Related: Read Amrhein's previous column “Nothing to See Here.”

If your insured asked you if some particular situation is covered under his current program, which of the following is your preferred answer:

• Yes, assuming no specific limitation or exclusions of the policy apply
• Probably, but don't worry. Even if the carrier denies it, and it takes months or years of negotiation and court rulings, I have little doubt they'll have to pay you—eventually.

Doubtless few of you would choose “probably,” and yet agents everywhere do that every day when they proceed without any attempt beyond a question to nail down areas of coverage concern. Proof of this is found in numerous E&O depositions and angry comments in classrooms where agents admit being shocked at time of claim when a carrier asserts the situation is not only not covered, but was never intended to be. And because the claim already has occurred, any option to gain a more favorable outcome via endorsement, alternate policy form or even moving the account to another carrier has been lost forever. At that point the song is over and their clients sail off in the sunset crying, “won't get fooled again!”

Related: Read another Amrhein column “Defining Moment.”

If only the agent reviewed coverage proposals for any controversial or gray areas in advance, and then joined the carrier for answers. Carriers naturally reserve the right to not provide firm commitments in some scenarios where there are too many variables. But in my experience, they have been more than willing to either opine or furnish evidence of past decisions that indicate clear preferences. If the carrier's answers are too vague or unacceptable to the agent, prior to the claim is the perfect time to ask the obvious follow-up: What can we do to clarify or change that answer?

Here are a few examples of situations arising in my classes where agents often seem to prefer to pull on the eyeshades and put in the earplugs instead of requiring clarification/modification:

• How do you specifically define “noncontributory” as it applies to both the underlying CGL and all excess layers?
• If you offer multiple umbrella forms, for what types of risk is each form intended and why?
• If BAC coverage symbol 1 is the same as a combination of 2, 8 & 9, then why not just give me the 1?
• Define “acquired or made at your expense” for purposes of tenant's improvements and betterments?
• Define “permanently installed” for purposes of meeting the definition of “building” under property forms.
• Define “residence premises” under homeowners', especially as applicable to Coverage B.
• Define “product” as it applies to the BAC. For example, if the mechanic installs an improper oil filter, and the engine seizes up a few miles down the road, are you going to exclude damages to just the filter, the filter and oil, or the entire engine?
• Given the requirement in the homeowners' forms that “residence premises” only includes those where “you” reside, will you deny all coverage when the policy is still in full effect but the named insureds have moved out? For example, what happens when an older couple has been unable to sell their home despite having it listed for months, and finally must leave the house to move into a retirement home or adult living/care facility? Will it make any difference if family members (but not “named insureds”) still reside in the home?
• Is a Zipcar or similar car sharing service vehicle considered to be “furnished or available for your regular use” to an insured?
• Do you consider pizza delivery or similar operations “public or livery” under your personal auto policy?
• How far will you go in the CG 2033 where the endorsement says, “when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy” and the contract requirement for adding coverage reads something similar to “ABC Engineering Inc., its subcontractors and suppliers, or their agents, servants or employees”?
• Why, if ISO has endorsements for personal trusts (HO 0615 and PP 1303), do your underwriters still suggest adding the trust as an additional insured? If we follow your advice, will you hold us harmless for any gaps in coverage?
• Will you hold us or the insured harmless when at time of loss those values prove insufficient, even grossly so? 

If the carriers can't explain, then find a substitute—another carrier or alternative risk management solution. Be the seeker and you have a far better chance of finding a miracle cure instead of simply putting on a brave eminence front. 

Related: Read the article “Lease Unleashed” by Chris Amrhein.

But what if, after your best efforts, you come up empty in seeking a firm solution to your client or prospect's key need? Perhaps far too many times a producer's natural reluctance to deliver bad news is the true culprit in leaving crucial coverage questions unanswered or gray. Sometimes in coverage, the hard truth is no cure. And as the commercial markets continue to harden, it will be harder to avoid bad news. 

Otherwise at the time of claim when those gray areas miraculously clear to reveal the “coverage wizard” as deaf, dumb and blind, you'll wish going mobile was an option.