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Coverage Issues

Questions & Answers


Can we provide additional coverage for volunteers who drive personally owned (or borrowed) autos while transporting people on behalf of a nonprofit?

Yes, you can. As you’re well aware, many nonprofit organizations rely on volunteers to provide a myriad of services on their behalf, which may include transporting clients or other persons on behalf of the nonprofit. While your nonprofit insured’s ISO BAP provides coverage for the nonprofit in the event one of its volunteers causes an accident while conducting nonprofit business, the ISO BAP won’t provide coverage for its volunteers, individually. As a result, the volunteer’s personal assets could be at stake.

Recommended option:
Enhance the policy with the ISO Social Service Agencies – Volunteers as Insureds endorsement (CA 99 34 10 13).

What does the endorsement do?
The endorsement modifies the “Who is an Insured” provision under the Covered Autos Liability Coverage section of the BAP to include volunteers of the insured while they’re using a covered auto not owned, hired or borrowed by the named insured to transport clients or other individuals on behalf of the insured.

Whose policy would be primary?
In the event a volunteer caused an accident, the volunteer’s personal auto policy would be primary for both the volunteer and the nonprofit, and the nonprofit’s BAP would be excess for both the volunteer and the nonprofit. 

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Can I refuse to sell minimum limits to a customer in my agency?

“A good deed never goes unpunished,” as the saying goes, and while you are trying to help your customers make the right decision for their benefit, that is not necessarily the way it will be viewed by regulators. Fundamentally, this question depends on what the state law requires or allows. And by the way, that would be the state law where the insured, not the agency, is located. Ultimately, if a statute mandates an offer, that offer must be genuinely available.

In Pennsylvania, the answer to your question is “no.” Under the Motor Vehicle Code, minimum limits must be made available for purchase. An agency cannot simply decide not to offer it. While the Insurance Department understands that an agency may not want to sell minimum limits, they do not view that as a choice. Keep in mind that the decision not to offer can be viewed from different angles, including the plain old failure to offer and/or refusal to write, upselling and – depending on the circumstances – even discrimination.

In Maryland, based on conversations with the Maryland Insurance Administration, the position is that if an insurer offers a policy with Maryland's minimum vehicle liability limits, the producer representing that insurer cannot refuse to offer it as an option to the customer if that's what the customer requests.

In Delaware, based on our research and contacts with the Department of Insurance, while the statute doesn’t seem to expressly require insurers to offer the minimum limits, that expectation can be inferred from other statutory provisions. In addition, under certain circumstances, the refusal to write might also be viewed as a discriminatory practice. Bottom line, insurers must offer minimum limits, and by extension so must their agents.

What you can do to protect your own E&O exposure? Obviously, you can explain what purchasing minimum liability means, what can happen if the insured is involved in a loss that exceeds those limits, and give a cost comparison of a policy with higher limits.

If your explanation is not sufficient to sway the customer, you can:

  • Implement sign-off forms, where the insured is acknowledging his choice of lower limits, OR
  • Send a letter (a template is at confirming the selections the customer made, reiterating your recommendation for higher limits, and suggesting he contact you if he changes his mind.
  • Use one of our consumer flyers (available at explaining auto limits in order to make your point.

Sending a confirmation letter will establish a record of your discussions with the policyholder, and hopefully prevent any claim that you did not warn your customer of the risks associated with low limits. When a claim occurs, everything is fair game, and the customer likely will blame you for the low limits selected, and won’t remember any conversations on the topic.

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Should an insurance ID card be issued for a 6-month or 12-month period?

That depends. Generally speaking, insurers are permitted/required to provide insurance ID cards that are valid only for the period of time for which coverage will be in place and has been paid by the insured. However – again, generally speaking – if the insured is on an insurer-sponsored payment plan, has financed premiums through a premium finance company, or has paid in full for the applicable policy period, an ID card may be issued for the corresponding policy period.

Here are how our respective states’ laws and regulations address the issue:

The insurance ID card is valid for no more than the term stated in the policy, but not to exceed 6 months. However, an insurance ID card may be issued for a 12-month period if the premium has been written on an annual basis and the premium:

  • is being paid in installments of no more than for a 12-month period or
  • has been paid in full for the 12-month period.

