Wisconsin Independent Agent September 2018 Magazine

wisconsin

INDEPENDENT AGENT SEPTEMBER 2018

IN THIS ISSUE: INTRODUCING YOUR INSURANCE BARTENDER CREATE YOUR BEST AGENCY CONTRACT REVIEW FOR ISSUING CERTIFICATES OF INSURANCE

AND MORE!

Acuity Loves You! PROU D TO PARTNER WITH THE BEST I N DEPEN DEN T AG ENTS IN THE BUSINESS!

wisconsin

INDEPENDENT AGENT SEPTEMBER 2018

Big “I’ Markets (Market Access Program). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Insurance Bartender Introducing Your Insurance Bartender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Sales Stop Drifting and Create Your Best Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Time to Offer Cyber Coverage to All Small Business Clients. . . . . . . . . . . . . . . . . . . 12 Industry News Considerations for Drafting Effective Contractual Risk Transfer Provisions. . . . . 14 Second Circuit Finds Commercial Crime Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Government Affairs Wisconsin Partisan Primary Election Recap. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Technology The Customer Experience: How Agents Can Excel. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Errors & Omissions Follow the Leader: Reducing E&O Exposures from the Top Down. . . . . . . . . . . . . . 19 Emerging Leaders Spotlight Sara Kekula, M3 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Commentary From Counsel 2018 Certificate of Insurance Law Redux: OCI Bulletin and Guidance. . . . . . . . . . . 22 Virtual University Two Overtly Useless BAP Endorsements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Ask an Expert Brief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Risky Business Hot Topic: Contract Review for Issuing Certificates of Insurance. . . . . . . . . . . . . . . 28 Employee Benefits Commissioner Nickel Op-ed: When Washington Fails, Wisconsin Leads. . . . . . . . . . 29 Food for Thought. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Independent Insurance Agents of Wisconsin 725 John Nolen Drive, Madison, Wisconsin 53713 Phone: (608) 256-4429 or (800) 362-7441 ■ Fax: (608) 256-0170 ■ Web: www.iiaw.com Executive Vice President - Matt Banaszynski 2017-2018 Executive Committee President............................................................ Lise Meyer Meyer Insurance - P.O. Box 633, Sauk City, WI 53583 President-Elect.................................................... Jason Bott Robertson-Ryan & Associates - 330 East Kilbourn Ave., Milwaukee, WI 53202 Secretary-Treasurer......................................Chris Costakis Avid Risk Solutions- 2501 Parmenter Street, Ste 200A Middleton, WI 53562 Chairman of the Board................................. Matt Weimer Diversified Insurance Solutions - 100 North Corporate Dr., #100, Brookfield, WI 53045 State National Director ................................Steve Leitch Leitch Insurance - P.O. Box 85, River Falls, WI 54022 2017-2018 Board of Directors Mike Ansay, Ansay & Associates 101 East Grand Ave. #11, Port Washington, WI 53704 Cindy Burns, Burns Insurance 500 South Central Ave., Marshfield, WI 54449 Marc Petersen, American Advantage-Petersen Group 15171 W. National Ave., New Berlin, WI 53151 Jack Riesch, R&R Insurance Services P.O. Box 1610, Waukesha, WI 53187-1610 Chad Tisonik, HNI 16805 W Cleveland Ave, New Berlin, WI 53151 Pam Utpadel, Universal Insurance Advisors 100 West Lawrence St. Suite 313, Appleton, WI 54911 Ryan Waite, Neckerman Insurance Services 6200 Mineral Point Road Madison, Wisconsin 53705 Darrel Zaleski, Spectrum Insurance Group 4233 Southtowne Drive, Eau Claire, WI 54701

WISCONSIN INDEPENDENT AGENT

2017-2018 Committee Chairs Agency Services ............................................Kim Dandrea M3 Insurance - N19 W24200 Riverwood Dr. Waukesha, WI 53188 Automation/Technology ...............Cathleen Christensen Hierl Insurance - P.O. Box 949, Fond du Lac, WI 54936 Emerging Leaders ..........................................Ryan Waite Neckerman Insurance Services - 6200 Mineral Point Road Madison, WI 53705 Employee Benefits.......................................... Mike Farrell David Insurance - 1300 South Green Bay Rd Racine, WI 53406 Government Affairs .......................................Jeff Thiel R&R Insurance Services - P.O. Box 161 Waukesha, WI 53187 Carrier Relations ......................................... Kevin Murray Johnson Insurance Services - 525 Junction Road, Madison, WI 53717 Marketing/Membership Development....Jamie Durocher Arlington Roe- 2 Carlson Parkway N., Suite 175 Plymouth, MN 55447 Technical...............................................Timothy Kakuska Robertson-Ryan & Associates - P.O. Box 547 La Crosse, WI 54602

On The Cover…

Fall in Wisconsin. Sweaters, boots, bonfires, leaves, hot chocolate, apples, hoodies, pumpkins, and crisp cool air. These words help define one of the most beautiful times of the year in Wisconsin. Carla Minksy of Travel Wisconsin wrote, “Just as with any good Broadway theater, there’s not a bad seat in the house when it comes to fall in Wisconsin, with the state’s dazzling autumnal kaleidoscope guaranteed to produce standing ovations every time”.

Sit back, relax and take in the fantastic commentary in this issue by IIAW Staff, Roger Sitkins, and Commissioner Nickel (just to name a few) while enjoying a cup of hot apple cider by the fire on a cool and crisp evening in Wisconsin.

> A DVERTISERS & INFORMATION AAA Wisconsin................................................. 30 ACUITY.............................................................. 2 Badger Mutual................................................. 26 Berkshire Hathaway/Guard.............................. 16 Erickson Larsen............................................... 25 IIAW Pre-licensing Classes............................... 13 IIAW CE.............................................................. 8 JM Wilson........................................................ 28 Keystone Insurers Group................................. 20 ProtectYourAgency.com.................................. 25 Robertson Ryan & Associates.......................... 29 SECURA............................................................. 6 The IMT Group.................................................. 21 West Bend........................................................ 31 Western National............................................... 9 SEPTEMBER 2018 | 3

Commercial Lines: Product Availability Big “I” Markets (BIM) is the IIABA member’s online market access program with no fees, no volume commitments and competitive commissions.

Personal Lines: •

Affluent Package 

AIG



Chubb

•

Flood - In, Above & Outside of the NFIP!

•

Home Business Insurance

•

Jewelry

•

Non-standard Homeowners, Renters, Condominium, Rental Dwellings, Vacant Dwellings

•

Personal Articles Floater

•

Personal Excess Policy

•

Personal Umbrella Policy

•

Recreational Marine

•

Recreational Vehicles

•

•

Architects & Engineers Professional Liability by CBIC an RLI Company

•

Bonds: Bid, Contractor, Performance, Surety

•

Commercial Auto Monoline

•

Commercial Lessors’ Risk

•

Community Banks Business Insurance Program

•

Cyber Insurance – Coalition

•

Cyber Liability-Small Business Solution

•

Cyber Liability and Cyber Crime (Wrap+)

•

Directors and Officers Liability (Wrap+)

•

Employment Practices Liability - Wrap+

•

Fidelity/Crime - Wrap+

•

Flood - In, Above & Outside of the NFIP!

•

Habitational Markets 

Apartments



Condo and Homeowner Associations

•

Highly Protected Risks

•

Pollution Contractors-Farms-USTs-Other

•

Real Estate Agents/Property Manager E&O

•

Small Commercial Markets

Travel Insurance



Travelers



Chubb



CNA

•

Small Contractors

•

Wrap+ Executive Liability for Private Companies

Online Registration We’ve made it easier than ever to Plug into the Power of Big “I” Markets! Register online today and discover a fresh new way to do business. All products are only accessible online and coverage is subject to licensing compliance and underwriting approval. To register online you will need your login ID and password, your agency tax ID number, your agency E&O policy, and your state agency/agent license information (where applicable). Log on to www.bigimarkets.com today to begin the registration process and start quoting in minutes!

Register for Big “I” Markets Online!

Excited about all the great products available to you on Big “I” Markets? Ready to register? If so, we have great news!

Instead of having to fill out and fax in the old paper form and waiting for days to be activated, you can now register for Big “I” Markets online and be quoting business in as little as 10 minutes.

If you are your agency’s System Administrator, you should first assemble the information you will need to register your agency. (Only a user with System Admin or Organizational Admin access can register your agency.) Gather your Tax ID number, errors and omissions insurance policy information, all the producer licenses as well as your agency license, if applicable. In South Carolina you will also need the Broker license(s). Lastly, you will need the e-mail addresses of the all the people you intend to add as users.

Go to www.bigimarkets.com and click on “Click here to register online” located on the animated image in the upper right.

You can use either your Username or, as long as it is unique to you, your e-mail address. Your password is the same either way. If you do not know your login/password information, please contact Big “I” Markets at bigimarkets@iiaba.net or 1800-221-7917. Every agent in your office has their own login/password.

