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GREEN MOUNTAIN AGENT VERMONT INSURANCE AGENTS ASSOCIATION | May 2021

Is Your Website ADA Compliant? Round 2 Vermont Insurance Agents Association is a statewide trade association representing nearly 100 independent insurance agencies in Vermont, with more than 900 employees. VIAA member independent insurance agents represent more than one insurance company, and as a result, can offer clients a wider choice of auto, home, business, life and employee benefits.t

Green Mountain Agent is a publication of

CONTENT ________________ May 2021

05 Letter from the President

600 Blair Park Road, Suite 100 Williston, VT 05495 Phone: 802-229-5884 Fax: 802-876-7912 www.viaa.org

11 Is Your Agency at Risk for a Website Accessibility Lawsuit? 16 On the Hill

VIAA Officers President Daniel J. Rodliff, CIC, CPIA, LUTCF

21 E&O Corner Your Agency’s Website: Two Important E&O Loss Control Considerations

Vice President Michael Barrett Secretary/Treasurer Jessica M. Fleury, ACSR National Director Ronald Bixby

23 Independent Agents Own Their Data But Contract Language Is Still Important

Directors Chip Ams Ian Sutherland Alan Kinney

30 Commentary 35 Agency & Company News

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LETTER FROM THE PRESIDENT ______________________________ May 2021 Greetings everyone! We have much to be thankful for as we work towards “business as usual.” Even though we are still working under caution, it is good to see that there is light at the end of this long tunnel. I look forward to when we can all get back together – in person! This month’s feature article is about ADA compliance of our websites. The Big ‘I’ National legal team has alerted us that many agencies across the country are receiving demand letters from plaintiffs’ attorneys alleging that their agency websites are not accessible to sight-impaired consumers and therefore violate federal law. These firms are interested in reaching quick settlements. So far, they have not been actively filing lawsuits against agents. It is important that we take responsibility to be sure our websites are ADA compliant, not just to avoid potential legal action, but because it is the right thing to do.

Dan Rodliff VIAA President

The Agents Council for Technology (ACT) and the Big ‘I’ have developed a resource page to help get your website ADA compliant. You can find these resources by clicking on the image to the right. As always, we are here for you and we take pride in providing you the tools and resources you need to deliver outstanding service to your customers. Thank you and be well, Dan

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IS YOUR AGENCY AT RISK FOR A WEBSITE ACCESSIBILITY LAWSUIT?

AGENCY OPERATIONS

By Laura Pearce Title III of the Americans with Disabilities Act (ADA) requires businesses that are open to the public to ensure that their goods and services are accessible to disabled individuals. But did you know that these compliance requirements include not only the physical locations of these businesses, but possibly websites as well? ADA compliance lawsuits related to website accessibility could likely be the next cash cow for legal professionals. A number of district court judges around the country have sided with the plaintiff in website accessibility cases, determining that these websites are subject to the ADA—regardless of whether the goods and services are offered both online and in physical locations.

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In the case of Gil v. Winn Dixie Stores, Inc., a Florida federal judge issued a trial verdict against Winn Dixie for hosting a website that the blind plaintiff was unable to use. The Florida Association of Insurance Agents is aware of just one case against an Ohiobased insurance agency for hosting a website that was not in compliance with the ADA, but others likely exist. Because the early case law on this issue is so mixed and there is little guidance as to who must be compliant and what exactly compliance looks like, all businesses may want to consider reviewing their websites and documenting reasonable efforts to make their websites accessible to the disabled. Not sure where to start? The U.S. Department of Health & Human Services (HHS) offers a

Is Your Agency at Risk for a Website Accessibility Lawsuit?

website requirements checklist which your agency can use to confirm your website meets all necessary requirements, including but not limited to:

ADA Compliance Resources Over the past several years, the Big “I" Office of the General Counsel and the Agents Council for Technology (ACT) have provided a variety of resources on this topic with links to some key resources below. A webinar is also in development.

Provide a link to the homepage from every page on the website. Conduct a 508 assessment to ensure your site is accessible to people using assistive technologies. Provide a user-friendly message for a 404 error page.