This applies to insurance ID cards for personal and commercial lines coverage. (See 18 Del. Administrative Code Section 606, and 18 Del.Code Section 2118(o))

The insurance ID card is valid only for the period for which the insured paid for motor vehicle liability insurance coverage. However, if the insured is on an insurer-sponsored payment plan or has premium financed through a premium finance company, the insurance ID card may be issued for periods of six months.

This applies to insurance ID cards for personal and commercial lines, with the exception of buses and taxis. (See MD Code, Insurance Section 19-503.1)

The insurance ID card (referred to as a “financial responsibility identification card” in the Pennsylvania statute) discloses the period for which the insured paid for coverage. However, where the insured has financed premiums through a premium finance company or is on an insurer-sponsored payment plan, the insurance ID card may be issued for periods of six months. State regulation forbids an insurance ID card from being valid for more than one year from the effective date.

This applies to insurance ID cards for personal and commercial lines coverage. (See 75 Pa.C.S.A. Section 1782, and 31 Pa.Code Section 67.24)

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Commercial Property

Can a PUP carrier exclude coverage due to underlying policy written on commercial paper?

Personal umbrella policies are designed to cover personal liability exposures. So fundamentally, having the policy exclude any underlying policy that is commercial in nature makes sense. The one-to-four family dwelling policy is generally sold as a personal lines product. However, a carrier can treat it as a commercial exposure and place it on commercial paper*. When doing so, your personal umbrella may no longer provide coverage for that risk … if the trigger is the type of policy on which the underlying is written. It is important to have good working knowledge of your personal umbrella carrier’s requirements, but also some knowledge of the underlying policies.

First, what are the limits on the underlying commercial policy? – If the underlying policy is provided on commercial paper, it’s quite possible the limits are higher than they would be on a personal lines policy. They may even be as high as the umbrella contemplated by the insured. It’s not uncommon to have commercial limits upwards of $1,000,000, whereas the personal dwelling policy will be providing $300,000/$500,000. So if the umbrella you’re writing is for $1,000,000, your customer may be satisfied with the commercial underlying limit. If the limits are lower, or if your customer wants more, you have other options.

  1. Writing with another umbrella carrier – First, you need to know your different personal umbrella carriers’ requirements: How do they treat rental properties? Do they provide coverage if the rental property is a one-to-four family dwelling? Does coverage hinge on the paper it is written on (personal v. commercial)? Do they provide coverage if the rental property is residential, regardless of the paper it is written on? Based on the answer to these questions, you may be able to write the umbrella with a carrier that uses different criteria and is willing to provide personal coverage over commercial paper for this type of exposure.
  2. Moving the underlying policy If you insure the underlying policy, discuss with your customer the possibility of moving it to a market that will cover it on personal lines paper, if you have one. If you do not insure the underlying policy, you can draw your customer’s attention to the restriction, and see if the customer will give you a chance to quote it for him. This may give you an opportunity to round out the account.
  3. Writing a commercial umbrella – Again, first check the underlying limits on the commercial policy. If the customer wants more and you have no other option, then you could try to secure a commercial umbrella.

* This could be a company policy; or it could be an underwriting decision based on that specific risk … which can explain why some umbrella carriers will use this criterion, trusting the underlying carrier’s analysis.

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How can I appeal an ISO protection class?

If there is an ISO protection class in your township that doesn’t seem to reflect the proper distance from the primary fire company, you can appeal it by requesting that ISO re-rate it. The request has to come from either the highest ranking official in the community (township, borough, etc.) or from the fire chief. The request can be addressed to: ISO - public protection. Take note that the request can also come from the carrier as an ISO subscriber.

Protection classes have recently changed. As a reminder, ISO introduced new Public Protection Classes effective July 1, 2014.  Since the use of the new classes was optional, some carriers may have adopted them, while others have not.

The new classes add differentiation factors and incorporate a new water class. Based on the analysis of loss experience, Class 10W gives credits to risks that are more than five but less than seven road miles from a responding fire station, with a creditable water source within 1,000 feet.

Read more about these changes

General questions on ISO’s Public Protection Classes can be directed to ISO at 800-444-4554 or

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Can we get flood coverage for a building under construction?

Yes, you can. Flood insurance can be written on a building under construction based on the pre-construction drawings.

  • The policy will need an elevation certificate before it can be renewed, so it must be under continuous construction.
  • The deductible is doubled until the building is walled and roofed.

This is covered in detail in the NFIP manual, under General Rules – section 3 (page GR5).

