Maryland Primary Agent - August 2015

AUGUST 2015 | MARYLAND

CUSTOMIZED

TRAINING EXPLORING A NEW DIRECTION CASE LAW: “FIRST MANIFESTATION” VS. “MULTIPLE TRIGGER”

MILLERS MUTUAL GIVES YOU

more FOCUS

Our focus is commercial property with an emphasis on lessors risk only, residential real estate/habitational occupancies, mixed-use occupancies, hotels/motels and social clubs.

more FLEXIBILITY

NEW BOP EXPECTED FOR UNDERWRITING: IN DE & DC STARTING AUGUST IN PA & OH STARTING OCTOBER IN MD & VA STARTING DECEMBER

Our new BOP has a tiered suite of enhancements, giving you greater flexibility in tailoring coverage and pricing products. We use creative solutions for underwriting accounts others won’t.

more ATTENTIVENESS

We firmly believe that when it comes to underwriting, giving you personalized attention and a quick decision are more valuable than an automated process and impersonal experience.

Get even more details at

millersinsurance.com/evenmore

800.745.4555 Rated A- (Excellent) by A.M. Best Rated A Prime (Unsurpassed) with Demotech ©2015, Millers Mutual Group, Harrisburg, PA

IN THIS

ON THE COVER 12

ADVANCING YOUR CAREER Introducing a new way to look at continuing education — education that speaks to your individual career goals and to your agency’s unique needs.

ALSO 16

WHEN IS THE “OCCURRENCE”?

Late last year, the Pennsylvania Supreme Court rendered a decision that could disrupt a common understanding of the coverage trigger in CGL policies.

IN EVERY ISSUE 2

Chairwoman of the Board

3

Ask Our Experts

4

Preventing Errors & Omissions

6

Coverage Corner

8

State News

11

IA&B Partners

IBC My Events IBC Advertiser’s Index IBC Classified Ads

Periodical postage paid at Mechanicsburg, Pa. and at additional mailing offices. Ride-along enclosed. Postmaster: Send address changes to Insurance Agents & Brokers, 5050 Ritter Road, Mechanicsburg, PA 17055.

Primary Agent (ISSN 1543-3110), Permit # 638-620, Issue # 2015-08, is published monthly by IA&B Service Group Inc., a subsidiary of IA&B.

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Copyright 2015. All rights reserved. No material may be reproduced in whole or in part without written consent of the publisher. The information in this publication is general in nature and not intended to serve as legal, accounting, financial, insurance, investment advisory or other professional advice as to any reader’s particular situation. Users are encouraged to consult with competent legal, financial, insurance, investment advisory and/or other professional advisors concerning specific matters before making any decisions. We disclaim any responsibility for any decisions or actions by readers. Statements of fact and opinion in Primary Agent are the responsibility of the authors alone and do not imply an opinion on the part of the officers or the members of IA&B. Participation in IA&B events, activities and/or publications is available on a non-discriminatory basis and does not reflect IA&B endorsement of the products and/or services.

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CHAIRWOMAN OF THE BOARD’S MESSAGE

EDUCATION ON THE BRAIN

INSURANCE AGENTS & BROKERS 5050 Ritter Road | Mechanicsburg, PA 17055 800-998-9644 | IABforME.com

OFFICERS Chair of the Board

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Diana M. Hornung Hanby, ACSR Vice Chair of the Board

reetings from August. If you’re anything like me, you’re wondering where summer went while you turn your focus to the fall. No matter how far removed we are from our childhood, autumn always brings to mind back-to-school. So it’s only fitting that this issue of Primary Agent showcases the new direction of IA&B’s professional training and development offerings.

IA&B education is going through a transformation, refocusing on individual needs – whether it’s determined by an employee’s role within an agency or by the demographics of an agency itself. The idea is rooted in recognition that members’ needs vary and that training, to include skills training, must meet those unique needs. The new approach is one based on significant member research and board input, and it is grounded in the organization’s membercentric philosophy. I encourage you to turn to page 12 to learn more.

While I’m on the subject of professional development, I would be remiss not to mention IA&B’s annual Executive Management Conference, slated for Oct. 27-28. While this year’s event will feature a new venue – Bear Creek Mountain Resort outside of Allentown, Pa. – and a new focus – practical strategies for principals and managers of small agencies – the high quality of instruction and networking opportunities will remain unchanged. I hope to see you there. n

Robert S. Klinger, LUTCF, CPIA Immediate Past Chair of the Board

G. Greg Gunn, CIC

MEMBERS Henry “Butch” Bradley, Jr. Forest Hill, MD

E. Stephen Burnett, CIC, ARM Wilmington, Del

Richard F. Corroon, CPCU Wilmington, Del

N. Lee Dotson, CIC, AAI Wilmington, Del

Michael P. Ertel+ Columbia, MD

John B. Hollister Milford, PA

Jocelyn R. Howard-Sinopoli, CIC, CISR Butler, PA

Douglas A. Loesel, CPCU Erie, PA

Michael F. McGroarty, Sr. Pittsburgh, PA

Crag S. Mader

Gambrills, MD

Ann Gallen Moll, CIC Reading, PA

Mark J. Monroe

West Chester, PA

Joseph R. Pastor, CPCU, AAI Oil City, PA

Until next time,

Richard M. Rankin, CIC Lancaster, PA

April E. Ressler, CIC Altoona, PA

Scott C. Rogers, CPIA*

Diana M. Hornung Hanby Chairwoman of the Board

York, PA

Glenn R. Strachan

Ft. Washington, MD

Lawrence A. Wilson, CIC, CPIA, CPCU, ARM** New Castle, Del.

J. Marshall Wolff, CIC, CPCU Easton, PA

Editor’s Note: Read more about the Executive Management Conference at IABforME.com/events/EMC.

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AUGUST 2015

* Pa. IIABA National Director ** Del. IIABA National Director + Md. PIA National Director

Ask Our Experts

Question: Is an email disclaimer required by law?