The web-based ACT guide “ADA & Accessibility: What You Need to Know" is a crucial starting place and includes a list of potential website accessibility service providers.

Use standard colors for visited and unvisited links. Clearly and consistently distinguish required data entry fields from optional data entry fields when designing forms.

Other resources include:

Ensure that you have met all required accessibility policies for new media.

ACT Article by Larry Neilson and Jerry Fox: “Your Website Should be ADA-Compliant" ACT and Big “I" Memo: “FAQ Regarding Website Compliance with the ADA" WCAG 2.0: “Web Content Accessibility Guidelines" WCAG “Checklist for Web Content Accessibility"

Consult the HHS Research-Based Usability Guidelines when designing your website and consider conducting testing. Include audio descriptions and captions. Provide documents in an alternative textbased format, such as HTML or Rich Text Format. In addition, the Winn Dixie case refers to a particular standard—the Web Content Accessibility Guidelines (WCAG) 2.0, now updated as the WCAG 2.1—for beginning the process of bringing your website into compliance. Laura Pearce is vice president and general counsel at the Florida Association of Insurance Agents. This article is a reprint from the IA magazine produced by the Independent Insurance Agents & Brokers of America.

Use these resources to be proactive—not only to increase the awareness of your agency to a wider array of potential customers, but also to ensure you take steps to prevent potential accessibility disputes.

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ON THE HILL: President Biden Unveils the American Families Plan

President Biden unveiled the details of his American Families Plan. The proposal follows President Biden's sweeping $2 trillion infrastructure proposal (the American Jobs Plan), which will mostly be paid for with tax increases on corporations. The new American Families Plan includes an additional $1.8 trillion in spending which is largely offset by tax increases for individuals and pass-through businesses. In terms of spending, the American Families Plan calls for $225 billion for childcare, $225 billion to create a national comprehensive paid family and medical leave program, $200 billion for free universal preschool and $45 billion toward meeting child nutritional needs. Additionally, the plan calls for $109 billion toward ensuring two years of free community college for all students, about $85 billion for Pell Grants, a $62 billion grant program to increase college retention and completion rates, and a $39 billion program that gives two years of subsidized tuition for certain students enrolled in a four-year historically Black college or university, tribal college or university, or minority-serving institution.

Importantly for the healthcare marketplace, the American Families Plan also includes $200 billion to make the provision from President Biden's COVID-19 relief package, which expands Affordable Care Act premium tax credits, permanent. President Biden's plan would also extend the child tax credit increases from his COVID-19 relief package through 2025 and make the Child Tax Credit fully refundable on a permanent basis. Additionally, the plan would make the earned income tax credit for childless workers permanent. In terms of tax increases, the American Families Plan would increase the top marginal tax rate for individuals to 39.6% from the current 37%. Additionally, for all households making more than $1 million, the plan would tax capital gains as ordinary income at a rate of 39.6%, up from the current rate of 20%. When added to the existing 3.8% Medicare tax on investment income, the new top-level rate for wealthy individuals would be as high as 43.4%. The president's plan also calls for making sure that the 3.8% tax applies more consistently to those making more than $400,000, including passthroughs, but does not yet go into specifics on how. Furthermore, Biden's plan calls for ending a tax

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President Biden Unveils the American Families Plan continued

preference known as "stepped-up basis" that allows people to pass investments to heirs tax free at the time of their death. In all, the Biden administration estimates their plan would raise about $1.5 trillion across the next decade. Notably, for independent agents, the president's plan does not currently call for any changes to the 20% tax deduction for small businesses that was created in former President Trump's Tax Cuts and Jobs Act. However, it is important to note that President Biden's plan is expected to see several changes as Congress, and especially congressional Democrats, negotiate with the White House. With that in mind, the Big “I" remains vigilant and continues to strongly advocate against Congress making any negative changes to the small business pass-through deduction.

