The Financial Advisor Guide to Understanding Errors & Omissions Insurance Self Study Course # 18

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The Financial Advisor Guide to

Understanding Errors & Omissions Insurance

Self Study Course # 18

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INTRODUCTION

Liability Dangers & Public Awareness

More and more people today have become increasingly aware of their legal rights. There are many reasons for this increased awareness. For one thing, there are more articles published in newspapers, magazines and periodicals about common legal problems a person may face. In addition, there are television programs dealing with many legal issues. To add to this we have lawyers advertising their services. The result of this available information is somewhat knowledgeable consumers who are more likely to sue someone if their service or product does not fulfill the consumer's expectations. Many of today's consumers are ready to go to court at the slightest dissatisfaction resulting in a number of groundless and frivolous lawsuits. We could say this is a

negative result of increased knowledge and even term it as a "sue happy" society. Even so, there is a positive side of increased public awareness. This willingness to sue when dissatisfied is good since the so-called "little man" is no longer being intimidated.

Professionals often feel that they do such a good job that they are immune from the threat of lawsuits, but that certainly is not the case. The 1970s saw the beginning of the trend to sue professionals for negligence or malpractice. The definition of a professional was broadened in the 1970s to include not only doctors and lawyers, but also architects, engineers, accountants, stockbrokers and insurance agents. It also expanded the definition to include such diverse groups as real estate agents, management

consultants, crop dusters, data processors, printers, employment counselors, translators and telephone answering services. In this text, we will refer to all of the above

professions as "professionals."

Perhaps the newest professional field to be classified as a profession is that of financial planning. Along with the benefits of being recognized as a profession comes the burden of stricter standards of conduct. This also increases the chances of being sued for malpractice. If the financial planner performs poorly in the mind of his or her client, a lawsuit can definitely result. This makes the financial planner especially susceptible since views of good and poor performance are often hard to verify. Clients are very skeptical about any loss of money regardless of whether or not the financial planner acted in good faith.

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The financial planning industry, overall, has very few guidelines for avoiding malpractice suits. We would hope that all financial planners have a code of ethics, of course. Being personally ethical, however, is not guaranteed protection. There are various

organizations, such as the Financial Advisors Association of Canada (Advocis), Certified Financial Planner (CFP), Financial Planners Standard Council (FPSC), and the

Independent Financial Brokers of Canada (IFBC), that have published codes for financial planners to follow. In fact, many Provinces over the past few years have implemented continuing education requirements for their agents. The FPSC has even made it mandatory that their members have at least one CE credit in an approved course dealing with Code of Ethics. The individual codes published by these organizations provide ethical guidelines, not rules of law. Lawyers have been guided by years of numerous legal cases to which they can refer in order to help determine a course of action along with their detailed code of ethics. The longer the financial planning industry exists, the more guidelines the financial planner will have in terms of more case law, established precedents and definitive regulations.

Even without established legal precedents and definitive regulations, it is still possible for a financial planner to take affirmative measures to avoid a malpractice suit. The most obvious and important key is awareness. Through this awareness, an insurance agent or financial planner can achieve a set of standards by looking at the standards of care required by other professionals, particularly those professionals who comprise the majority of the financial planners today. These would include insurance agents, insurance brokers, accountants and stockbrokers. Since the financial planner's duties often include many of the responsibilities of these professionals, looking at how the courts have treated their cases can be helpful.

THE MOST OBVIOUS AND IMPORTANT KEY IS AWARENESS

This acquired awareness would also include understanding and knowing the duties of a financial planner. A financial planner seldom wears "one hat.” Rather he or she is also an insurance agent, a tax advisor, a retirement advisor, and an estate planner. The financial planner must always be conscience of what role they are currently playing in order to avoid any potential conflicts of interest. For instance, an insurance

agent/financial planner has to be careful not to recommend excessive life insurance. If his or her recommendations appear excessive or inappropriate, it could be viewed as self-serving (to obtain excessive commissions, for example).

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On the other hand, if too little insurance is recommended, this could be considered negligence. At all times, it is important for the insurance agent/financial planner to document why such recommendations have been made. This documentation should be dated and kept in the client's file.

In past years we have also seen a rise in the number of larger judgments being awarded to plaintiffs who sued professionals. Not only were courts awarding judgments in excess of the professional's insurance policy limits, but punitive damages were being awarded as well. Normally the courts motivation behind punitive damage awards is to punish the wrongdoer. It is questionable whether punitive damages can be paid out of an insurance policy's fund. However, since punitive damages are awarded only in cases where

punishment is required, a financial planner has hope of avoiding this if he or she tries to adhere to industry guidelines and does not intentionally do anything illegal or improper. As stated, documentation of all financial recommendations is extremely important.

Many financial planners believe they will be sued for malpractice at least once in their professional career.

Two issues must be addressed:

1. What can a financial planner do to try to avoid a malpractice suit?

2. What should a financial planner do to mitigate the harm of a malpractice suit if one is filed?

If a malpractice suit is filed, it does not necessarily matter whether or not the

professional is found innocent. The harm to the professional is simply the filing of the suit and the publicity that nearly always comes with it. Many people may know of the malpractice suit and yet not many will know if the professional is found innocent. Damage to the professional's reputation has occurred. To add injury to insult, it is a time-consuming process to be involved in a malpractice suit. During that time, the professional may lose clients simply because they are the target of such a lawsuit. The numerous hours spent in court and giving dispositions will take the professional away from work and result in further decrease in productivity and thus, income. Of course, there will be legal fees as well.

With typical professional liability insurance, the insurer cannot settle a claim without the insured's consent.

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Malpractice insurance policies also referred to as Errors and Omissions insurance or E&O insurance will be discussed later, but it needs to be mentioned because this type of policy contains a unique settlement clause in favor of the insured. With typical

professional liability insurance, the insurer (insurance company) cannot settle a claim without the insured's consent. In typical property and casualty insurance policies, the insurer is given the right to settle the claim in whatever fashion they feel is reasonable. Because the professional's reputation is involved, it is important that a suit not be settled if it lends further damage to the individual's future. Any settlements made on behalf of the professional could be construed as an admission of guilt. Even with this provision, however, the majority of claims against professionals are settled rather than taken to court. This is true because of the time and expense involved in litigation, the adverse publicity that accompanies a lawsuit and the negative effect the suit can have on the professional's practice. Many professionals opt to settle a claim against them, whether it is valid or not, rather than experience the above stated consequences.