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I was unaware that a community was rezoned. Are my impacted flood insurance customers entitled to a refund of the premium difference?

Under the vast majority of circumstances, a refund of the premium difference will only be granted for the current policy year.

Procedures for endorsing a policy as a result of a change in risk, and the applicable refund guidelines, are addressed in the General Change Endorsement section (Section 12) of the NFIP Flood Insurance Manual (FIM), specifically on pages END 1, 2 and 3. The guidelines provide as follows:

  • If a map revision or amendment became effective prior to the previous policy year, a refund of the premium difference is granted for the current policy year only (see FIM - General Change Endorsement Section II.B.4).
  • If the map revision or amendment became effective in the previous policy year, a refund of the premium difference is granted for the current policy year and the pro-rata portion of the previous policy year (see FIM - General Change Endorsement Section II.B.4).

A side-note in the context of premium refunds: Under circumstances where a “misrating” (as opposed to a “map revision”) occurred at the time of application, a refund of the premium difference may be issued back to the date of the policy inception, with up to a five year maximum.

This issue is addressed in the FIM, under General Change Endorsement – section 12 (pages END 1, 2 and 3).

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How does the Flood Insurance Manual respond if an insured fails to cancel a policy when selling a property?

While this issue isn’t expressly addressed, under a limited number of circumstances, an insured may be entitled to a refund of premium for a period in excess of two years, including for circumstances where an insured has sold the insured building.

Procedures for completing the NFIP cancellation/nullification form, and the applicable refund processing procedures, are addressed in the “Cancellation/Nullification” section (Section 14) of the NFIP Flood Insurance Manual (“FIM”). Of significance, the guidelines provide as follows:

  • A request for a refund for a period which exceeds two years is required to be processed by the NFIP Bureau of Statistical Agent, so don’t necessarily expect a quick turnaround. (FIM – Cancellation/Nullification Section I.A.2)
  • The applicable NFIP insurer(s) will be required to provide supporting documentation, to include a policy cancellation request and the premium refund calculation for each year, declaration pages for the applicable policy terms, and evidence of payment of premium by the insured. (FIM – Cancellation/Nullification Section I.A.2a)
  • The insured will be required to provide a copy of a bill of sale and/or a settlement statement in order to provide evidence of sale of the property. (FIM – Cancellation/Nullification Section I.B.1)
  • Per the FIM, the applicable “Cancellation Effective Date” to be entered on the Flood Insurance Cancellation/Nullification Request Form should reflect “The date on which the insured ceased to have an insurable interest in the building (e.g. the date of the sale of the building).” (FIM – Cancellation/Nullification Section I.B.1)

Completion of the cancellation form is addressed in the FIM, under “Cancellation/Nullification” – section 14 (primarily see pages CN 1 and 2), which is available on FEMA’s website.

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Can we notify our homeowners' customers that we will add Identity Theft coverage to their policies and ask them to "opt out" if they don't want it?

No. The regulators in Delaware, Maryland and Pennsylvania have long viewed this as impermissible. Sometimes referred to as “negative automatic roll-on,” the gist of the practice is that customers are forced to monitor and opt out of offers in order not to be charged extra at renewal.

While as independent insurance agents, we often have strong feelings about some of the coverage choices made by our customers, the reality is that if we were on the receiving end of this kind of offer, we would likely react the same way they do, and view the offer as an attempt to force us to accept coverage that we just don’t want.

As the saying goes, “The road to hell is paved with good intentions.” While your goal is to protect customers whose coverage you view as lacking, from the regulators’ standpoint, it is an unfair trade practice. The coverage selection needs to be based on an opt-in mechanism. From a marketing standpoint, you need to rethink the offer so that your customers make the decision to add the coverage onto the policy, not to remove it. Will it be as effective? Probably not. Will you be less likely to explain yourself to the regulator and pay a fine? Absolutely.

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Are there any options for water and sewer line coverage?

Coverage for water and sewer lines is an interesting topic, in great part because the industry has communicated so little about it. As insurance producers know, water and sewer lines are typically excluded from the homeowners’ policy, and, unfortunately, many policyholders don’t realize this until they have a claim. These claims generally run in the thousands of dollars, making it an unpalatable experience (and one that they are sure to talk about with their friends and neighbors).