2018 Big “I" Legislator of the Year, gave the Republican response. In his remarks, Sen. Scott pushed back on President Biden's big spending proposals including his COVID-19 relief package which was enacted earlier in the year and his American Jobs Plan and American Families Plan which are being considered now. Sen. Scott noted, “We should be expanding options and opportunities for all families—not throwing money at certain issues because Democrats think they know best." As for President Biden's proposed plans to pay for the spending, he called them, “the biggest job killing tax hikes in a generation." As the American Families Plan makes its way through Congress, we will continue to provide members with updates in the weekly News & Views e-newsletter.

Soon after President Biden's joint address to Congress, Sen. Tim Scott (R-South Carolina), a former insurance agent and

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C E O & R O N ER

Your Agency’s Website: Two Important E&O Loss Control Considerations By Virginia M. Bates

Just about every agency understands it needs a strong web presence. But a well-intentioned marketing statement on your agency website can easily morph into an errors & omissions disaster if you’re not careful. For more details, check out “Words Matter: Is Your Website Language E&O-Safe?” in the September issue of Independent Agent magazine. Meanwhile, here are two additional considerations to take into account when making sure your agency website isn’t ripe for an E&O claim:

1) Vendor-provided interactive sites. The major vendors of agency management systems provide products agencies can use as either their website, a plug-in for it or a mobile app. Deservedly popular, these products enable integration with the agency’s database so that clients can not only look up their coverages—often through an agency portal featuring individual policy and endorsement information—but also effect service functions by interacting directly with the site, rather than contacting a service rep at the agency. As more clients become comfortable with do-ityourself insurance servicing, many want to handle their insurance matters during hours the agency cannot be physically available. These vendor-provided products, therefore, are becoming not just attractive, but necessary for meeting market expectations. The problem arises when an agency offers an interactive website to its clients without first verifying that its database—which the client will now use to retrieve a certificate or binder or report a loss—is complete or accurate. Here’s a simple example that illustrates the importance of site and system synchrony: An agency,

is short-staffed when an employee quits unexpectedly and some work is not completed in a timely manner. Maybe it’s the download suspense, or maybe it’s handling an outdated receivable. During this same timeframe, a commercial lines client obtains a certificate of insurance from the agency’s website and directs it to an entity for which they are working. A claim occurs during a period of “no coverage.” The agency is found negligent for allowing certification of coverage when coverage was not in force. Even in the absence of a loss, client confusion is reason enough to ensure that your database is ready for primetime. Before opening an interactive site to your agency’s clients, take these steps to protect your agency from an E&O claim: Perform data audits to verify field completeness and currency. Develop and follow workflows that update the agency system first rather than the carrier’s site first, which would force you to await download into your agency’s system. Eliminate backlogs of agency work so that the system detail is as up to date as possible. 2) The Americans with Disabilities Act. Another important consideration in agency website design is accessibility. Last year, 244 federal accessibility cases were filed relating to “public accommodation businesses.” In their marketing materials, most agencies offer their location(s) as open to clients, prospects and visitors—which means your agency qualifies as a place of “public accommodation.” Here’s how the Department of Justice responded to one defendant’s interpretation that “only physical locations are subject to Title III of the Americans with Disabilities Act”:

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Your Agency’s Website: Two Important E&O Loss Control Considerations continued decades ago is the steady increase in carriers suing agents for mistakes that result in damages to the carrier. Defending an agent against itself creates a clear conflict of interest for the carrier. “The United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied service, or treated differently from other individuals because of the absence of auxiliary aids and services, such as electronic technology. This obligation means that websites of places of public accommodation…must be accessible to people who are blind, unless public accommodation can demonstrate that doing so would result in fundamental alteration or undue burden.” Note that this is a statement of interest, not a court or administrative filing. Still, consider adding text alternatives such as onscreen captions to your website. At a minimum, this shows admirable concern for the vision-impaired. At maximum, it may keep your agency out of one of many expected accessibilitybased lawsuits in the future. Virginia M. Bates is an approved auditor and seminar leader for the Swiss Re Corporate Solutions/Big “I” Professional Liability program, as well as an educator and consultant on many other insurance subjects for state associations, agencies, vendors, carriers and other organizations.

