2I. General Market Overview on PI - Current Trends- General Scope of Cover- Limits & Rating & Deductibles- Loss Experience- Summary of StatisticsII. Professional Indemnity Insurance- Scope of Cover- Typical Professions for PI Cover- Underwriting Considerations- Typical Exclusions
3III. Legal Professions- Legal Profession in Turkey- Scope of Work- PI Exposures- Claim ExamplesIV. Accounting Professions- Accounting Profession in TurkeyV. Technical ProfessionsVI. Questions & Closing
4I. General Market Overview on PI Current TrendsAn increasing demand for PI cover in the market, mainly due to:- rising number of foreign companies- increase in claims awareness- creation of obligatory insurances & expectation that more will be created in very near futurePublic awareness is largely limited to medical malpractice cases, but even so, there is still little understanding that legal action may be taken against professional people.Introduction of uniform general conditions, including special clauses for specific professions, has obliged companies to look differently at the business & pay more attention to segmentation.Until 2008, market was dominated by Chartis, but now there are several players in the market other than Chartis: Anadolu, Axa & others
5I. General Market Overview on PI Legistlative update i.r.o. PI insurance for Doctors & Dentists- Doctors & dentists are required to be covered by PI insurance w.e.f. July 30, 2010 under Full Workday Law No: 5947- The law states that doctors & dentists who are employed at university or state hospitals & also work in private practices must work full time in their state positions or resign & move to a private practice- Prescribed limit by law: TL per claim & TL agg.- Insurance premiums are mandated by Treasury & Ministry of Health, ranging between TL depending on area of speciality, with provision for loadings up to 50% or discounts up to 20% based on a bonus-malus type scale.- Doctors or dentists working at public or private institutions are required to pay half their insurance premiums & their institutions will pay the remainder. Those working in private practice must pay the entire premium on their own.
6I. General Market Overview on PI Obligatory PI insurances by law- Professional service providers for banks => requested to get PI cover by Banking Regulations for an amount equal to 2 times of contract value- Insurance brokers => required to get PI cover for a limit of at least TL e.e.c. & TL 1 Mio agg.- Electronic certificate service providers => required to arrange "certificate financial liability insurance" as established by the Electronic Signature Law published in Official Gazette of Jan 23, 2004 & various accompanying regulations. No limit is established by law. No such insurance policies so far!- Credit agencies & real estate valuers => requested to get PI cover by Regulations issued by Capital Markets Board. No limit is specified.- Doctors & dentists => required to be covered by PI insurance as of July 30, 2010 under the Full Workday Law No 5947, with a LoL TL per claim & TL agg.
7I. General Market Overview on PI General Scope of CoverPolicy trigger: Almost exclusively claims-made, but action-committed triggered policies are also available in the market.Although no legal provision exists regarding ERPs or discovery periods, Turkish PI GC offer the options of;at least 1 year retroactive cover (iro claims-made trigger) and/or2 years discovery period (iro action-com. trigger)*** 5-years discovery period is given for accounting professions with a specific clause under PI GCTerritorial scope: Usually “Turkey”, but may be extendedLaw & Jurisdiction: Generally “Turkey”, but any other law & jurisdiction can be established by mutual agreement.
8I. General Market Overview on PI Limits & Rating & DeductiblesLimits for accountants & law firms are relatively low, about 100 – 300k TL, in most cases although large companies have limits that reach to 1 Mio TL or can go as high as 10 Mio TL.MedMal is currently written for hospitals or clinics with limits up to TL at most. Individual doctors are required to buy separate coverage with compulsory limits.The limits for A & E professionals are between 500k – 1 Mio TL frequently to comply with contract terms.Rating for small / uncomplicated risks is normally carried out by local insurers, while more complex risks - or those with higher limits – are generally referred to reinsurers.Rates for some compulsory professions, i.e. MedMal, are mandated by law.Deductible is applied, generally varying i.a.w. client's profile, company size, contract/annual fee amount & typically subject to a minimum of TL for an individual professional.
9I. General Market Overview on PI Loss ExperienceFrequency of losses, rather than size (severity), is a major concern for the insurers!Most claims tend to be from accountants or lawyers, mainly for small amounts relating to indemnities payable to clients for failure to file tax returns or financial statements by the due date, omitting to enter an appeal, mislaid documents, etc.An increasing loss trend i.r.o. Compulsory MedMal Insurance for doctors. Together with rising claims awareness, the amount of outstanding losses in the market is growing rapidly.Insurers are concerned about the condition that mandatory tariff premiums for MedMal insurance are too low & inadequate, given the long-tail nature of the business.