Utility companies
Some water companies have taken advantage of the coverage gap in the homeowners’ policy and are offering coverage for water and sewer lines. When people select it, the premium is included with the water bill.

Insurance carriers
On the insurance industry side, at least one insurer developed an insurance program for “service lines” several years ago. Because this insurer doesn’t sell homeowners’, it was designed to be sold by HO carriers -- and we know of at least one company that is selling it* -- by partnering with these carriers and tacking on the endorsement to their HO policies, with the risk being “carried” by the original insurer. The coverage has expanded to other lines since (with the option to extend to electric and communications or data transmission wiring). 

Interestingly, in spite of the fact that in many communities this peace-of-mind enhancement could be a new marketing angle and opportunity for product differentiation, there still is very little knowledge about it. It is possible, if not likely, that the lack of widespread knowledge about the program is part of the limited interest shown in the product. Ironically, the insurance industry would probably offer a better product than what is currently available through the utilities company.

Bottom line
If you want to know if you can offer it, ask your homeowners’ carriers if they have an endorsement currently available or if they are considering offering one in the near future.

* At the time of this writing (summer 2015), one carrier contacted us to announce that it recently added the coverage to its homeowners' product. 

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Can a carrier refuse to cancel a policy retroactively?

Not all carriers handle this scenario the same way. And it is one of those situations where even when the insurance carrier is right, it will not look that way to the policyholder … in particular since generally no claim occurred.

Take, for example, a customer who sells his home and who, two months later, asks you to cancel the policy back to the day he sold his home. To the insured, the home was no longer his, and there was no risk to the insurer. He simply forgot to notify the company.

Let’s look at this more closely, taking ISO’s HO-3 as an example.

  1. What does the policy say? ISO’s HO-3 (05 11) cancellation provision states “You may cancel this policy at any time by returning it to us or by letting us know in writing of the date cancellation is to take effect.” This wording does not contemplate retroactive enactment: “Is to take effect” refers to a future date. It would be difficult to argue that the carrier also meant “took effect.”
  2. What about insurable interest? True, coverages A and B cease with the loss of the insurable interest, but several coverages continue until the policy is cancelled. Specifically, coverages C, E and F (personal property, liability and medical payments) remain in effect on a worldwide basis until cancellation.
  3. How much coverage continues?The personal property is covered in full for 30 days. After 30 days, 10 percent of the old policy’s coverage C limit continues to be available. This could cover the individual if he failed to secure a renter’s policy (if he is now renting) or if he secured an HO policy but his limits were too low. The personal liability coverage could also be triggered if he negligently injures someone or his dog bites a neighbor at the new location.

What do you do as an agent for the company?

  • Check the policy: We’ve covered that above. Check the carrier’s policy language to see how cancellation can be effected when initiated by the insured.
  • Check your authority/procedures: First, do you have the authority to accept a retroactive cancellation? The agency agreement or other guidelines provided by the carrier may provide some guidance in that area and/or any criteria for acceptability. If these types of cancellations occur with some degree of frequency, you may want to confirm with your different carriers how they expect you to handle them when the insured can prove that a new policy was in place. If these cancellations are rare, you may inquire on a case-by-case basis whether the affected carrier is agreeable to the retroactive cancellation whenever it happens. 
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My carrier says a condo unit owner doesn't need Coverage A. Is that right?

Probably not. It is highly unlikely that your unit owner would not have to insure any amount of Coverage A. To properly insure the condo, coordinate the unit owner’s coverage with coverage provided under the condo association's master policy and identify who is responsible for what. Here’s what you will need (be ready to get in touch with the association’s insurance agent, the property manager and even your own carrier in order to avoid gaps):

Documents: Request a copy of the condo association's "declarations" and bylaws to help determine who is responsible for what. Pay attention to the responsibilities for upkeep (to “maintain and repair”) and the responsibilities for insurance: These are not necessarily synonymous.

Type: Based on the declarations, ascertain whether the association is structured as:

  • “Bare walls”: Association responsible to insure common elements and limited common elements; unit owner responsible for building items and fixtures that constitute the unit [check definition of “unit”]
  • “Single entity,” a.k.a “Broad form” or “original specifications”: Association responsible to insure common elements and limited common elements as well as units; unit owner responsible for unit’s improvements and betterments made by unit owners over time
  • “All in”: Association responsible to insure common elements and limited common elements as well as units, including improvements and betterments made by unit owners over time

Limit: Depending on which option (bare walls, single entity, or all in) is applicable, work with your customer to estimate an appropriate limit for the unit’s building items (Cov. A).

