Fault Lines How to Break Down a Negligence Claim By Charles W. Phillips, J.D. Is it your fault? The main tort claim against an agency or agent involves some form of negligence. In order for a claimant to “win” a negligence case against you or your agency, he must prove several elements: duty, breach, causation, legal causation (proximate cause) and damages. Most negligence claims allow for apportioning of damages between potential defendants, as well as the ability to compare the fault of the plaintiff. Let’s break it down: Duty: Having claims made against you does not mean you are necessarily legally responsible. Even if you feel responsible—or, in hindsight, think you could have done something differently—you are not responsible unless you owed the claimant a legal duty. (For more on agent duties, visit iiaba.net/eohappens.) Breach: The claimant must also prove that you breached the duty. The specific law on breach will depend on the standard of care recognized in your jurisdiction. Generally, it is that duty owed by a reasonably prudent agent in similar circumstances. Causation and legal (proximate) cause: The damage must be not only the direct cause of the loss, but also the reasonably foreseeable consequence of the action. An example: even if the agency was responsible for failing to secure a particular coverage, the claim would not have been covered under the policy because it was subject to an exclusion. Damage: The claimant must suffer some measurable damage. Even if the claimant is able to overcome all those barriers, someone else might be responsible as well, such as a carrier, a broker, another agent or, in many cases, the claimant himself. All states recognize some sort of contributory or comparative fault standard. In some jurisdictions, the plaintiff’s own fault (or above a certain percentage of fault) can be a complete bar to recovery. In other jurisdictions, the comparative fault of the plaintiff will be a reduction of the recovery. It might not be all your fault. Charles W. Phillips, J.D., is a Vice President, Claims and Liability Management, with Swiss Re Corporate Solutions.