employee Education,

          Communication, Enrollment, and Data Management.

K) Begin a shift to Inbound Marketing taking advantage of the Power of the Internet,

           Search Engines, Social/Business Media, and SEO. 


For more Tips and Ideas - Visit www.benefitplace.biz

or Call 216.577.5579



Employment Practice Liability - Risk Management Tip 

By Britton D. Weimer. Esq. of Jones Satre & Weimer PLLC 

The top 8 rules of EPL discrimination claims prevention

Rule number four:  "Promptly document all performance problems with all employees, giving them written notice when the issue arises."

Rationale:  A timely warning is more effective than a critique raised for the first time in an annual performance review.

Contemporaneous feedback allows disciplinary action to be taken against the employee prior to the next annual performance review.


In addition, if an employee must be discharged during the first weeks or months of employment, he or she may not have yet had an annual employment review by the time of termination.  Then the employer will have discharged an employee with no documentation of performance problems.

Finally, contemporaneous feedback is more credible in a subsequent employment suit.  It shows there a sincere effort by the employer to promptly address practical problems.  It helps negate the employee's typical argument that the employer's real reason for termination was discrimination, and that the performance rationale was a mere pretext.


Source: Employment Practices Liability, Chapter 6 (2nd Ed. National Underwriter 2012).

Contact Brit 952/820-8403 or bweimer@jonessatre.com


The Social Connection Social Media Tricks & Tips

By Cynthia Cavoto of Firebrand Social Media


Mobile Marketing


Mobile marketing can be classified into two types based on the technology involved. The more traditional form involves marketing on the move like moving billboards and road shows. The second type refers to marketing on a mobile phone like cell phone. Since the onset of millennium, mobile marketing though cell phone has become very popular. Short message service popularly known as SMS has made marketing by this method a lot easier.


There were some problems in the beginning as unwanted information was being sent to the people. Most of the SMS that were passed around was spam and it received negative media response in all parts of the world. This was because a sector of the advertisers bought list of mobile users and began sending them unsolicited messages. They were later stopped due to strict security measures and laws passed. Marketing industry recognized the potential of mobile marketing and utilized it to the full extent. The mobile service providers coded guidelines and laws. It then became a legal advertising channel. The Mobile Marketing Association and Interactive Advertising Bureau also have laid down guidelines for the proper functioning of mobile marketing.


Mobile marketing has become popular in Asia and Europe as it is a novel idea and in Europe alone hundreds of millions of pounds have been investing in SMS advertising. Now SMS has become the most famous part of mobile marketing. Because of the popularity of short codes, SMSing has become a lot easier. This has created a new approach to reach out to potential customers. Now mobile short codes are looked upon as mobile domain name, by many of the brands around the world, when the customers message the brand at any occasion.


In America, the first SMS short code campaign was started in 2002. SMS containing short codes are easier to send a message with complete information. Short codes are usually numbers that are assigned to mobile operators of a particular location, which they use for brand campaigning and other purposes. They are very small, like they contain only four to five words. These numbers are always under scrutiny by the service provider and each and every message is monitored to see that they do not go against the original service description.


Like opt-in emails, customers have to opt for SMSes. This is the biggest criterion, which the advertiser has to follow in order to send a promotional SMS. Some of the mobile operators ask for double opt-in form from the receiver. At the same time opting out is made easy for the customer. When the customer wishes to terminate receiving messages, they have to send STOP word by SMS. All these guidelines have been laid by the Mobile Marketing Association consumer best practice guidelines and it's a compulsion to follow those by all the marketers who wish to do mobile marketing in America.


Now, service providers have started to provide the option of sending SMS to email addresses. Other than this, other services provided are mobile games, mobile tones etc., which are used for promotional purposes. This has lead to the invention of MMS or Multi-media Message Service, through which short promotional videos and animations can be send. Bluetooth is another good technology. It started in 2003, and many companies in Europe have found it useful. When a message is send via Bluetooth, the receiver should accept request from the sender. So, sending messages by this method is legitimate. The message transfer speed is high and is also a free service as it is a radio-based technology.


The method of sending SMS advertisement to mobile phone users based on their geographical location is known as Location based service. The customer is tracked via a GPS chip which is built-in the phone. Radiolocation signals from the nearest cell phone towers are used for this purpose.


Mobile marketing follows a very safe marketing strategy, as it is customer opted. The short message sent through this method is known as mobile originated or MO message. If the advertisement is done through a call, the call is known as mobile terminated or MT message. As there is a phenomenal increase in the number of mobile phone users, this kind of marketing is a sure hit.


This month's EBook is entitled, "57 Email List Building Tips Part 3 "

Each month, we will feature a brand new Social Media EBook that contains valuable information on how you can harness the power of social media. Each featured EBook will contain a wealth of information that will include such topics as Facebook, LinkedIn, Twitter, Email and Blogging to name a few. Contact Cynthia at cynthia@agentsofamerica.org. or cynthia@firebrandsocialmedia.com.







While many of your commercial customers have Business Interruption coverage, the issue here is not whether they have the coverage, but whether they are "properly protected." Each and every year, there are a significant number of Errors & Omissions claims arising from problems with Business Interruption. Many industry experts are projecting that there will be fair number of E&O claims involving Business Interruption developing as a result of Hurricane / Super Storm Sandy.  





















Firebrand Social Media   











Managing Employee Absenteeism and 'Presenteeism' During Flu Season, A Recurring Challenge 
By Frank Alvarez, Esq. & Joe Lynett, Esq. of Jackson Lewis LLP
According to Centers for Disease Control reports, this year's flu season is off to a particularly strong start. For employers, the recurring scenario of frequent employee absences during the winter months raises similarly recurring questions: what rights do employees have when they cannot come to work due to their own illness or to care for a close family member, and what rights do employers have when employees should not be present at work because of an illness. The answer to these questions, like many others that arise in the administration of disability and leave laws, depends on a complex interplay of federal and state laws and employer policies. At the same time, employers are grappling with related issues regarding what steps they can take to minimize the spread of influenza in the workplace without running afoul of the law.




This newsletter is produced in conjunction with Agents of America, www.agentsofamerica.org. The contents of which may not be reproduced without the express written permission of Agents of America. Copyright 2013