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Independent Agents Own Their Data But Contract Language Is Still Important

Agency Management

By Scott Kneeland and Eric Lipton

In today's increasingly data-driven digital world, independent agents not only have to think about how to keep data secure, but also how data is used and who owns it. Ownership of expirations, including related records and data, is perhaps the most critical issue for independent agents to consider in their company appointment contracts. Indeed, an agency derives much of its value from its expirations. The relevant provisions in an agencycarrier contract have the potential to impact ownership in significant ways, including the circumstances under which a carrier may take ownership of an agent's expirations, or use data such as customer records for marketing or when selling a line of business. Over the past several years, some in the industry have raised questions about who owns the electronic data associated with an agent's expirations as if it were an www.viaa.org

unsettled matter. In most circumstances, the answer is clear and simple under longstanding legal precedent and industry custom and practice. Any argument to the contrary would be wholly inconsistent with precedent and how the independent agent system functions. Legal Precedent: The Yonkers Case In surveying the legal landscape of the American independent agent system, there is perhaps no more seminal case than that of National Fire Insurance Company v. Sullard, 97 A.D. 233 (N.Y. App. Div. 1904) —commonly referred to as the “Yonkers Case". In the Yonkers Case, an independent insurance agent challenged a lower court decision that restrained him from selling his book of business to another agent and that required him to relinquish to the insurance company his “expiration register," or policy records. The appeals court held: “Our

Independent Agents Own Their Data But Contract Language Is Still Important continued

opinion is that the plaintiff [insurance company] was not the owner of the expiration register, nor entitled to its possession and hence not entitled to enjoin the defendant [agent] from the use in any lawful manner of the information derived from the expiration register."

an independent insurance agent's customer information belongs to [the] agent" in addressing ownership of electronic client database. How Should Agencies Protect Ownership and Usage Rights? Most carriers respect this longstanding precedent and industry standard. However, with all the new technology for collection and use of electronic data, there can be a tendency to think of this data as something new and unique.

The court's view of expirations plainly extended not just to some limited notion of the policy but rather to the records and data associated with it. Since the Yonkers Case, courts consistently have held that, when the contract does not expressly state otherwise, the agent's ownership of expirations extends to records, work product and data as valuable assets of the agent. For example, one appeals court collected cases from various jurisdictions and summarized this bedrock principle as follows:

Moreover, when striving for a competitive advantage, there can be a desire to stretch the bounds of appropriate data usage, even if there is no ill intent. Courts, however, have and should view it the same way as Sullard's expiration register in the Yonkers Case—the sole use and benefit of which is for the agent.

“Contrary to the operation of normal agency principles, whereby the principal has ownership rights in the lists of customers and other similar data obtained during the agency, it is the custom and practice in the insurance field that, in the absence of a contract to the contrary, the independent insurance agent owns the expirations at the termination of his agency. The practice is a protection of the work product of the individual agent and represents a valuable asset in the nature of goodwill. This universal custom is a main premise under which the American insurance industry functions and is known as the American Agency System." See In re Estate of Corning, 108 A.D. 2d 96, 100 (N.Y. App. 1985) (citations omitted and emphasis added); see also Schatzki v. Weiser Capital Mgmt., LLC, 2013 U.S. Dist. LEXIS 168572, *45 (S.D.N.Y. 2013), which found that “absent a contract to the contrary, 24

Another context in which ownership of data arises is contracts with third-party vendors, such as agency management systems. There is more limited precedent in this area and agents should carefully review terms relating to the ownership and return of data processed by a vendor. If the relevant terms are deficient or ambiguous, the agent should consider adding language that expressly requires the vendor to recognize the agent's exclusive ownership of its data, to return and destroy such data, and limit the use of data solely to providing services under the contract. Overall, it remains important for agents to address the ownership and usage rights of expirations and related data in express contract terms. In connection with its contract reviews, the Big “I" Office of the General Counsel often provides sample language that may be helpful. While this

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Independent Agents Own Their Data But Contract Language Is Still Important continued cannot substitute for specific legal advice from an agent's own attorney, using language like the following, as tailored to the particular circumstances, may help to protect the agents' ownership interests, clarify the parties' expectations, and avoid confusion or disputes in the future. Sample Language for Appointment Contracts: The use and control of the Agent's expirations, including those on direct billed business, the records thereof, and the Agent's work product and data relating thereto, shall remain in the undisputed possession and sole ownership of the Agent. The Company shall not use its records or the Agent's expirations in any marketing method for the sale, service, or renewal of any form of insurance coverage or other product, nor shall the Company refer or communicate the Agent's expirations, including records, work product or data relating thereto, to any other agent or broker, or affiliate or company, without prior express written permission from the Agent.