STANDARD OF CARE

One of the first steps to avoiding a professional liability lawsuit is to understand what is required of a professional when dealing with a client. In legal terminology, the

professional should know the applicable standard of care owed to a client.

A claim based on liability imposed by law develops as the result of the invasion of the rights of others. A legal right is more than a mere moral obligation of one person to another, for it has the backing of the law to enforce that right. Legal rights impose many specific responsibilities and obligations. Some of these are obvious in a general sense, such as not invading the privacy or property of others or not creating an unreasonable risk or actual harm to others.

TORTS & THE BASIS FOR LIABILITY CLAIMS

Question: What is the legal basis for a liability claim?

Answer: A claim that is based on a liability imposed by law, which develops as the result

of the invasion of the rights of others. This legal right is more than a moral obligation of one person to another. This legal right has the backing of the law. Legal rights impose many specific responsibilities and obligations. The invasion of such legal rights is deemed a legal wrong.

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The legal wrong may be: 1. Criminal (public), or 2. Civil (private).

A criminal wrong is an injury involving the public at large and is punishable by the government. The action on the part of the government to effect a conviction and impose fines or imprisonment is termed a criminal action.

A civil wrong is based upon two things: 1. Torts, and

2. Contracts.

Torts & Contracts

Torts are wrongs independent of contract wrongs. In other words, they involve actions of the agent or others but not the contract. This includes false imprisonment, malicious prosecution, trespass, conversion, battery, assaults, defamation (libel an/or slander), fraud, and negligence.

Contracts may involve legal wrongs when implied warranties are violated or contract obligations are breached.

Liability Under Torts

As stated before, torts include all civil wrongs not based on contracts. As a result, they are a broad residual classification of many private wrongs against another person or organization.

Torts occur independently of contractual obligations and may result from: 1. Intentional acts or omissions,

2. Strict (or absolute) liability imposed by statute law, or 3. Negligence. Most torts are based on negligence. . 4. Liability consequences of a crime are usually uninsurable. 5. Liability consequences of a civil wrong are usually insurable.

Torts are wrongs independent of contract. Examples of these would include false imprisonment, assault, fraud, libel, slander and negligence.

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Contracts may involve legal wrongs when applied to warranties, which are violated, responsibilities, which are not fulfilled, or contract obligations that are breached.

For liability insurance, the emphasis is on civil wrongs and particularly on the many legal wrongs based upon torts. Of the greatest importance are torts resulting from negligence (unintentional acts or omissions).

Negligence is the failure to exercise the proper degree or standard of care required by circumstances.

Torts include all civil wrongs not based on contracts. As such, they are a broad residual classification of many private wrongs against another person or organization.

We are going to concentrate on the negligence portion

Negligence is a tort; a civil wrong not based on a contract. Most of the liability imposed by law stems from accidents attributable to negligence. If negligence can be shown to be the proximate cause of an injury or loss to another, the negligent party is liable to the injured party for damages. Negligence is the failure to exercise the proper degree or standard of care required by circumstances. It may consist of not doing what is required under the circumstances, or doing something that ought not have to have been done. Behavior in any circumstance, which fails to measure up to, that expected of a careful, prudent person in like circumstances constitutes negligence. Faulty judgment may result in liability for negligence, even though the motive behind the act was the best.

Behavior in any circumstance, which fails to measure up to, that expected of a careful, prudent person in like circumstances constitutes negligence.

In an ordinary negligence case (not involving a professional), the standard of care

required of the defendant pivots on the questions of whether or not the accused behaved as "an ordinary reasonable prudent person" would have behaved under similar

circumstances. In addition, the defendant is required to use any special knowledge they may have obtained through education, training, or experience. This obviously affects insurance agents, since they have received special training and education and probably have some type of experience as well.

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When it comes to the professional

The required standards of care changes. If a person offers professional service to the public, it is presumed that the person possesses some degree of special skill and knowledge. Unlike the ordinary negligence cases, where special skill and knowledge is considered only if the accused in fact possesses it, a professional negligence case imposes a certain level of skill and knowledge on the defendant whether or not they actually possess that skill or knowledge. Anytime an individual displays any assumption of professional skill, it is assumed to be real. This would include such things as having business cards printed which read "financial planning.” Having such cards printed indicates training, education, or experience. It does not matter whether or not the individual actually has any training, education or experience.

It will be assumed that he does. It is the learning and skill ordinarily exercised by members of the particular profession stated. Since this standard of care applies to the profession stated on the business card, in a lawsuit the individual will be expected to have performed to the level of that profession. That is why it can be very dangerous to allow clients to assume training, education, or experience that does not actually exist.

Since just about anyone claims to be a financial planner, it may be hard for the average person to know if one is qualified or not. There has been much attention given to this matter by individual provinces requiring specific knowledge of those who profess financial planners. With increased regulation of the financial planning industry, many provinces are attempting to clarify who can and who cannot make such claims. The lawsuits against financial planners will likely increase as well, encouraging the

establishment of legal precedents. Attorneys now have the option of attending classes on how to sue insurance agents and financial planners. It is something that every agent should consider before stepping into dangerous situations.

GENERAL LIABILITY Industry Variety

The financial planning industry has one characteristic that is unique to this industry: its members come from a variety of other industries. Financial planners can be

accountants, stockbrokers, or insurance agents. It may be possible to predict the future treatment in the professional liability field by looking at the treatment of these various professions. We have also seen the banking industry go into the financial planning field, as well as other industries not otherwise considered a financial planning field.

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Three professions from which the majority of financial planners come

This would include insurance agents, accountants, and stockbrokers. The financial planner's duties often include many of the duties of these professionals. Looking at how the courts have treated these professionals can help us determine how the courts will treat the financial planning field. It is particularly relevant since the duties of an insurance agent, for instance, parallels those of a financial planner - preparing and analyzing financial statements, determining risk exposures, determining adequate

insurance amounts, investing the client's money, and planning the client's retirement and estate planning needs.

In recent years, we have also seen cases establishing a standard of care for investment advisors. Certainly financial planners would fall into the category of investment advisors, as do some insurance agents. Looking at these cases also offers a means of predicting how a financial planner will be treated in court.