10I. General Market Overview on PI Summary of StatisticsTotal written PI premiums in 2010 amounted to TL Mio, representing 37% of all liability premium income. Premium income increased by 131.5% over 2009 largely due to the new category of compulsory medical malpractice insurance.Compulsory PI cover for doctors & dentists accounts for nearly 50% of PI premium income.GWP & Paid Claims Ratios for the last 4 years
11I. General Market Overview on PI PI market (excluding MedMal) is currently dominated by 3 insurers: Anadolu, Chartis, Axa.Top 5 companies in 2010 with their respective market sharesEmergent MedMal market is currently dominated by 2 insurers; Anadolu & AxaTop 5 companies in 2010 with their respective market shares
12II. Professional Indemnity Insurance Scope of CoverProfessional Indemnity insurance provides cover for losses which arise out of “breach of professional duties” while acting in professional capacity.Criteria of “Profession” & “Professional capacity”Advanced trainingMental or intellectual workCodes of professional responsibilitiesContaining general ethical rulesNot production or sale of commodities“Breach of Professional Duties” can include;Negligent act, error or omissionMisstatement of misleading statementUnintentional breach of intellectual property rightsUnintentional breach of confidentiality, etc.
13II. Professional Indemnity Insurance Typical Professions for Professional Indemnity CoverPI is available for:Traditional Professions – i.e. Medical Professions, Architects, Engineers, Accounting Professions, Lawyers, Real Estate Agents, etc.Newer Businesses or Professions – i.e. Telecommunications, Internet businesses, new media companies, etc.PI typically provides cover for;Mainly bodily injury losses => Doctors, dentistsother medical malpracticeMainly losses for faulty or damaged property => ArchitectsEngineersOnly pure financial losses => Lawyers / AttorneysAccountants / AuditorsReal Estate AgentsInsurance intermediariesIT professions, etc...
14II. Professional Indemnity Insurance Underwriting ConsiderationsPrecondition for cover => precise description of the professional activity of the InsuredThis is easier if the business is a regulated profession by law (i.e. Lawyers, accountants). Otherwise, the services performed have to be analyzed & evaluated in detail!Annual fee / income (company size)Number of partners & employees (company size)Years in businessQualification / experience of the staffNumber of clients / Largest clients listContact size for an average clientContract conditions, if possible to receiveRisk management proceduresClaims / loss history
15II. Professional Indemnity Insurance Typical ExclusionsClaims arising out of:Activities performed beyond the scope of professional servicesBodily injury & property damages, unless arising out of professional servicesFraud / dishonesty & fidelityLibel & slanderIntentional, malicious, criminal or illegal actsInsolvency / bankruptcyContact / guarantee / warranty (contractual liability)Punitive or exemplary damagesAny kind of pollutionWar & terrorismD&O
16III. Legal Professions Legal Profession in Turkey Turkey follows a continental European understanding of the legal profession in which the founding principles of justice include the right of unrestricted defence by a legal profession.In Turkey, lawyers;- are not required to specialize- are free to address “…the resolution of every sort of legal relationship, every legal matter & dispute acc. to principles of justice & equity”- to use their knowledge & expertise in the service of justice & persons “… before all courts, judges, private & public persons, boards & organizations.”Lawyers may give advice on law & legal issues, take active part in court proceedings & negotiate a settlement.Lawyers should be registered with as Bar Association.
17III. Legal Professions Scope of Work General Procedure of Legal Advisory WorkStart-up => Client submits the case or applies for the legal advisory serviceControl => Checking conflict of interest: Evaluation of the facts & check of consistency with the success wanted by the clientAdmittance => Acceptance of the case & Signing of the agreement, detailing the scope of legal service to be providedAdvice => Informing the client about the rights & obligations during the legal process to be followedPreparation => Getting prepared for the case & investigation
18III. Legal Professions PI Exposures The most hazardous area of practice:Securities Law: Public offering, ADRs, GDRsMergers & AcquisitionsCorporate & Commercial LawReal Estate ConveyancingFamily LawTypical PI exposuresFailure to know / ascertain deadlines & periodsInadequote discovery / investigationIncorrect legal adviceFailure to know / properly apply LawInsufficient knowledge of Court decisionsFailure to file document / Lost file, document evidenceProcedural mistakesFailure to follow Client’s instructionsFailure to obtain concent / inform client
19III. Legal Professions Claim Examples Not carrying out all the relevant checks on a residental conveyancing transaction leading to negligent advice with missing key datesWrong advice on the documentation of a will leads to invalid will with the wrong parties becoming beneficiaryMissing of time limit in a lawsuit leads to loss of the case
20IV. Accounting Professions Accounting Profession in TurkeySubject to Law numbered 3568 related to "Public Accountancy",, "Certified Public Accountancy", and "Chartered Accountancy", the subject of the profession of “Accountancy" & "Certified Public Accountancy” is defined as:“The subject of the profession of "Accountancy" and “Certified Public Accountancy” is to:(a) keep books, prepare balance sheets, income statements, tax returns, other documents & perform similar works, in acc. with generally accepted accounting principles & the provisions of applicable legislation,(b) establish & improve accounting systems, organize business management, accounting, finance, financial legislation & work related to the application thereof or advise on the preceding matters,(c) carry out examinations, analyses, audits, based on the documents, in the subjects set out the subparagraph above, provide opinions & issue reports on subjects related to financial statements & tax returns, and act as arbitrators, expert witnesses, etc.,for enterprises & businesses of real persons & legal entities.Those who perform the works listed above independently of any business are called “Accountants / Certified Public Accountants".”
