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Insurance, Disclaimers and Disputes - What You Need to Know for Your AgencyOctober 11, 2012 By: Jena Tesse Fox
At CoNexion in Dallas last week, Bob Brill, SVP and general counsel for Travel Leaders, offered some solid advice on risk management for a travel business, including insurance, documentary protection and dispute resolution.
Consider getting property insurance for any office equipment or furniture you use for your business—even if it’s in your own home. Otherwise, make sure that your homeowner’s insurance covers your equipment and any assets you use in running your business. “Call your insurance agent and make sure it’s all covered,” Brill says. “Otherwise, it might not be.”
The most important coverage an agent would need is professional liability, which covers “unprofessional services.” (Note: This kind of insurance frequently has a low deductible, but the lower the deductible, the higher the premium.) Other kinds of insurance, like general liability, worker’s compensation, employment practices (which covers many kinds of suits from employees) and crime insurance (which covers embezzlement, credit card fraud and fraudulent refund bookings) can all be useful, but depend on the price of the premium, the deductible and the size of the staff.
Releases, disclaimers and limitation of liability all reduce the risk of an agent’s liability should something go wrong—and it’s important to know the differences among them. “A release is something that somebody signs to waive their rights before or after something happens,” Brill explained. “A disclaimer is something you put out in advance.” A limitation of liability determines how much a plaintiff can get from a defendant. For example, if an agent books a trip for a client to attend a meeting but gets the flight times wrong, the client might sue for the missed business and potential loss of income. The limitation of liability assigns a maximum number for which the agent could be sued. “You don’t want someone to claim big damages,” Brill explained.
Disclaimers should use specific language, including “This is binding” and “This covers the entire traveling party.” (Good to know: A Michigan court recently ruled that parents cannot validly sign a waiver for their minor children that takes away any of their rights…but minors cannot sign legal contracts, either, which leaves them—and an agent arranging a trip for them—in some legally murky waters. Having the whole party covered helps somewhat.) “In selling tickets, we are an agent for the supplier and are not responsible for their conduct.” “We are not responsible for dangerous or unsafe conditions.” “We are not responsible for your passports and visas.” (Some agents do help get visas, but it’s better to not have to take on the extra responsibility.) “Disputes may only be litigated in our home state and county.” “We recommend travel insurance.” (A good sample disclaimer at can be found at ASTA’s e-library Item number 2365.)
Also, be aware of pregnancy or medical conditions. Some carriers and cruise lines may not allow pregnant women or people with certain health situations, so check all documents carefully.
A signed document is better than posting a form on an agency’s website or just including it in an invoice or itinerary, although a click-through “I Agree” button works for online agencies. The client can also reply to emailed forms with “I agree to these terms and conditions,” or language to that effect. “ Any return consent that you can get [is good],” Brill said. “It’s legally a million times better to get it before they purchase than after, but even after would work in a pinch.” General consent forms for long-term clients can save time for frequent travelers. “You can get consent for first-time clients that applies to all of their future bookings.”
“Try to avoid litigation at all costs,” Brill emphasized, noting that fees for a full trial can easily cost $25,000, and that both parties will ultimately end up losing in the long run. “The court system does not work for the average person, and there’s no place for commercial and business disputes,” he continued, recommending either mandatory mediation or mandatory arbitration in home city are better. Mediation is non-binding, he explained, “but 99.5 percent of the time, it can help people resolve their differences…If that doesn’t work, go to arbitration.” Brill also advised putting language about how disputes should be resolved in any releases or waivers, and emphasizing that arbitration or mediation take place in the agent’s home town.
- Get the right insurance. “Really consider how much you need and can afford.”
- Consider background checks on independent contractors. “They come into contact with credit card and passport information. You must trust your workers.” A background check generally costs $125, and it may be worthwhile to run a credit check if you think a potential employee with debt problems might be tempted to commit credit card fraud.
- Request a personal guarantee from an independent contractor that is a corporation or an LLC—maybe even get one from the contractor’s spouse.
- Make sure checks are payable only to you.
- Be aware of the laws governing “Seller of Travel” registration in your state…and in your client’s state. Washington, Nevada, California, Hawaii, Iowa and Florida require registration for any agent who is located in the state or anyone who sells to someone located in the state. So while Texas agents have no need to be registered if selling to someone in Oklahoma, being unregistered limits who you can sell travel to.