Answer:

W

hile it’s prudent (from an E&O perspective) to include language on agency emails notifying recipients coverage can’t be modified, or a claim submitted, via email, use of such a disclaimer is not required by law.

If it’s not required by law, what are the benefits of using an email disclaimer?

Some of the benefits include: • An email disclaimer puts your customer on notice that he or she can’t and shouldn’t rely on the fact they sent you an email requesting a coverage change, or notifying the agency of a claim, and expect that their request has or will be taken care of; and • Using an email disclaimer represents a risk management technique your agency can use to control or minimize E&O exposures associated with electronic communications, and should be utilized in conjunction with other related risk management

techniques, including email filtering, use of anti-virus software, and implementing an agency-wide email policy.

Can you give an example of an email disclaimer? The following example contains commonly used email disclaimer language: A coverage modification or claim submitted via email will not be considered reported until such time as our agency acknowledges receipt of the request/information, and confirms that the coverage modification has been processed or the claim has been submitted to the insurance company.

While use of an email disclaimer doesn’t represent a silver bullet against an E&O claim or dispute, it’s a simple measure to employ; represents one more line of defense; and comes at a very affordable cost – free.

This month’s answer was provided

by Don Bankus, our legal affairs manager.

Have a question?

Ask our experts!

Rely on our experts to answer your most perplexing questions.

Visit the Ask Our Experts section of IABforME.com (find the link in the website footer) to submit your question and review answers to other frequently asked questions. Or email your question to us at IAB@IABforME.com.

We look forward to hearing from you.

Remember that it’s also prudent to include a confidentiality statement as part of your agency’s voice mail message. n

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PREVENTING ERRORS & OMISSIONS

PLACING PROFESSIONAL LIABILITY Utica National E&O Program

A

s producers look to place coverage for their clients, there is a good chance that professional liability could be one of the exposures needing attention. When most agency sales staff think of professional liability (a.k.a. errors and omissions), the following classes of professional business come to mind: travel agents, real estate agents, lawyers, medical professionals, accountants and others. While these the more common, there are over 100 additional professional occupations including appraisers, engineers, pharmacists, court reporters, funeral directors, speech pathologists, consultants, therapists and teachers that have a professional liability exposure.

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IDENTIFY THE EXPOSURE How do you know if the account has a professional liability exposure?

Although you can ask the prospect, he or she could be unaware of this aspect of the exposure or may believe his or her general liability (GL) policy will afford the necessary coverage.

A great way to start determining if a professional liability exposure exists is through the use of an industry exposure analysis checklist. When placing the general liability exposure, ask your carrier underwriters whether they will include a professional liability exclusion on the GL policy. This will provide some indication

AUGUST 2015

that there is a professional liability exposure and that the GL does not intend to cover that exposure.

COMPLETE THE NECESSARY APPS Most professional liability carriers will require a completed application to provide a proposal. The carrier will have its own specific application in many cases, so it is best to secure those necessary apps upfront. As with any app, accuracy is extremely critical. A producer should not look to complete these apps based on the belief that he or she knows the “correct answers.� It is highly suggested to meet with the client, ask

the questions and document the answers accordingly. The client should be asked to review the app and, if the responses to the questions look correct, the client should then sign the app.

SUFFICIENT TIME Most professional liability carriers will request the app 30-45 days before the expiration date. There may have been times in the past where a carrier could turn around the app in less time, but don’t count on it … especially in a hard market where the application activity could be on the rise.

REVIEW OF THE PROPOSAL This is an extremely important part of the process. Professional liability coverage is normally written on a claims-made form. A key aspect of claims-made policies is that it is rare to find two policies that are similar.

Plus, the differences can be extremely significant. For these reasons, producers should always secure a complete specimen policy from the market. This specimen policy should be provided to the prospect for review and comments.

Issues that should be reviewed include: What activities are covered? A key area for a potential significant difference involves the description of covered professional services. This area must be reviewed by the agency and the client when coverage is being placed initially or being moved to a new carrier at renewal time. Is everything that your client does included? Just because the activity was mentioned on the application does not mean coverage for that exposure is being provided.

In addition, every professional liability policy has exclusions, so these should be reviewed by the agency and the client

to determine, to what degree, those exclusions are of concern.

Who is covered? This issue, typically addressed in the definition of “who is insured,” is a common area where professional liability policies can vary from one carrier to another. The differences can include positions such as the board, temporary staff, former employees, spousal coverage, etc.

Is there “full prior acts” or a “retroactive date?” This issue is huge and has been a major issue with professional liability coverage. For coverage to potentially apply, the date of the “error or omission” must be after any applicable retroactive date as noted on the policy. In other words, there is no coverage for any wrongful act that occurred prior to the retroactive date. For the customer to have coverage for all prior wrongful acts, he or she should look to secure “full prior acts” coverage. If the professional liability contains a “retroactive date,” this should be brought to the customer’s attention and the significance explained. If the coverage is moved to another carrier at renewal time, the new policy should have the same retroactive date as the expiring policy. If the carrier is providing a more current retroactive date, this is significant and potentially extremely damaging to your customer. Don’t be misled by the premium differences because chances are the premium will be less because, essentially, the coverage is less.

one claim, it is suggested to provide options where the aggregate limit is a multiple of the per-claim limit.

The deductible. Professional liability policies will typically require the policyholder to pay a deductible in the event of a claim. The deductible can involve defense costs and the judgment, or possibly only require payment of the deductible if the client is determined to be liable. This is an important coverage issue that should be reviewed with the client so he or she understands his or her obligations at claim time.

E&O CLAIMS INVOLVING PROFESSIONAL LIABILITY CAN BE HUGE The professional liability line of business has generated a significant amount of E&O claims activity. When they happen, they can be extremely large, well into the multi-million dollar arena.