There are seven steps to registering your agency: 1. Enter agency contact information.

2. Enter agency structure and license information.

3. Enter E&O information.

4. Answer seven background information questions. Answering “Yes” to any of these questions will stop the registration process, but it doesn’t necessarily mean you cannot register. A Big “I” Markets team member will contact you for more information.

5. Enter user information. In order for a producer to be able to quote you must then click on “Edit” next to his or her name and enter the license information.

6. Enter flood information. Clicking “No” for either question will not prevent you from using the Big “I” Flood program in the future.

7. Sign the Agreement. We encourage you to printout the agreement. Enter your initials in the box at the bottom and click on “Accept.”

You will now be prompted to send an email to everyone in your agency after which you will automatically be directed to the Big “I” Markets login page. You can use the same login and password. After you log in, look to the left side of the screen and hold your mouse over “Personal & Commercial.” A list of products available in your state will appear. Clicking on an item will take you to the appropriate page for that product. We encourage you to review that list to become familiar with the markets available to your agency.

New to IIABA? Wondering what in the world Big “I” Markets is?

Big “I” Markets is an online agent market access program available exclusively to Big “I” members. Big “I” Markets functions as an online gateway to connect you, the agent, with the product providers and underwriters for the products you need. There are no access fees, no minimums, and no special software needed to participate in the program. As long as you’re a member of the Big “I” and have a working Internet connection, you’re able to plug into the power of Big “I” Markets.

If you have any questions at any point during the registration process, please do not hesitate to call us! Big “I” Markets team members are on hand at (800) 221-7917 or via email at bigimarkets@iiaba.net

© SECURA Insurance

LEXIE • Born into an insurance agency; worked at two of them • Loves the Green Bay Packers, music, her toddlers… in reverse order • A decade of insurance experience

Has walked in your shoes

Meet Lexie, one of our Commercial experts. Agents call her first because she’s worked at an agency and knows what they want. She’s quick to reply, open-minded, and knows her stuff; just like her colleagues. She may even trash talk football or the latest breakout rock band.

High standards you can rely on from real people. Plus, they’re backed by our caring claims group who will get your clients back on their feet.

SECURA Commercial. It’s how you get ahead.

Commercial | Personal | Farm-Ag | Specialty

INSURANCE BARTENDER

INTRODUCING YOUR INSURANCE BARTENDER! A bartender (also known as a barkeep, barman, barmaid, bar chef, tapster, mixologist, alcohol server, flairman or an alcohol chef) is a person who formulates and serves alcoholic or soft drink beverages behind the bar. However, throughout time, bartenders have also functioned as dispensers of knowledge, taking on the roles of therapists, advocates, professors, and philosophers.

In a past life (college), I was fortunate enough to play the very diverse role of bartender.

Today, I find that I am routinely called upon to distribute knowledge, buy/dispense cocktails, and take on the role of insurance professor, philosopher or advocate.

It is for this reason that my column and blog will now be titled “Insurance Bartender”. I plan to use this platform to dispense advice and take requests from “patrons” on what issues I should tackle in my next column or post. I will also preview the topic(s) to be covered in the next edition of insurance bartender in a section titled “On Tap”.

(Thanks Mallory for the idea) As always,

help answer this perplexing question.

Workers’ compensation insurers compete through service quality and building a record of generous and reliable policyholder dividends. Policyholder dividends cannot be conditioned on renewal of the policy by the employer nor guaranteed to the policyholder by the insurer.

If, however, the dividend was formally declared by the board of directors and recorded as a liability on the books of the insurance corporation at the time the company became insolvent, then the policyholder could file a proof of claim with the insurance corporation’s receiver. The

of priority.

This typically takes a number of years into the receivership if it occurs at all. Most claims this low in the order of priority are never paid. The policyholder should not expect to ever be paid any dividend and should count himself lucky if he is even repaid his unearned premium in full. However, if the policyholder wants any chance at all of being paid anything eventually, the policyholder will have to check with the receiver and obtain the appropriate proof of claim form and file it before the bar date established by the court supervising the receivership. It is in discussion with the receiver’s staff that one

please don’t hesitate to Email me at Matt@ iiaw.com or call 608-256-4429 to submit a question or suggestion.

This week’s thirst for knowledge request comes from Mike in Hartland. Mike asked, “If an insurance company who was offering a dividend to their policyholders goes out of business (sells or goes insolvent), who is responsible for paying those dividends? Are there any guarantees in regard to a dividend?

Would the Guarantee fund of the state in which the insured is domiciled pay? Would the company acquiring the new company be responsible?”

Great question, Mike. To help answer this question, I brought in a guest bartender, Steve Junior, Deputy Director of the Bureau of Financial Analysis and Examinations for the Office of the Commissioner of Insurance to

insurance corporation’s receiver is almost never the same person as the bankruptcy trustee of the holding company that owns the insurance corporation, so it is important to take care to make an inquiry of the right person.

If an internet search turns up nothing, or is inconclusive as to whom the receiver is, then one should seek this information from the state of domicile of the insolvent insurance corporation. This will normally be classified as a general or residual claim, which ranks below loss claims and unearned premiums in the order of priority. The receiver will not pay a claim for a dividend unless and until either all losses and unearned premium claims are paid in full or unless and until the receiver is confident that there are sufficient funds to meet obligations that are higher in the order

could be informed that there were either no dividends declared by the board, or that the receiver clawed back the dividend declaration because it was too close to the date of the insurer’s insolvency, in which case, it would not be worth filing a claim.

WISCONSIN INDEPENDENT AGENT

ON TAP In the next edition of Insurance Bartender, I will take a shot (pun intended) at tackling a question from Megan in Middleton on whether lenders can legally withhold the processing of an escrow payment, and, in this situation, if the lender hasn’t received what they consider evidence of insurance. > Matt Banaszynski is the CEO of the Independent Insurance Agents of Wisconsin. Contact him at matt@iiaw.com.

SEPTEMBER 2018 | 7

CONTINUING EDUCATION SEPTEMBER ONLINE AND LOCATION CE CLASSES IIAW Webinar: 10 Things Every Commercial Lines Agent Ought to Know 3 CE Credits Approved Date: September 5, 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm IIAW Webinar: E&O: Roadmap to Policy Analysis - Part One 3 CE Credits Approved Date: September 5, 2018 Location: IIAW Webinar - iiaw.com/events Time: 8:00 am - 11:00 am IIAW Webinar: E&O: Roadmap to Policy Analysis - Part Two 3 CE Credits Approved Date: September 6, 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm IIAW Webinar: Contractors Liability Exposures...Risk Analysis to Coverage Solutions 3 CE Credits Approved Date: September 10, 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm IIAW Webinar: Farm Liability Coverages 3 CE Credits Approved Date: September 11, 2018 Location: IIAW Webinar - iiaw.com/events Time: 8:00 am - 11:00 am IIAW Webinar: Income After Retirement - Where Does the Money Come From?

3 CE Credits Approved Date: September 13, 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm IIAW Webinar: Risk Assessment for Manufacturing Operations - What Can Go Wrong?

3 CE Credits Approved Date: September 13, 2018 Location: IIAW Webinar - iiaw.com/events Time: 8:00 am - 11:00 am

IIAW Webinar: Personal Auto Policy 3 CE Credits Approved Date: September 14, 2018 Location: IIAW Webinar - iiaw.com/events Time: 8:00 am - 11:00 am IIAW Webinar: Who Is An Insured Date: September 17, 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm IIAW Webinar: Ethics and Agent Liability 3 CE Credits Approved Date: September 18, 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm IIAW Webinar: Life and Health Solutions for Business Challenges 3 CE Credits Approved Date: September 19, 2018 Location: IIAW Webinar - iiaw.com/events Time: 8:00 am - 11:00 am IIAW Webinar: Homeowners Hot Topics...What You Need To Know 3 CE Credits Approved Date: September 20 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm IIAW Webinar: Commercial Property Coverages 3 CE Credits Approved Date: September 24, 2018 Location: IIAW Webinar - iiaw.com/events Time: 12:00 pm - 3:00 pm

FOR MORE CLASSES AND TO REGISTER PLEASE GO TO IIAW.COM

STOP DRIFTING AND CREATE YOUR BEST AGENCY

HOW TO CHART A NEW COURSE AND STAY FOCUSED ON IT After all these years of coaching independent agency leadership teams and producers, I’m not surprised by very much. For example, it doesn’t surprise me that the vast majority of agencies are simply drifting along.

However, it frustrates me that this is a recurring theme at most agencies.

They’re doing fine, but they’re just drifting.

