Frequently Asked Questions

FAQs: DOL Rule and E&O Insurance

1. What is the state of the E&O marketplace with regards to the DOL rule?

Currently, the E&O markets are taking the position that it is too early to tell what impact, if any, the DOL rule will have on their books of business. For now the markets are not making any changes in coverage or pricing.  They do not believe the DOL rule increases their exposure, as they are already providing coverage, as it relates to an insurance agent’s varied professional services. However they have indicated they do expect to see an increase in defense costs due to a likely uptick in class action claims.

2. Does the E&O policy cover the broadened definition of “fiduciary” by the DOL rule?

The E&O policy affords coverage for an Insured who is acting in a fiduciary capacity with regard to retirement planning. The E&O policy has always and will continue to exclude coverage for anyone who is a Plan Administrator, Trustee or Sponsor of any ERISA qualified plan.

3. Does my E&O policy cover claims that allege unreasonable compensation, un‐level fees etc.?

Claims that are solely involving excessive fees or compensation received by an agent are excluded under the E&O policy. However, if there are other allegations in the claim that the agent breached their professional duty of care, allegations of misrepresentations, suitability, etc., these allegations would trigger the insurers’ duty to defend under the policy for such a claim. Any amount of the claim that can be attributed solely to the fees and/or unreasonable compensation would NOT be covered.

4. Are there other exclusions that would apply with regards to the DOL rule?

In addition to the compensation/fee exclusion described above there are conduct exclusions in all E&O policies. There is exclusion in the E&O policy for intentional acts. It excludes coverage for claims based upon or attributable to any actual or alleged criminal, dishonest, malicious or knowingly wrongful or fraudulent act.  In addition, any gaining of profit or advantage for which you are not legally entitled would be excluded.  However, the policy would provide for defense costs until there is a determination of this misconduct by a final adjudication.

5. Is there a breach of contract exclusion on the E&O policy?

The BIC exemption is a contract and it is foreseeable that claims may be presented with allegations which assert that the agent breached his/her duties under the contract. There is no breach of contract exclusion under the policy; however the claim would still have to allege other covered wrongful acts in order to trigger coverage. As discussed above, claims based on compensation are excluded. So any claims based solely on unreasonable compensations, unlevel fees are NOT covered under the E&O policy.

Is this a group policy?

This is a group policy. All agents enrolled in the policy share the policy aggregate. 
The policy aggregate limit is the maximum amount of money that the policy will pay out in one policy period. 
Each agent enrolled in the program has a $1,000,000 or $2,000,000 individual aggregate. This protects the group from having the aggregate eroded by an individual.

The policy aggregate limit is $15,000,000

*The aggregate limit will increase as needed based upon enrollment.  This is for your protection.

What if I want to cancel this policy?

The premium is fully earned when you bind coverage. Premiums are not refunded. You will have coverage until the policy period expires.

Does this policy cover series 6 and / or 7 activity?

You can choose to have your series 6 activity covered. This is coverage option 2. Coverage for series 7 activity is not offered. 

Does this policy cover series 65 activity?

Series 65 is Investment Advisory activities and that activity is NOT covered under this program.

Who is an Insured under the program?

(Any entity not named in this proposal, may not be an insured entity. This may include partnerships and joint ventures.)

• Any Agent/Rep enrolled in the E & O Program.
• Any business entity that is owned or controlled by an Insured Agent/Rep, but only with respect to those operations of the business entity related to the covered Financial Services provided by an Insured Agent/Rep.
• Any secretarial, clerical or administrative employees of the Insured Agent/Rep while acting within their capacity as such, solely while acting by or on behalf of an Insured Agent/Rep as long as they work solely in that capacity and do not produce or sell insurance.

What type of policy is this?

This policy is a 'Claims-Made and Reported' policy, which means the policy only covers those Claims against you that are both made and reported to the Insurer during the same policy period. Claims made against you must be report immediately to Everest National Insurance Company, in written form along with supporting documents, in order to be recognized by your E&O carrier. Additionally, you must report incidents or circumstances, which may result in a Claim against you, provided (1) you do so while an Insured under this policy and (2) you first become aware of the incident or circumstance during the policy period.

What activities are covered under this policy?

Sale or attempted sale or servicing of:

• Life Insurance
• Accident & Health Insurance
• Long Term Care Insurance
• Disability Insurance
• Fixed Annuities
• Employee Benefit Plans, Individual Retirement Arrangements, IRAs and KEOGH Retirement Plans (see below)
• Administration of Employee Benefit Plans (see below)
• Variable Products (optional)
• Mutual Funds (optional)
• Financial Planning incidental to the sale of the above products

What exactly am I covered for in the sale and/or servicing of Employee Benefit Plans?

You are covered for the sale and/or attempted sale of Employee Benefit Plans, IRA's and KEOGH Retirement Plans. In addition, you are covered for your administration of Employee Benefit Plans (consultation with participants in an employee benefit plan in order to explain the provisions of such plan, enrollment, record keeping and filing reports with governmental agencies). There is no coverage for the design or implementation of employee benefit plans or for third party claims administration.