INSURANCE AGENTS

Insurance agents are in the ranks of other professionals in the quest for risk avoidance, which means that liability insurance is necessary. Physicians have had to pay plenty over the last years for professional liability insurance. Attorneys joined physicians as liability risks, followed by accountants, then insurance agents and financial planners. Insurance agents are further faced with limited liability insurance coverage and increasing premiums.

Add to this the national awareness about potential liability risks, making clients more apt to litigate in the event of a mistake on the part of the insurance agent. It is safe to say that liability insurance is a necessary part of doing business for insurance agents, just as it is for physicians and attorneys.

Liability of Agents and Brokers

What an agents says in terms of "puffing" or exclaiming the virtue of a policy is often not actionable except in the circumstances where an agent assumes additional duties, has a special relationship of trust with the buyer, or holds himself/herself out as having special expertise. Then a special duty arises. However, when an insurance agent gives

assurance of proper coverage and it turns out to be false, that agent will be held liable for negligent misrepresentation.

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That is not to say that an insured can remain intentionally ignorant of the terms of a policy. An insured is not required to independently verify the accuracy of representation made by the agent regarding the policy and an agent can be held liable for intentional or negligent misrepresentation.

As we stated, there could be a conflict of interest for an insurance agent who is also a financial planner. The two roles need to be separately maintained to some degree. Of course, all industries that deal with finances must consider how the various roles interact. The insurance agent who is also a financial planner will want to market their services, but each type of service must be correctly handled. The ethical standard in these circumstances must always consider the client first and commissions second. We could use the example of a young family, both parents are age 26, with one child, age three, who comes to an insurance agent/financial planner wanting life insurance. It is determined that the family needs at least $250,000 life insurance coverage. However, the family cannot afford the cost of a permanent life policy. Should the insurance agent sell them less insurance coverage and receive higher commissions? Alternatively, should the agent sell the family a less expensive term policy covering the family the way the financial planner saw fit? Naturally, this potential conflict of interest exists for the insurance agent who is not a financial planner, but the problem seems to increase in severity for the agent who is also a financial planner since their primary function is not to sell a product but to provide financial advice. Some industry experts feel consumers should seek out a financial planner that does not sell products of any kind; they merely advise consumers.

Insurance Agents' Professional Negligence

Conflict of interest is one of many professional liability problems facing insurance agents or brokers. They, like other professionals, can be found liable for negligence, violation of a statute, and breach of contract.

Negligence is the broadest field of exposure for an insurance agent

Negligence is the broadest field of exposure for an insurance agent. Negligence is a tort - a civil wrong not based on a contract. Negligence is often the result of carelessness, thoughtlessness, forgetfulness, ignorance, or just plain stupidity. It involves errors and omissions made by the insurance agent. The majority of the liability imposed by laws stem from accidents derived from negligence.

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If negligence can be shown to be the proximate cause of an injury to another, the negligent party is libel for the injuries or damages sustained. We tend to think of

negligence and damage to others to be physical, but financial damage is also possible. Negligence could be defined as the failure to exercise the proper standard of care required by the circumstances. Negligence never involves intent. A negligent act may include not doing what was required under the circumstances, or doing something that fails to measure up to what would be expected of a prudent person in like

circumstances. Faulty judgment may result in liability negligence, even though the motive behind the act was purely innocent. This point is very important when it comes to anything financial.

A financial loss does not necessarily mean faulty judgment; no one has a crystal ball when it comes to investing. However, if the advice given is indeed found to be faulty, then a malpractice lawsuit is possible.

There are laws that require all persons to use prudence in their actions so that others will not suffer bodily injury or property damage. Failure to heed such prudence gives the injured party a right to action against the negligent party for damages. "Prudent behavior" is based upon what society expects of the individual. The conduct must be reasonable in light of the risk involved.

Insurance Agent's and Broker’s Presumed Negligence

Ordinarily the burden of proof lies on the plaintiff (claimant) in a negligence case. The plaintiff must prove that the defendant failed to exercise the reasonable standard of care for a prudent person. However, this may not always be the case.

If the facts presented justify a reasonable form of judgment of negligence, the courts may lift the burden of proof requirement by applying the common law doctrine of res ipsa loquitor (meaning the thing speaks for itself). Negligence is presumed without the plaintiff having to prove it. The burden of proof is then shifted to the defendant.

Under this law a legally sufficient case of negligence can be established and referred to the jury if the:

• Plaintiff’s injury was caused by a defective object,

• Injury could not have occurred without the defendant's negligence, and • The defendant controlled object causing the injury.

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Conditions that establish presumed negligence

The law of presumed negligence applies when an accident causes an injury preventable by the use of prudent care and/or safety inspections. Presumed negligence has been applied to a number of accidents, which occurred without witnesses: railroad or aviation injuries, medical malpractice claims, and/or damages from defective products for

example. The last example of product liability has some difficulty applying res ipsa loquitor in the courts. That is because the claimant, not the defendant, controls the product. The control of the product lies in how it was used: properly or improperly. However, the courts have held defendants in control of the product if it has not been changed since leaving the manufacturer. The courts are not consistent with these decisions, though.

Insurance Agent's and Broker’s Contributory Negligence

When negligence is presumed, the plaintiff must not be guilty of contributory negligence. The circumstances of the accident must be unquestionable as to the negligence.

Presumed negligence does not exist if the accident results from circumstances beyond the control of the defendant. The accident must be such that the injury could not have occurred ordinarily without the negligence of the defendant. An accident resulting from a third person's involvement or from any physical or mechanical action is also not

applicable.

Insurance Agent's and Broker’s Imputed Negligence

Imputed negligence makes an individual responsible for negligent acts of others. Employers may be liable for the action or negligence of their employees, as well as the employees themselves. If an employer uses independent contractors whose employee negligently causes an injury, that employer could be held liable if it provides faulty instructions or tools. Imputed negligence can occur even to unaware individuals.

Property owners whose tenants cause an injury from a negligent act could be held liable. Parents could be held liable for the actions of their children.

Vicarious liability

Vicarious liability laws impute liability to automobile owners even though they are not driving or even riding in their cars. Even if a friend borrowed the car, the owners of the vehicle could still be liable for the actions of the driver.

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Under the family purpose doctrine, liability applies particularly to the automobile owner whose family members negligently use the car.