Unfortunately, leaders and producers at many agencies seem to think it is, based on what they say:

I know this because whenever I ask prospective consulting clients specific questions about their business—their annual business plans, budgets, sales goals, financial models, training, etc.—most of them have nothing to say, because they don’t have any of the aforementioned items. (Maybe that’s why they’re calling me!) The reality is that you can be semi-successful in this great business without any of those things.

• “I sure do hope the carriers don’t reduce my commission rates.”

• “I hope my producers hit their sales goals.”

• “I hope my team embraces our new automation system.”

• “I hope I can find some new producers and service employees.”

As you may recall, “semi-successful” means you’re doing really well financially (making more money than you’d make if you had a “real” job), but you haven’t quite achieved total financial freedom. Sure, there may be occasions when you wake up at night worried about a particular person or wondering where you’ll find your next producer, but overall, you’re still doing okay. For now.

As Bob Dylan famously observed however, “The times they are a-changin’.” Certainly that’s true of our industry. The buyers, the technology, and the employees themselves are all changing, and additional changes in agency compensation are on the way. All of these changes make it clear that it’s time to stop drifting!

You may have drifted to wherever you are today, but the current and the tides are changing quickly. Are you prepared to stop and change course?

Have you even charted a course in the first place? If not, you’ll continue to drift without direction or purpose (assuming you remain afloat).

How to know if you’re drifting Is your firm drifting? How can you tell? Here are some of the key characteristics of adrifting agency:

Guess what? Hope doesn’t work anymore! If you think it does, you’re drifting.

Scheduled (But Not Held) Internal Meetings. You’re drifting if you constantly schedule meetings that never materialize. For example, your sales meetings get cancelled because everyone is “too busy,” even though most of your producers don’t even come close to hitting their sales goals. Or maybe you’ve scheduled monthly state of the agency meetings, but they keep getting postponed and moved. Ultimately, they’re never held. And then there are the automation training events or webinars and online training videos provided by your vendors that never get watched. “We really should participate in/watch them, but we’re just too busy.”

Sales Strategies with Initial Commitments But No Follow-up. “This is the year we’re going to develop and implement a unique selling process that differentiates our agency in the marketplace.” That sounds great, but most producers are doing just fine drifting along with a yellow legal pad and a copy machine. The reality is that you’re trying to save people money on their insurance, but you never help identify their total cost of risk. And yet by drifting along, you do fine.

A lot of “Someday I’lls”. If you hear yourself saying, “Someday I’ll do this,” and “Someday I’ll do that,” it’s an indication that you’re drifting. After all, everyone knows that “someday” isn’t a day of the week!

Litmus Test: At your next sales meeting—if you hold them—ask your producers to define total cost of risk.

Hope as a Strategy. As we’ve discussed before, hope is not a strategy.

“This is the year we’re going to maximize social media.” Most agencies will gladly

10 | SEPTEMBER 2018

WISCONSIN INDEPENDENT AGENT

SALES

devote resources to a website that will generate inbound marketing

You can’t just drift to it. You must decide

leads, which is probably a good idea. In reality, digital-based marketing

what you want it to look like and put it in

campaigns often produce some suspects at best, but no prospects. Why?

writing. This document should clearly define

Because agencies need to follow up with these online leads, and they

the perfect agency you envision at specific intervals during the next three

don’t. You can’t maximize your use of social media unless you’re willing

years or more. It should start with: “Three years from today, my agency

to invest the time to make it work for you.

looks like this …” and then provide specifics about each of the following:

“This is the year we’re going to get referrals and introductions.” Yes, I know. You’ve

• Total revenue

heard it a thousand times before and read it hundreds of times in my articles (I hope): Referrals and introductions are the best way to connect

• Number of employees

with your next ideal client. But what percentage of your new customers came from a referral or introduction last year? If you’re like most

• Selling system

independent agencies, it’s well below 10%.

• Differentiation in the marketplace Why isn’t it at least 80% or more?

• Financial model First of all, most agents don’t know how to ask for a referral because they’ve never practiced. Second, without practice, they simply don’t do

• Number of internal and external producers

it. If they do happen to get a referral, they don’t follow up on it. And yet most agents manage to do quite well!

• Relationships with insurance carriers

If you’ve been in this business for a while, you may be so comfortable

• Use of service centers

that you don’t think you need referrals and introductions. Maybe you don’t, as long as you’re content to drift along. But what if you

• Digital marketing strategy

changed your strategy? What if you practiced asking for referrals, went out and actually got referrals, and then followed up with them? Your

• Future ideal clients

commissions would jump!

Once you start answering those questions, you then must decide how Here’s a Blinding Flash of the Obvious: What’s the cost of generating

to bring your vision into focus. What has to happen for you to actually

referrals and introductions? Zero! It’s what you should be doing in the

become this future great agency? As you formulate your plan, you may

natural course of business—talking with people, which costs nothing.

want to consider these questions:

But if you do business the traditional way (a lot of look, copy, quote and pray), what’s your client acquisition cost? Often the acquisition cost of

• What behaviors and strategies have to become normal, part of our

new business can be as high as 75% of the revenue it generates.

DNA?

STOP drifting!

• What will our system of personal accountability look like?

If your agency is just drifting along, I’d like to offer you some outstanding advice, which (surprise!) is in the form of an acronym: STOP

• How will we develop producers who are self-managed but accountable?

drifting! Solve The One Problem. Don’t try to solve all of your problems simultaneously, because you probably won’t solve any. Instead, solve one

• What ongoing training will we provide for our automation system?

problem at a time.

• How will our selling system differentiate us?

It’s not that simple to get to “The One Thing” (which, by the way, is the name of a book by Gary Keller—one of the best I’ve ever read). But rather

• How will we position our brand in the marketplace?

than trying to implement 25 things or 10 things or even three things, identify the ONE thing that’s stopping you from moving forward and

• What will we do to attract and retain the best employees?

solve it! After that, solve the next one and then the one after that. It’s a systematic approach to eliminating problems.

• How will we achieve 100% effective client retention?

Do you know the number one problem of most independent agencies?

• What outside training and consulting resources will we use?

Well, like it or not, it’s the owners. If you suffer from “ARS” (Already Rich Syndrome), you probably won’t change anything, even though you’re drifting. Nothing is going to happen until the agency owner says, “Enough! Life doesn’t have to be this way!”

When you can answer those questions, you’ll be charting a new course.

You’ll stop drifting! Better yet, if you look at this document on a regular basis, you’ll stay on course. As I always say, you’re going to put in the time anyway, so you might as well be great at it.

Remember, life is not a dress rehearsal. We need to get it right the first time. This starts with being aware that you are drifting along and that you have no strategies, no plans, and no accountability. I understand that you’re doing just fine today, but it’s critical that you decide exactly what you want your “Future Great Agency” to look like.

WISCONSIN INDEPENDENT AGENT

> Roger Sitkins, CEO of Sitkins Group, Inc., is the nation’s number-one “Agency Results Coach.” He established The Sitkins Network™, a network of high-performing agencies, and The Better Way Agency, a web-based training program that shows agency owners ways to make significant improvements in all areas of the agency. Please visit www.sitkins.com and follow us on Facebook, LinkedIn and Twitter.

SEPTEMBER 2018 | 11

SALES

TIME TO OFFER CYBER COVERAGE TO ALL SMALL BUSINESS CLIENTS Coverage for (just about) every small business is available quickly and easily through Big “I” Markets.

We are thrilled to announce a new cyber liability solution you can offer to your small business clients through Big “I” Markets.

Every business has PII (Personal Identifiable Information). If you collect personal information such as email or phone numbers, or accept credit cards, you are exposed to cyber liability. Now imagine your client loses a laptop or business smartphone; or gets the call from a customer that a credit card was improperly used after a visit to your client’s store.

Who does that small business call now? What do they do? What are the fines? $200 solves this issue for most small businesses with under 50 employees, if their independent agent has offered coverage through Big “I” Markets’ new “Cyber-Small Business Solution” product.

Merchants of all kinds should carry cyber coverage. Lawyers, CPAs, podiatrists, consultants, counselors, taxi operators, restaurants and bars...you name it. You’ll find our ineligible list is tiny: banks, cloud computing, gambling and adult entertainment.

Enjoy a Simple Sales Process Binding could not be easier. Enjoy 15% commission, the ease of direct billing and the confidence that comes with using an insurer rated “A” with A.M. Best.

Go to www.bigimarkets.com, choose cyber liability - small business solution and provide a customer email in the quote request function.

BIM takes care of the rest. We collect the application and $200 via credit card directly from the customer, and pay you. The policy and certificate are available in 24-48 hours after payment has been processed. We post a signed application on BIM, and a dedicated web page is available for self-print of the certificate and policy.

Protect your E&O Document, document, document! After sending your initial marketing letter, ask for a signed declination via DocuSign. We have created a sample form that you can customize with your agency name. If your client doesn’t return the form, use a DocuSign message to document that the offer was sent. If nothing is returned, your file will look strong in the event of a claim.

