Intuitive Insurance Articles

Professional Indemnity: The Basics

There is a common misconception that Professional Indemnity Insurance policies are standard and provide similar coverage. Unfortunately they are not; they must be carefully selected or tailored to suit your individual needs.

Large companies often have a better understanding of their exposures and policy differences and are aware that not all policies are the same. More often it’s the little guy that faces challenges. So where do you start? Do you go online or approach a broker and get two or three quotes and do you go with the expensive option? With a basic understanding of how these policies can vary and what to look out for you would be in a better position to know which product and provider is best for you.

PI Comparison

This article aims to provide an overview on the basic coverage variations to help you make an informed decision when purchasing Professional Indemnity insurance. This list is by no means exhaustive, but will give you some key elements for comparison.

Policy Language

Perhaps the most important difference between Professional Indemnity insurance policies is the wording language. To find out on what basis cover is being provided, you need to refer to the insurance clause. Cover can be based on:

  • A negligent act, error or omission wording;
  • An act, error or omission wording;
  • A breach of professional duty wording; or
  • A civil liability wording.

So what are the differences and which one is best for you?

Following is a brief outline of the coverage intention of each, however, please refer to Liberty’s Technical Update on Civil Liability for a more comprehensive description of each.

Negligent Act, Error or Omission

Professional Indemnity policies were initially based on the concept of negligence and designed to cover the costs incurred in defending and/or compensating a third party for breaching your duty of care as a professional. Claims do not always arise out of negligence and actions brought against you based on other legal grounds would not be covered by the policy. Such claims could result from a breach of statutory duty, such as misleading or deceptive conduct, or breach of a contractual term, etc. Consequently a ‘negligent acts only’ insuring clause provides narrow coverage compared to other available wordings.

Act, Error or Omission

A broader insuring clause would be one which responds to allegations of an act, error or omission in the performance of professional services (as defined). This removes the negligence requirement and, where not excluded, would respond to contractual liabilities, statutory breaches, and equitable breaches (e.g. breach of trust) in addition to liability based on negligence.

Civil Liability

Civil liability wordings provide very similar cover to act, error or omission wordings. Both wordings provide broad coverage, however, the focus is different. To quote the above paper, “Civil liability focuses on the nature of the liability (civil v criminal) whereas the ‘act, error or omission’ wording focuses on the actual conduct of the insured. If you have incurred a civil liability, chances are that you would have engaged in some acts, errors or omissions for which you are liable.”

Breach of Professional Duty

A professional could be thought of someone who possesses the necessary knowledge and skill to perform the work for which they are engaged. Professional duty is that person’s duty of care owed to a client of third party in the performance of such work. The three wording types described above can be further restricted by requiring that it be proven there was a breach of professional duty and this duty was owed to the third party. This obligation can be onerous and should ideally be avoided.

Professional Services Description

Whichever the policy type, civil liability or negligence, Professional Indemnity policies will only respond to claims arising in the course of or conduct of your professional services. The description of services are either stated in the schedule or are a defined term in the policy (typically industry specific wordings).

One common reason for a claim to be declined is that the matter did not arise in “connection with the Insured’s Business”, as defined in the policy. As such, it is of utmost importance to ensure the description accurately and adequately captures all the service you currently and will provide during the policy period.

Inclusive or Exclusive of Defence Costs

The Limit of Indemnity is the maximum amount the insurer will pay in respect of any one claim first made against the insured and notified to the insurer during the period of insurance. A costs inclusive limit of indemnity includes both the legal costs and expenses incurred in defending a claim as well as any settlement amount. In contrast, a costs exclusive limit is not eroded by defence costs and applies to the ultimate compensation amount only. Often insurers will include a limit on defence costs, for example, that they cannot exceed the limit of indemnity, however, a costs exclusive limit provides broader coverage.