Although presumed negligence may not apply if a third person is involved in the negligent act, imputed negligence does apply to third persons who may not be directly involved.

Insurance Agent's and Broker’s Negligence in Tort Liability

Where allegations of negligence are made lawsuits present major issues in tort liability.

There are typically specific things, which must apply. Before a court will award damages for negligent liability to a plaintiff:

Four requirements must exist.

1. A legal duty to protect the injured party. 2. A breach of that duty or wrong.

3. An injury or damage to the plaintiff's person, property, legal rights or reputation. 4. A reasonably close proximate relationship between the breach of duty and the

plaintiff's injury.

Defenses in a negligent action.

Since there are never absolutes, a plaintiff may prove all four elements (legal duty, breach of duty, the injury and proximate relationship) of a negligent act and still not be awarded damages. The defendant has several successful defenses available. Two

principal ones are:

1. Contributory negligence 2. Assumption of risk.

Contributory negligence means that the plaintiff is also negligent and that negligent

action contributed to the loss incurred. If the plaintiff is guilty of contributory negligence, they may be denied damages. Contributory negligence does not relieve the defendant of duty to the plaintiff. Instead, it denies the award of damages to the plaintiff if both parties are at fault.

In a strict sense, the doctrine of contributory negligence does not always produce equitable results. A slight degree of responsibility, (negligence) on the part of the plaintiff could result in no award of damages.

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There are two substantial variations of contributory negligence rules: 1. Comparative negligence.

2. Last, clear chance.

Under comparative negligence, the court, often the jury attempts to scale or diminish in proportions the awards according to the comparative degrees of negligence of the parties involved. Partial comparative negligence statutes are more common. Under the last clear chance doctrine, the defendant is able to prove that the plaintiff had the last clear chance to avoid the accident.

The last clear chance doctrine states that the defendant with the last clear chance to avoid the accident is guilty of contributory negligence by failing to avoid the accident. If both the plaintiff and defendant were inattentive, this doctrine does not apply.

Statutory modifications of the common law on negligence.

The most common type of negligence for insurance agents is failure to place necessary insurance, failure to obtain proper coverage, failure to properly advise of the company's rejection or lack or coverage, failure to cancel a policy at the insurer's request, and failure to fully disclose the nature of the risk. In addition to this, the agent may be liable for giving unauthorized instruction to insured’s or unauthorized interpretations of

coverage, delaying the underwriting or claim information, or binding an unacceptable risk.

We can look at some examples of an agent protecting him or herself from a liability claim by informing the client of their options completely. Many property and casualty agents are expected to mention the availability of umbrella liability insurance when they are selling an auto or homeowners policy. This is not done for receiving higher

commissions. Umbrella liability policies do not offer the agent particularly large commissions. The agents who do this are doing it to protect themselves in the event that the insured suffers a loss greater than the amount of liability protection provided under the auto or homeowners policy. By informing their clients of the option of buying more liability coverage, the agent is preventing the insured from filing a suit against them for failing to provide adequate coverage. Of course, this insurance offer should be documented, perhaps even obtaining a reject signature from the consumer.

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Another example of agents protecting themselves from lawsuit is the practice of giving complete information. For example, the insurance agent who informs the policyholder of the minimum insurance coverage required by the needs analysis, but, given the client's assets, suggests a larger amount of coverage as appropriate. The client then has the option of declining the additional coverage, thereby, releasing the agent of a negligent act. The agent should then document that the coverage had been discussed and refused by the client. The agent may go as far as having the client sign a form

acknowledging this denial of additional coverage. In this way, the client will not be able to claim that the agent failed to offer the adequate coverage needed.

Insurance agents and brokers can be held liable for a vast array of actions. It should be noted that they could be liable to both the client and to the insurer for which they work. We should also make a distinction between agents and brokers.

Agents are considered representatives of the insurer. Brokers are considered representatives of the insured. The broker's primary allegiance is to the client.

Knowledge of the broker is not considered knowledge of the insurer. The agent and the insurer are deemed to have the same knowledge.

Express Authority & Ostensible Authority

Identifying the distinction of knowledge could be critical if an insured chose to sue both the agent or broker and the insurance company. Normally, if the broker is involved the insurance company can escape liability. As with anything, there are always exceptions. Sometimes when dealing with the agent, the insurer can still be held liable even if the agent oversteps their express authority. Express authority refers to the powers given to the agent in the agency agreement or contract. In addition, the agent also has certain implied powers. The courts have used the doctrine of ostensible authority to give agents those powers the public reasonably expects them to have. An example of liability would be that of a life insurance agent who accepted the premium for a life insurance contract with a company for which he was not contracted. The insurer had not given the

insurance agent the authority to accept the premium. The insurer could be bound since it is reasonable for the public to believe that an agent has the authority to accept

premiums.

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Another example where ostensible authority can be invoked is when an agent is told by the insurer that the company will not write homeowners coverage on homes over 50 years old.

Assuming the agent writes a policy on a home over 50 years old, the insurer could still be liable to the insured if any claims arose since there would be no reason for the insured to know the issuance of such policies was forbidden. Of course, in these situations, the insurer may have recourse against the agent for the actions they took. In many situations, the agent/broker distinction can become less critical. Instead, the facts of the situation will be looked at to determine whom the agent or broker was

representing:

A. The insured, or B. The insurer.

In any case, the agent or broker must and is expected to act with reasonable care and diligence when representing the insured or insurer. Another aspect to look at is how the courts view the insurance agent. Assuming the court views the insurance agent as a professional, the applicable standard of care would be that of the skill and expertise of the average professional in that industry. We all know, of course, that some agents are more expert than others. Those who overstep the bounds of common sense cause the entire industry to experience change, as provincial legislation changes to protect the consumers.

We can look at court cases that discuss the implied law duty of good faith and fair dealing that is imposed on agents and insurance companies.

In a documented court case, standard duty of care is mentioned:

Where an insurer fails to deal fairly and in good faith with its insured by refusing without proper cause to compensate its insured for a loss covered by the policy such conduct may give rise to a cause in action in tort for breach of an implied covenant of good faith and fair dealing. The duty violated arises not from the terms of the insurance contract but is a duty imposed by laws, the violation of which is a tort.