How to Market Cyber At a minimum, email every small business in your client roster to offer coverage. We’ve done the work for you and provided a concise sample letter outlining the product features - simply click here to download it or email me for it. Even better, mail the letter through USPS, or use it as a reason to check in with a call or personal visit...or combine them.

Coverage is “primary to other.” If your client asks for more coverage, offer consultation after providing instant protection. You also have access to industry leader Travelers Wrap+ through Big “I” Markets if higher limits are desired.

12 | SEPTEMBER 2018

“We want every policyholder in the Big “I” Professional Liability program (and indeed, every Big ‘I’ member) to offer cyber liability coverage to all their small business clients. Doing so will minimize the top source of E&O claims, ‘failure to offer,’ and provide better protection to your valued clients,” says Jim Hanley, Big ‘I’ Advantage® Director of Risk Management.

Questions? Go to www.bigimarkets.com and select “Cyber LiabilitySmall Business Solution” from the commercial products menu, or email bigimarkets@iiaba.net.

WISCONSIN INDEPENDENT AGENT

2018 PRE-LICENSING CLASS SCHEDULE REGISTER AT IIAW.COM CLASS SCHEDULE Life and Accident/Health Property and Casualty

September 10-13

September 24-27

October 8-11

October 22-25

November 5-8

November 12-15

December 3-6

December 10-13

Conducted at State Association Headquarters, IIAW pre-licensing classes fulfill the study requirements for life, health, property and casualty. Full course materials — not just an outline — are included with registration. The classes are: • Designed to help you pass your state licensing examination.

• The quickest way to meet the Wisconsin education hours requirement.

• Taught by experienced insurance professionals who know the business.

• Conducted in a comfortable classroom with free parking.

• Approved by the Office of the Commissioner of Insurance.

Daily Schedule Life & Accident/Health Day 1 (Monday) 8:30 a.m. - 4:00 p.m. ($85) SECTION A: Principles of Insurance & General WI Ins. Law Ethics Day 2 (Tuesday) 8:30 a.m. - 4:00 p.m. ($90) SECTION B: Life Policies, Terms & Concepts Day 3 (Wednesday a.m.) 8:30 - 11:30 a.m. ($45) SECTION B: Life Policies, cont. & WI Life Insurance Law Day 3 (Wednesday p.m.) Noon - 4:00 p.m. ($45) SECTION B: Accident & Health Policies, Terms & Concepts Day 4 (Thursday) 8:30 a.m. - 4:00 p.m. ($90) SECTION B: Accident & Health, cont. & WI Health Insurance

Property & Casualty Day 1 (Monday) 8:30 a.m. - 4:00 p.m. ($85) SECTION A: Principles of Insurance & General WI Ins. Law Ethics Day 2 (Tuesday) 8:30 a.m. - 4:00 p.m. ($90) SECTION B: Property Policies, Terms & Concepts Day 3 (Wednesday a.m.) 8:30 - 11:30 a.m. ($45) SECTION B: Property Policies, cont. & WI Property Insurance Law Day 3 (Wednesday p.m.) Noon - 4:00 p.m. ($45) SECTION B: Casualty Policies, Terms & Concepts Day 4 (Thursday) 8:30 a.m. - 4:00 p.m. ($90) SECTION B: Casualty Policies, cont. & WI Casualty Insurance Law

IIAW Member Pricing: $340 - Pricing given for full class registrations.

Hotel Information Students requiring lodging will receive a special rate at the Clarion Suites, 2110 Rimrock Rd. in Madison. Please call the hotel directly at 608.284.1234, and ask for the Independent Insurance Agent’s discount.

Non-Member Pricing: $355 You may also take individual classes.

Please contact Emma@IIAW.com Kerry@iiaw.com for information about multiple registration discounts.

The course fee includes all class materials. Materials are distributed on the first day of class. You receive: • The Life & Accident/Health or Prop. & Casualty Insurance Study Manual.

• The Intermediary’s Guide to Wisconsin Insurance Law. • The State of Wisconsin Ins. Licensing Candidate Handbook.

This provides all the necessary information to obtain a license.

INDUSTRY NEWS

CONSIDERATIONS FOR DRAFTING EFFECTIVE CONTRACTUAL RISK TRANSFER PROVISIONS Any Wisconsin business owner knows that risk is inherent in most business transactions. In many commercial endeavors, such as installing new production lines, constructing new buildings or transporting goods, the risk of injury or property damage is present. Companies understandably want to limit their exposure to such risks.

Two common devices utilized to manage such risks are (1) indemnification agreements and (2) agreements to procure “additional insured” insurance coverage. These tools, while undeniably useful, also present challenges for attorneys and business owners during the drafting process. Awareness of the state of the law in various jurisdictions will assist in ensuring the parties succeed in allocating risk as they intended.

states have enacted anti-indemnification statutes prohibiting such agreements. While most such statutes are limited to certain industries (most notably, the construction industry), attorneys and business owners negotiating indemnification agreements must consult the laws of their jurisdiction or risk drafting a void indemnification agreement. Wisconsin does not currently have an anti-indemnification statute.

Contractual indemnity is a common risk-transfer tool in today’s commercial world. In a typical indemnity provision, one party (the indemnitor) agrees to indemnify the other (the indemnitee) for loss the indemnitee experiences arising out of the indemnitor’s work. These agreements allow the parties to effectively shift the risk between them as to certain types of losses. Typically, a project owner, employer or general contractor will want to shift the risk of claims “downstream,” onto a subcontractor, vendor or other business partner performing the work that creates the risk. This way, the financial consequences of a risk are borne by the party who is best equipped to manage the employees, materials and processes that give rise to the risk.

Parties have wide latitude to shift the risks presented by a project in a way that will reduce the risk of claims as well as the project’s overall cost.

Another popular risk transfer device are agreements to procure “additional insured” insurance coverage. These provisions require one party – again typically the downstream party – to purchase insurance coverage for the other party for claims arising out of the downstream party’s work or operations. These provisions are in some ways preferable to indemnity agreements because the indemnification obligation is backed with funds from an insurance carrier (in exchange, of course, for a premium). While such provisions are increasingly popular, parties should take care to ensure that the insurance coverage ultimately issued by the carrier is in complete conformity with the agreement’s requirements. In addition, some states include additional insured requirements within the scope of anti-indemnification statutes, potentially making the agreements void.

It should be noted, however, that not all aspects of indemnification are considered beneficial. In situations where the contracting parties have substantially unequal bargaining power, indemnification provisions can create a situation where the indemnitor does not have sufficient financial resources to effectively protect the indemnitee and, by extension, to compensate injured persons. For this and other reasons, some

14 | SEPTEMBER 2018

Attorneys and business owners trying to maximize the beneficial aspects of indemnification agreements and “additional insured” requirements should take care to understand the unique risks presented the particular transaction or project. If you would like advice or assistance with these issues in your commercial contracts, feel free to contact the author or IIAW’s Legal Counsel Josh Johanningmeier.

WISCONSIN INDEPENDENT AGENT

INDUSTRY NEWS

SECOND CIRCUIT FINDS COMMERCIAL CRIME COVERAGE FOR $4.8M EMAIL SPOOFING LOSS In an appeal watched by many insurance coverage attorneys, the Second Circuit Court of Appeals recently affirmed a district court ruling finding coverage for a $4.8 million email spoofing incident suffered by Medidata Solutions, Inc., a New York-based cloud computing firm.

The spoofing incident occurred when a fraudster emailed

transfer was approved. The appellate court held that those

an employee in Medidata’s accounts payable department, asking the employee to transfer $4.8 million to China, purportedly for a company acquisition. The email was “spoofed” so that it displayed the company president’s name, picture and email address.

The transfer was subsequently approved by other company officers before the transfer was made.

intervening steps were insufficient to “sever the causal relationship between” the attack and the loss. This holding appears to be an expansive view of the causation requirement typically applied to policies requiring a “direct” loss to occur.

Medidata was insured under a commercial crime policy with Chubb. The policy contained a computer fraud coverage, which protected against “direct loss of Money, Securities or Property … resulting directly from Computer Fraud committed by a Third Party.” The policy defined Computer Fraud as “the unlawful taking or the fraudulently induced transfer of Money, Securities or Property resulting from a Computer Violation.” Computer Violation, in turn, was defined to include “the fraudulent … entry of Data into … a Computer System [and] change to Data elements or program logic of a Computer System ….”

The U.S. District Court for the Southern District of New York found coverage and the Second Circuit, in a summary three-page opinion, affirmed. Taken together, there are a number of interesting, perhaps surprising, elements to the courts’ decisions.

