Perhaps we should take a page from the books of legendary coaches like Knute Rockne or Bear Bryant and consider what makes the difference between a so-so team, weary and buffeted by endless competition, and a winning team with championship trophies in hand after triumphing over adversity. It can only be one thing: a great, take-no-prisoners, half-time speech. So here is my contribution to your taking the field and getting back in the game. (Since this is a G-rated magazine, and the FCC has been on high alert since Janet Jackson flashed America, the language has been thoroughly vetted and sanitized.)

“All right, folks, enough already. This is insurance, not ballet! Anderson, who told you it's not a contact sport? Hit somebody! And Roberts, for gosh sakes, your ears look pinned back worse than an abused Labrador retriever's. Fredericks, any press photos taken of your performance today should end up in the dictionary under “intimidated.” And Washburn…hey, where's Washburn? Well, get him out of the showers, the game isn't over yet! I don't care if he's crying about his commissions; get his rear in here!

“Come on, folks, you're letting those guys out there run all over you! Anybody remember our team name? We're the Agents, not the Doormats! Now, I want to see some action out there. No one can beat us if we work together. Of course I'm taking into account anti-trust regulations. We're not going to boycott the game, just level the playing field and quit getting beat up. So here's the deal. In the second half, we're going to get up off our cans and take back the momentum. Carpe offense!

“Listen up. I've analyzed the opposition's playbook and decided that what we need is a little insurance jujitsu. In other words, we're going to use the other guys' own plays against them. No need to reinvent the wheel, just reverse the direction. Got your attention? Here we go!

“First, get with your legal folks and draw up some killer contracts for your clients to sign. Throw in the kitchen sink: premium payment provisions, insurance they must agree to purchase before you agree to do business with them, and a foolproof hold-harmless agreement wherein they agree to waive any and all liability against you for any actions you or any one connected to you by blood, marriage, business or country of origin takes on your behalf. If they refuse to sign, walk.

“Second, do the same for your carriers. Require them to provide you with hold-harmless agreements for anything they do or provide for you–service centers, credit score underwriting, nonrenewals, cancellations, claims settlements, billing or audits– including waivers of subrogation and adding your agency as an additional insured to their reinsurance and professional liability coverages. Include a “reverse-contingency” penalty clause, stating that if their underwriting, rating, service center, claims or auditing screwups exceed a given percentage of your book of business, they must pay you on a sliding scale. The bigger the screwup, the more they pay. In fact, throw in an extra set of penalty payments for each day they fail to deliver a competitive quote by the promised time. If they drag things out past your insured's deadline, or show up with a quote from Pluto after they promised you one from Venus, make them pay! Okay, we'll cut them some slack for catastrophe-created errors, but only once. Then lower the boom!

“Third, ask all of your insureds for certificates of insurance from their general contractors, landlords, law-yers and engineers, certifying that they have added you as an additional insured to any and all liability, auto, property, EPLI, workers compensation and professional liability policies they possess. Be certain they amend their certificates or attach the proper endorsements to each policy so you are sure to be notified in case of cancellation or nonrenewal. You wouldn't want to continue providing additional insured status or bonding to any party whose own insurance wasn't in full effect and sufficiency, now would you?

“Fourth, put ISO on immediate notice that if they don't want you to lobby your regulators and carriers to discontinue using their forms, the constant “tweaking” has got to stop. 'No change in intent,' they say. 'For clarification purposes only,' they claim. Right. Why don't they just come out and say, 'This filing accomplishes little, except to create more E&O risk for agents.' Who can blame agency folks who either fail to notice those subversive little tweaks or simply can't believe the new wording means what it says? If the lawnmower and college-student bits in homeowners policies aren't evidence of malice aforethought against agents, those new mobile equipment changes in the 2004 CGL certainly are. At a minimum, ISO needs to provide you with a hold-harmless agreement for using their forms in good faith. Hey, contract of adhesion, right? If they screw up, let them take the fall!

“Fifth, notify each carrier in writing that it must certify to you the specific ISO coverage forms/endorsements it will use for each risk, its underwriting intent and the reasoning behind the use of each form/endorsement, and what it believes each form/endorsement will do in each case of a selection of representative claims scenarios you will submit annually. Require the same analysis for each company-specific form they will use. Also require a list of forms/endorsements that will vary by state or type of account. Forbid carriers from creating coverage conflicts by using a new form or endorsement in one program while continuing to use previous editions in other lines. For example, recall the aforementioned 2004 edition CGL wording on mobile equipment that could create an agent error or omission if the carrier fails to use the updated BAC, or the appropriate bridge endorsement, on the same account? Sure, we already got a hold-harmless from ISO on that issue. But why not get a hold-harmless from everyone involved (as lawyers often do)? Who knows, someone could fail to properly fund the contractual assumption, and we'd be left holding the bag. We can't let that happen. So nail down contractual and additional insured agreements from all of them and get certificates to back them up. If it isn't on a certificate, it didn't happen, right?

“From now on, if folks don't do right by you, you walk, understand? If they scream 'foul,' let them holler. After all, how can they complain about our running their own plays against them? The worst thing they can do is change their playbook, which wouldn't be so bad. Until then, put the strut back in your stride and the fire back in your eyes! Quit sitting on your butts and start kicking some! Now get back on the field and do yourself proud!”

Chris Amrhein is an insurance educator and speaker with more than 30 years in the industry. He is also chief fun officer of www.insuranceisfun.com. Readers may contact Chris at [email protected].