21IV. Accounting Professions Accounting Profession in TurkeySubject to the same law, the subject of the profession of “Chartered Accountancy” is explained as follows:“The subject of the profession of “Chartered Accountancy” is to issue certifications, besides the works set out in previous subparagraphs (b) and (c).Chartered accountants do not keep accounting books, establish or be a partner of accounting offices.Chartered accountants certify the compliance of the financial statements & tax returns of real persons & legal entities or of enterprises & businesses thereof with applicable accounting principles, the provisions of applicable legislation & accounting standards and that they have examined their accounts in accordance with accounting standards.”As Public Accountants & Certified Public Accountants have joint and several liabilities in connection with the tax returns issued thereby, Chartered Accountants are under joint and several liability as to various certifications given thereby. Chartered accountants are liable for the correctness of the certifications given thereby. If any certification given thereby is not correct, they shall be jointly and severally liable, together with the taxpayer, for any loss of taxes & assessed penalties, to the extent of the scope of the certification.
22IV. Accounting Professions Scope of WorkUsual Area of Practice of Accountants/AuditorsBookkeeping servicesPreparation of Financial StatementsTax preparationLiquidator of Bankrupt companiesPeriodical auditing/certification of Publicly Traded companiesOther possible services - Higher ExposureManagement ConsultingComputer/IT ConsultingInvestment AdvisorLegal ServicesFiduciary ServicesInternational services
23IV. Accounting Professions PI ExposuresMisinterpretition of internal factsFalse calculationsBelated applicatios & notificationsInconsistent accounting treatmentsMaterial errors of audited financial statementsOverestimation of receivables or assetsFailure to comply with deadlines & periods of tax income declarationsFalse information or advice in general or specific tax mattersNon-observance of advantageous tax norms for the client
24IV. Accounting Professions Claim ExamplesFailure to lodge tax returns led to client losing tax repayment and interest.An accountant was asked by the client to consider the accounts of the business he planned to buy. The client's business partner had an accountant who provided the figures. The client went on to buy a share in the business. The business did not do well. The client then claimed against both accountants for providing negligent advice. The claim was later settled and the second accountant paid USD to the client in settlement. Although the first accountant was not found negligent, his defence costs amounted to over USD
25V. Technical Professions Scope of WorkScope of an Architect’s ServicesPre-designSchematic designDesign developmentConstruction documentsBidding & negotiationsConstruction – contract administrationPost-construction Today, an Architect does not just offer his core services, but takes additional responsibilities such as:+ Takeover of investors’ tasks (analysis, quality control, etc.)+ Coordination of services performed by others+ Action as Contractor / Construction company+ Project management from A-Z (Turn-key projects)
26V. Technical Professions Scope of WorkScope of an Engineer’s ServicesTechnical analysisCivil engineering / structural design developmentCivil engineering / syructural construction documentsBidding or negotiationStructural inspection / reportsBuilding analysis / warranty inspectionsPost-construction Engineer has normally a much wider range of activities because his professional services are not limited to serve the construction industry, but there is the electrical engineer, mechnical engineer (supportive activities). Especially, the latter carries the exposure equally to the industry he is working for.Ex: Mechanical engineer who services turbines for power plants carries in worst cases the same hazardous exposure of his client!!!
27V. Technical Professions PI ExposuresThe most hazardous area of practice:Construction of Power PlantsConstruction of Railways, Airports, Harbours & JettiesConstruction of Swimming Pools & SPAEnvironmental expert opinionNuclear engineeringTypical PI Exposures:Faulty designNegligent selection of materials or equipmentNegligent soil testingNegligent preparation of plans & specificationsFailure in organizing & supervising construction siteBreach of contractual duties & obligationFailure to comply with time & cost estimatesFailure to comply with specialist’s recommendations (e.g. Engineering, subsurface specifications)Practice beyond scope of professional licence (e.g. Financial advice)
28V. Technical Professions One of the biggest PI Exposures => “Design & Construct”!!!Definition: Insured is involved in both design & construction activities for the same construction projectProblems: * Risk of wrongful declaration of losses due to faulty workmanship as “design error”Background: Damages to the object (building) itself are covered under Architect’s PI policy but excluded in the Contractor’s TPL policy.* Prior to handling-over, damages to the object (building) itself are no third party losses (=property damages)* Architect is his own supervisor => Conflict of interest!
29V. Technical Professions Claim ExamplesDesign Failure – Temperature of new cold storage room at factory consistently too high because of improper design. EUR costs were paid.Inadequate design – Air extraction & temperature control at restaurant failed to work properly. Restaurant was closed for pending repairs. EUR costs were paid.Structural design defect – Incorrect structural calculations contributed to total building failure of a new car park. EUR costs were paid.Wrong calculation leads to building with less space than allowed.Due to missing expert opinion, the base plate of a building is not sufficient.
30V. Technical Professions Real ClaimsWhole building collapse in Shanghai – due to faulty design & unstable soil conditions
31V. Technical Professions Real ClaimsDutch Soccer Stadium’s Roof Collapsed