Age of condo: With a single-entity program, remember: The older the condo, the more likely improvements and betterments have been made over time. Therefore, the amount of Cov. A may need to be increased. For example, a kitchen remodeled by a unit owner would not be covered by the master policy, and its cost would need to added to the Cov. A limit of the unit owner’s policy.

Loss assessments: Discuss with unit owners the possibility of assessments from the association to reimburse the association for uncovered claims, claims above the master policy limits, or simply to recoup the association’s master policy deductible. This is becoming more common as associations choose higher property deductibles to contain premium increases. Knowing the association’s deductible would be helpful. The HO-6 generally provides a limited amount of coverage for loss assessments. When increasing coverage by endorsement, check if the added coverage applies to association deductibles, which varies depending on the ISO (or proprietary) form used.

Broadened perils: Contrary to the HO-3, these are not automatically included and must be added by endorsement.

Other optional coverages to discuss include water-sewer backup, rental unit coverage, and sufficient liability limits to meet any umbrella’s requirement for the underlying policy. Offering an umbrella is obviously always a good idea.

If the condo unit is in Maryland, note the differences, including the association’s ability to recoup a claim from the unit owner where the cause of damage originated, regardless of fault (up to $5,000).

To help you talk condo coverage, access our consumer flyers on the topic. Just be sure to use the brochure for the state where the unit owner (not the agency) is located.

Keep in mind: This is only a discussion of residential condos. Commercial condos have their own sets of traps, particularly with a tenant’s improvements and betterments. That’s for another day.

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What personal liability coverage does a gun owner have?

There’s a tremendous gap in understanding between the general public and the insurance industry on liability, intentional and criminal acts, and insurability. It’s important to differentiate the exposures and educate your customers on the fact that not everything may be insurable – particularly in the context of lawmakers' “mandatory gun liability” proposals.

How do HO policies generally address gun liability?
Most policyholders don’t realize that the homeowners’ policy covers many types of liability claims that can include gun-related accidents. “Accident,” here, is key. Under a traditional ISO HO-3 form* (HO 00 03 05 11), there is no specific gun-related exclusion. There is, however, an “Expected or intended injury” exclusion, which itself contains an exception for “use of reasonable force by an ‘insured’ to protect persons or property.” Therefore, under the HO policy some coverage:

  • would be available for the accidental firing of a gun (e.g. the gun discharging while the insured is cleaning it), and
  • may be available for certain self-defense situations, if the gun firing was deemed “use of reasonable force,” something that obviously is 1) fact-specific and 2) subject to interpretation.

Keep in mind that 1) reviewing the customer’s specific policy language* is a must, as it may not include the use-of-reasonable-force exception language, and 2) coverage determination is always fact-specific, but it’s particularly true here.

What about intentional firing?
When inquiring in the context of legislative proposals, customers often are focused on the intentional firing of the gun, such as in a public setting, during an active shooter event. The ability to argue self-defense or “use of reasonable force” depends on the circumstances: Was the insured defending from a home invasion? Was he in a public setting? Did the insured shoot an active shooter, shoot another person he confused for the shooter, or accidentally hit a bystander, etc.? Producers should stay away from speculating on coverage – except maybe for the active shooter himself, who obviously is never covered.

Are there other options for broadening coverage?
Yes, for gun owners who are concerned about liability issues, several gun organizations have developed additional insurance programs that expand coverage, mostly to provide defense costs and sometimes indemnity under broader claims of self-defense. A shooting range or a club may offer insurance. National associations such as the United States Concealed Carry Association (USCCA) or the National Rifle Association (NRA) offer coverage options for gun owners. These specialized policies have their own focus and their own exclusions. [See Editor's note below]

Bottom line: The HO policy generally will cover accidental discharge, and in some cases, self-defense. Only specialized policies provide additional coverage, mostly targeted at defense costs in broader self-defense scenarios. Fundamentally, issues of liability will be extremely fact-specific, and may also differ based on the state (and case law) where the incident occurs.

* Even if the carrier is an ISO member, and the policy displays an ISO copyright, this does not mean that the language is identical to ISO, so you need to check the exact wording in the policy. Most ISO members are not “automatically follow” and file their own forms with the state (either due to delayed implementation or modified language).

