Hammer Clause

A Hammer Clause Transfers Some Risk for Defending a Lawsuit Back to a Business From The Insurer if The Business Does Not Take a Recommended Settlement.  

A Hammer Clause is a clause within an insurance policy that allows an insurer to compel the insured to settle a claim for an amount the insurer recommends. In some instances, a Hammer Clause is also known in some circles as a blackmail clause, settlement cap provision or consent to settlement provision. A Hammer Clause is usually a part of a directors and officers or errors and omissions insurance policy. The main purpose of this policy is to allow the insured to choose if they want to settle for what is offered or accepted by the “injured” party. Also known as the consent to settle provision, without this provision in a policy the insured is at the mercy of the insurance carriers desire to settle. Frequently, insurance carriers know the recommended settlement is the better outcome financially based on historical pay outs. The Hammer Clause can help a business determine if they want to fight the suit in court in an attempt to preserve the precious image of the company. When a business decides to do this, they take on some or all of the cost to fight the claim in court.

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When Does a Hammer Clause Kick in?

A Hammer Clause kicks in when the insured refuses to settle for an amount the insured recommends. In many cases the insurance carrier will recommend to settle for an amount they feel confident will be less than the defense and indemnity costs of a particular lawsuit. Hammer Clauses have developed because insurance carriers deal with these situations fairly frequently. The carriers have reliable data to help them predict how much a lawsuit will cost. Business owners do not deal with getting sued very frequently, but insurance companies do. The Clause is typically there to encourage the business owner to settle for the recommended amount. In turn, the insured is penalized for not accepting the settlement only if the judgment amount plus defense costs exceed the amount for which the claim could have been settled. Frequently lawsuits among businesses are a time when pride and emotion can effect the judgment of many good business owners. The Hammer Clause is there to prevent pride from getting in the way of sound judgment. unfortunately, it does not prevent emotion from getting in to the way. It does spread the risk to the business owner who decides to take on the additional risk.

How Can a Hammer Clause Be Arranged?

There are several different ways a Hammer Clause can be arranged. The most common type of Hammer Clause is a Full and a Modified Clause. A Full Clause states that if the insured refuses to settle for the recommended amount they take on the full amount of the settlement costs. A Modified Clause is set up to give the insured the option of refusing to settle, but requiring them to take on some of the costs of this decision. If the costs amount to more than what was originally offered. Typically, if the insured refuses to settle than the costs will be shared at an amount of 50/50. It is not uncommon for some policies to go higher to a 70/30 split of the costs.

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Important Facts to Remember About a Clause

The important part is that Hammer Clauses Exist and this is something a business owner should always speak about with their agent. A Full Hammer Clause is taking a lot of risk and it puts a business owner at the mercy of their insurance carrier. It is in the best interest of the carrier to settle quickly. For most businesses some version of a Modified Hammer Clause is best. A Modified Hammer Clause allows a business owner to make the decision for their business in the event they determine it is worth the reputation of the business to risk losing in court. When deciding what type of insurance policy is best for your business, it is important to speak long and honestly about a Hammer Clause with a skilled insurance agent.

What is Professional Liability Insurance?

Professional Liability Insurance is also referred to as errors and omissions (E&O) insurance. It is commonly referred to as this in the insurance, law and accounting fields. In the medical profession it is called medical malpractice.  Professional Liability Insurance is a type of business liability coverage designed to protect traditional professionals who give professional advice and provide technical services for a fee. This coverage is usually in addition to a preexisting General Liability Policy. At the heart of what Professional Liability Insurance does is: ensure consumers have a legal recourse for mistakes made by professionals, and  enable professionals to defend and pay damages if they are found responsible.

Accountant’s, Doctor’s and Lawyer’s are not the only professions who have a need for Professional Liability Insurance. There are many types of professionals who are expected to have extensive technical knowledge or training in their particular area of expertise. Some of these others professionals include Insurance Agents, Graphic Designers, Architects, Engineers, Real Estate Agents and Financial Advisers. All of these professionals are expected to perform the services for which they were hired according to the high standards of conduct in their profession. If those professionals fail to live up to the standards of their profession, they can be held responsible in a court of law. This is where Professional Liability Insurance can protect these individuals from litigation that could otherwise ruin their career.

Professional Liability Insurance can also be a benefit when a professional has done nothing wrong. In many instances professionals have claims brought against them or their business for occurrences they are not liable for. Court costs and reputation management costs can be covered in most Professional Liability Policies.

There are certain types of exclusions within Professional Liability Policies. Errors and Omissions Policies typically have specific language and may have strict definitions of what is covered within their contractual language. This makes it imperative for business owners to be honest with their agent about what they are and are not doing within the day-to-day operations of their business.

Professional Liability does not cover bodily injury, property damage, personal injury, or advertising injury claims. Those such claims would be covered under a commercial general liability policy. Most agents should easily be able to design a specific Business Owner’s Policy including all of these coverage’s. This frequently saves the business a lot of cost and ensures there are no gaps in coverage.

So in closing, Professional Liability Insurance is a type of liability coverage designed to protect traditional professionals who give professional advice and provide technical services for a fee. It is designed to ensure consumers have a legal recourse for mistakes made by professionals, and to enable professionals to defend and pay damages if they are found responsible.