Insurance Agent and Broker Liability for Failure to Procure Necessary Coverage: Claims and Defenses

Differing Standards of Care, Responsibilities of Insured, Causation, Damages

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Tuesday, April 5, 2022

Recorded event now available

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Course Materials

This CLE course will inform and educate insurance counsel regarding the peril to agents and brokers arising out of the failure to procure coverage that an insured either explicitly sought or required. Liability shifts from jurisdiction to jurisdiction and situation to situation--counsel must know the vital details involved in this area of the law.


Insureds nearly always obtain coverage through their brokers or agencies of insurers. Sometimes, the coverage does not meet the policyholder's needs either because they did not communicate its necessity to the insurance broker or the procurer did not meet the need.

Depending on the jurisdiction, the duty to procure is either analyzed in contract, implied contract, or negligence. Under any scenario, the issue is whether the broker or agent undertook this duty. This duty can be established through explicit instruction by the insured or by the procurer's representations reasonably relied upon by the insured.

Even if an insured establishes the insurer's duty, breach of that duty, and resulting damages, an insured does not have a clear path to liability. In nearly all instances, the insured has read (or had the clear opportunity) not only the policy but the application. Such knowledge or imputed knowledge of the policy's contents can be a barrier to bringing a claim for failure to procure.

Listen as this panel of experienced insurance attorneys explores the complex web of varying duties and liabilities. The panel will guide attendees on how to counsel clients in the procurement process and what to do if coverage does not ultimately pay for losses.



  1. The existence and parameters of the duty to procure coverage
    1. Contract, implied contract, negligence
    2. Communication between insured and procurer
  2. Failures of procurement
    1. Type of coverage
    2. Amount of coverage
    3. Lapse of coverage
    4. The insolvent (or otherwise unavailable) insurer
  3. Elements of proof
    1. Causation
    2. Damages
  4. Defenses
    1. Failure to read
    2. Failure to provide necessary information


This panel will review complex issues such as:

  • How brokers and agents may owe different duties to insureds
  • What communications in the procurement process can create duties
  • Strategies relating to claims and defenses in litigation


Cohen, Michael L.
Michael L. Cohen

Trial Attorney
Michael L. Cohen

Mr. Cohen represents victims from injuries, workplace injustice, and insurance bad faith.

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Schulman, Jeffrey
Jeffrey L. Schulman


Mr. Schulman represents commercial and individual policyholders in complex insurance coverage matters including...  |  Read More

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