Are You Legally Protected from E&O Exposure When You Send an Email?

By Judge Dana Senit Henry (ret.)

Few business people realize that standard email provides little evidentiary value, leaving you and your firm exposed. Are You Legally Protected from E&O Exposure When You Send an Email?

ASCnet Quarterly, 2nd Quarter 2006, page 34

The simple fact that almost everyone has access to some sort of electronic mail capability causes us to take a lot for granted. While most email users are not concerned about the electronic record they have created, it can serve as a critically important defense for business transactions, if properly managed

I was asked recently by a group of companies to provide some insight as to how email may be viewed in a dispute resolution process. With my background as a mediator, arbitrator and judge, I am able to offer a perspective that may be helpful, particularly to organizations struggling with high errors and omissions (E&O) insurance costs. Common to insurance agents and brokers, this is also a challenge in the medical and legal communities.

First, let’s focus on an everyday problem within the insurance industry. For insurance agents and brokers, there are significant (and potentially costly) issues if an insurer claims they never received an endorsement or that an underwriter failed to bind the coverage that he or she received by email.

In a dispute resolution situation, this issue tends to evolve into a “he said, she said” match. For example, the claims may go like this: “I sent it at 3:00 p.m.” The reply comes back: “We didn’t get it. Prove that you sent it!”