Broker Malpractice: How Policyholders Can Proactively Protect Themselves

Today, hosts Lynda A. Bennett and Eric Jesse discuss a recent decision that addresses broker malpractice – a common claim for policyholders to pursue after learning insurance protection is unavailable or insufficient to cover claim. Although the Lowenstein partners call the opinion a situation where "bad facts making bad law," they do advise policyholders to take away certain key lessons, including the need, and how to create a record to establish the existence of a special relationship with the broker which in turn imposes a fiduciary duty on the broker. Policyholders also should be responsive when brokers make inquiries designed to understand and value the risks that are intended to be insured not only to confirm the existence of a special relationship but also to avoid the need to sue the broker because the right coverage is placed in the first instance.