The courts here are referring to insurers in speaking of the duty of good faith and fair dealing, but it is also applicable to the insurance agent. Typically, if the insurance company is sued for bad faith, the agent will also be named as a defendant.

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INSURANCE AGENTS' AND BROKER’S CIVIL & CRIMINAL VIOLATIONS

Insurance agents can also be found liable for statutory violations, both criminal and civil. For insurance agents whose livelihood is dependent upon their employment, this is an especially serious form of liability since criminal violations can require a conviction and impose fines or imprisonment or both, depending on the severity of the crime.

Sometimes the insurance agent is given the option of having a hearing before the Provincial Insurance Commissioner rather than appearing in court. In other instances, if the agent surrenders their license voluntarily, no further action is taken.

Fraud is perhaps the most common crime committed by insurance agents.

We have probably all heard of stories of unscrupulous agents taking advantage of their clients. Provinces pass legislation in the hope of reducing fraud, but it is unlikely that laws will ever be entirely successful.

What the examples above show is that an agent can receive criminal punishment for acts of fraud they commit. Unfortunately, for many agents who commit fraud, no

physical punishment is ever experienced, although they do commonly loose their license to sell insurance. Some agents, however, will simply move to another province and hope that their past does not catch up with them.

It has been said that an ethical code of conduct cannot be mandated. An agent is either ethical or not, and laws merely point out those who are not. While this may be true, laws (and resulting punishment) do at least prevent those who lack any ethics from continuing in the profession. Unfortunately, consumers will remember the unethical far longer than the hardworking ethical agent and financial planner. It has been said that an ethical code of conduct cannot be mandated.

An agent is either ethical or not, and laws merely point out those who are not.

INSURANCE AGENT'S AND BROKER’S BREACH OF CONTRACT

Contracts may involve legal wrongs when implied warranties are violated or contract obligations are breached. An insurance agent would likely not be sued individually for breach of contract.

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The insurance companies and agencies themselves are more likely to be sued for such a lawsuit since they would be viewed as responsible for denial of a claim or violation of a condition. However unlikely it is that an agent or broker would be sued for breach of contract, it is possible

It is also possible for the agent and the insurance company to be sued for failing to act promptly on an application for insurance. This is sometimes presented as a negligent cause of action, but it has also been presented as a breach of an implied agreement to act promptly or as breach of contract.

Breach of an Implied Agreement Theory

Under the theory of breach of an implied agreement to act promptly, it has been found that the course of conduct of the agent, including solicitation of the application and acceptance of the premium, constitutes an implied agreement that the insurance company will act upon the application without unreasonable delay.

Breach of Contract Theory

Under the theory of breach of contract, it has been found that the application is the offer and silence on the part of the insurance company or silence coupled with retention of the premium forms a contract. This makes the insurance company liable for any

unreasonable delays in acting on the application.

Legally Binding Insurance Contract

It is important to understand exactly when an insurance contract becomes legally binding. As stated before, the application is considered an offer of insurance. The acceptance occurs when either the agent binds coverage or the policy is issued. By law, an insurance contract does not actually have to be in writing. However, it is normally in written form. While there are many reasons for this, one main reason is to determine when the contract was formed so that one may know when a loss is covered. For example, client ABC applies for coverage with XYZ insurance company on his car. By accepting the offer of the client, the agent creates a written contract.

If client ABC is involved in a car accident before he receives a written contract, the loss is still covered by XYZ insurance company. By accepting the offer of the client, the agent creates a written contract.

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If the client is involved in a car accident before he receives a written contract, the loss is still covered by the insurance company where application was made.

Relevance

The relevance of determining when a contract comes into existence relates to when and if a breach of contract occurs. It is obviously stated that no breach of contract can occur unless a binding contract actually exists.

In the past, a life insurance agent could not bind the insurance company. However, a court has stated this opinion:

"... An ordinary person who pays a premium at the time he applies for insurance is justified in assuming that payment will bring immediate protection, regardless of whether or not the insurer ultimately decides to accept the risk."

In another case, the court’s opinion was:

"... The very acceptance of an advance premium by the carrier tends naturally toward an understanding of immediate coverage though it is temporary and terminable.... In short to the ordinary layman, payment of the insurance premium constitutes payment for insurance protection...."

A Contract of Adhesion

In the first case mentioned, payment of the premium had been made. The courts are leaning toward viewing the insurance contract as a contract of adhesion and tend to be harder on the agents and insurance companies in finding a contract early in the

negotiations. A contract of adhesion means that the insured has no option to change or negotiate policy terms. The policy is presented to the insured on a take it or leave it basis. In viewing courts cases and decisions, it can be understood that any ambiguities in the insurance contract will be construed against the insurance company.

ARE YOU DOING MORE THAN JUST INSURANCE OR FINANCIAL PLANNING? Many financial planners start out as insurance agents or brokers and continue to sell insurance after they move into the financial planning field. For this reason, financial planners will have the same liability problems that they did in the insurance field as well as additional liabilities as financial planners.

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Even if the financial planner did not start out in the insurance field, they would be involved in providing clients with the risk management advice and even perhaps, would begin selling insurance products. This would thus mean that a financial planner would need to know their liabilities in this field they are expanding to.

Financial planners can look to court cases involving insurance agents to gain a better idea of how their field will be likely treated in the courts.

Like the insurance agent, the financial planner will be viewed as a fiduciary, holding themselves out to the public as having special skills and/or knowledge.

Like the insurance agent, the financial planner can be held liable for negligence, breach of contract and statutory violations.

Accountant's Liabilities

Looking at how accountants open themselves up to different liabilities will accomplish two things:

1. Help determine the liabilities that need to be covered.

2. If an insurance agent is an accountant also, it will help them determine where they may need to provide adequate coverage for themselves.

Quite often, accountants expand their field and become financial planners. Accountants deal with the finances of clients and performing such tasks as analyzing financial

statements and preparing tax returns. However, unlike insurance agents and

stockbrokers, accountants do not sell products, unless they have obtained a license to do so. It is their services that they sell. An accountant's services involve the use of judgment when deciding what to do with the numbers. It is not hard to understand, then, that an accountant that negligently makes an error in the figures can be found liable.

There have been two important developments in the area of accountant liability: 1. The courts increasingly have become willing to find accountants liable to their clients

for their negligent acts. Before the 1950s, the courts were much stricter in awarding damages to clients.