First, the courts brushed aside arguments that Medidata did not suffer a “direct loss” because several employees took additional steps after receipt of the email before the

WISCONSIN INDEPENDENT AGENT

Second, the court considered the receipt of an email by the insured to constitute the “fraudulent entry of data into a computer system” or a “change of data elements,” because, apparently, the email entered Medidata’s computer system and, when it was received, it contained fraudulent information. The courts were unpersuaded by arguments that the policy language required that the thief fraudulently enter or change data in the insured’s computer system, resulting in the loss, for coverage to apply.

The appellate court summed up its holding as follows: “Thus the attack represented a fraudulent entry of data into the computer system, as the spoofing code was introduced into the email system. The attack also made a change to a data element, as the email system’s appearance was altered by the spoofing code to misleadingly indicate the sender.”

The court’s holdings give life to the potential coverage for spoofing attacks under commercial crime policies. We anticipate that future courts will grapple with the court’s reasoning, particularly with regard to the two points discussed above.

> Todd Smith, Attorney for Godfrey & Kahn. Published from his Insurable Interests Blog

SEPTEMBER 2018 | 15

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GOVERNMENT AFFAIRS

WISCONSIN PARTISAN PRIMARY ELECTION RECAP State School Superintendent Tony Evers easily won the Democratic Primary for Governor with 42 percent of the vote in an eight way primary and advances to challenge Republican Governor Scott Walker in the general election on November 3rd. Evers, who has won statewide elections before, will have his toughest political challenge yet going up against a very well organized and financed incumbent. Evers won an impressive 67 out of 72 counties. Professional Firefighter union president, Mahlon Mitchell, took a distant second with 16 percent winning the Milwaukee County vote and former Madison area Assemblywoman, Kelda Roys, came in third with 13 percent of the vote. Outgoing State Senator Kathleen Vinehout (D-Alma) carried four northwestern counties and received just over 8 percent.

In the hard fought and costly Republican primary race for U.S. Senate, retired nurse and Wauwatosa State Senator Leah Vukmir defeated former Marine, Democrat and political newcomer, Kevin Nicholson, by a 49 to 43 percent margin. Vukmir’s primary win was catapulted by a strong showing in the southeastern counties practically identical to when then candidate Scott Walker defeated Mark Neumann in the 2010 Republican primary race for Governor. Vukmir lost 57 of 72 counties to Nicholson and carried only two counties north of State Highway 10. Vukmir will face off in the general election against incumbent Democratic U.S. Senator Tammy Baldwin in what will be a hotly contested and WISCONSIN INDEPENDENT AGENT

expensive race with some national attention.

Interestingly, there were 96,000 more Democratic votes cast in the gubernatorial primary election than there were votes in the Republican U.S. Senate primary. This could indicate that there is an enthusiasm gap between Democratic and Republican voters, but as we approach November this is likely to tighten up giving us some very competitive statewide races to watch at the top of the ticket.

In other contested primary races, attorney and UW Regent, Bryan Steil, easily won a 6-way GOP primary with 52 percent and ironworker, Randy Bryce, won a two-way Democratic primary with 60 percent of the vote. Steil and Bryce will go head-to-head to decide who will replace Speaker Paul Ryan in November to represent the 1st Congressional district. In the Democratic Lieutenant Governor primary, former Milwaukee Assemblyman Mandela Barnes decisely won his primary against Kurt Kober with 68 percent. Barnes now joins with Tony Evers to run on the Democratic ticket against Governor Scott Walker and Lieutenant Governor Rebecca Kleefisch.

Other notable results worth highlighting are longtime Democratic Milwaukee Assemblyman Fred Kessler was defeated in his primary election by Milwaukee Public School teacher, LaKeshia Myers. Myers has no general election opponent. And Milwaukee Democratic Assembly incumbent, Josh

Zepnick, who recently faced allegations of sexual misconduct, was defeated by attorney Marisabel Cabrera by a 2 to 1 margin. Cabrera also has no general election opponent and both these districts are heavily democratic.

Probably one of the more surprising outcomes from primary election night occurred in the 59th Assembly district GOP primary in the eastern part of the state. This seat is currently held by Rep. Jesse Kremer who announced that he would not seek re-election.

Timothy Ramthun won a four-way primary with 34 percent over Ty Bodden who had been endorsed by Kremer. Also, incumbent Representatives John Spiros (R-Marshfield) and Evan Goyke (D-Milwaukee) both easily won primary challenges in their respective districts.

According to preliminary figures by the Wisconsin Elections Commission (WEC), voter turnout for the primary election is estimated at over 22 percent. This estimate is expected to increase once results are certified by the WEC on August 29th. This turnout level far exceeds the average fall primary turnout over the last decade of about 15 percent and this was the first fall primary election in 30 years where both political parties had contested primary races at the top of the ticket.

The partisan fall general election is on Tuesday, November 3rd.

> Misha Lee, IIAW Lobbyist

SEPTEMBER 2018 | 17

TECHNOLOGY

THE CUSTOMER EXPERIENCE: HOW AGENTS CAN EXCEL It’s in almost every business interaction we have today: the customer experience and how those interactions either set the bar on expectations or fail to meet them. Everywhere we turn in our business dealings, ease of doing business is reinforced by interactions with our financial institutions, online/mobile shopping like Amazon, travel, Uber and Lyft, and endless others.

Consumer and customer expectations of agents and brokers are no different, and have been colored by all these other interactions.

The challenges for the small-business agency owner are many: how do I create a robust website, increase my SEO ranking, get started with online chat, and get started with video and website reviews;

How do I even know where to start?

ACT’s Customer Experience (CX) Work Group has created a new online resource to help agents understand the scope of the customer experience, the phases consumers go through as they travel through their insurance research and buying journey, and the technology touch points within each phase.

The ACT Customer Experience website can be found at: https://www. independentagent.com/ACTCX. The main CX landing page sets the stage by using text and video to explain customer experience as a concept and lays out the six phases: Discovery, Evaluate, Purchase, Experience,

18 | SEPTEMBER 2018

Renewal and Advocacy.

For each phase, the ACT CX website lists several technology touch points, gives insights into their absolute value to agencies, and lists hyperlinks to resources to get started. Some resources are free through ACT and other sources; some are at cost but are “best practice” providers.

and to begin by implementing the top two or three big-hit items that will meet those expectations.

This website will continue to be updated as additional service providers are identified and as new technologies emerge that can make a significant impact on our distribution channel.

As one example, the “Evaluate” web page lists background and resources for creating solid customer testimonials, validating the quality of your agency through education, gaining easy access to products, and showing your expertise by using blogs.

And the ACT CX Work Group isn’t done yet.

As a next phase, they will be working to add an agency self-assessment tool so agencies can clearly understand where they currently rank on the CX journey, as well as a project planning resource.

Likewise, the “Purchase” web page details ways to implement eSignature, offer online chat, develop a streamlined application process, and others.

If you’re interested in joining the conversation in the ACT CX Work Group— or any of our work groups—simply drop a quick line and email ACT at act@iiaba. net. And as with all other things ACT, you don’t have to be a tech wizard, just have a passion to improve tech workflows for the independent agent distribution channel!

Across all the phases, the ACT CX website offers over 25 proven ways to exceed customer expectations. But keep in mind an agency does not need to implement each and every one—at least not out of the gate. The goal is to understand your core customer group(s) and their preferences

Check out the ACT CX website today! > Ron Berg and Claudia McClain Agents Council for Technology WISCONSIN INDEPENDENT AGENT

ERRORS & OMMISSIONS

FOLLOW THE LEADER

REDUCING E&O EXPOSURES FROM THE TOP DOWN Most of us think we have a pretty good idea of what a good leader looks like in action. We may be hardpressed to define “leadership,” but we’re proud members of the “I know it when I see it” school of thought.

That’s OK. Sometimes it takes a rocket scientist to put their finger on the painfully obvious, such as when Albert Einstein said, “Setting an example is not the main means of influencing others, it is the only means.”

If you want the next generation of your agency to find the path to success, you’ll need to let your example show the way.

Good habits can take many forms, but a survey of Swiss Re Corporate Solutions claims handlers highlighted five that can help reduce or prevent errors & omissions claims: Standard operating procedures. Effective E&O prevention depends on written standard operating procedures, as well as written minimum standards for writing and servicing business.

There should be a written procedure for every workflow in the agency: new business, renewals, rewrites, policy changes, claims handling and cancellations, just to name a few. Put SOPs in place and make it clear

that everyone needs to follow the rules— including you.

Education. Everyone at the agency should participate in ongoing and meaningful continuing education, both to strengthen their knowledge of insurance products and to develop in-house expertise about things like the agency management system—and they should see you sitting front and center, taking notes.

Documentation. Good documentation can save an agency in a bad situation. But to be effective, it needs to be timely, detailed and easy to understand. All documentation should be kept in the same place and readily accessible to everyone who works with the account.

Consistency. Improvisation is great for comedians, but bad for insurance agencies. If your agency finds that a particular process works, do it consistently, and incorporate it into a mandatory checklist.

