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selecting insurance broker and when is your insurance broker liable? April 12, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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selecting insurance broker and when is your insurance broker liable?
April 12, 2018
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At the ISC show?  Stop by to say hello
                
April 12:  Stages luncheon 11 AM.  For central stations only
                COPS Monitoring booth:  1 - 2 PM
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selecting insurance broker and when is your insurance broker liable?
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    What is the liability of an insurance broker to its customer?  Some common issues could be

    I suppose the list could go on.  The answer to the question isn't as easy as you may think.  In fact, the answer may depend on what state you are in.  
    The first issue you need to focus on is the status of your "broker".  Is he or she a "broker" or an insurance agent?  What's the difference?  The Agent represents the insurance company, a Broker represents you.  An  Agent is either Captive or Independent.  A captive agent represents one insurance company.  An independent agent represents multiple insurance companies.  A captive agent will receive an Appointment from a carrier, a contract, specifying the agent's responsibilities and authorization to act on behalf of the insurance carrier, including writing the insurance and binding coverage.
    Brokers solicit insurance from multiple insurance carriers, requesting quotes by submitting completed applications; they cannot bind coverage.  Coverage is obtained when an insurance carrier, or its agent, issues a Binder.  A Binder provides temporary insurance coverage and is replaced by the policy of insurance.  The Binder must be signed by the carrier or the agent, so watch for that.
    So, who can you sue?  Well, the Agent represents the carrier, not you.  Unless you are dealing with the Agent directly and not through your broker, the agent need only provide you with what you or your broker asked for.  Other than a fraud claim it's not likely you'll be thinking about suing the agent. 
    The Broker is another matter.  The broker can be sued for negligence or breach of contract.  But whether you can actually successfully sue your broker can depend on what state you are in.  Two good examples are New York and New Jersey.  In New York, your broker is a salesperson who only needs to sell you the insurance you ask for.  The exception to that general rule is when the broker has a "special relationship" with you, and that could be hard to prove since there are no reported cases in New York where a special relationship was found.  New Jersey is quit the opposite.  In New Jersey your broker is considered a "fiduciary" with a heightened duty to protect your interests.  All you need is to find some promotional statements on the brokers website telling you how the broker is going to protect you, has unique skills in a particular industry, will design the right program, etc.  Then mistakes in coverage [which  may become obvious only after you have a claim] will form the basis of a lawsuit against the broker.  
    Broker liability can arise when you find out you could get similar coverage for half the price ; You thought you had alarm industry E&O, and you don't;  You were told that your coverage limits were sufficient, and turns out it isn't; you thought you'd be covered for a claim, and you aren't. etc.
    The alarm industry and related industries is a niche market and there are only a handful of brokers or agents who are truly knowledgeable about the industry and able to guide you properly.  But even they have their divided loyalties because while they depend on you for their business, you don't pay them.  You should ascertain whether you are dealing with the carrier directly [like SARRG if you call it yourself], an Agent, such as Costanza agency in Texas, or brokers. [See 
The Alarm Exchange for brokers and agents in the Insurance Category. If your broker isn't on the list, switch to a broker who is.]  You will realize why one may recommend only one product while another is open to different insurance companies, though you will find that even they have their "first go-to" carrier because they have a better relationship with it, or it pays the higher commission, or your broker has friendships there, etc.  The important issues for you to consider are:

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com