2. Accountants are now being held liable to third parties. These third parties represent non-clients and people with whom the accountant has not contracted. Because of this liability, the exposure to liability claims for an accountant has significantly increased.

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When Are Accountants Not Liable to Third Parties?

An accountant's full liability exposures can be understood by reviewing a few court cases that deal specifically with this issue. In a court case from 1931, where the defendants were Certified Public Accountants who audited a company and supplied the company with 32 serially numbered copies of a certified balance sheet. The defendants knew that the company to obtain future loans would use these copies. The balance sheet showed a net worth of more than $1 million when actually, the company was insolvent and later had to declare bankruptcy. As a result, the plaintiff, who was considered the third party and relied on the balance sheet of the company, sued the accountants for negligently and fraudulently performing the audit. The court decided that the accountants could not be held liable for negligence to a person or people who were not parties to the original contract. On the surface, the decision appears to be very straightforward. If a person is not a party to the original contract, they cannot claim damages for negligence.

However, the court did go on to state:

Our holding does not emancipate accountants from the consequences of fraud. It does not relieve them if their audit has been so negligent as to justify a finding that they had no genuine belief in its adequacy; for this again is fraud.

The court went on to state that an accountant could be liable to a third party who had not entered into the contract if the involvement of the third party was foreseeable. For example, if a client asks an accountant to prepare financial statements for the client to show a specific party with whom they do business, the accountant then knows a third party is involved and this involvement could be considered foreseeable.

This case states two distinct views. On the one hand, it states that an accountant is not liable to third parties with whom they have not contracted. On the other hand, the accountant can be liable to a third party if it is foreseeable that a third party will be involved or if the accountant acts in a fraudulent or grossly negligent manner.

Since it is not always clear when a third party involvement is foreseeable, or when the accountant has acted in a fraudulent or grossly negligent manner, this case precedent could be followed by various courts, yet very different judgments could be reached.

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The two most common trends resulting from this case are as follows:

1. Accountants can be held liable to a third party lender since they prepare financial statements for their client knowing they are to be used by the lender. From this, one could assume that a duty of reasonable care is owed to all actually foreseeable third parties. Alternatively, the accountant must actually know a third party will be using the documents. This is a narrower view of third party liability, and has been the most common view held by the courts.

2. Accountants can be liable to all reasonable foreseeable third parties who will rely on the accountant's work. This is a broader view of third party liability. As the court stated, the accountant can be found liable when he or she "knows the recipient intends to supply the information to prospective users.”

This allows anyone who might rely accountant's work product to have a financial interest. Courts are now becoming increasingly likely to follow this broader view of liability.

ACCOUNTANT NEGLIGENCE

The area of liability for professional negligence is more relevant than is liability for breach of contract. This is particularly true since many of the duties required to meet an accountant's professional standard of care are the same duties required for financial planners. The most basic duty of these is the fiduciary duty. Like the financial

planner/client relationship, the accountant/client relationship is "one founded on trust or confidence reposed by one person in the integrity and fidelity of another.” The fiduciary must always place the interests of the client above their own. If a potential conflict of interest arises, the client must always be informed and be given opportunity to seek another accountant.

This duty would include reporting to the client signs of such things as embezzlement, check kiting (in commerce, this means any negotiable paper not representing a genuine transaction, so check-kiting might be thought of as "flying a check before funds are available"), and cover-ups of delinquent accounts. However, the accountant as fiduciary is not required to be a police officer or a detective. He or she is a watchdog, so their duty is more like an auditor. As such, they are required to alert clients to suspicions, but if nothing seems suspicious then he or she is not required to track down each element involved.

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Insurance agents are required to have continuing education in most provinces to keep their insurance license active. The accountant has a similar requirement in that they have a duty to keep current or abreast of recent developments in accounting and auditing practices. To help provide guidelines to accountants, there is the Generally Accepted Accounting Principles (GAAP). This standard states the minimum

professionally acceptable conduct for accountants. This means that if the accountant does not follow these standards, it could be viewed as evidence of negligence.

However, the fact that an accountant follows these standards does not necessarily prove that they are not negligent.

One of the most difficult areas for an accountant and agent alike is that of providing tax services. With all the various changes in the tax laws, it is an enormous responsibility to be aware of these changes and their impact on clients. It is not hard to understand that if an accountant is not careful in giving tax advice to a client, Canada Customs and Revenue Agency could audit the client and additional taxes and penalties could be paid. If this is a result of the accountant's negligence, the accountant can be held liable for the financial losses that the client incurred. Typically, the accountant is not responsible for the actual taxes due, but only for interest or penalties levied.

All professionals must avoid overstepping their boundaries of authority. The accountants and financial planners must not practice law, for example (give legal advice). If this happens, civil and criminal penalties could be the result. Offering tax advice is the most likely area of stepping over the boundaries of expertise.

Accountant Breach of Contract

Breach of contract is perhaps the most straightforward of the three areas of potential liability. It is imperative for the accountant to be as clear and specific as possible in order in a contract of service. If this is done, the likelihood of a lawsuit for breach of contract based on a misunderstanding or difference of interpretation is reduced. However, the accountant's failure to perform a duty that is specifically named in the contract would also be more obvious thus making it easier to prove a breach of contract in court.

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Most of the breaches of contract lawsuits have been brought against accountants due to vague or ambiguous wording in their contract and situations in which failure to perform is not quite so obvious. As well, many breach of contract lawsuits have been brought against accountants due to vague or ambiguous wording in their contract and situations in which failure to perform is not quite so obvious.

Accountants' Civil & Criminal Violations

The final areas of potential professional liability for an accountant are violations of a statutory duty. This is very important to the accountant since it typically involves the imposition of criminal sanctions against the wrongdoer. The obvious areas of criminal liability for accountants would be embezzlement, check kiting, fraud and similar crimes that could result from having access to a company's books.

To add to this, an accountant can also be found guilty of violating the securities laws if they give a client investment advice. We can see how this situation might arise quite easily if an accountant receives a fee or commission from a dealer for recommending certain securities. The Canadian Institute of Certified Public Accountants views this as a conflict of interest on the part of the accountant and will subject them to professional discipline.

