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While the previous sections covered the fundamental principles of insurance contracts and agency relationships, there are several other important legal concepts that insurance professionals must understand. These concepts affect how insurance claims are handled, how disputes are resolved, and how insurance professionals protect themselves from liability. In this section, we will examine subrogation and how insurance companies recover claim payments from responsible parties, tort law and its impact on insurance claims and liability, and professional liability coverage (E&O insurance) for insurance agents.
Subrogation means "stepping into someone else's shoes." When an insurance company pays your claim, they gain the right to recover that money from whoever caused the loss. In most subrogation cases, an individual's insurance company pays its client's claim for losses directly, then seeks reimbursement from the other party's insurance company. For example: your car is damaged by another driver, your insurance company pays you $5,000 for repairs, and your insurer then pursues the at-fault driver's insurance company to recover the $5,000. This is subrogation – your insurer "steps into your shoes" to recover its payment.
While contract law governs the insurance agreement itself, insurance professionals must also understand another crucial area of law: tort law. Many insurance claims arise from torts (civil wrongs), and understanding tort law is essential for properly evaluating and handling these claims. Moreover, insurance professionals themselves can be subject to tort claims if they fail to meet their professional obligations.
Tort law involves private wrongs that are independent of contracts. By definition, a tort is a private wrong that occurs when one individual wrongs another by failing to act in a reasonable or prudent manner. Tort law is different from criminal law because people commit crimes against society, even if the victim is an individual. Criminal courts have jurisdiction over crimes, while civil courts preside over torts.
Lawsuits involving contracts fall under contract law; most civil court claims, however, fall under tort law. Tort law helps people get money when someone else's actions harm them. It fixes wrongs by making the person who caused harm pay the person who was harmed.
Negligent acts that result in loss or damage may give rise to a tort. There are several types of negligence, including:
Given the complex legal responsibilities we've discussed and the potential for professional liability under tort law, insurance professionals need their own protection. This is where errors and omissions (E&O) insurance comes in. Just as insurance professionals help their clients manage risk, E&O insurance helps professionals manage their own liability risks.
E&O insurance helps protect insurance agents when they make mistakes. It pays for legal costs if someone sues the agent, and money to fix problems caused by the agent's mistakes. For example, an agent forgets to add flood coverage to a home policy after the client requested it. A flood damages the client's house. E&O insurance helps pay for the agent's mistake. The coverage available includes liability protection that will pay for defense costs and damages awarded to an injured party if the insurance professional is negligent in the performance of professional services.
A professional is obligated to deliver a level of service that meets industry standards. In some cases, an insurance producer can make a mistake or fail to do something they were supposed to do. Typical losses covered under an E&O policy include:
Intentionally harming another person is always excluded from any liability insurance policy. This exclusion includes:
| Type | Definition | Level of Intent | Examples | E&O Coverage |
|---|---|---|---|---|
| Simple | Failure to act reasonably | Unintentional | Missed deadline, filing error | Usually covered |
| Gross | Reckless disregard | Serious carelessness | No record keeping, repeated errors | Sometimes covered |
| Willful and wanton | Conscious disregard | Intentional risk | Knowing violation, deliberate misconduct | Not covered |