E&O Weekly Prevention
Strategies for the Professional Agent
February 14, 2013


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Letter from the Editor



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


"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 and on Amazon


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


Table of Contents   


Check out todays edition of World Risk & Insurance News at WRIN.tv.  
Listen to Insurance Expert George Nordhaus "Monday Morning" discussion on, "What's a Small Insurance Company to do?" 

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 Aaron Peterson of CenterPointe Solutions Inc.


OSHA 300 Record Keeping

Employers subject to the reporting requirements of the federal Occupational Safety and Health Act are reminded to post the OSHA Form 300A, Summary of Work-Related Injuries and Illnesses from February 1 - April 30, 2013. The Form 300A lists the total number of job-related injuries and illnesses that occurred during the previous year and must be posted even if no work-related injuries or illnesses occurred during the year. It should be displayed in a common area where notices to employees are usually posted so that employees are aware of the injuries and illnesses occurring in the workplace. The form must be signed and certified by a company executive.

You must keep the Log and Summary for 5 years following the year to which they pertain.

Employers regularly exempt from OSHA record keeping includes small businesses with fewer than 11 full- or part-time employees during the previous calendar year and employers classified in low-hazard industries. However, these employers are required to report multiple hospitalizations and fatalities as required by 29 CFR 1904.8. In addition, if the employer is notified in writing by OSHA to participate in a statistical survey, the employer must maintain injury and illness records in accordance with 29 CFR 1904.

       Record ALL hours worked by ALL employees covered by the records - Hourly , Salary, Part          Time, and Temporary.

       Estimate by multiplying the average number of workers by 2000 to obtain hours worked.

       Verify hours by confirming against what amount was paid to unemployment insurance.

       If the hours you report are too low (underestimated) the incidence rate will be too high.

       If the hours you report are too high (overestimated) the incidence rate will be too low.


Where can I get a copy of the 300, 301 and 300A forms?

Download the information off of the OSHA Web site at www.osha.gov.

Where can I to get more information on record keeping?


For additional information, contact Aaron at aaron@mycpsinc.com or 800-340-5856



By Michael Bertoncini, Esq. of Jackson Lewis LLP


Under the Patient Protection and Affordable Care Act of 2010 (PPACA), also known as Obamacare, all nursing facilities and skilled nursing facilities must have a compliance and ethics program that contains certain statutorily-required elements by March 23, 2013. The program must be effective in preventing and detecting criminal, civil, and administrative violations under PPACA and in promoting quality of care.

The PPACA requires the following eight program elements or components:

  • Compliance standards and procedures to be followed by employees and agents;
  • "High-level personnel" designated to oversee compliance with "sufficient resources and authority" to assure compliance;
  • Discretionary authority not given to individuals the organization knows or should know have a "propensity to engage in criminal, civil, and administrative violations";
  • Effective communication of the standards and procedures to all employees and agents;
  • Adoption of monitoring, auditing and reporting systems that include anti-retaliation protections for employees who report offenses;
  • Consistent enforcement of standards through disciplinary action;
  • Reasonable responses to reported offenses and steps to prevent further similar offenses, if an offense is detected; and
  • Periodic reviews of the program to identify necessary changes or modifications.

Department of Health and Human Services (DHHS) Office of the Inspector General has made designing, implementing, and maintaining an effective compliance program a best practice for nursing facilities since 2000. PPACA has made such compliance programs mandatory.


While the PPACA calls for DHHS to publish regulations providing additional guidance on compliance programs, DHHS has not yet done so. The absence of such regulatory guidance, however, does not relieve nursing facilities and skilled nursing facilities of their statutory obligation.


All nursing facilities and skilled nursing facilities should consider reviewing their existing compliance and ethics programs to ensure that they include the required statutory elements. The Jackson Lewis Corporate Governance and Internal Investigations Practice Group is ready to assist you in this endeavor. The Group includes attorneys with substantial experience working as in-house counsel for health systems as well as former regulators and prosecutors.


If you have any questions about this or other workplace developments, please contact Michael Bertoncini, at (617) 305-1270 or michael.bertoncini@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work.


2013, Jackson Lewis LLP. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis LLP and any readers or recipients. Jackson Lewis LLP represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.




As the California Judicial Branch budget crisis deepens, more and more cases will be resolved in mediation rather than in the courtroom.   Meanwhile, the rules regarding mediation confidentiality are under close scrutiny.  Currently, lawyers who commit malpractice during mediation are protected by strict confidentiality statues.  Under Evidence Code sections 1119 and 1126, all oral and written communications made in connection with a mediation or mediation consultation generally are absolutely inadmissible and protected from discovery in subsequent civil actions or other noncriminal proceedings, including claims of legal malpractice. Earlier this year, a bill was introduced in the state Assembly that would have created an exception allowing the admission of such evidence in legal malpractice cases. 


In February of 2012, Assembly Bill 2025 (AB 2025) was introduced in response to a 2011 California Supreme Court decision in the case of Cassel l v. Sup. Ct. (Wasserman, Comden, Casselman & Pearson, L.L.P.)   In Cassell, the appellant had sued his attorneys for malpractice, claiming they improperly pressured him to accept an inadequate settlement during mediation.  The Court upheld the lower court's decision to exclude evidence of communications between the appellant and the attorneys, reasoning that mediation confidentiality covered all oral or written communications made for the purpose of or pursuant to a mediation, even if their application would preclude a client from seeking redress for attorney malpractice. 