INVESTMENT ADVISOR'S LIABILITIES

The term "investment advisor" covers a broader range of activities than those performed by a stockbroker. It does not cover as broad a range of activities as those performed by a financial planner. It must consider, however, that since most financial planners would be deemed investment advisors, the court's treatment of investment advisors clearly points out the standard to which a financial planner is likely to be held.

STOCKBROKER'S LIABILITY

Stockbrokers' or security dealer's professional liability problems are particularly relevant to financial planners. Since financial planners wear many hats, including insurance agent, investment advisor and even security dealer on occasion, it is very important to understand the liability problems faced by security dealers.

When a client goes to a financial planner, he or she typically goes for receiving

investment advice. This is viewed as the primary function of a financial planner - to help the client handle their money and invest it wisely.

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This includes providing insurance coverage, solving tax problems, saving for retirement, and planning one's estate. When a client purchases cash value form of insurance, they are investing in an insurance policy. When a client invests money in a tax shelter, they are investing their hopes that at the same time, a tax problem is being resolved. The same is true for retirement and estate planning. In order to plan for these things, it is necessary to invest the money for those goals.

Many stockbrokers have moved into the financial planning field in the same way agents have, so their potential problems reflect those of insurance agents. Initially the majority of financial planners were either insurance agents or stockbrokers.

Stockbrokers were already involved in the business of investment planning, so it easily expanded into financial planning for their clients. One of the primary functions of a financial planner is to invest the client's money or to provide the client with an appropriate plan to invest their money. Therefore, even if a financial planner did not start out as an insurance agent/stockbroker, they would still be involved in

recommending and/or selling such investments. Some areas of products may require specific licenses and it is understood that agents must obtain these.

Like an insurance agent or broker, the stockbroker must be extremely careful to avoid potential conflicts of interest. In addition, like the insurance agent, the stockbroker will be making a commission on the sale of a product. The stockbrokers could be in a more precarious position than agents since the products they recommend have a greater chance to lose large sums of money.

Insurance agents tend to deal with products that do not loose money; rather they "insure" some element of the client's life against loss. Even so, insurance products do have what is termed a "guaranteed loss.” Do you know what that is? If you said premium payments, you were right.

Stockbroker Negligence

The courts continually refer to the terms "willful" and "reckless" when describing what behavior on the part of a stockbroker would be responsible for wrong. Mere negligence of a broker or his agent in a sale of stock, or a mere breach of fiduciary duty without deception does not always constitute a violation.

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The distinction between negligent behavior and willful or reckless behavior can be illustrated in the following two hypothetical situations:

Let us assume that Mr. ABC places an order with his stockbroker to buy 50,000 shares of a limited offering. His stockbroker misunderstands him and instead purchases 5,000 shares. A week later, when Mr. ABC discovers the error, the offering is no longer available. Mr. ABC could claim that his stockbroker's negligence resulted in a monetary loss to him since he is not longer able to add the offering to his investment portfolio.

Let us also assume that Mrs. XYZ, a 63-year-old widower who plans to retire in two years, explains to her stockbroker that her major concern is with safety and provision of a steady income flow for her retirement years. In response, her stockbroker purchases aggressive growth stocks and speculative common stocks. As a result, Mrs. XYZ loses a major portion of her investment.

In both these situations, the stockbroker lost money for the client. There are, of course, situations where the stockbroker acts in good faith and the client still loses money. Of course, stock investments are risk vehicles to start with. The stockbroker cannot guarantee what the market or stock performance will do. In both the situations listed above, the clients lost money due to the stockbroker's actions. In the first situation, the stockbroker did not intend to act negligently. There was no intent to deceive or defraud. In that situation, it is unlikely that the court would find his behavior willful or reckless. In the second situation, the stockbroker knew that his client had a low risk tolerance and that she needed the income for her retirement goals in a couple of years.

The stockbroker completely disregarded her needs and placed the client's money in an inappropriate investment vehicle. It is possible that a court would find the stockbroker's behavior to be willful and/or reckless.

In some circumstances, the brokerage firm employing the stockbroker may repay the monetary loss to the client. This might happen when an incorrect number of shares were bought even though, in order to purchase the correct number, additional costs are involved because the price of the share has risen since the time the original order was placed by the client. In many situations, the monetary losses are too great for the brokerage firm to absorb voluntarily. In this instance, the client may opt to sue.

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The broker would likely be deemed a fiduciary of the client since the stockbroker holds themselves out to the public as having special skills and knowledge and therefore will be held to a higher standard of care. This standard of care would make it easier for a client to prove the stockbroker was negligent.

Stockbroker Breach of Contract

When a stockbroker is sued, it is usually for violations of a statutory duty, although it is certainly possible to be for breach of contract also. In the previous hypothetical

situations, Mr. ABC wanted his stockbroker to purchase 50,000 shares of stock, but instead the stockbroker only purchased 5,000 shares of stock. He could claim that the broker breached their oral contract even though it was unintentional. Stockbroker breach of contract is similar to insurance breach of contract. With insurance agents, the client's offer is the application. The acceptance comes when either the agent binds coverage or the policy is issued. With a stockbroker, the offer is made when the client requests a particular stock and the acceptance occurs when the stockbroker agrees to buy the stock or actually purchases it. It is very difficult to prove exactly what was said in oral contracts. It usually comes down to one person's word against another, or one person's perception of the facts against another.

For this reason, the client may find it preferable to sue for a statutory violation. Many breach of contract situations are simply sub-categories of a broader statutory violation.

In a case where a financial planner relies on a broker-dealer to actually handle any securities transactions, the financial planner has recommended, an interesting problem occurs. Is it sufficient for the financial planner to rely on the broker-dealer's due

diligence? Should the financial planner also perform due diligence? Who is ultimately responsible for this task? Certainly, the financial planner wants to use only individuals they trust to complete their client recommendations.

Even so, the recommendations should only be made where the financial planner feels confident. How can confidence exist if the planner has not personally performed due diligence?

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SO YOU WANT TO PROVIDE STOCKBROKER ADVICE? Key areas to remember:

1. The biggest problem for stockbrokers is violation of statutory duty. Stockbrokers are regulated by the different Provincial Securities Commissions, such as the Ontario Securities Commission (OSC) in Ontario and the Alberta Securities Commissions (ASC) in Alberta etc., and can be convicted of violations of the Securities Act under each jurisdiction.

