Goal of the ‘Claims Made’ Form Diluted by History

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by Fred Fisher, JD

Rarely are clients immediately aware of the wrongful or erroneous actions of the “professional” they trusted to perform specific duties or services; mainly because “professional” acts or errors do not or only seldom cause immediate injury. A “professional’s” wrongful acts or errors may not manifest in client injury until long after the act is perpetrated or the error is committed.

Because of the time lag between the wrongful act or error, the resulting injury and the ultimate claim or lawsuit, Joe D’Alessandro in 1964 deduced that there was a better way to insure a “professional.” Secondarily, D’Alessandro postulated that there had to be a way to provide greater actuarial certainty that there would be no further claim activity following the close of the policy period (eliminating the “incurred but not reported” (IBNR) problem). This creative thinking led to the development of the first “claims made” policy wording.

While D’Alessandro’s initial thinking was accurate, 45 years of history has shown the goal of achieving actuarial certainty to be elusive at best. The stability and evolution of the “claims made” policy has also been threatened during its history by poor form standardization, court decisions and shoddy policy form draftsmanship.

Profession/Professional Defined

“Claims made” coverage originated in the realm of professional liability. To understand the exposure and the reason for the desire to limit or eliminate the long-tail claim problems, “profession” and “professional” must first be defined.

A “profession” is a calling that requires specialized knowledge, has legal and/or educational barriers to entry, requires the practitioner to be dedicated to the vocation itself and necessitates a commitment to continual study and the increase in applied knowledge. This intimates focused attention on the profession’s depth and details and surrendering to the fact that the well of the profession’s knowledge is infinitely deep and is not adequately explored shy of ongoing, personal study.

Professionals” accept the challenges of the profession’s calling, dedicating themselves to studying and understanding the chosen industry, the industry’s clients and the mechanism. Receiving pay does not make one a professional, only the result of an individual’s membership in a profession.

Professions in antiquity included those that practiced medicine, law, the clergy and engineering. The modern definition of “profession” has been expanded to include architects, investment managers, insurance agents, accountants and others s meeting the above definition who “provide services to others for a fee.”

Since its creation, “claims made” wording’s use has expanded outside of the “profession” and professional liability realm, finding use in diverse liability coverages. But the roots of “claims made” wording, and its most common use still, is found in covering the exposures created by a “professional’s” activities. As seen by the list of true “professions,” professionals are individuals who provide a service to society which, if done poorly, could cause extreme or irreparable personal or financial harm.

Expanded Use of the Claims Made Concept – Two Branches

The expansion of claims made policy forms beyond “professions” caused the basic “claims made” concept to diverge and evolve into two distinct forms. One evolutionary branch commenced in professional liability coverages (known also as “errors and omissions” coverages in this series) and the second branch grew out of the financial services industry and the need for directors and officers liability protection, fiduciary liability and employment practices liability (referred throughout this series as “executive liability” coverages).

Although both branches attach to the tree at the same point; greatly different “claims made triggers” have resulted. Additionally, coverage terms, conditions and definitions differ between the two branches.

Developing “Claims Made” and the Problems Defining a “Claim”

“Claims made” policies were designed around a simple idea, “to indemnify for claims first made against the insured during the policy period.” This original language has since become known as a “pure claims made” form. There was only one event needed to trigger coverage: a “claim was first made during the policy term.” The current complexity evolved from this starting point!

The first problem to arise following the development of this form was the exact definition of a “claim.” “Claim” took on more meanings than ever imagined and its use became abused and confused depending on context. Was a claim “first made” when the insured received an angry phone call threatening to sue and/or hold him/her responsible? Was it not until the insured received a demand letter threatening suit; the filing of a complaint or the receipt of the suit papers? Each of these events likely takes place on different dates; this disparity of dates could have profound effect on coverage depending on when coverage incepted or renewed and how “claim” is defined.

Courts wrestled with the definition of a “claim” and rendered decisions making the definition and any attempt to narrow it down to one point even more complex. Many of these court-developed definitions actually made things worse. Most current forms specifically define “claim;” and the definitions can be as varied as the carriers that provide coverage (the differences are highlighted in the last post). Forms must be compared to know when a “claim” occurs; the “when” makes a difference since the carrier has to be informed during the policy period to ensure that coverage exists (this necessity and the danger of not meeting this requirement is highlighted in future paragraphs).

Correcting the Perception of Pricing Inequities – Creation of the Prior Acts Date

By 1976, “claims made” policies and the number of carriers offering them flourished. No longer would a professional have to keep boxes of “occurrence form” policies around should an error give rise to a claim, even years after the end of the policy period. But the new form led to pricing questions.

Consider two professionals with the same practice and similar revenues. The first insured has carried a “claims made” policy for several years and is preparing for renewal; the second is buying its first “claims made” policy – and their premiums are – the same.

This didn’t seem fair; the insurance carrier was assuming the same risk for both, all prior acts or errors; yet the loyal customer has paid the carrier a large amount of premium for this exposure and the new insured pays only one-year’s premium for the same length and breadth of protection.

