What you need to know when choosing professional indemnity solution
Retroactive date
A retroactive date defines how far back in time a loss can occur for your policy to cover your claim. If a claim happens prior to your retroactive date, your policy won't provide benefits. It is a feature of the “claims-made” Professional Indemnity insurance.
- Example – You performed a service in June 2019. In August 2021, you have been notified of a potential loss for the work you performed in 2019. You purchased a new Professional Indemnity policy, and your retroactive date is the inception date of the policy on 1 February 2021. The incident that you have been notified of in August 2021 that occurred in 2019, will not be covered by your current policy, as your retroactive date only covers claims dating back to 1 February 2021, and not any further back.
- Tip – pay attention to the retroactive date, and whether the retroactive date is Unlimited.
Claims made
Claims made coverage protects you for claims filed against you during the current insurance period, regardless of when the incident occurred, provided there is no retroactive date limit. When you (the insured) are first notified of a potential claim or incident, it is the current policy that the claim/incident will fall under.
- Example – You performed a service for a fee in June 2019. In August 2021 you have been notified of a potential loss for the work you performed in 2019. The claim will fall under the 2021 policy not the 2019 policy, as that is when the claim was made. The current insurer will respond to a claim made against the insured, and not the insurer at the time of the original incident.
- Tip – inform the current insurer of any potential claims during the policy period.
Inclusive vs costs exclusive limit
Policies that are costs inclusive can erode your limit during defense. Costs exclusive limits pay defense costs over and above the limit and may better protect the sum available to meet damages.
- “Inclusive” limit, means the Defence Costs are included in the limit.
- “Exclusive” limit, means the Defence Costs are excluded from the limit.
- Example – Professional Indemnity Limit: $1,000,000 inclusive of costs.
You have a limit of $1,000,000 which includes the Defence costs.
The defence costs will erode your limit. “Inclusive” = included. Professional Indemnity Limit: $1,000,000 exclusive of costs.
You have a limit of $1,000,000, the Defence costs are in addition to the limit.
The defence costs payable will not erode the limit. “Exclusive” = excluded.
- Tip – An Exclusive limit will not be eroded by Defence Costs.
Exclusive vs inclusive excess
Inclusive excess means the insured must pay the amount of the excess towards the legal and defence costs upfront.
Costs exclusive excess means the insured does not pay any excess towards the legal and defence costs but only pays the amount of the excess towards the settlement of any claim.
- Tip - Exclusive excess will reduce any excess paying towards legal and defence costs.
Extensions and sub-limits
Look for appropriate sub-limits for items such as inquiry costs, loss of documents, libel and slander, fraud and dishonesty, fidelity, outgoing and incoming principals.
Do I need a run-off cover
Professional indemnity policies are written on a ‘claims made’ basis. This means that the policy will only respond to claims, which are made against an insured and notified to the insurer during a current policy period, irrespective of when the work was performed by the insured. If the policy has expired, lapsed or cancelled, no additional claims can be made under the policy, as it is not current.
There is a potential for claims to be made against an insured after a business is wound up, has ceased trading or you are retiring. If a claim is made at a time in the future and there is no insurance policy in place, there would be no protection for the insured.
A run-off insurance policy can be purchased prior to cessation of the business. It will provide coverage to an insured for future claims made against them which arise from acts, errors or omissions which occurred prior to the inception of the run-off policy. Run-off policies can be purchased on an annual basis, or a multi-year basis with one upfront premium payment.
- Tip – A run-off policy can protect you for your past work, when you or your company have ceased trading.
Automatic reinstatement clause and limit of indemnity
The limit of indemnity is the maximum amount payable under a policy during a policy period. Some policies may include an automatic reinstatement clause, which restores the limit of indemnity after it has been exhausted by a claim or series of claims, allowing coverage for multiple unrelated claims that together exceed the original limit. However, no single claim payment will exceed the stated limit of indemnity.
Vicarious Liability
Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. A principal or you the insured can be considered vicariously liable for the actions of your contractors/sub-contractors under your supervision or direction.
In other words, you, the insured, can be sued for the actions or mistakes of your contractors, you can be vicariously liable.
- Tip – make sure all your contractors and sub-contractors have their own current Professional Indemnity, Public Liability insurance and other relevant insurances.