Agency staff dealing with this exposure should be well trained on the product and how it works. n

The Utica National E&O Program supplied this article. Our sales center is the exclusive agent for the Utica E&O program in Delaware, Maryland and Pennsylvania.

For questions regarding this article or your E&O coverage, contact IA&B at 800-998-9644 or IAB@IABforME.com.

The limits and how they work. Since there is probably no “right” limit for your client, it is best for agencies to provide options for the client to consider. In the world of professional liability, limits are provided on a per-claim and aggregate basis, so options involving both should be presented. To avoid your client exhausting his or her limits because of

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COVERAGE CORNER

DRONES: ARE THEY COVERED? Jerry M. Milton, CIC

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rones are becoming a common sight in many parts of the country and have been all over the news.

But what exactly are they? The Federal Aviation Administration refers to them as unmanned aerial vehicles (UAVs) or unmanned aerial systems (UASs). They can be controlled remotely, similar to how remote hobby aircraft are controlled, or they can be programmed to fly independently using GPS navigation.

They can be used for firefighting, surveillance, traffic monitoring, delivering smaller packages and spraying crops. Several insurance companies are investigating using drones for inspections, loss prevention, claims handling and

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investigations. Drones could be extremely helpful in catastrophic situations, keeping adjusters safe and out of the way of debris removal, and quickly handling claims for the insureds. As of May 2015, the FAA has given permission to four insurers (USAA, AIG, State Farm and Erie) to operate drones.

The FAA defines three types of drone operations – civil, public (governmental) and model aircraft. Civil operators must obtain a special airworthiness certificate to operate a drone in the National Airspace System (NAS). The application requires a description of the design, construction, manufacture, including engineering processes and software

AUGUST 2015

development and control, along with configuration management and quality assurance procedures. The applicant must also identify how and where the drone is to be flown. The carrying of people or property for a fee is not allowed in civil airspace, but research and development, flight and sales demonstrations and crew training are allowed.

If a public entity wants to fly a drone in civil airspace, it is required to obtain a Certificate of Authorization (COA). The COA gives the organization permission to operate a particular drone in a particular area for a particular purpose. The drones must be observed by someone in a manned aircraft or on the ground. COAs

are usually issued for a specific period of time. Most COAs require coordination with air traffic control and may require a transponder on the drone to operate in certain types of airspace. Currently COAs have been issued most often for law enforcement, firefighting, border patrol, and search and rescue.

Hobby and recreational drones do not require FAA approval but must meet safety guidelines. Safety guidelines dictate that a hobby or recreational drone not be flown near manned aircraft, not weigh more than 55 pounds, do not fly beyond sight of the operator, and do not fly for payment or commercial purposes. They must also stay below 400 feet, be flown away from populated areas, and be kept away from noise-sensitive areas such as schools and churches.

What are the insurance implications? The biggest concern appears to be invasion of privacy. The Homeowners’ policy excludes “aircraft liability,” which means liability arising out of the ownership, maintenance, occupancy, use, loading, unloading, entrustment to others, failure to supervise others, or vicarious liability for others for any aircraft. However, an exception to the exclusion states that an aircraft is “any contrivance used or designed for flight except model or hobby aircraft not used or designed to carry people or cargo.”

However, the ISO Homeowners’ policy does not include personal injury coverage, unless endorsed. The Personal Injury Coverage endorsement (HO 24 82) covers the “invasion of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” That’s not going to cover a claim brought by a neighbor or a stranger down the street.

In the Homeowners’ policy, aircraft are excluded property, except for model or hobby aircraft not used or designed to carry people or cargo. Therefore, drones are covered as personal property under the Homeowners’ policy subject to the Coverage C perils.

• Limited Coverage For Designated Unmanned Aircraft (Coverage B Only) (CG 24 52)

The aircraft exclusion in the Commercial General Liability (CGL) policy for bodily injury or property damage is absolute – there are no exceptions. There is no aircraft exclusion for personal and advertising injury.

However, the definition of personal and advertising injury states, “invasion of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” Same as the Homeowners’.

Y’all take care! n

More endorsements and policy changes will likely appear in the future – both personal and commercial. Stay tuned.

Jerry M. Milton, CIC, teaches and consults on industry issues. The legal profession recognizes him as an expert on insurance coverages. He also serves as our education consultant, working with our CISR, CIC and continuing education programs.

Catch him at one of our upcoming seminars: IABforME.com/MyTraining.

The Commercial Property policy excludes aircraft if operated away from the described premises. However, there is an exception for aircraft the insured manufactures, processes, warehouses or holds for sale.

The Insurance Services Office (ISO) has introduced several endorsements to address drone-related liability under the CGL. They are: • Exclusion – Unmanned Aircraft (CG 21 09) • Exclusion Unmanned Aircraft (Coverage A Only) (CG 21 10)

Coastal Homeowners Insurance

• Exclusion Unmanned Aircraft (Coverage B Only) (CG 21) • Limited Coverage For Designated Unmanned Aircraft (CG 24 50) • Limited Coverage For Designated Unmanned Aircraft (Coverage A Only) (CG 24 51)

Coastal Agents Alliance, LLC

ISO HO3/HO6 Immediate Quotes 15% commission Primary & Secondary Homes are eligible AM Best “A” Rated

For an appointment, contact:

Sharon Karlsson

Phone: 201-407-7151 skarlsson@coastalagentsalliance.com

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STATE NEWS

FINALIZED MAPS PINPOINT PROTECTED COASTS Identifying which coastal areas are protected by the Coastal Barrier Resources System (CBRS) – and therefore are ineligible for flood insurance through the National Flood Insurance Program (NFIP) – just became clearer.

Final revised maps for a number of CBRS units, to include those in Maryland, are now available via an online mapper from the U.S. Fish and Wildlife Service website.

CARRIERS SINK TEETH INTO NEW DOG-BITE LIABILITY STANDARDS Liability associated with dog-bite claims has been a moving target in recent years. And while the courts and legislature have been debating and amending liability standards, the cost of dog-bite claims continues to climb – up 15 percent nationwide in the past year alone.