2. The stockbroker can also be found guilty of breach of contract, though this is less common.

3. Third parties can also sue the stockbroker if their fraudulent statements were made to the public at large, and not to just individual clients.

4. If the brokerage firm is sued because of the actions of the stockbroker, like the insurance agent, the firm may sue the stockbroker if the firm itself was neither involved in the wrongdoing nor negligent in hiring or supervising the stockbroker. 5. It is important to realize the relevance of accountants', insurance agents' and

stockbrokers' liability problems to financial planners. These three professions presently make up the majority of practicing financial planners and the individual duties of each profession, when combined, comprise many of the duties of a financial planner.

PREVENTATIVE MEASURES Public Harm

Even the most careful person may eventually face a lawsuit. Even so, it is worthwhile to take any steps, which may reduce the likelihood of such an event. If a person is actually sued, the fact that they have taken these precautions can help. How? They show the financial planner's due diligence and good faith and sometimes this can provide a satisfactory defense against a malpractice suit.

A professional liability or malpractice lawsuit is traumatic in that much of the harm is done the moment the suit is filed. Unlike most legal claims, the situation is not over once the lawsuit is resolved. Harm to the professional's reputation has occurred simply

because the suit was filed: consumers will remember the occurrence. However, no one may remember if the professional was found guilty or not. For this reason, it is important to try to prevent malpractice claims from being filed in the first place.

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What "triggers" a liability claim?

To prevent lawsuits, it is necessary to first understand what actions or omissions can trigger a professional liability claim. Then we can determine what preventive actions may be taken to avoid the situation. There are many reasons for lawsuits from outright fraud to simple misunderstandings.

For simplicity sake, the following are broad categories:

1. Omissions, which is an intentional or unintentional failure to provide full disclosure (all the necessary facts).

2. Failure to detect a potential problem. 3. Bad advice.

4. A potential conflict of interest.

1. Omissions can be anything from a minor point to a major issue. It might be a failure to provide the client with a prospectus for a new issue of securities, failing to explain the risks involved with the purchase of speculative stock, or any other omission that the client might deem important. Some omissions may be more a matter of opinion than fact (the agent says the issue was discussed and the client says it wasn't).

2. Failure to detect a problem is often a failure to use a comprehensive data

gathering form. As a result, the financial planner does not have a full and complete set of facts. More often, it results from an agent trying to do more than he or she is qualified to do.

3. Bad advice can be due to many reasons, but often it reflects a lack of agent knowledge. Obviously if the advice is thought to be bad, there was also probably a loss of funds. Why else would the advice be considered bad? Loss of money is the number one reason for being sued.

4. Failure to disclose a potential or real conflict of interest can be remedied by practicing full disclosure. The most common conflict of interest is representing two or more people who have a financial interest in each other, such as a divorcing couple. To represent both could present problems if there are legal difficulties in terms of property division, life insurance beneficiaries, and the like. Again, this problem can be avoided simply through complete disclosure and common sense.

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FINANCIAL PLANNING IN THE REAL WORLD

As most financial planners realize, it is the recommending and carrying out of

investments that has the greatest potential for dissatisfied customers. Those who are new to the financial planning world may overlook some very important aspects of

financial planning: documentation. Even when the professional has done all that is in his or her power to recommend successful companies, losses can happen.

Any financial planner is foolish if they do not clearly state this fact. For some, it may seem uncomfortable telling a client that they may loose money on their investment. Certainly, it does little for client confidence, especially if the client is new. However, if the financial planner has already outlined risk and how it relates to earnings, this disclosure should not pose a problem. No client should believe that some types of

investing are foolproof. In fact, there is not any type of investing that is 100 percent safe. Sometimes the risk is less obvious, such as the effects of inflation, but all investments do contain risk.

At one time, it was thought that investing in annuities through insurance companies was foolproof. A few company failures proved this thought wrong. While annuities still provide one of the safest vehicles for those with a low risk tolerance, as we stated, no investment is foolproof.

Once a consumer understands risk, they are often open to a larger variety of investment vehicles. There are ways to minimize risk, if that is the desire. The first step, however, is understanding risk. Once a consumer understands risk, they are often open to a larger variety of investment vehicles.

More importantly for the financial advisor, though, once the consumer understands risk there is less likelihood that the investor will blame their professional advisor for losses that happen to occur.

Every profession has specific terminology. Words that may have simple meanings in our every day language often have other meanings when used in the context of specific professions. In the profession of insurance, risk is the basic problem with which insurance deals. In the profession of investments, risk is the element that provides a profit or loss, including the size of the profit or loss. With insurance policies, the desire is to cover the potential loss so that it shifts from the insured to the insurance company, either in part or in full (in part means the insured must pay part of the loss themselves).

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With investments, there is no other entity to shift losses to. Should a loss occur, the entire loss belongs to the investor. There is no one else to shift a loss to, except through lawsuits.

Firstly, the term "risk" seems simple enough. When someone says risk is involved, the

listener understands what is meant: there is uncertainty. Something bad might happen rather than something good. When economists, statisticians, theorists, and insurance underwriters discuss risk and uncertainty, they do so with the objective of definitions, which will help them in their analysis in each field. The insurance underwriter, for example, wants to cover losses effectively for the company and, if applicable, their stockholders. Underwriters know losses are part of doing business as an insurance company. The public does not want to "cover losses.” They want to totally avoid them if possible. As a result, how the consumer and how the insurance underwriter views risk is different. Because each industry has a different perspective on risk and uncertainty, definitions also have a different perspective. The financial consultant should never assume that his or her view of risk matches that of their client.

There is another problem with the term "risk" in the insurance industry: it is used two different ways. In one usage, risk is a peril to be insured against. This comes mainly from the property/casualty field. For example, fire is a peril to be insured against. As a peril, it is termed a "risk.” The words risk and peril are typically interchangeable.

Secondly, insurance professionals use the term "risk" to mean an abstract situation

where there is the possibility of a financial loss or gain. Either situation is possible. Because the financial planner cannot say an investment is absolutely going to increase (make money), the planner explains the amount of risk involved; the amount of

uncertainty.

The actual definition of risk may include the following: 1. The chance of loss,

2. The possibility of loss, 3. An uncertainty,

4. The dispersion of actual from expected results, and

5. The probability of any outcome difference from the one desired or expected.