For example, if you follow up with a client when their premium payment is due or past due, you’ve arguably created a duty to follow up every time there is a similar situation.

Self-audit. Doing a self-audit will reveal both the good and the bad—where your agency’s procedures are working, as well as the areas that need renewed focus internally and through continuing education.

Review procedures, forms and documents and conduct an overview with key managers or supervisors. No one at the agency should be exempt from the audit—we all make mistakes, and we can all use them as learning experiences.

Equally important: Listen to every voice when it comes to making improvements. Every employee should feel that their insights are valued. Sometimes it takes a fresh set of eyes to see an old problem. > Mark Heimsoth is an assistant vice president, claims specialist with Swiss Re Corporate Solutions and works out of the office in Overland Park, Kansas. Insurance products underwritten by Westport Insurance Corporation, Overland Park, Kansas, a member of Swiss Re.

Copyright © 2018, Big “I” Advantage, Inc. and Westport Insurance Corporation. All rights reserved. No part of this material may be used or reproduced in any manner without the prior written permission from Big “I” Advantage. For permission or further information, contact Agency E&O Risk Manager, 127 South Peyton Street, Alexandria, VA 22314 or email at info@iiaba.net. Reprinted from the E&O Happens Website.

WISCONSIN INDEPENDENT AGENT

“Keystone is for people who believe that powerful partnerships generate prosperity.”

Elizabeth Schenk Vice President of Sales & Geographic Expansion

At Keystone, we provide you with the resources and expertise to meet the needs of your clients and grow your agency. We take a consultative approach and develop partnerships based on shared goals and mutual interests. Partnering with us provides you with the tools you need for unified stability and strength in an ever-changing industry.

Because independence works better together.

CONTACT FOR MORE INFORMATION: Elizabeth Schenk 888.892.5905 | eschenk@keystoneinsgrp.com ©2017 Keystone Insurers Group ® All rights reserved. This does not constitute an offer to sell a franchise in any state in which the Keystone Insurers Group franchise is not registered.

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We understand the importance of partnerships and take great pride in building strong, stable relationships with our agents and policyholders. Through experienced claims expertise and hightouch customer service, we are there when we are needed most.

Learn how you can represent IMT Insurance & Wadena Insurance at imtins.com/contact_us.

imtins.com | west des moines, iowa

EMERGING LEADER SPOTLIGHT Each month we will be featuring one of the active members of our Emerging Leaders Committee. Our September Emerging Leader is Sara Kekula, M3 Insurance in Madison, WI. Tell us your name and a little more about you: Sara Kekula from Madison, WI. I work at M3 Insurance as an Account Executive in the Senior Living & Social Services practice group.

How long have you been on the Emerging Leaders committee? I’m a “newbie” to the Emerging Leaders committee, joining earlier this year (2018) How did you hear about the Emerging Leaders Committee? I heard about the group from a couple others currently on the committee, but learned more about the group by researching the information available on IIAW’s website.

Why did you choose to become active with the Emerging Leaders committee? I was looking to join a network of peers who are all at a similar point in their careers as myself. What’s great about the EL committee is, regardless that we all work at different, even competing agencies or insurance companies and our paths our all different, our stories all have similarities. That resonated with me. I loved the idea of sitting at the table with other future leaders, where we can identify and discuss the challenges in the insurance industry, barriers or new opportunities, and how we can help solve or support. The resources provided by the EL committee enable us to capitalize on our potential.

(And, it’s fun!)

What is your favorite EL event or activity that you’ve done with the EL group? In my ‘green’ year on the EL committee, I’ve really enjoyed the opportunity to meet others on the committee. I will say, I was WISCONSIN INDEPENDENT AGENT

unable to make it to the annual Leadership Conference this year due to a conflict, but I saw the snap chats/instastories (did I mention I’m a millennial?!) from the week, and I’m very much looking forward to attending next year!

Why should a new agent join the EL committee? If your goal is to expand your network, continue to learn/grow professionally within the insurance industry, and have some fun while doing it, it’s a no-brainer.

What is your spirit animal? This was the hardest question! A mermaid.

Because when there’s a million fish in the sea, be a mermaid.

Where is your favorite vacation spot? My favorite place to vacation is anywhere there is water. Right now, I am enjoying time with family at Lake Wisconsin or with my boyfriend up north on the Turtle-Flambeau Flowage, near Mercer. I’ve recently taken up fishing and, mind you, I’m terrible at it, but it’s a great way to relax after a week of hustle.

Do you have any pets? Yes, two dogs – both are German Shorthaired Pointers; Prince and Annabelle. We just adopted Annabelle this summer from the Wisconsin German Shorthaired Pointer Rescue. I have plenty of pictures on my phone if anyone wants to see!

What is one professional goal for you in the next 3-5 years? In the next 3 years, I’d like to have completed two designations – CAWC and ARM.

SEPTEMBER 2018 | 21

COMMENTARY FROM COUNSEL

2018 CERTIFICATE OF INSURANCE LAW REDUX:

OCI BULLETIN AND GUIDANCE

In my April 2018 Independent Agent column, I summarized recent changes to Wisconsin law driven by the IIAW to help independent agencies better manage requests for improper certificates of insurance. Since then, there has been enough activity on, and some confusion over, the new law.

So, in this column, I will revisit the summary and provide updates on the OCI bulletin regarding the law, as well as some clarification received directly from the OCI on the law’s impact (or lack thereof) on renewal certificates and endorsements.

Certificate Issues and Past Legislation and OCI Guidance This issue has been front and center for many years. The problem: Third party requests for certificates of insurance that include information beyond (and potentially inconsistent with) the terms of the policy of insurance represented by the certificate. Although certificates of insurance are not forms requiring OCI approval, the IIAW and others have consistently advised against modifying certificate forms, e.g., ACORD or ISO forms, as well as attempting to summarize complex cancellation provisions, exclusions or other terms within the confines of certificates of insurance.

In 2008, with the IIAW’s support, the Wisconsin Commissioner of Insurance (OCI) issued a bulletin to all property and casualty insurers and agents regarding the use of certificates of insurance, in which the OCI stated its position as follows: Where an insurer or an agent acting on behalf of the insurer uses a certificate of insurance or other evidence of coverage which goes beyond an accurate summary of the policy, the insurer or agent may be misrepresenting the policy language as issued by the insurer and filed with OCI. Language included in the certificate that amends or extends coverages of the underlying policy or states that coverage is actually in force when it is not is a misrepresentation. An insurer or agent issuing these certificates would be in violation of s. 628.34 (1), Wis. Stat., and may be subject to administrative penalties including possible license suspension or revocation.

Notwithstanding the OCI’s clear direction regarding the potential allegation of misrepresentation—and possible violations and penalties—that could arise from an agent or insurer issuing a certificate of insurance that is not an accurate summary of the policy terms, third party demands for additional content within certificates of insurance persisted in the decade since the 2008 bulletin.

In 2012, the Wisconsin legislature passed a statutory amendment to Wisconsin Statute Section 628 to address and make explicit the prohibition on issuing misleading certificates of insurance, adding the following to the laundry list of forbidden conduct under Section 628.34(1)(a): “No intermediary may provide a misleading certificate of insurance.” And still, the improper requests rolled in— and no wonder, as the requesters were generally in no legal jeopardy and often in a position with financial leverage.

The 2018 Law: Section 628.34(14) Wisconsin Statute Section 628.34(14) now prohibits the preparation or issuance, as well as any request or requirement for, certificates of insurance (or any other document used for evidence of insurance) which do not accurately reflect the terms of the referenced insurance policy. Specifically, the statute prohibits a person from issuing any certificate of insurance or related document that:

a Contains information about the insurance policy which is false, misleading, deceptive, unfairly discriminatory, or otherwise violates the law, as determined by the OCI;

a Purports to alter, amend or extend the coverage provided by the referenced insurance policy;

a Alters the terms and conditions of any notice requirements in the 22 | SEPTEMBER 2018

WISCONSIN INDEPENDENT AGENT

COMMENTARY FROM COUNSEL

referenced insurance policy; or

a Warrants that the referenced insurance policy fulfills the insurance or indemnification requirements of a specific contract.

The law also prohibits the alteration of certificates of insurance (or any other document used for evidence of insurance) after they are issued. Violations of these and other legal requirements can result in criminal and civil penalties.

OCI Bulletin on the New Law and Clarification Regarding Renewal Certificates On June 29, the OCI issued a bulletin to all insurers, agents and interested parties, in which it summarizes the new law. I encourage you to review the bulletin—available online at https://oci.wi.gov/ Pages/Regulation/Bulletin20180629Act241.aspx . The OCI bulletin recommends, as it did in a 2012 bulletin, that in order to ensure compliance with the law and understanding of what a certificate of insurance represents, insurers or agents should consider including a statement, similar to that included on preprinted ACORD and ISO certificate of insurance forms, such as: “This certificate of insurance neither affirmatively nor negatively amends, extends, or alters the coverage afforded by the policies described herein.”

