Professional liability insurance is a necessity for lawyers. Unfortunately, not all lawyers are able to secure the coverage they need in the standard marketplace because they are considered to be a “distressed” risk. The question is, what exactly does “distressed” mean?
A “distressed” risk is one that has difficulty securing professional liability insurance because of claim frequency, claim severity or disciplinary complaints or actions. While “distressed” is often used interchangeably with “hard to place”, the two terms are different in that “hard to place” generally means the lawyer or law firm practices in a more risk prone practice category such as Personal Injury Plaintiff or Patent but is usually claim and disciplinary action free. If the term “distressed” describes the loss or disciplinary history of a law firm, the firm faces many more challenges in finding professional liability insurance and generally has to settle for less coverage at a considerably higher premium. The good news is that there are a few markets available, operating on a surplus lines basis, to meet the professional liability needs of the “distressed” law firm.
Surplus lines is often referred to in a negative connotation because the insurance product is not protected by any state insurance guaranty association nor is the policy form and rates charged subject to regulation and approval of the State Insurance Commissioner. However, not all surplus lines insurers are created equal. Surplus lines insurers are subject to review by the insurance company rating agencies such as A.M. Best and are generally published as an “Approved Surplus Lines Company” by state insurance departments. Before committing an insurance purchase to a surplus lines company, law firms should check with their state insurance department to be sure that the company is an approved surplus lines insurer and that it carries an A.M. Best rating of at least A VII. Many admitted professional liability companies will have a surplus lines facility to accommodate those applicants or insureds that do not qualify under their standard program guidelines, but would be acceptable on a surplus lines basis if a more acceptable premium could be charged for the exposure presented. There are several A and even A+ markets to approach in this arena.
To find an adequately rated surplus lines insurer that can be trusted to provide the needed coverage should a claim be presented often involves finding a broker that specializes in professional liability and deals regularly with distressed placements. As a general rule, most brokers that offer lawyers professional liability as a full time product line will have an insurance company or “distressed facility” that they have worked with successfully in the past. It is best to find a broker that is familiar with the policy form and claims handling ability of the company they are recommending.
Here are some valid questions to ask a broker about the insurance company offering coverage: