Thank you, Kevin. I would also add that the expert testimony may not even be necessary in all cases. The Florida Supreme Court held in Erskine Fla. Properties v. First Am. Title Ins. Co., 1989 Fla. LEXIS 515 (Fla. 1989) that "when it is shown that the abstracter misstated or failed to include relevant items contained in the statutory public records, no expert testimony is required to prove a lack of care. This does not rule out the relevance of expert testimony when the issue concerns nonstatutory public records."
To me it comes down to professionalism. If we, as abstractors, expect this industry to treat us like professionals, we must behave as professionals. A part of that is taking financial responsibility for our work. Because the potential liability for what we do can be so great, that necessarily includes carrying E&O insurance. I would hazard a guess that not too many abstractors can afford to pay a major claim out of pocket.
I have been in the business for 15 years, and I have never had a claim (knock on wood), but I would never dream of working without E&O coverage. Anyone can make a mistake... it only takes one bad day!
I'm not sure whether abstractors believe that "they are just too good to ever make a mistake" or if they assume that they have no liability because "that is what title insurance is for." Either way, with title insurance claims on the rise, it is only a matter of time until someone proves them wrong.
I do agree with Janice, that E&O is expensive and we are "paying the price for all the abstractors out there that don't have a clue." But, I also agree with Kevin that not carrying it is not the solution. Perhaps if more abstractors realized the potential liability that comes with their work, they would carry E&O and charge accordingly.
Best,
Robert A. Franco
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