Additionally, in light of Act 241, insurers or agents may consider adding an additional statement to certificates of insurance, such as: “Preparing, issuing, requesting, or requiring this certificate of insurance be altered to include false or misleading information, to purport to modify coverage provided by the underlying policy, or alter terms and conditions of notice requirements, may be an unfair marketing practice in violation of s. 628.34 (14), Wis. Stats.”

In short, best practices dictate being vigilant not only in issuing certificates, but providing notice when doing so that your agency is complying with the law (and so should the recipient!). The OCI Bulletin also emphasized the risks associated with violating the law: An insurer, agent, or person violating s. 628.34 (1) and (14), Wis. Stats. may be subject to administrative penalties, including fines and possible license suspension or revocation.

Under existing law, a person who prepares, makes, or subscribes to a false or fraudulent document, such as a certificate of insurance, knowing that the document may be presented or used in support of an insurance claim, may be guilty of a Class A misdemeanor if the value of the claim does not exceed $2,500, and a Class I felony if the value of the claim exceeds $2,500.

Class A misdemeanors in Wisconsin are punishable by up to 9 months in jail and/or a $10,000 fine, per Wis. Stat. § 939.51. Class I felonies are punishable by a prison term of up to 3 years and 6 months and/or a fine up to $10,000, per Wis. Stat. § 939.50.

WISCONSIN INDEPENDENT AGENT

This should be a helpful deterrent to bad behavior involving certificates of insurance, and your agency should be prepared to provide the OCI Bulletin to anyone requesting an improper certificate of insurance.

Another issue arose shortly after the new law was passed—a sudden concern that renewal certificates issued before the policy’s effective date would somehow violate the new law. Additional vague concerns were raised regarding handling of endorsements. The IIAW engaged with concerned agencies and the OCI to resolve the issue. On June 21, 2018, at the IIAW’s request, OCI Chief Legal Counsel Zach Bemis made clear that the new law did nothing to ban the issuance of accurate renewal certificates: Act 241 made no changes to the position articulated in the past by OCI that certificates of insurance must be an accurate summary of the policy. The certificate must reflect the policy, including any binders or endorsements that have been properly executed.

Act 241 made no changes with respect to renewal certificates. Renewal certificates may be issued prior to the effective date of the renewal policy as long as the renewal certificate clearly and accurately summarizes the coverage, terms, and relevant policy information in the renewal policy. Renewals, nonrenewals, cancellations, and renewals with altered terms must be conducted consistent with Wis. Stat. 631.36.

Additionally, by its plain language, Act 241 provides an exemption for endorsements and binders. The law makes no changes to the process or requirements for endorsements or binders.

So there you have it. If it was a lawful certificate for a renewal before the new law, it still is today.

IIAW Support for Agencies to Utilize the New Law The IIAW supported and helped pass the new law and now is working to help its members take advantage of its protections. To that end, the IIAW authorized the preparation of form response letters to be used when improper requests for certificates of insurance are received. The form was rolled out at InsurCon, and since then has been provided to over 200 agencies. It is available on the IIAW website for member use. The form letter was also updated after the OCI issued its bulletin on the legislation, and we encourage you to include a copy of the OCI bulletin with the letter. As always, if you have any questions about the new law, do not hesitate to reach out to the IIAW or me, either directly or through the IIAW Hotline.

> Josh Johanningmeier, IIAW General Counsel

SEPTEMBER 2018 | 23

VIRTUAL UNIVERSITY

TWO OVERTLY USELESS BAP ENDORSEMENTS

Lawyers and risk managers love to see their clients’ names in lights (specifically listed on a piece of paper).

For some reason this makes them feel like they have accomplished something.

Further, they incorrectly assume that the solution for one exposure applies equally well to another exposure. These misplaced needs and mistaken beliefs pushed Insurance Services Office (ISO) into creating two overwhelmingly useless business auto policy (BAP)endorsements:

1. Who Is An Insured

• CA 20 48 - Designated Insured for Covered Autos Liability Coverage; and

Additional insured status is not necessary because “1.c.” already makes the upper tier an insured in the policy. But try to explain that to a lawyer or risk manager who wants their client’s name on a useless piece of paper. Eventually the industry got tired of fighting and the CA 20 48 was born.

• CA 04 44 - Waiver of Transfer of Rights of Recovery Against Others To Us (Waiver Of Subrogation)

CA 20 48 – Designated Insured for Covered Autos Liability Coverage Upper tier contractors generally require status as an additional insureds (AIs) in the lower tier’s commercial general liability (CGL) policy. This requirement exists because the upper tier has a vicarious liability exposure arising from the actions of the lower tier contractor. In short, the upper tier could be held legally liable for injury or damage caused in whole or in part by the lower tier, thus it expects some level of liability protection be extended to it from the lower tier’s CGL. This is a reasonable expectation.

Well, if this is a coverage solution for the CGL, the lawyers and risk managers assumed it would be an equally effective solution for the business auto exposure. Over time, contracts began requiring the upper tier be added as an additional insured on the BAP. The problem, there wasn’t, and still isn’t, an AI endorsement for the BAP. The ultimate result was the creation of the CA 20 48.

The problem with and the reason why the CA 20 48 is USELESS is because it is wholly unnecessary. It’s non-necessity flows from the fact that the upper tier is already extended protection as an insured within the BAP wording. The relevant language provides:

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The following are “insureds”: c. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.

My favorite part of the endorsement is where it basically tells the entity named in the endorsement that they are an idiot for requesting it. OK, so that’s not what it says; the endorsement tells the named entity that they don’t get any coverage they didn’t already have: Each person or organization shown in the Schedule is an “insured” for Covered Autos Liability Coverage, but only to the extent that person or organization qualifies as an “insured” under the Who Is An Insured provision….

Basically, if you had coverage before, this just proves you have coverage now. If you didn’t have coverage before, guess what, you don’t have coverage now just because you are named on the endorsement.

The endorsement might just as well state, “Hey, you just wasted your time and ours.”

CA 04 44 - Waiver of Transfer of Rights of Recovery Against Others To Us (Waiver Of Subrogation) ISO’s BAP, and most ISO property and casualty (P&C) coverage forms, allows the

insurance carrier to recover payments made to or on behalf of an insured from the atfault party causing the damage. Although the form refers to this as the Transfer Of Rights Of Recovery Against Others To Us, it is generically referred to as an insurance carrier’s right of subrogation.

Applicable policy wording in the BAP reads: 5. Transfer Of Rights Of Recovery Against Others To Us If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after “accident” or “loss” to impair them.

This is a typical example of subrogation wording in most P&C contracts. Notice that this wording precludes the insured from doing anything after an accident or loss to impair the carrier’s right of recovery. This means the insured can waive such sights prior to the loss.

Contract wording generally requires the lower tier to waive any right of recovery against the upper tier. When an insured contractually waives its rights of recovery before a loss, it also waives the insurance carrier’s right of recovery (subrogation and contribution). Remember, the insurance carrier’s rights flow from its insured’s rights; and when the insured doesn’t have the right to seek subrogate or contribution, neither does the insurance carrier.

Although the right to recover is contractually waived, the upper tier often continues to require the lower tier to attach a “waiver of subrogation” endorsement (which is a misnomer because no such endorsement WISCONSIN INDEPENDENT AGENT

exists, but that’s a conversation for a different day) in the upper tier’s favor. This is a “belt and suspenders” approach that is practically unnecessary because of the contract; but again, you try telling a lawyer anything.

But consider this, if the contract does not address the waiver of subrogation (or recovery), the CGL policy can still be endorsed to preclude the insurance carrier’s right to subrogate against the named party.

This is where the CGL and BAP versions of the “waiver of subrogation” endorsement part ways. Following is the BAP version of the “waiver’ endorsement: The Transfer Of Rights Of Recovery Against Others To Us condition does not apply to the person(s) or organization(s) shown in the Schedule, but only to the extent that subrogation is waived prior to the “accident” or the “loss” under a contract with that person or organization.

Did you notice this interesting phrase: but only to the extent that subrogation is waived prior to the “accident” or the “loss” under a contract with that person or organization.

The CGL version of this endorsement does not have this “under a contract” requirement.

So, for this endorsement to be applicable, the insured must have already contractually waived its right of recovery against the named party. That’s why ISO is willing to throw around the parenthetical phrase “(Waiver of Subrogation)” within the endorsement name (even though it is inappropriate).

Basically, like the CA 20 48, this endorsement was created just to shut some people up. It’s useless. The contract between the parties took away the right to recover; and if there was no contract or the waiver was not addressed in the contract, this endorsement is not applicable. This endorsement is never a standalone option as it is for the CGL.

Conclusion Lawyers exist for one reason: to make work for other lawyers. But sometimes their hijinks and lack of common sense result in unnecessary work for unintended groups along with the creation of useless paper. Such is the case with these two BAP endorsements.

Neither endorsement accomplishes anything that isn’t already done. The CA 20 48 gives insured status to an entity that already had insured status. The CA 04 44 waives a right that was already contractually waived; and if it wasn’t contractually waived, the endorsement grants nothing.

Long live lawyers, they give us so much to argue and write about (not to mention being the punchlines for so many jokes).

> C hris Boggs, Virtual University

The Virtual University is a Big “I” members-only resource. Many articles are based on real-life questions received by the Ask an Expert service. This service ensures that the information is current and topical. Go to www.independentagent. com/Education/VU/. You will need to login with your IIABA username and password before using the VU. The IIABA does not assume and has no responsibility for liability or damage which may result from the use of any of this information.

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SEPTEMBER 2018 | 25

VIRTUAL UNIVERSITY

ASK AN EXPERT Q:

The Personal Auto Policy & Pet I have several questions regarding the Personal Auto Policy (PAP) and injury to a pet: > Are pets property? > If property, is the value of a pet limited to the “market value” (cost to replace)? > If medical bills exceed the value of the pet, will the insurance company pay the medical bills or the value of the pet?

A:

liability if the insured is “legally responsible.” My guess is that replacement value would be used. I cannot think of any possible way to determine the value of a pet to a family.

----Whose pet are your asking about? The pet of the third party or the pet of the first party? It looks like you are asking about pets owned by a third party and that assumption is applied to answering this question.

> If a pet is not property, can/does bodily injury liability coverage apply?

Pets are property in most cases so BI coverage does not apply – only property damage coverage comes into play. Again, this applies to 3rd party damage to pets, not 1st party.

Bodily injury applies to people. Pets are property. The value will be the market value or the cost to “repair or replace” whichever is less. If the medical bills are more than the value of the animal, the company will probably pay the market value.

How to value a pet, I have no idea. I don’t think animals have an LKQ valuation. Is there an ACV for a 15-year-old dog? This might be a negotiated settlement.

-----

See https://www.animallaw.info/sites/default/files/vol11_p283. pdf It’s quite a lot of reading but does get into the nuances of this question.

Insurance Services Office (ISO) PAP Part B Medical Payments only applies to “insureds.” As to Part A Liability, coverage applies for “bodily injury” or property damage” for which any “insured” becomes legally responsible because of an auto accident.

The degree of legal liability a tortfeasor has for injury or death of an animal is a matter of statute or jurisprudence in each state, and is not further addressed in the PAP. ----Pets are property.

----The question will most likely hinge on case law within the state you reside regarding coverage for injury to pets of others. Currently ISO PAP policies do not cover your pet in your vehicle. However, some carriers, in an effort to obtain market share, do offer limited coverage for your pet in your car.

----Courts have consistently held that animals are property.

There would be no bodily injury (BI) coverage, just property damage (PD).

----Wow! What a great question. I wish that I had a great answer based on a previous case, but I don’t. Liability coverage from the at-fault driver is in effect as there is no exclusion for injury or damage to animals. Medical payments (Coverage B) is in effect only for “you” and “family members” or any other “person” while occupying the car. The definition of “person” does not extend to a pet. There is coverage under

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The Virtual University is a Big “I” members-only resource. Many articles are based on real-life questions received by the Ask an Expert service. This service ensures that the information is current and topical. Go to www.independentagent. com/Education/VU/. You will need to login with your IIABA username and password before using the VU. The IIABA does not assume and has no responsibility for liability or damage which may result from the use of any of this information.

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RISKY BUSINESS

HOT TOPIC: CONTRACT REVIEW FOR ISSUING CERTIFICATES OF INSURANCE

As a trusted resource, we receive regular calls from our members with a variety of questions which range from “Where do I go to have my Agency Agreements reviewed?” to “Am I required to review contract language when issuing a certificate of insurance?”. It’s the latter we have received on multiple occasions and I felt it was time to take my response to the greater public.

As with many of the questions we receive regarding certificates of insurance, our response greatly depends on the internal capabilities and knowledge within the agency. Insurance professionals will often ask why there are not more courses available to cover certificates of insurance and its really because there are very few one-size-fits-all responses to questions around certificates. The information included in this article is meant to provide general guidance for an agency to consider. Specific questions should be directed to IIAW staff.

Many of the questions and issues that arise for members seeking answers around reviewing contracts is due to the relationships they have with their insureds. Oftentimes, the insureds are large policyholders or have had their insurance with the agency for many years. This can easily cloud judgement because they agency wants to offer a high level of customer service. However, customer service should not come at the cost of an E&O claim. For this reason, and because we want to help our members avoid an E&O

claim, the recommended approach would be to provide a review of the contract, but to include the appropriate limitations and disclaimers. The most important of these limitations is for the insured to understand that the agency is only reviewing the insurance requirements of the contract. The insurance professional reviewing the contract is not an attorney, so they cannot provide any legal advice. How do you make sure the insured understands this? Put it in writing.

Every agency who is reviewing contract language and issuing certificates of insurance should be using a disclaimer to protect themselves against an E&O claim and to outline their services for the insureds. Disclaimers can be provided annually to insureds who regularly request contract reviews or with each review for those insureds who are making less frequent requests.

It is also important to carefully consider who in your agency is reviewing contracts.

There are insurance professionals who are very

strong in this area of the business and there are individuals who are do not have the knowledge and background to be reviewing a contract.

Offering to review contracts also requires personnel to receive adequate training and tools in order to perform such a service. Agency procedure manuals and job descriptions should clearly define how certificates are issued, when contracts are reviewed and who is responsible for these activities.

Need help creating or updating an Agency Contract Review Disclaimer?

Reviewing and updating agency disclaimers is included in the Operational Improvement Review along with reviewing the procedure manual and job descriptions. Reach out to Mallory Cornell, IIAW Vice President (mallory@ iiaw.com), to schedule your onsite review for 2019! > Mallory Cornell is the Director of Risk Management for the Independent Insurance Agents of Wisconsin.

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EMPLOYEE BENEFITS

Commissioner Nickel Op-ed: When Washington Fails, Wisconsin Leads

When it became clear Washington was not going to repeal or fix the Affordable Care Act (ACA), also known as Obamacare, Wisconsin stepped in to lead.

In Governor Walker’s 2018 State of the State Address, he proposed the Health Care Stability Plan, a program intended to reverse the double-digit increases in Wisconsin’s individual insurance market under the ACA. This includes last year’s 44% average increase for Wisconsinites buying coverage on the individual market.

The Health Care Stability Plan garnered bipartisan support by the Wisconsin Legislature, and on July 29, 2018, the U.S. Department of Health and Human Services and the U.S. Department of the Treasury approved Wisconsin’s Health Care Stability Plan. Based on initial rate filings received by my office, the Wisconsin Office of the Commissioner of Insurance, the program is expected to lower 2019 premium rates in Wisconsin’s individual health insurance market on a weighted average by 3.5% from 2018 rates, and by an estimated 11% as compared to without the waiver.

While not every consumer will see their rates decrease, this is a significant change from last year and from the double-digit increases in previous years.

Wisconsin’s individual health insurance market has experienced over $480 million in losses since the ACA’s inception. Worse, for 2018, over 75,000 of our friends and neighbors lost their coverage.

When they had to choose a new plan--they had far fewer options. In fact, in large parts of Wisconsin there was only one plan available.

Wisconsin is far from alone. An estimated onethird of U.S. counties only had one insurer in 2017. In 2018, that number jumped to over half of U.S. counties.

As the President of the National Association of Insurance Commissioners in 2017, I was in a unique position to hear about issues facing states across the country. Minnesota instituted a subsidy program and a reinsurance program after their market nearly collapsed. Iowa had only one insurer. A headline in Iowa’s Des Moines Register stated, “Consumers bemoan largest health insurance price hike in Iowa history, at 57% or more.”

Under the Health Care Stability Plan, the State of Wisconsin agreed to run a $200 million reinsurance program to lower premiums for Wisconsin consumers.

Reinsurance is insurance for insurance companies. It provides coverage for events just like your insurance coverage. In this case, the state has agreed to pay 50% of any claims between $50,000 and $250,000. Insurers pay the other half of those costs, and 100% of claims below $50,000 and above $250,000. The program is funded by both state and federal dollars with the federal government picking up an estimated 83% of the cost (approximately $166 million) and the state paying 17% of the cost (approximately $34 million) through general purpose revenue.

Under Governor Walker’s leadership and with federal approval, Wisconsin will now begin implementing the Health Care Stability Plan.

If Congress continues to avoid action, states will need to continue stepping in to protect citizens from the negative consequences of the law. In Wisconsin, we will seek additional approaches that lower costs and bring more competition to the Wisconsin health insurance market. > Ted Nickel State of Wisconsin Insurance Commissioner

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