So, in light of recent case law and subsequent legislation (effective April 2014), what can – and can’t – insurance companies do? Here’s the Maryland Insurance Department’s (MIA) take: • Insurers may not refuse to issue, cancel or non-renew a policy because the homeowner owns a particular breed of dog

The Fish and Wildlife Service provides public access to its CBRS Mapper – an interactive, online map – in response to Hurricane Sandy.

As a refresher, the CBRS is comprised of 3.2 million acres of relatively underdeveloped coastal barrier lands where most new federal expenditures and financial assistance that encourage development – to include federal flood insurance – are prohibited. Maps are revised every five years. http://www.fws.gov/cbra/Maps/ Mapper.html

• Insurers may exclude coverage for claims or losses resulting from particular breeds of dogs (if filed and approved by the MIA) • Insurers may deny, cancel or non-renew a policy after a dog bite claim has been filed Last session’s legislative action segregates liability between dog owners and nonowners and removes the inherently dangerous label on pit bulls. Access our online resource for more details from the MIA, as well as our synopses of recent case law (Tracey v. Solesky) and new state law.

WELCOME NEW MEMBERS

IABforME.com/dog_breed_exclusion

ROSS INSURANCE AGENCY INC. Catonsville, MD

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AUGUST 2015

IA&B, COMMISSIONER REDMER DISCUSS P&C LAW Following the whirlwind 2015 legislative session, Insurance Commissioner Al Redmer is reaching out to the insurance industry to review areas of interest and concern. Your IA&B government affairs team, along with other industry stakeholders, met at the Maryland Insurance Administration (MIA) this summer to discuss with Commissioner Redmer statutory provisions in the Insurance Article that are of concern.

The group discussed a range of topics including mandatory deductibles and the “other related storms” language; homeowners’ notices; dog bite legislation; and testimony in support of expanding the use of credit to homeowners’ insurance.

Our representatives spoke regarding commercial premium increase notices, stating that the current minimum threshold for premium increase notifications to insureds remains too low and that the notices often serve unnecessarily as “go shop” letters.

At the end of the hearing, Commissioner Redmer indicated that he and his staff would review these suggestions and meet with the industry at a future time on possible legislation.

IS A 100 PERCENT COMMERCIAL CONDO REQUIRED TO CARRY A FIDELITY BOND? Unless it can claim an exemption based on its small size, the answer is yes, a 100 percent commercial condo is required to carry a fidelity bond.

• Under Maryland law, condominium associations, homeowners’ associations and cooperative housing corporations are required to carry fidelity insurance to cover any internal mishaps (read: fraud, dishonesty or criminal acts) by their employees, agents or directors and officers.

This fidelity insurance can take the form of a bond.

• While most of the insurance requirements regarding Maryland condos apply to those that are residential in whole or in part, the fidelity requirement applies to all condos, including those that are entirely commercial. The 2010 clarification amendment was inserted in a separate section, and we confirmed its applicability with the Attorney General’s office.

• To claim an exemption, the smaller associations must have four or fewer units, and three months of gross annual assessments must be worth less than $2,500.

IABforME.com/resource-center/ condo-md/after-287

NEIGHBORING NEWS: DELAWARE NIXES SURPLUS LINES BURDEN If you place surplus lines business in Delaware, prepare for a reprieve. As of Wednesday, Sept. 2, the surplus lines affidavit form (SL-1923) no longer will require notarization – a stipulation that placed an undue burden on agents.

Delaware Gov. Jack Markell in early June signed into law House Bill 40 (now Chapter 30 of the 148th General Assembly). The legislation marks a win for our sister association in Delaware, which championed the bill.

The Delaware Department of Insurance (DOI) late last year took a literal stance of the law and began requiring notarization of all surplus lines affidavit forms.

The Delaware Association of IA&B immediately began work with lawmakers and the DOI on legislation to provide a “fix” to this new requirement. State Rep. Bryon Short and the DOI were receptive to our concerns and instrumental in the bill’s passage.

MAIF MOVE PROMPTS NOTICE UPDATES The Insurance Article requires insurers to include in particular notices the Maryland Automobile Insurance Fund’s (MAIF) contact information – information that must be updated this summer to reflect the Fund’s move.

Impacted notices include: • Cancellation, nonrenewal or reduction of coverage for private passenger automobile policies • Cancellation or nonrenewal of commercial automobile policies Notices issued on or after Aug. 1 should contain the new Baltimore address.

Those issued through the end of July should continue to use the current Annapolis address.

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PLATINUM PROFILE

Insurance Agents & Brokers proudly recognizes The Main Street America Group as one of its Platinum Partners. IA&B Platinum Partners dedicate the highest level of sponsorship to our organization.

FOCUSED ON RESULTS THE MAIN STREET AMERICA GROUP

T

he Main Street America Group’s rich history began 92 years ago when we formed our company to serve the insurance needs of Grange fraternity members. Today, Main Street America’s affiliated insurance companies provide a full line of competitively priced personal lines and commercial lines products and services to individuals, families and small businesses in 36 states, and fidelity and surety bond products in 47 states and the District of Columbia.

We annually write nearly $1 billion in premium, have surplus of nearly $1.04 billion and more than $2.4 billion in total assets.

anyone else in the market. We are also a founding company partner of the TrustedChoice.com consumer agent portal and the Insurance Institute for Business & Home Safety (IBHS) Research Center.

To become our customer and represent NGM and Main Street America in your market, please visit www.msagroup.com and click on the “Become a Main Street America Agent” link. n ** A.M. Best’s rating of “A” (“Excellent”) applies to The Main Street America Group and its nine affiliated writing companies. Ratings listed herein are as of June 11, 2015, are used with permission of A.M. Best, and are subject to changes by the rating service. For more information about ratings, please access www.ambest.com

Through our nine “A” rated property and casualty writing companies — including our largest carrier, NGM Insurance Company — we partner with 3,000 independent agents to provide superior, personal service to more than 650,000 policyholders.

