As mentioned above a claims made policy doesn’t just cover incidents occurring during the current policy period. It can also respond to claims resulting from work delivered in the past, predating the start date of the current policy.
In order for a claims made basis policy to respond to claims resulting from past work, the policy must include two elements:
Retroactive cover - a retroactive date is added to a claims made policy when it’s purchased. The retroactive date should go back far enough to provide cover for any work that may still give rise to a claim in the future. For example an architect may wish to set their retroactive date several years back.
Past business activities listed under the current policy - if a claim resulting from past work is made against a policyholder, the type of work must be covered by the current policy. For example if a software developer has moved on to become an IT consultant, a claim from past work under the current policy may not be covered if the insured business activities do not list “software development”.
We’ve already established that a claims made basis policy must be active when a claim is made and that it can cover incidents arising out of past and future work.
A claims occurring basis policy only provides cover for incidents occurring within the policy period. In other words you cannot add a retroactive cover to a claims occurrence basis policy.
On the other hand you can make a claim under an occurrence basis policy after it has expired or been cancelled as long as the incident giving rise to the claim occurred during the policy period.
An example of an occurrence basis policy is public liability which is designed to respond to claims of property damage and injury. The time of these types of incidents are usually easy to determine. A claim might come after the policy has expired but it is still covered as long the date of the incident fall within the policy period.
Can you give a claims made basis example?
Let’s take as example Paul - once upon time a software engineer who progressed his career to become an IT consultant.
Paul purchased a PI policy from 01.01.23 to 31.12.23. The business activities insured under the policy is that of an IT consultant. The policy does not include retroactive cover.
On 15.06.23 a claim is made against Paul for giving incorrect advice on 31.03.23 that led to a financial loss.. No problem, this is covered.
On 27.10.23 another claim is made against Paul, this time resulting from work completed on 15.04.21 in the capacity of a software engineer.
This is a problem for Paul. There is no cover for the second claim for two reasons. The current policy doesn’t include retroactive cover, i.e. cover for work done prior to the current policy start date. Nor does the current policy cover software engineering activities.
Remember you can’t make a claim under an expired professional indemnity policy.
Can you make a claim under past claims made basis policy?
Paul can’t go to his previous insurers who used to insure his software engineering activities to make a claim. That policy expired and therefore no longer provides cover.
What Paul should have done when he switched professions is to include his past activities under the new policy and also add a retroactive cover.
This also applies when professionals and businesses are switching from one insurer to another in a quest for a better price. If they wish to stay insured for the past, they must ask the new insurance provider to include retroactive cover and list their past business activities.