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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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, December 5, 2023

Recorded event now available

or call 1-800-926-7926

This CLE course will inform and educate insurance counsel about the peril to agents and brokers arising from the failure to procure coverage that an insured either sought or required. Liability differs depending on the jurisdiction and the circumstances. Counsel must know the vital details involved in this area of the law.


Insureds nearly always obtain coverage through insurance brokers or insurance agents. Sometimes the coverage obtained does not meet the policyholder's needs, either because client did not communicate its necessity to the insurance producer, or the producer did not meet the need.

Depending on the jurisdiction and the circumstances, the duty to procure should be analyzed in contract (either express or implied) 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 producer’s representations upon which the client reasonably relied.

Even if an insured establishes the insurer's duty, breach of that duty, and resulting damages, an insured does not necessarily have a clear path to liability. In nearly all instances, the insured has read or had the opportunity to read both the application and the policy. Such knowledge or imputed knowledge of the policy's contents can be a barrier to prevailing on 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. Express 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, Of Counsel Pachulski Stang Ziehl & Jones

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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