As the founding company partner of the Trusted Choice® brand, Main Street America is fully committed to the independent agent distribution channel.

We strive to meet the needs of our customers (agents), and our customers’ customers (policyholders), better than

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FEATURED PARTNER The Main Street America Group CHIEF EXECUTIVE OFFICER Tom Van Berkel, Chairman President and CEO CORPORATE HEADQUARTERS Jacksonville, Florida Northeast Region Headquarters Syracuse, New York Northeast Region President Mark Berger Northeast Region Sales Director John Hwilka Northeast Region Field Representatives Renee Herness (Eastern Pennsylvania) Matt Kilroy (Delaware, Maryland) Dave Roshala (Western Pennsylvania) David Tolerico (Delaware, Maryland, Southeast Pennsylvania) Northeast Region Markets Delaware, Maryland, New York, Pennsylvania A.M. BEST RATING Financial Strength: “A” (Excellent) Issuer Credit Ratings: “a+”

Mark Berger Northeast Region President

AUGUST 2015

PARTNERS PROGRAM

Listed below are those companies that strongly support the independent agency system and Insurance Agents & Brokers.

Thank you for your continued sponsorship.

WHAT IS IA&B PARTNERS? The IA&B Partners program gives company and allied businesses the opportunity to demonstrate their commitment of support to independent agents and receive maximum market exposure. As an IA&B Partner, you will also realize the benefits of IA&B membership to help you succeed in the insurance industry.

PLATINUM LEVEL

BRONZE LEVEL

ACUITY

Aegis Security Insurance Co

Berkley Mid-Atlantic Group

Agency Insurance Company

Donegal Insurance Group

AmWINS Program Underwriters Inc

Erie Insurance Group

ARI Insurance Companies

Harleysville Insurance HM Insurance Group Insurance Agents & Brokers Service Group Inc

To become an IA&B Partner, choose the sponsorship package that matches your commitment of support.

Contact the Member Sales Center at 800-998-9644, 717-795-9100 or visit us online at IABforME.com to get started.

Bailey Special Risks Inc Brethren Mutual Insurance Company

Liberty Mutual Insurance

Briar Creek Mutual Insurance Company

MMG Insurance Company

Conemaugh Valley Mutual Insurance Co

Millers Mutual Group

Countryway Insurance Company

Millville Mutual Insurance Co

Encompass Insurance

Mutual Benefit Group

Foremost Insurance Group

Penn National Insurance

GMI Insurance

Swiss Re

Goodville Mutual Casualty Company

The Main Street America Group

Guard Insurance Group

United Fire Group

DO YOU SEE YOUR NAME?

Auto-Owners Insurance Company

Utica National Insurance Group

Insurance Alliance of Central PA Inc Insurance House Insurance Placement Facility of PA

GOLD LEVEL

Keystone Insurers Group Inc

Progressive

Lackawanna Insurance Group

Westfield Insurance

Lebanon Valley Insurance Company Merchants Insurance Group

SILVER LEVEL

Mercury Casualty

Access Insurance Company

PennPRIME Municipal Insurance

American Mining Insurance Co

Reamstown Mutual Insurance Company

Cumberland Insurance Group

Rockwood Casualty Insurance

Farmers Mutual Insurance Company of Western Pennsylvania

State Auto Mutual Insurance Company

Frederick Mutual Insurance Co

TAPCO Underwriters Inc

Juniata Mutual Insurance Co

The Motorists Insurance Group

MAPFRE Insurance

The Mutual Service Office Inc

PSBA Insurance Trust

Travelers

Selective

Tuscarora Wayne Group of Companies

The Philadelphia Contributionship

Zenith Insurance

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ADVANCING

YOUR CAREER TRAINING TO MEET INDIVIDUAL NEEDS

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AUGUST 2015

We’re rethinking professional training and think that you should, too. Introducing a new way to look at continuing education – education that speaks to your individual career goals and to your agency’s unique needs.

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W

e’ve done our member research (thank you, Member Agent Panel attendees) and heard you loud and clear: Having a clear-cut path and job- and agency-specific training makes continuing education seamless, focused and more worthwhile for everyone involved. And so we’ve responded by refocusing our education on individual staff and agency needs.

ZEROING IN ON INDIVIDUAL NEEDS Our approach to professional development now recognizes the differences among agency employees’ job duties and career goals, as well as the unique skills needed for them to fulfill their roles successfully within the agency.

Take this spring’s Agency CSR Evolution – our first-of-its-kind, full-day conference designed for service staff that mixed sales training with continuing education and (dare we say it?) fun.

The morning featured Libby Spear, an energetic speaker who provided four hours of skills training: how to understand various social styles and communicate accordingly and how to crosssell confidently and without fear. The afternoon included 3 CE credits with concurrent commercial and personal lines seminars.

The pilot program drew rave reviews: 100 percent of participants reported that the event met their expectations, and 96 percent said they liked the mixed coverage/non-coverage format.

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AUGUST 2015

AGENCY CAREER & TRAINING PATHS LEARN MORE about the three training paths – geared to sales (producers), service (CSRs) and management roles – outlined on our website. Each contains a downloadable, customizable checklist for introducing an employee new to the agency or new to his or her position to relevant training opportunities and member resources.

IABforME.com/TrainingPaths

There will be more where that came from. Following the success of our first CSR conference and interest from other pockets of our tri-state footprint, we plan to recreate the one-day conference that mixes non-conventional, skills training with more standard, continuing education opportunities. And beyond the service role, we intend to address the sales role with a similar conferencestyle offering for producers in the months ahead. (Watch Agent Headlines and IABforME.com for details.)

NAVIGATING A CAREER-FOCUSED PATH Another way we’ve honed in on agency role-specific needs is by designating tracks that propose a course of professional training, as well as offer an introduction to IA&B member resources. Ideal for those who are new to an agency or new to a position, the paths are segmented for sales (producers), service (CSRs) and management roles.

