04 Mar Could Your Agency Website Impact an E&O Claim?
Let me start with, “When did you last review your website?” Actually, the same question applies to your marketing materials. Have they become a little stale? Do they still represent who you are and what your business proposition is?
It would not be surprising if you haven’t thought about your website/promotional material. After all, I’m sure you’ve been a little busy over the year or two (or three). If it’s been some time since you reviewed how you are promoting your agency to the public, consider making this a project moving forward.
Unless you have a dedicated marketing division that would handle issues such as this, typically, agencies hire marketing firms to design and write the content of the agency website. They probably viewed their role as making the agency sound spectacular, and while they may have accomplished that, was the content accurate? Did it include “marketing puffery?” This phrase is an actual legal concept that suggests that customers can reasonably expect salespeople and marketing materials, such as advertising, to include exaggerations that aren’t meant to be taken literally.
I have done a fair amount of expert witness work. In most of those cases, one of my tasks was to review the website/promo material to determine whether it would help or hurt the agency in the E&O matter it was now facing. I would do this because the plaintiff’s attorney (representing the client suing the agency) will scrutinize every word of your website to determine to what degree your agency is honoring the “promises” your website claims. Many an E&O claim has been decided on the contents of an agency’s website.
What are some of the issues they will probably be looking for?
Many websites include language that sounds like “promises” and “commitments.” Statements such as:
- “We will make sure you have the coverage you need.”
- “Our staff will analyze all of your risks.”
- “We will periodically review your coverage to ensure you have the protection you need.”
The above statements sound very powerful and impressive. However, there are two basic issues with statements such as these.
The first statement – “we will make sure you have the coverage you need.” How would your agency do that? Can your agency ensure the client has the right protection at the time of a loss? Not really, since at the end of the day, isn’t it up to the client whether they want to secure the suggested coverages? Your agency can only suggest coverages for the client to consider.
Also, if you commit on your website to review the client’s coverage to ensure they have the right protection, do you have a process to do that? Is that process performed for all clients or only for certain clients based on the size of their premium? The plaintiff’s attorney is looking to prove that the commitments you made on the website are not really being performed. One of the E&O cases I was involved in as an expert witness involved an agency that declared on their website that they would annually evaluate the property values to ensure that the client would receive the proper settlement at the time of a loss. After the client suffered an $800,000 co-insurance penalty after a fire, the client stated they relied on the agency website and thought they were properly insured. Guess who won that E&O case? Ironically, the agency producer admitted in court that they did not know what their website committed them to doing. Does your agency staff know what the agency website says? All agency staff should be required to review the site to be aware of the commitments they are expected to honor.
To impress the public with your agency’s expertise, words such as “expert” or “specialist” often appear. Once again, these sound very powerful, but these are the exact words the plaintiff’s attorney could use to allege a “special relationship” between your agency and your client. “Special relationship” is a common allegation in many E&O cases. If it can be proved, there is a greater potential for a heightened level of the typical legal liability standard of care.
Someone in the agency should be responsible for reviewing (at least annually) the agency website and promotional material to determine whether the agency is truly doing what its website says they are. Your E&O Plus reviewer (Angie, Mishell, or I) can review your website/promotional material for an additional fee.
Your agency’s commitments on your website are much more than just “marketing puffery.” They are commitments your agency may be held to.