Editor's note (Feb. & May 2018): Lockton Affinity and Chubb have announced that that they were discontinuing their participation in some of the products sold through the NRA. Lockton Affinity was subsequently fined $7 million by the NY insurance regulator, because their product was providing coverage for certain intentional wrongdoings, in violation of the law. Shortly thereafter, Lloyds' requested its underwriters/syndicates to terminate any NRA insurance programs in which they were currently involved. (May 2018).

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How can I find a lost life insurance policy?

Every year, we receive calls from members trying to help their customers locate a lost insurance policy for a relative. Sometimes, the carrier has merged with or been acquired by another company. In other cases, it is unclear whether the policy continued in force or was cancelled at some point. The reality is that many life insurance benefits go unclaimed simply because the beneficiaries are unaware of the existence of a policy or are unable to find it.

Lately, a number of insurance regulators have tried to draw attention to the issue and have published press releases to encourage the public to investigate whether the deceased had a valid life insurance policy. If the survivors suspect a policy may have been purchased, the following steps can be taken:

  • Suggest they look for insurance-related documents. We’re stating the obvious. The first thing to do is look through files, bank safes or deposit boxes, and other storage places to locate any insurance-related documents. Checking address books for insurance agents or companies is also a good idea. The insurance producer who sold the deceased his or her auto or home insurance may also have sold a life insurance policy.
  • Contact the employer. If the deceased was still working at the time of death, an employer-sponsored life insurance policy may have been in place.
  • Review bank books and canceled checks. Look for any checks that were made payable to a life insurance company over the years.
  • If the difficulty stems from the fact that the insurance company is no longer in business, the individual can contact the state’s Insurance Department to find out which life company took over the book of business and is assuming the liabilities.
  • Check with the state's unclaimed property office. If a life insurance company knows one of its life insurance policyholders has died but cannot find the beneficiary, the company must turn the death benefit over as "unclaimed property" to the state in which the policy was bought. The National Association of Unclaimed Property Administrators is a good place to start looking.
  • Try the MIB database. The not-for-profit MIB Group Inc. is a consortium of life and health insurers. It maintains a database of individual life insurance applications underwritten since 1996 by MIB member companies. There is a fee of $75 per search. 

For more assistance from the state Insurance Department:

Pennsylvania: The Pennsylvania Insurance Department (PID) encourages use of the National Association of Insurance Commissioners' Life Insurance Policy Locator Service. In addition, Gov. Tom Wolf enacted pieces of legislation mandating:

  • life insurers to regularly compare their insureds' policies with the Social Security death master file (Act 132 of 2016), and
  • the establishment of an electronic database of contact information for Life and Annuity companies (Act 48 of 2018). 

Maryland: The Maryland Insurance Administration can be contacted at 410-468-2000 to identify the successor company in the case of a merger or acquisition.

Delaware: A new service allows an executor, beneficiary or legal representative of a deceased resident or former resident of Delaware to file a search request with the Department of Insurance. To submit a request, print out the Missing Life Insurance/Annuity Search Request Form on the DOI website. You can also call the department at 302-674-7300.

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Worker’s Compensation

How can employers avoid charges at audit for independent contractors?

It is not unusual for Workers’ Compensation (WC) customers to discover at the end of the year that the premium they budgeted and paid for is not sufficient based on the insurance company’s audit. The additional premium charged can cause a lot of grief. In the circumstances you describe, the main culprit generally is the misclassification – or perceived misclassification – of employees by the business entity.

Why is it an issue?
When a claim occurs and an injured subcontractor is without insurance, he or she will often argue misclassification, and the contractor’s insurer may end up paying for the claim. As a result, WC insurers tend to charge at audit time whenever the status as an independent contractor is insufficiently documented.

How to address this issue?
Giving a heads-up to the employer of the documentation the insurer will require in order not to charge for independent contractors is helpful, and can reduce the risk of an unpleasant surprise at the end of the policy period.

If you are not sure how to frame the issue of premium audits or explain the requirements of the applicable state law, you can access various tools online, including an explanation of the law and sample letters.

About misclassification of employees
Our three states of Delaware, Maryland and Pennsylvania (along with myriad others) have passed employee misclassification laws that more severely punish employers who classify employees as independent contractors in order to evade payment of WC, unemployment compensation and other taxes or charges imposed on employers. These laws tend to target the trades or industries where the practice has historically been more prevalent, such as construction and landscaping.