Housed on our website (see sidebar), the paths provide downloadable, customizable checklists. Included is a range of tasks – everything from introduction to the agency’s policies, to implementation of a mentoring program, to recommendations for appropriate sales and coverage training – as well as links to relevant resources on the IA&B website.

FURTHERING A RELEVANT APPROACH Beyond focusing on individual staff needs, we’re also zeroing in on agency’s unique needs. Independent agencies are, by their nature, diverse. Obviously the principal of a large agency with 50-plus staff has a different experience – and different challenges, perspectives and day-to-day duties – than one who oversees a shop of five.

Over the past year, we’ve held several focus group-style meetings with member agencies of similar sizes to gauge their needs. One of the outcomes is prevalent in the design of this fall’s annual Executive Management Conference, which will focus specifically on the needs of small agencies. (Save the date and location of Oct. 27-28 at Bear Creek Mountain Resort in Berks County, Pa. for the event. And watch IABforME.com/events/EMC and Agent Headlines for more details in the weeks ahead.)

DESIGNING A ROAD MAP This is all just the beginning. Focusing training on individuals’ and agencies’ unique needs soon will be the direction for all of our education offerings. It’s another way we are living up to our “IA&B for Me!” brand and making your association membership more meaningful to you. n

FEEDBACK REQUESTED WE WANT to hear from you: What program topics and skills training would you like us to offer?

We’re currently running special topic seminars on Time Element/Business Income coverage, Business vs.

Personal Auto, and Cyber Liability. And as we’ve shared in this article, we’re planning sales training specifically for producers in the months ahead.

Keep us posted on other subjects – as well as skills training – that would be beneficial.

IAB@IABforME.com

Ready to sell, downsize, retire, or expand your services and products?

Talk with the business professionals at AAA Mid-Atlantic Insurance Agency.

I’d welcome the opportunity to discuss your desire or need for change—and how I can help you attain your goals.

Call:

Judy Dodds

Business Development Manager 302-299-4776 or email at: jdodds@aaamidatlantic.com ©2015 AAA Insurance

15

WHEN IS THE

“OCCURRENCE” – “FIRST MANIFESTATION” OR “MULTIPLE TRIGGER”

by Jerry M. Milton, CIC Late last year, the Pennsylvania Supreme Court rendered a decision that could disrupt a common understanding of the coverage trigger in CGL policies.

The case involves the contamination of the water supply on a dairy farm and resulting property damage occurring over several years before the issue was identified, leading to a dispute over which policies and limits should apply. Front and center are the issues of “first manifestation” vs. “multiple trigger.”

The majority opinion sided with insurer Penn National in deciding that a single policy would cover damage to the dairy farm caused by the plumbing contractor and his

16

subs, and disagreed with the farmers’ contention that continuous and progressive property damage to the dairy herd warranted application of the multiple-trigger theory (as similar claims have in other jurisdictions).

This was a split decision, in which the dissenting opinion made some compelling arguments for a different analysis of the facts at hand. Being decided by the Supreme Court, how this decision will impact future claims is anybody’s guess, and ironically, opinions also differ on its long-term implications.

AUGUST 2015

I

n 2002, John D. St. John and Kathy M. St. John, the coowners of Thunder Valley Farm, a dairy farm in Chester County, Pa., decided to expand the size of their dairy herd and milking facility. They hired LPH Plumbing to install a new plumbing system, which included a wastewater drainage system and a separate freshwater drinking system. LPH Plumbing subcontracted Stoltzfus Welding to weld the metal pipes leading to the holding tank for the new freshwater drinking system.

Construction of the new plumbing system was completed by July 1, 2003, at which time the St. Johns began dairy operations in the expanded milking facility.

Unknown to the St. Johns when they began their dairy operations, the plumbing system installed by LPH Plumbing was defective. PVC piping used by LPH Plumbing for the wastewater system was cracked, allowing “gray water” containing natural and chemical waste byproducts to escape. In addition, Stoltzfus Welding failed to properly weld an intake pipe leading to the holding tank for the freshwater drinking system. Within a few months after the commencement of operations, gray water that leaked from the PVC pipe and infiltrated the freshwater holding tank through the defective weld. As a result, the St, John’s dairy herd was exposed to contaminated drinking water shortly after their operations began in July 2003.

The gray water contamination caused various health and reproductive problems with the dairy herd, beginning as early as April 2004. These problems continued with greater frequency over the next few years. During this time, the St, Johns, who were

unaware of the gray water contamination, consulted numerous veterinarians and nutritionists to help diagnose and remedy the dairy herd’s various health problems. Some of these problems were common to dairy farming, like reduced milk production, ketosis and metabolic disorders. However, others were rare, such as laminitis, salmonella poisoning and birth defects.

The St. Johns tested their water supply on a regular basis in compliance with farming regulations, but they did not discover the gray water contamination since their testing was conducted at the wellhead rather than the holding tank. The St. Johns finally began to suspect that the dairy herd’s drinking supply was the cause of the problems when, in March 2006, they noticed the cows thrashing their heads in the drinking troughs and refusing to drink the water. After investigating further, the St. Johns discovered the plumbing defects and the ongoing escape of gray water into the dairy herd’s drinking supply.

THE LITIGATION CYCLE BEGINS In 2007, the St. Johns filed a suit in the Court of Common Pleas of Chester County against LPH Plumbing and Stoltzfus Welding for the negligent installation of the plumbing system.

LPH Plumbing was defended in this action by its insurer, Pennsylvania National Mutual Casualty Insurance Company (“Penn National”). Penn National covered LPH Plumbing under three Commercial General Liability (“CGL”) policies from July 1, 2003 through July 1, 2006 and an Excess Liability policy for the period of July 1, 2005 to July 1, 2006. Each policy had a $1 million limit.

