Burand’s Agency E&O Blog: Tip #5

Minor items do cause E&O claims and sometimes your carriers exploit these minor items. Almost every agency occasionally receives law suit papers and every agency knows they have to forward these papers to the carrier immediately. The papers the agency receives may obviously be copies, but most agencies know to never assume the carrier has received their copy, so they diligently forward the documents to the appropriate carrier.

The way those papers are forwarded though can make all the difference in the world. I have witnessed carriers claiming they never received these papers from the agency. The result, in their opinion, was they lost the case because they did not receive the papers. For example, one carrier failed to show up in court and lost through summary judgment. The carrier claimed that the reason they did not appear was they never received the suit papers, so they sued the agency for failure to deliver, and they won. The agency had sent the papers, by fax, and had a fax confirmation sheet showing they had faxed the papers in a timely manner. Fax confirmation sheets and even email confirmations do not always hold up in court. Too often, these documents are dismissed as irrelevant, which makes sense because both fax and regular email confirmations are too easily faked.

The solution then is to use certified return receipt mail, private carrier signed receipts, or one of the electronic email return receipt services that have been court tested and approved (this does not include regular return receipt email). At the very least when sending important documents, obtain some kind of written confirmation from the receiver they have received the documents. Silence is not confirmation.

Topics Carriers Professional Liability