Beyond the fundamental financial inequity was the concept of potential knowledge. The insured MIGHT already know a claim is coming simply because they are aware of a previously-made error; or perhaps the insured just believes that in years of practice, something might be lurking in the files. As a result of the pricing difference and the potential the carrier may become responsible for a previous act or error, the first risk/policy modifier appeared on the scene. The new add-on was called the prior acts date, retroactive date or retro date (used interchangeably); a now-common feature of the “claims made” coverage.

Introduction of the retroactive date required the insured to meet two coverage trigger conditions:
1) The claim must be first made against the Insured during the policy period (when the claimant supposedly notified the insured); and
2) The insured’s error or wrongful act must be subsequent to a specified date- usually the inception date of their first “claims made” policy (provided there were no coverage gaps). No acts or errors before this prior acts date would be covered by the new policy.

With these two conditions becoming firmly entrenched, the insurance industry’s first inclination was that if an insured wanted to change companies, the new insurer could mitigate it’s exposure by not recognizing the insured’s current retroactive date, writing the renewal using the date of inception as the new retro date. While a good idea for insurer risk reduction, many quickly found that insured’s would not move their coverage, even for a better price unless the first coverage date was honored, giving prior acts coverage back to the original retroactive date. Thus began the tradition that, in the absence of a gap in coverage, poor claims history (or even multiple predecessor firm history), the new insurer would honor the insured’s expiring prior act date.

Executive liability insurers did not hold to this tradition. The few directors and officers policies that existed in the 70′s and early 80′s were still written on a pure basis allowing, in essence, any wrongful act dating back to the corporation’s formation to be covered – so long as no insured was aware of any fact or circumstance that a claim might be made (a question that became an actual warranty on the coverage application). Executive liability’s continued use of pure “claims made” wording marks the break in philosophies of errors and omissions underwriters and executive liability underwriters. The separate branches created by this conceptual difference reconnected years later with subtle yet potentially horrendous consequences.

Series to Follow

This is the first part of a five-part series exploring “claims made” policy wording. The remaining installments explore specific policy provisions such as reporting requirements, BERP’s, the prior and pending litigation exclusion, how E&O wording combined with executive liability wording and the seven potential problems with the incident reporting provision.

The series ends with a look at the varied definitions of a “claim” and the three keys to placing the best coverage for the insured.

About the Author

Frederick J. Fisher, J.D. is the CEO of E.L.M. Insurance Brokers and is the Executive Vice-President of Insurance Specialty Group’s Professional Liability Practice. They specialize in insuring Professional Liability risks. For the past 35 years, Fisher has been actively involved in underwriting and placing Professional Liability accounts or in the adjustment, investigation, and resolution of Professional Liability Claims. He has spent his entire career working with “claims-made” insurance policies and their evolution.

Fisher has lectured extensively on professional liability loss control and authored over 60 articles in trade journals and periodicals. He is the author of BROKER BEWARE, Selling Real Estate within the Law, a loss control program for realtors. He is the designer of a program to assist agents to conduct on site pre-underwriting risk management assessments of a client’s professional liability exposures on behalf of Insurance Producers, Real Estate professionals and Lawyers.

In 1989 Fisher became a founding member of the Professional Liability Underwriting Society (PLUS). He was elected to the PLUS Board of Trustees in 1993; and in 1994 he was elected secretary-treasurer and a member of the executive committee and re-elected to this position in 1995. In 1996, he was elected vice-president and moved into the presidency in 1997. In addition to these roles, Fisher was chairman of the finance and budget committee and the communication committee. He previously had been a member of the PLUS education committee, and was co-chair of the national membership committee. He remains a member of the industry panel responsible for overseeing and contributing to the Registered Professional Liability Underwriter (RPLU) program guides. He has been the senior technical advisor for The Professional Liability Manual published by the International Risk Management Institute since 1989. He testifies regularly as an expert witness in cases dealing with the duties and obligations of professionals as well as on coverage and “claims-made” issues.

Fisher can be reached at 310-322-1301 or by email at ffisher@e-o.com.

(Editing by Christopher J. Boggs, CPCU, ARM, ALCM, LPCS, AAI, APA)

Prior Claims Made Articles

The Difference Between ‘Occurrence’ And ‘Claims Made’ Liability Coverage Forms
Moving Between Occurrence And Claims Made Liability Forms


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Comments

  • March 23, 2009 at 1:46 pm
    Eric says:

    Excellent article. Looking forward to the other four installments.

  • March 24, 2009 at 11:59 am
    Joseph Sano says:

    Enjoyed the historical perspective. As someone who has litigated trigger issues in both the claims made and occurrence contexts, I would submit that the claims made trigger has been subject to far less judicial manipulation than the occurrence trigger. There are very few decisions that vary from defining claim as a “written demand for money or services” against the insured, and most policy variability is found in either co triggers: e.g. “other due notice first received” or in reporting/deemer provisions that will treat a written report of circumstances that could give rise to a claim and which subsequently (post policpy period) results in a claim as a claim first made during the policy.

    I look forward to the remaining articles in the series.

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