17

The jury returned a verdict in favor of the St. Johns, finding LPH Plumbing and Stoltzfus Welding jointly and severally liable for $3.5 million in damages plus an additional $277,505.36 in delay damages.

LPH Plumbing appealed the verdict, and the Superior Court assigned the case to its appellate mediation program.

The St. Johns, LPH Plumbing and Penn National entered a memorandum of understanding, whereby LPH Plumbing agreed to discontinue its appeal and Penn National agreed to pay $1.2 million to the St. Johns in exchange for their waiver of claims against LPH Plumbing.

The $1.2 million represented the limit of liability of one Penn National CGL policy, plus a portion of the delay damages awarded by the trial court. The St. Johns retained the right to seek the remainder of the $3.5 million judgment directly from Penn National.

(Before we go any further: To all of you who have some knowledge of what the CGL covers and what it excludes, you are probably thinking that Penn National should not pay anything since this is a pollution claim and the CGL excludes pollution. However, the unendorsed CGL does not exclude bodily injury or property damage arising out of the products-completed operations hazard.)

Penn National filed a declaratory judgment action in the Court of Common Pleas of Chester County to determine its rights and responsibilities under the four Penn National policies that were in effect during the relevant time periods. Penn National contended that it was responsible for LPH Plumbing’s liabilities only under the policy in effect from July 1, 2003 to July 1, 2004, when the injuries and damages were first manifested.

18

The St. Johns counterclaimed, seeking a declaration that the liability imposed on LPH Plumbing triggered the policies that were in effect from July 1, 2003 to July 1, 2006. They contended that Penn National agreed to indemnify LPH Plumbing for bodily injury or property damage if: (1) the “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; (2) the “bodily injury” or “property damage” occurs during the policy period; and (3) prior to the policy period, no insured knew that the “bodily injury” or “property damage” had occurred in whole or in part.

Penn National’s CGL policies defined “occurrence” as “an accident, including continuous or repeated exposure to the same general harmful conditions.”

Penn National and the St. Johns stipulated the following facts regarding their opposing declaratory judgment actions: (1) t he damage that LPH Plumbing’s negligence caused the St. John’s dairy herd constituted “property damage”; (2) t he property damage to the dairy herd took place during the policy period of each of the Penn National liability policies at issue; and (3) no exclusions from coverage under the policies applied.

At a non-jury trial on June 10, 2010, the St Johns provided testimony regarding the nature of the injuries sustained by the

AUGUST 2015

dairy herd and the timing in which these injuries first manifested themselves.

The St. Johns explained they first encountered problems with the dairy herd in April 2004, when they experienced a significant drop in milk production, which is common to dairy farming and can be attributed to a wide range of possible causes. They further testified that in April 2004, the dairy herd began experiencing health problems, some of which were not unusual to dairy farming. The St. Johns stated they did not suspect that their dairy herd’s water supply was contaminated until March 2006, when they notice the cows thrashing their heads in their drinking troughs and refusing to drink.

On August 31, 2010, the trial court ruled that Penn National was liable for paying the judgment against LPH Plumbing only under the CGL policy in effect for the period of July 1, 2003 to July 1, 2004. The trial court concluded that the damages constituted a single occurrence, which happened when the effects of LPH Plumbing’s negligence first manifested in April 2004, with the drop in milk production. The trial court explained that an occurrence triggers coverage under one of the CGL policies when the effect of a negligent act first manifests itself in a manner that would put a reasonable person on notice of damage to personal property. This is called the “first manifestation” rule. The fact that the St. Johns did not discover the reason for the dairy herd’s health problems until March 2006 did not affect the trial court’s opinion since they were aware of the problems caused by LPH Plumbing’s negligence in April 2004.

The St. Johns filed for post-trial relief, but the trial court denied their motion.

The St. Johns then appealed to the Superior Court.

ARGUING THE “MULTIPLE TRIGGER” THEORY OF LIABILITY On appeal, the St. Johns raised the same two issues they argued in their motion for post-trial relief. First, they argued that the initial manifestation of injury happened no earlier than March 31, 2006, when they discovered the contaminated drinking water. In so arguing, the St. Johns sought coverage under both the CGL policy and the excess policy in effect from July 1, 2005 to July1, 2006. Second, they argued, in the alternative, that the general progression of various diseases affecting the dairy herd between April 2004 and March 2006 constituted multiple or continuous occurrences, thus triggering each policy at issue. This is known as the “multiple trigger” theory of liability insurance and was adopted by the Court and applied to asbestos-related disease claims.

The trial court had deemed the “multiple trigger” theory of liability inapplicable since Pennsylvania appellate courts have declined to apply the “multiple trigger” theory outside of latent disease cases, like asbestosis or mesothelioma. The concern in latent disease cases is that the application of the “first manifestation” rule would allow insurance companies to terminate coverage during the long latency period of the disease.

A divided Superior Court panel affirmed the trial court decision, finding Penn National liable only under the CGL policy in effect from July 1, 2003 to July 1, 2004. The Superior Court agreed that the “first manifestation” rule served as the appropriate test for determining when an occurrence happens under a CGL policy like the Penn National policies. The Superior Court concluded that there was sufficient evidence to support the trial court’s finding that the

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damage to the dairy herd manifested in 2004, when there was a significant decline in milk production, followed by a variety of health problems.

“multiple trigger” theory of liability and would have granted the St. John’s demand for coverage under each of the four Penn National liability policies.

Like the trial court, the Superior Court declined to apply the “multiple trigger” theory of insurer liability and find that the continuous and progressive damage sustained by the dairy herd between 2003 and 2006 constituted a series of multiple occurrences, which would trigger each of the four policies at issue. The Superior Court refused to follow case law from other jurisdictions that would support applying the “multiple trigger” theory to this case.