Sample Language for Vendor Contracts: At any time during this Agreement or after its termination, Vendor will destroy or return to Client all data, information and other materials of Client within Vendor's possession, custody or control upon Client's request. Vendor will deliver such items to the Client in a timely manner and in a mutually agreeable format. Vendor acknowledges that Client's data, information and other materials shall remain the exclusive property of Client and shall only be used consistent with delivering the services set forth in this Agreement. If you have any questions about this or similar issues, contact Scott Kneeland or Eric Lipton. Scott Kneeland is Big “I" general counsel. Eric Lipton is Big "I" senior counsel.

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Using “Big Data” to Make Unilateral Policy Coverage Changes

William C. Wilson, Jr. CPCU, ARM, AIM, AMM is the founder of InsuranceCommentary.com. He retired from the Independent Insurance Agents & Brokers of America in December 2016 where he served as Assoc. VP of Education and Research and was the founder and Director of the Big "I" Virtual University for over 17 years. 30

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Someone contacted me recently after moving in with his significant other (SO). The SO owns the house and insures it on an HO-3 policy. He insures his own property and liability on an HO-4 renters policy. When he received the policy, he noted that the insurer had, without his input or agreement, added his SO as a named insured. He was told by the underwriter that they knew of her residency from “publicly available information.” After he explained the situation, the underwriter agreed to remove her from his policy. Has anyone encountered this, where an insurer makes unilateral coverage changes based on information gathered from public records (which are notoriously unreliable), social media, etc.? I have the same concerns about the overreliance on data and information that hasn’t been vetted or qualified by the insurer. I wrote about this in a blog post: Our son moved out of the house three years ago and we removed him from our insurance program, including his vehicle. He still uses the same agency (different insurer) I’ve used since 1973 to insure his auto, condo, and personal umbrella.

I’ve been with this carrier now for four years, loss free, and paid them somewhere in the neighborhood of $20,000 in premiums, yet they could not invest 10 minutes of a clerical person’s time to make a phone call and confirm my son’s residency. Neither we nor our agent received any notice or inquiry prior to the invoice, but my agency CSR (who, thankfully, is still an empathetic human) was able to quickly fix the problem. In the same article, I wrote about my bad experience with insurance scores where twice I received significant premium increases based on faulty credit data. In other articles, I’ve written about online homeowners quotes where the calculation of Coverage A limits on my dwelling were based on county tax records used by real estate web sites that understated the size of my home by 1,000 sq. ft. The average consumer would quite possibly not challenge these kinds of information errors. Is it going to get worse with “black box” rating using secretive, proprietary algorithms that may be discriminatory, noncausal, or rely on erroneous data?

Our insurer learned that his vehicle registration notice is still mailed to our address. With that information, they (i.e., their underwriting model) unilaterally concluded that he still must live here, so they added him back to our insurance program and made him the primary driver of one of our three autos (the most expensive one, of course). I’m not sure what they thought happened to his vehicle. But, of course, no one “thought” about anything. An algorithmic decision tree spit out a boiler-plated invoice.

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COMPANY & AGENCY NEWS www.viaa.org

Hickok & Boardman Insurance Group announces appointment of Jay Nunn as Director of Operations Hickok & Boardman Insurance Group is pleased to announce the appointment of Jay Nunn as the new Director of Operations. Jay joined Hickok & Boardman as Controller in October of 2018. Jay also serves as a Board member for the Special Olympics of Vermont and currently resides in in South Burlington with his wife Katie and two children Maryann and Cameron.