In addition, in 2007 Delaware also changed its treatment of independent contractors based on their business structure. In the construction, construction transportation or real estate development industry, sole proprietors and partners cannot be excluded: If they do not have their own coverage, they have to be covered under the contractor’s WC policy. If you do business in multiple states, having a good understanding of what is permissible and what is not is essential.

Other issues
Of course, simple miscalculations can also affect an employer’s audit, such as a woefully underestimated payroll. For those customers who have difficulties estimating their annual payroll and also have cash flow issues, the “pay-as-you-go” option may be the way to go, by handling WC insurance payment alongside payroll.

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Is an insured employer required to report an employee's injury?

It’s easy to understand why an insured would ask such a question, given the ultimate effect a claim likely will have on the employer’s experience rating. An employer might speculate, Wouldn’t it be easier and maybe less expensive if I just paid for the employee’s medical and related expenses and lost wages out of pocket?

Unfortunately, for employers required to provide workers’ compensation coverage (as well as those who voluntarily have elected to do so), there are contractual, as well as probable statutory, requirements to report/notify.

Contractual requirements
Workers’ compensation policies contain provisions that outline an insured’s duties, one of those duties being to notify the carrier at once if an injury occurs which may be covered by the policy.

Statutory requirements
Delaware, Maryland and Pennsylvania’s workers’ compensation statutes contain provisions which require, under differing circumstances, that an employer provide written notice to the state’s respective Bureau of Workers Compensation.

Delaware – 19 DE Code Section 2313(a), provides that: “Every employer to whom this chapter applies shall keep a record of all injuries, fatal or otherwise, received by employees in the course of their employment. Within 10 days after knowledge of the occurrence of an accident resulting in personal injury, a report thereof shall be made in writing by the employer to the [Delaware Dept. of Workers’ Compensation].”

Maryland – MD Code, Labor & Employment, Section 9-707(a), provides that: “If an accidental personal injury causes disability for more than 3 days or death, the employer shall report the accidental personal injury and the disability or death to the [Maryland Workers’ Compensation Commission] within 10 days after receiving oral or written notice of the disability or death.”

Pennsylvania – 77 P.S. Sections 994 (a) and (b), provide that: “(a) An employer shall report all injuries received by employees in the course of or resulting from their employment immediately to the employer’s insurer. (b) An employer shall report such injuries to the Department of Labor and Industry by filing directly with the [Pennsylvania Bureau of Workers’ Compensation] on the form it prescribes a report of injury within forty-eight hours for every injury resulting in death, and mailing within seven days after the date of injury for all other injuries except those resulting in disability continuing less than one day, shift or turn in which the injury was received.”

The bottom line
While the statutes may differ somewhat in content and context, in all three states:

  • Employers are contractually required to immediately notify the workers’ compensation carrier if an employee injury occurs, which may be covered by the policy; and
  • Employers are statutorily required to report employee injuries to the state’s respective Workers’ Compensation Bureau, under applicable circumstances as outlined above.
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A PA client was fined by the NY State Workers’ Comp Board for an employee working remotely from New York. What should I do?

In this case, the employee had just gotten married earlier in the year and decided with her employer that she could work remotely from her new home in New York state. There was clearly no desire to evade any obligations, but a simple oversight.

It is hard to say if any leeway will be granted, but it is possible, under the circumstances, that the New York State Workers’ Compensation (NYS WC) Board may look at this set of facts with more understanding. To that point, we have been told that the Board has occasionally been willing to negotiate over fines. Your customer (or you) may want to contact the Advocate for Business at the NYS WC Board. He or she may be able to give advice on how to get the penalty reduced.

You can contact the Advocate for Business at or 877-632-4996. Be prepared to provide the following information:

  • Insured’s complete corporate name
  • Contact person name, phone number, and email address
  • Insurer and policy number
  • Federal employer identification number or WCB employer number
  • Brief description of the problem and any correspondence received

How the Board found out is unclear, but it’s possible (if not likely) that it receives information from other agencies – perhaps the Department of Labor or Department of Revenue – and is able to find non-compliance in a more targeted way.

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IA&B Vice President - Advocacy Claire Pantaloni, CIC, CISR

800-998-9644, ext. 604

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