The St. Johns then appealed the Superior Court’s decision to the Supreme Court of Pennsylvania, raising the following issues:

Judge Bowes dissented, contending there was not competent evidence to support the trial court’s findings that the effects of LPH Plumbing’s negligent installation of the plumbing system first manifested in April 2004. She pointed to testimony offered by the St. Johns indicating that, apart from fluctuations in milk production, the health issues with the dairy herd did not suddenly appear in 2004, but developed gradually over the various policy periods. Judge Bowes stated that she would have accepted the St, Johns’ alternative argument that the injuries sustained by the dairy herd constituted continuous and progressive property damage warranting application of the

1. Did “manifestation” of “property damage” to the dairy herd take place in late March 2006, when the cows were observed thrashing their heads about their water troughs, refusing to drink, and giving dramatically less milk, rather than, as held by the trial court, in April, 2004, based on an economic downturn from a decrease in milk production?

2. Does “manifestation” of “property damage” for purposes of triggering a commercial general liability insurance policy take place only after the injured party has the ability to ascertain the source of injury or damage is traceable to something out of the ordinary and usual course of events for which another may bear responsibility?

3. Does the “multiple trigger” theory of liability insurance coverage adopted by the Supreme Court in

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J.H. France Refractories, Inc. v. Allstate Ins., 534 Pa. 29, 626 A.2d 502, 507 (Pa. 1993) apply to cases presenting continuous, progressive “property damage” so that all policies on the risk from exposure to the harmful condition through “manifestation” of the injury are triggered?

The Supreme Court addressed these issues, and in their decision they included the following comments: 1. The St. Johns agree with the trial court and Superior Court that there was only one occurrence as defined by the Penn National policies, namely LPH Plumbing’s negligent installation of the plumbing system in 2003.

2. The St. Johns disagree with the trial court’s determination that the effects of LPH Plumbing’s negligent installation of the plumbing system first manifested in April 2004, when there was a substantial drop in milk production and instead argue that the effects of LPH Plumbing’s negligence first manifested in March 2006, when they discovered the gray water contamination.

3. The St. Johns acknowledge that the proper application of the “first manifestation” rule, also known as the “effects” test, is found in D’Auria v. Zurich Ins., 352 Pa. Super.

231, 507 A.2d 857 (Pa. Super. 1986), in which the Superior Court held that a policy of commercial general liability insurance is triggered “when the injurious effects of the negligent act first manifest themselves in a way that would put a reasonable person on notice of injury.”

4. The St. Johns’ first two issues address the trigger of coverage under the Penn National policies. The expression “trigger of coverage” is used to describe the event that must take place during a policy period for coverage under a policy of insurance to take effect.

Courts have generally applied one of five theories for determining which event triggers coverage under a policy of liability insurance. These theories include: wrongful act (coverage triggered when the wrongful act is committed); exposure (coverage triggered when the injured person or damaged property is first exposed to harm); first manifestation (coverage triggered when harm is first manifested); multiple trigger (coverage triggered under

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every policy between time of exposure until manifestation of harm); and injury in fact (coverage triggered when claimant suffers injury).

5. The language of the Penn National policies does not support the St. Johns’ contention that coverage is triggered under the policies when bodily injury or property damage and its cause are reasonably ascertainable. The policy language plainly states that coverage is triggered when “’bodily injury’ or ‘property damage’ occurs during the policy period.” Coverage is triggered under one of the Penn National policies when any of the following are reasonably ascertainable: physical injury to tangible property, loss of use of tangible property, bodily injury, sickness or disease. The Penn National policies contain no language requiring the cause of injury to be identifiable before coverage is triggered.

On Dec. 15, 2014, in the case of John D. St. John and Kathy M. St. John, Individually and d/b/a/ Thunder Valley Farm v. LPH 7.5X4.625 Plumbing and Heating. LLC and Stoltzfus Welding and Repair, General JGS Umbrella Program ad the Supreme Court of Pennsylvania ruled as follows: Consistent with our analysis set forth above, we hold that only the Penn National policy in effect when

damage to Appellants’ dairy herd first manifested in April 2004 is answerable for the ensuing property damage. The judgment of the Superior Court is therefore affirmed.

I don’t know about you, but I’m confused. Why was the “occurrence” in 2004 and not 2004, 2005 and 2006? What about “continuous and repeated exposure”? And since the St. Johns had no knowledge that the damage had occurred in whole or in part until 2006, the “known injury or damage” wording of the CGL should not apply to this claim. Oh, well!

Y’all take care! n

Jerry M. Milton, CIC, teaches and consults on industry issues. The legal profession recognizes him as an expert on insurance coverages. He also serves as our education consultant, working with our CISR, CIC and continuing education programs.

Catch him at one of our upcoming seminars: IABforME.com/MyTraining.

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AUGUST 2015

CLASSIFIED

My Events

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James K. Ruble Graduate Seminar

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William T. Hold: Writing Commercial Acts.

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James K. Ruble Graduate Seminar

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E&O Risk Mgmt.: Meeting the Challenge of Change Philadelphia, PA

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A DV E R TI S E M E N TS SOUTHEAST PA PRODUCERS & AGENCIES Professional agency since 1926 located in Feasterville, Bucks County, Pa. Call for confidential information and a review of our services.

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E&O Risk Mgmt.: Meeting the Challenge of Change Mechanicsburg, PA

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22

CISR Personal Residential

Reading, PA

Coastal Agents Alliance...............................................7

22

Cyber, Equipment Breakdown & Electronic Data

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23

CISR Commercial Casualty II

Mechanicsburg, PA

Donegal Insurance Group.......................................21

23

Cyber, Equipment Breakdown & Electronic Data

Philadelphia, PA

EMC Insurance Companies..................................23

24

CISR Commercial Casualty I

Salisbury, MD

28-Oct. 1

CIC Commercial Property Institute

Erie, PA

IA&B Partners Program............................................11

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William T. Hold: Language Surprises

Allentown, PA

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William T. Hold: Language Surprises

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Millers Mutual Group.................................................IFC

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Advanced Time Element

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