As introduced, Assembly Bill 2025 would have added an exception excluding from protection "communications directly between the client and his or her attorney during mediation if professional negligence or misconduct forms the basis of the client's allegations against the attorney."   However, there was much opposition to the bill, which was ultimately withdrawn and replaced in June with another version of 2025 which sent the question to the California Law Revision Commission (CLRC) for study.  (As of this writing, the CLRC website does not list "mediation confidentiality" as an active topic of study, but it is clearly "on deck".)


In August of 2012, our own Second Appellate District, Division Eight, handed down an unpublished opinion inHadley v. The Cochran Firm (B233093.)  The Cochran Firm represented Hadley and seven other plaintiffs in a racial discrimination case against their employer.  The case was apparently settled at mediation; however, the plaintiffs allege that The Cochran Firm induced them to sign a fake confidentiality agreement at the mediation, later fraudulently appending the signature sheet to a settlement agreement that the plaintiffs had not seen. The Court cited Evidence Code 1119 and Cassell, finding that "mediation confidentiality provisions are clear and absolute."  Even in the face of the egregious facts alleged in Hadley, the notion that "what happens in mediation, stays in mediation," has held firm.  However, change may be afoot as this issue has already captured the attention of the Legislature, which is awaiting the results of the CLRC study.  Change is not likely to come quickly, but stay tuned, because when it comes it could be a game-changer with the potential to expose attorneys to liability for their communications during mediation, just as there is more pressure than ever to mediate rather than litigate.

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

Always Have With You Back-Up Numbers at the Detail Level                                                
By Mark Hunter the "Sales Hunter"


Many customers will never believe you until you show them the numbers.


Just because you know them in your head doesn't excuse you from having them on a chart or spreadsheet.

If you're like me, numbers are great, but there's no need to show me the detail. Problem is for many of your customers, they do want to see details.


When we walk into a customer and call out to them some statistics or numbers, we may think we're showing them how smart we are, but for the analytical customer, it also means we could be losing a sale.


We don't always have to put the details (charts, spreadsheets, etc.) into a presentation. I'll argue they should be left out more often than not.


However, just because you're not putting them in a presentation does not exclude you from having them ready to go in some form you can show the customer. If you're dealing with a customer who is into numbers, they want to see detail. And if you leave it out, you might as well have skipped the call and stayed home.


An argument can be made even with these people to not put it in the presentation. Many times analytical people always want to feel like they've been able to push the salesperson a little bit further in digging into the numbers.


With this being the case, for many of them the best way to wow them is to suddenly pull them out and present them after you've put the presentation on the table. By doing this, it appears to the customer you've done something extra for them.

Beauty is in the details, especially for the analytical person.


Don't think just because you don't need them or, worse yet, you don't fully understand them, that you can leave them out.


Have those details ready. Your next sale might be depending on it.


Mark Hunter, "The Sales Hunter," is a sales expert who speaks to thousands each year on how to increase their sales profitability. For more information, visit www.TheSalesHunter.com. You can also follow him on Twitter, on LinkedIn, and on his Facebook Fan Page, or call 402.45.2110. Mark@TheSalesHunter.com

Copyright 2013, Mark Hunter "The Sales Hunter." Sales Motivation Blog.



Cyber Liability in the Blogosphere Is it True that You are What You Tweet?

By Dianna D. McCarthy, Esq. & Lauren Schivley, Esq.of Winget, Spadafora & Schwartzberg, LLP


Social media has revolutionized the way we view the world, and its cyber-savvy citizens. Phrases such as "posting on Facebook", "tweeting" and "LinkedIn," are now ingrained within our daily lexicon. It is glaringly apparent that the dissemenination of the information via social media networks can have far reaching effects, and with power comes responsibility and potential liability. Therefore, the next time you feel inclined to share a photograph on Instagram or like a post on Facebook, consider these emerging cyber liability issues. 





















Firebrand Social Media   












Hospital's Motion to Dismiss Religious Discrimination Claim Denied When Vegan Employee Refuses Mandatory Flu Shot

By Caroline J. Berdzik, Esq. & Sean Beiter, Esq. of Goldberg Segalla LLP    


Many health care providers mandate certain types of shots or inoculations for their employees to reduce the risk of the spread of serious illnesses such as the flu. Hospitals and long-term care providers have increasingly taken a hard line when employees have refused to get vaccinated because some of their licensing standards require certain vaccinations. For other health care providers, it is viewed as a best practice to reduce the spread of illness and disease among the infirm and elderly. However, as some recent cases illustrate, employers need to exercise caution in taking an adverse employment action when an employee refuses to get vaccinated. For example, if an employee cannot have a flu shot or other inoculation due to a disability, this will likely preclude an employer from taking an adverse employment action against the employee. 





Amendments to Medicare Lien Legislation

By John J. Hare, Esq. of Marshall Dennehey Warner Coleman & Goggin, P.C.


Anyone who has settled liability or workers' compensation claims in the past couple of years knows how difficult it can be to understand and comply with the Medicare secondary payer rules regarding the reimbursement of liens, as set forth in Title XVIII of the Social Security Act. On January 10, 2013, President Obama signed legislation, known as the "Medicare IVIG Access and Strengthening Medicare and Repaying Taxpayers Act of 2012," which primarily seeks to simplify the process for reporting and paying Medicare liens and grants Medicare discretion to reduce or eliminate penalties for good faith violations. Most of these amendments do not become effective immediately, but they are summarized below so that you are aware of them as you settle cases and report to Medicare. Please call me or Jim Pocius with any questions.


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