The short answer to the above questions is Yes. I have written a few blog posts in the past on how an agency or agent can unknowingly create a duty to their customers or potential customers that would not otherwise exist by what they say or do. The same principles discussed in those blog posts also apply to the contents of an agency’s website or social media communications. The dilemma faced by agencies and agents who are trying to do what the marketing consultants say (to attract customers you need to differentiate yourself from your competition) while limiting their exposure to E&O claims is perfectly illustrated by two articles in the most recent edition of IIAG’s Dec Page magazine.
As fate would have it, those two articles “Errors & Omissions: Is Your Agency Making Empty Promises on Its Website?” and “Creating a Lead Friendly Website” appear back to back in that magazine. The first article cautions agencies and agents against making statements on their website that indicate they will do things they are not prepared to do or can’t do, e.g., “our agents will help you choose the amount of coverage that best fits your needs”, “we work hard to ensure that you are fully covered for all those risks that apply to you”, “we are your business partner”, or “we will obtain coverage to fully protect the financial stability and assets of our customers.” According to the article’s author, the last two statements were important reasons that Swiss Re Corporate Solutions, which handles the E&O insurance program that is available to IIAG members, decided to settle claims of inadequate or inappropriate coverage made by customers of the agencies on whose websites those statements appeared.
In the next article, IIAG’s communications coordinator advises agencies and agents to use their websites to give potential customers “a real reason to choose you as their insurance provider.” This will not happen unless your website stands out the most from your competitors’ websites. To do so, it needs to reflect the agent’s or agency’s personality and relate to the customers they are trying to attract. This is done by offering to do what those customers need done. Thus, the website should be ” a reflection of your area of expertise and should speak directly to the needs of your target customers.”
However, in doing so, the agent and agency need to be mindful of making statements that can then be used against them by a dissatisfied customer. If a claim of expertise with respect to a certain type of risk is made, that may well create a duty to use that expertise in recommending insurance coverages and their amounts for such a risk. Stating that an agency will satisfy the specific needs of its customers may well impose a duty to do so, which duty could be very difficult to fulfill.
In deciding what to say in social media posts and on a website, agencies and agents should only make statements about what they can or will do that they can live up to and recognize that once such a statement is made, they will be expected to live up to it with every customer. It would be a good idea for every agency and agent to review what’s on their social media posts and websites to make sure that they can do for every customer what those posts and their websites say they will do.