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Indemnity (PI) insurance can be like playing Russian roulette

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Article provided by Econorisk

South Africa has become a highly litigious society – and the real smoking gun is the increase in legal defence costs.

There was a sense of irony at the June Risk Series breakfast meeting last week. Just as the 2018 FIFA World Cup kicked-off, guest speaker and PI expert, ITOOs Malcolm Padayachee highlighted 2010 and how all these years later – there is still one unfinalised claim he is working on. The pressure and timelines of some of South Africa’s most ambitious construction projects took their toll and there was a notable increase in PI claims building up to, and post the Soccer World Cup.  Any South African will know how long ago those vuvuzela moments were. Eight years of legal and financial strain is a very long time.

What’s Trending?

When it comes to claims there has been an increase in litigation, and consequently an increase in legal defence costs. Trends include huge claims in the built environment due to defective design. This sector generally dominates the PI claims space due to factors such as fast-tracking, inexperienced engineers, and inadequate supervision. There’s an unmistakable increase in PI claims against law firms and, following in the shadow of US litigation, the explosion of medical negligence claims has resulted in certain markets having withdrawn. The impact is that certain categories of doctors, particularly specialists, can’t get cover in the commercial insurance market. According to media reports, the Department of Health has accrued outstanding claims in excess of R40bn in medical negligence claims – and the market to insure them has shrunk away for obvious reasons.

TOOs Head of PI, Malcolm Padayachee relates staggering cases to guests and colleagues at the June Risk Series breakfast meeting.

Q&A

Explain the difference between annual PI policies and single project cover?
  • Individual practices and businesses normally have policies that are renewable annually. This covers them for all the work they undertake and all projects in the conduct of their business during that annual cycle.
  • Single project insurance is procured for a specific project, which requires large limits of indemnity and covers the entire professional team for the duration of that project only. This is a timebound policy.
When it comes to annual renewals – is a No Claims Declaration (NCD) acceptable vs. submitting a 12-page proposal form every year?
  • There’s a 1-page document that ITOO has for clients and broker partners such as Econorisk. However, every 3-years we do have to insist on filling out the full document!
  • In most cases, an NCD will do.
Are you seeing many claims against insurance brokers in general?
  • Yes – the industry has seen an increase in broker claims. Rightly or wrongly, as soon as a client’s claim is rejected, the broker is held responsible.
  • Even though it is one of the most regulated industries in terms of compliance, brokers still require PI.
  • We are pleased to report that, since inception, Econorisk has never had a claim laid against the business – but are firm believers in very adequate cover!
  • Econorisk holds well in excess of the mandated PI cover for this reason.
Misappropriation of trust funds is a scam that has hit attorneys – and the scale of these attempts is of such magnitude that PI cover is essential. Does the Attorneys Insurance Indemnity Fund (AIIF) provide ample cover?
  • While the AIIF provides comprehensive professional insurance indemnity free of charge as part of the fund, it is limited. ITOO offers both top-up and drop-down cover to ensure the flexibility of PI at different stages for attorneys.
  • The AIIF does not provide cover for misappropriation of Trust Funds. It is vital for attorneys to procure top-up policies, which do provide that protection.
Are the claims amounts ‘costed in’ on ITOO policies vs. being a deductible through the AIIF?  How do you differ?
  • A deductible = the excess first amount payable by the insured in respect of any claim, before the insurer is obliged to provide cover in terms of the policy.
  • Deductibles generally apply to legal and investigation costs, however some insurers’ (ITOO/Hollard) deductibles apply to damages awarded only.
  • Usually, the higher the deductible, the higher the premium discount.
  • Insurers favour the insured’s appetite for higher self-insurance levels and reward them accordingly.
Who deals with an attorney’s PI claim – the AIIF or ITOO? If both, this must add a level of complexity to claims – how do you manage that?
  • The claim must be reported to both the AIIF and ITOO.
  • Depending on the quantum of the claim, the AIIF will run with it, or give ITOO the opportunity to take over the claim.
  • We have a panel of attorneys for the insured to choose from or they can use their own – if there are compelling reasons to do so.
  • We are in constant contact with the AIIF and vice versa until the claim is resolved.

 

STANDARD EXCLUSIONS

Liability arising out of:

  • Fraud and dishonesty
  • Fines and Penalties
  • Asbestosis
  • Nuclear
  • Pollution
  • War and terrorism
  • USA and Canada (where litigation is way out of kilter)

PI COVERS
Policies extend to cover a variety of risks dependant on the business or profession

  • Defamation
  • IP and copyright infringement               (eg. IT firms)
  • Misappropriation of Trust Funds           (eg. attorney firms)
  • Wrongful arrest                                      (eg. retail stores or factories)
  • Statutory or criminal defence costs

Econorisk is a proud Partner of the NSBC.