Inclusive or Exclusive language can also be applied an excess or deductible, and in this instance, relates to when you need to contribute to the claim. If inclusive, you will need to pay the excess upfront in defending the claim, whereas an exclusive excess would mean that you would only need to contribute towards any settlement or compensation awarded against you.

This is a simple variation but one that can have a significant impact on the cover provided.

Claims made or claims made and notified

Professional Indemnity policies are offered on a claims made basis. This means that the policy only responds to claims first made against the organisation during the policy period, irrespective of when the act, error or omission giving rise to the claim was actually committed. In addition to this requirement, policies will oblige the insured to report the claim within the policy period. This is a stringent condition, particularly where you are notified of a claim close to expiry. Failure to comply with the condition could result in a claim being denied or the insurer’s liability reduced.

Often insurers will provide an extended reporting period beyond the expiry of the policy. The longer this extended period, the better, however, the best cover from a reporting stand-point is a claims made policy only i.e. no reporting requirement.

Claims Trigger

The definition of claim is a critical component of a Professional Indemnity policy as it determines a) what can trigger policy coverage and b) when policy coverage is triggered. All policies respond when the claim is first made against the insured. However, the exact time of when it is ‘made’ is not always that simple. The two areas to look out for are:

  1. Written demand or notice OR written or verbal demand or notice
  2. Demand or notice for compensation or damages OR demand or notice seeking a legal remedy (including injunctions)

The sooner you can move from a “circumstance that might give rise to a claim” to an actual claim to which the policy responds the better. A written demand or notice seeking a legal remedy would provide the broadest definition of claim. Similarly, legal remedy language would respond when there has yet to be, or is no claim for damages.

Each insurer’s definition varies so you should read the policy carefully. It is imperative that you are aware of the policy definition of claim so that you can identify when a claim has been made against you. Due to the claims made and notified nature of Professional Indemnity policies highlighted above, failure to declare a claim or circumstance could jeopardise cover. Policies contain a prior knowledge / prior circumstance exclusion, which remove cover for circumstances you are aware of prior to inception of the policy. A large percentage of disputes and indemnification issues relate to such exclusions.

Reinstatement versus Aggregate Limit

On the face of it, a limit of indemnity with a reinstatement and a limit of indemnity with an aggregate of double the limit may appear to be the same. In the case of a reinstatement, where there has been a loss and the limit has been exhausted or partially exhausted, the insurer will reinstate the full limit of indemnity for the remainder of the period. An aggregate limit on the other hand could result in multiple reinstatement’s of the limit until the aggregate limit is exhausted.

The easiest way to demonstrate is with an example. An insured has a Professional Indemnity policy with a $1M limit of indemnity and one automatic reinstatement. Three separate claims are brought against them during the policy period with costs and compensation totalling $250K, $1M, and another for $250K (in that order). After the initial claim, the insurer would reinstate the full $1M limit, even though there has only been a partial exhaustion. The next claim was a limit loss which would fully exhaust the available per claim limit and aggregate available for the remainder of the period. The subsequent claim of $250K would therefore be uninsured.

In contrast, if the policy had aggregate limit of $2M the available limit for the policy period would only be reduced by the amount of the claim/s. In the above example, all claims would be paid by the policy and there would be an additional $500K available for the remainder of the period.

This is a subtle variation but certainly important where there is the potential for multiple claims. The wording of the reinstatement clause differs from insurer to insurer and some effectively provide an aggregate limit. As with all the items discussed, you should read the product carefully.

Every policy is different and the headings and words used do not always carry the same meaning. You should read the document carefully to understand the level of cover provided. The most comprehensive policy may not be the most expensive and, even if it is, the enhanced coverage afforded may warrant the additional expenditure.

The simplest way to navigate this is to work with an experienced broker who can explain and deal with the numerous variations in Professional Indemnity insurance policies. If you would like more information, please drop us a comment, email or call Intuitive on (02) 9493 6111. We’d love to hear from you.

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