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“Insurance Agents and Brokers and the ‘Duty to Advise,'” Corporate Counsel

April 8, 2014
Peter J. Biging

“For sound public policy reasons, the rule in the vast majority of states has generally been that agents and brokers are not fiduciaries of their clients with respect to their insurance choices,” writes Peter J. Biging, a partner in Goldberg Segalla’s Professional Liability Practice Group.

“They generally have a responsibility only to purchase the coverage requested or to advise that they are unable to do so within a reasonable period of time. And that is where the duty typically ends absent ‘special circumstances.’”

But, as Peter notes in this article, there are “indications that the ‘special circumstances’ line of defense that has previously provided such a substantial barrier to claims against agents and brokers for failing to properly advise their clients is beginning to show signs of weakness. Three recent decisions considering the issue offer evidence that the duty to advise may be entertained as a viable claim far more frequently than once might have been imagined. And it would behoove agents and brokers to take note not only of the decisions, but of the lessons to be learned.”