I believe it’s safe to recommend they have a fleet policy, which should include the following.  

• Employees must follow all traffic laws, including seat belt and cell phone use. The company may allow hands-free driving; however, a National Safety Council study found that 24% of car crashes occurred during hands-free driving. Folks, take it from me, our brains do not evolve to multi-task. 

• After drinking any alcohol, the policy should disallow driving any vehicle on company business, even if considered recreational such as a business-related sports event. Employees should always take alternate transportation once the employee drinks any alcohol. It is better for the company to pay for alternative transportation than risk an accident involving alcohol.  

• Employees must pay for any traffic tickets or parking violations, even if the ticketing occurred while driving on company business.  

• When employees use personal vehicles for business, your client should recommend they verify at each renewal that their employees carry adequate insurance limits. How high should those personal limits be? That is a company decision; however, a minimum of $300,000 combined single limits may be a valid recommendation.  

• The employer should restrict fleet vehicle use to employees, prohibiting non-employees, even family members, from driving or using vehicles for any reason. Employees should safeguard key storage because leaving keys readily available can imply to an insurer or a jury “permissive use.”  

• Be sure there is someone in charge of replacing registration and insurance cards as needed (annually) in each vehicle’s glove box.  

• Employees should immediately report any accident, no matter how minor. Often small incidents may go unreported, which later morph into actual claims. Clients should insist employees report any vehicle incidents by the end of their workday.  

Insurance agents who assist in their clients’ risk management efforts should avoid offering services that could generate an errors & omissions claim. Here are some key practices that can generate E&O claims and references you can provide to your clients.  

• Clear communication is vital—ensure clients understand the scope and limitations of your services.  

• Whenever in doubt, refer your client to the carriers’ loss prevention teams whenever possible. Larger carriers have excellent resources on their website as well as field loss prevention specialists who can often help.  

• If the standard of care in your state is “Order-Taker Status” as it is in four states, that does not mean you cannot be found responsible for errors. Today juries may be willing to overlook your “status” even though instructed otherwise by the judge. Or the judge may determine that you created a “special relationship” by offering risk management advice or taking other actions. According to the Hasset Glasser Law Firm in Phoenix, Arizona, “Insurance producers [who] are order takers … have no duty to advise the insured regarding the adequacy of insurance coverage absent a special relationship between the producer and client or special circumstances.”  Their book, “Duty to Advise,” is available to Big “I” members who are policyholders at this link. Their book outlines the producer standard of care in each state.  

• If your clients ask for recommendations that exceed your role or expertise, refer them to appropriate resources. Referring them to organizations such as IRMI, RIMS, OSHA, their state National Safety Council and the thousands of open Virtual University articles on the Big “I” website can help them and decrease your exposure to an E&O claim.  

• Set realistic expectations about what you can provide, using disclaimers that recommend your clients also seek legal advice or specialized input.  

• Document religiously. Scrupulously document all client interactions, recommendations you make, and any actions you may take on your insured’s behalf. This not only protects you in case of disputes but also highlights your professionalism.  

• Avoid reading your insured’s contracts except for the portions that relate directly to insurance requirements. Always suggest they get legal advice, and document this recommendation. Use standard language across your agency whenever possible so that your producers and customer service reps can cut and paste language directly into any documentation they send.  

• Use disclaimers wherever possible, for example, if you suggest they purchase excess flood insurance and they refuse, send a declination form or at a minimum send a confirming email.  

• Watch this online seminar on the Duty to Advise if you are a Big “I” member with Swiss Re coverage. 

• Your website and all marketing collateral you produce can create big E&O exposures. There are several useful resources on this topic at this link. Top tip: If you bill yourself as a risk manager or use your expertise in each area of coverage (e.g., construction), you may set yourself up for a higher standard of care.  

• Those catchy slogans such as, “We protect you 24/7,” or “Our agents are experts in protecting your business,” can create a litigation defense nightmare. In one instance, the simple phrase, “We’ve got you covered” came back to haunt the agent (and the E&O carrier) at trial. In this case, the agent missed recommending vital coverage that could have paid for the uncovered loss. The plaintiff attorney used this phrase from the agent’s website and asked, “Your website says “We have you covered. You didn’t though, correct?” All the agent could say was “In this case, yes.”