Does the policy cover claims arising out of tax advice to the clients?

The policy will cover claims against you for rendering tax advice as long as it was incidental\ advice given in conjunction with covered Financial Services.

Does the policy cover business placed with a carrier rated less than A? Is insolvency covered?

This policy covers errors and/or omissions made by the Agent, regardless of the carrier rating however if a claim arises from insolvency, the claim would not be covered under this policy unless it was rated an B+ or higher at the time the policy was written. 

What do I need to do to get a "consultant" endorsement on my E&O insurance? Some states require this on E&O, an "insurance consultant endorsement."

You are covered for your sale and service of life products as well as the financial planning advice given in relation to these activities. If you are consulting for a fee, then this policy doesn't cover that activity. Consulting, or giving advice in conjunction with the sale of a covered product is covered; however, we do not offer a consulting endorsement. You may need to look into a separate policy for that coverage.

Is there an Extended Reporting Period, (ERP / tail) provision?

If an agent retires, becomes disabled or has deceased under the policy provisions can purchase a 3 year Extended Reporting Period ("tail") for 250% of their annual premium. Coverage must be requested within 30 days of the agent's retirement, disability or death.

What is a Data Breach?

"Data breach" means the loss, theft, accidental release or accidental publication of "personally identifiable information", or circumstances objectively giving rise to a substantial risk that such a loss, theft, release or publication has occurred.

"Personally identifiable information" means an individual’s social security number, bank account number, credit and debit card account numbers, PIN numbers or transaction history, driver’s license number, medical diagnosis, patient history and medications and any other applicable private information that may be defined by state or federal law.

What does Data Breach coverage provide?

The carrier will pay for “data breach expenses” that you incur as a result of a “data breach” of “personally identifiable information”, subject to the limit of insurance, if the following conditions are met:

1. The “data breach” occurs after the “retroactive date” and before the end of the policy period;
2. The insured first becomes aware of the “data breach” during the policy period;
3. At the time you applied for this insurance you had no knowledge of the “data breach”.
4. The “data breach” is reported to the carrier as soon as practicable, but in no event later than 30 days after it is first discovered by the insured.
5. The “data breach” must involve “personally identifiable information” that was held by you or on your behalf in the United States, Puerto Rico and Canada.

"Data breach expenses" includes reasonable:

1. Notification expenses to notify a person whose "personally identifiable information" was the subject of a breach in compliance of "data breach" statutes or regulations;
2. Crisis management expenses to perform services by any public relations firm, crisis management firm or law firm to minimize potential harm to the Insured;
3. Monitoring service expenses to provide victims with credit, fraud, public records or other monitoring alerts for up to one year, if determined to be warranted by us or the service provider.
4. "Good faith advertising services" to assist in organizing the insured’s media responses.
5. "Legal and forensic services" to provide reimbursement for the verification of compliance with data breach notification laws. This also provides coverage for the investigation of computer hacking incidents, lost and stolen property, cyber extortion, database fraud and determinations as to whether or not data was accessed.

"Personally identifiable information" means an individual’s social security number, bank account number, credit and debit card account numbers, PIN numbers or transaction history, driver’s license number, medical diagnosis, patient history and medications and any other applicable private information that may be defined by state or federal law.

Does this policy grant coverage for my prior acts?

Yes, this is called Retroactive Coverage.

Please note that E&O coverage is claims-made and reported.  That means that the policy enforce at the time the claim is made is the policy that will respond to the claim.  This policy will cover claims made and reported during the policy period for wrongful acts (or alleged wrongful acts) that occurred after the retroactive date, or the effective date of coverage in the current policy year.

An insured’s retroactive date shall be the earliest date that he/she/it has been continuously insured, up to his/her/its Coverage Inception Date under this policy, for professional liability coverage (errors and omissions coverage) for the type(s) of coverage provided to said insured by this policy, provided an insured’s retroactive date for a particular type of financial service shall not be earlier than the date he/she/it became authorized, pursuant to license or required registration, to provide that service.

For example, if this policy provides coverage for an insured’s acts both as a life insurance agent and registered representative and the insured has had professional liability insurance coverage for his acts as a life insurance agent continuously since September 1, 1991, but only since June 1, 1996 for his acts as a registered representative, that insured would have the following retroactive dates under this policy: (1) September 1, 1991 for coverage for wrongful acts committed as a life insurance agent; and (2) June 1, 1996 for coverage for wrongful acts committed as a registered representative.

Am I covered as a Fiduciary Under ERISA?

Please refer to page 16 of the policy form.

Fiduciary Under ERISA

Except as may otherwise be specifically provided by endorsement, the Insurer will not cover claims which arise out of actual or alleged services an Insured performs as a trustee, plan administrator or fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA), the Pension

Benefits Act and the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA), including any amendment, regulation or enabling statue pursuant thereto, or any other similar federal, state, or provincial statute, regulation or order issued pursuant thereto.

But this exclusion does not apply to retirement plan design, investment advice and related Securities or insurance purchases or sales by the Insured within the normal

Are punitive damages covered under this policy?

Punitive damages are not covered under this policy.