Avoiding Pitfalls in E&O Claims: Insights from Episode 2 of Insurance Agent E&O

In the second episode of the Insurance Agent E&O podcast, attorneys Jeremy Zacharias and Dana Gittleman of Marshall Dennehey share practical insights into risk management, claims handling, and legal strategy for defending insurance professionals.

Drawing from their extensive experience in professional liability litigation, the hosts explore three foundational strategies for mitigating risk and building a strong defense in E&O matters involving insurance agents and brokers.

1. Establishing Early and Effective Client Communication

Strong communication from the outset of a representation sets the tone for the attorney-client relationship and is essential for building trust and managing expectations. Jeremy Zacharias emphasizes the importance of personalizing the client experience by:

• Actively listening and demonstrating empathy

• Tailoring communication styles to client preferences

• Clearly explaining legal processes and risks in plain language

• Providing regular updates—even when there’s no major development

• Outlining expected costs and timelines upfront

Maintaining professionalism and confidentiality throughout the relationship—while leveraging secure communication tools like encrypted email and client portals—also helps create a positive, client-centered experience.

2. Retaining a Liability Expert Early in Litigation

Dana Gittleman underscores that while expert retention can be a significant investment, it is often critical to an effective defense. Engaging a qualified liability expert early can:

• Help frame the key issues and interpret complex policy language

• Identify relevant discovery targets, deponents, and documents

• Support the development of a strategic, informed defense

A knowledgeable expert can provide valuable guidance throughout litigation and help strengthen the defense’s credibility—especially in nuanced E&O matters where standards of care and industry practices are in question.

3. Understanding the Underlying Litigation is Critical

Insurance E&O claims often stem from or run parallel to an underlying lawsuit. A detailed understanding of that litigation is essential to evaluate coverage, craft a defense, and anticipate potential outcomes. Jeremy Zacharias highlights several key reasons:

• Coverage Assessment: Analyze whether the claim is covered under the E&O policy

• Duty to Defend: Determine if the insurer must provide a defense based on policy terms

• Defense Strategy: Use the underlying case to identify viable defenses, comparative fault, or a lack of causation

• Damages Evaluation: Understand exposure and assess policy limits in light of the alleged damages

• Settlement Considerations: Evaluate the strength of the underlying case to negotiate favorable outcomes

Failure to thoroughly analyze the underlying litigation may lead to missed defenses or inadequate claims handling strategies.

Conclusion

These three strategies—client-centered communication, early expert involvement, and a firm grasp of the underlying litigation—form the foundation of effective risk management and defense in insurance agent E&O claims. As lawsuits become more frequent and complex, proactive engagement and thoughtful strategy remain key to protecting professionals and their practices.

Stay tuned for the third installment of the Insurance Agent E&O podcast, where Jeremy and Dana will continue sharing actionable guidance for insurance professionals and their counsel.

Interested in learning more about this topic? Listen to the full episode here.

Meet the Speakers

Dana A. Gittleman, Esq.

Shareholder, Marshall Dennehey