Vermont Mutual Insurance Group Holds Its 194th Annual Meeting Vermont Mutual Insurance Group® held its 194th Annual Meeting at its home office in Montpelier, VT. Due to prevailing travel and quarantine restrictions, the company was required to conduct the meeting remotely. Company officers elected at this year’s meeting were as follows: Daniel C. Bridge, Chairman, President and Chief Executive Officer Mark J. McDonnell, Executive Vice President and Chief Operating Officer Jonathan R. Becker, Vice President, Underwriting William J. Cahill, Vice President, General Counsel and Secretary Susan L. Chicoine, Vice President, Human Resources David N. DeLuca, Vice President, Claims Shaun P.T. Farley, Vice President, Marketing Brody N. Gilbert, Vice President, Finance Bryan A. Mjannes, Vice President, Information Technology

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AM Best Upgrades Union Mutual Rating to “A” (Excellent) with Stable Outlook Union Mutual announced today that AM Best has upgraded the rating of the Union Mutual of Vermont Companies to “A” (Excellent) with Stable Outlook. The Union Mutual of Vermont Companies consist of Union Mutual Fire Insurance Company and its wholly owned subsidiary, New England Guaranty Insurance Company, Inc. as well as its mutual affiliate, Community Mutual Insurance Company. According to the release from AM Best, the ratings indicate consistent profitable operating performance, and “reflect Union Mutual’s balance sheet strength, which AM Best assesses as very strong, as well as its adequate operating performance, neutral business profile and appropriate enterprise risk management.” Union Mutual last received a revised outlook in 2018 when AM Best revised the Company’s outlook to positive.

Vermont Mutual Insurance Group Adds New Board Member Vermont Mutual Insurance Group® has recently elected Premila Peters, President of Data Innovations of Colchester, Vermont, to the company’s Board of Directors. Since 2013, Ms. Peters has been responsible for leading Data Innovations (DI), a global software company serving 6000+ hospitals in 185+ countries, through its commercial and business transformation. In this timeframe, the company has more than doubled revenues, modernized technology and expanded their footprint in four continents. Ms. Peters began her career working at KPMG in Burlington, Vermont, as an auditor and then spent a decade at KDP Investment Advisors in Montpelier, Vermont where she served in various roles including Chief Operating Officer. Prior to joining DI, she held the position of Chief Financial Officer at GE Healthcare. Ms. Peters holds an MBA from the University of Vermont and a bachelor’s degree from the University of Bombay, India. Additionally, she holds the designations of Chartered Financial Analyst (CFA) and Certified Public Accountant (CPA). She has served on the boards of both for-profit and non-profit organizations throughout her career. Presently, Ms. Peters is on the board of King Street Center and is a member of the Vermont Business Roundtable. She has chosen to make Vermont her home for almost thirty years and resides in Shelburne, Vermont with her husband.

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Vermont Mutual Releases New Television Commercial

Vermont Mutual Insurance Group® has released a new television commercial highlighting the company’s appreciation and gratitude for the company’s “everyday” heroes, namely their employees, all of whom never wavered during the COVID-19 crisis to get the job done. The commercial, airing regionally on ABC, CBS, FOX, NBC and NESN, also noted the many ways in which the company gave back to their communities, including nearly $5 million dollars to their auto customers and one million dollars donated towards COVID-19 relief efforts. To view the commercial, visit: https://vermontmutual.com/heroes. To learn more about Vermont Mutual, both as an insurer and as a place to work, visit their website at vermontmutual.com.

Union Mutual Receives 3rd Straight Gold-Level Worksite Wellness Accolade Union Mutual is proud to announce it was recently honored by The Vermont Department of Health and the Governor’s Council on Physical Fitness and Sports with a 2021 Governor’s Excellence in Worksite Wellness Award – GOLD Level. This is the Company’s third consecutive top-tier wellness honor. According to the Vermont Department of Health, the annual Worksite Wellness Awards create a standard of excellence for worksite wellness initiatives and recognize Vermont employers’ efforts to enhance productivity, bolster a healthy environment and improve employee wellbeing. Employers are rankings are based on a roughly 100-question survey, addressing all aspects of an organization’s wellness program – from availability of healthy food options and on-site fitness opportunities to occupational safety and accessibility measures. The awards were presented virtually to 71 employers at the annual Worksite Wellness conference on April 8, 2021.