To answer the question, I’ll give comments based on my review of a Hiscox professional liability agreement, which is a typical policy agreement. However, to be clear, I am not an attorney or insurance professional.
I’ve had someone at an architecture firm ask me, “What if the insurance company does not support our use of expert determination?”
My first response is that expert determination benefits your insurance company even more than it benefits you. I explained why in my last post.
But the ultimate question is: Is our insurance company obligated to cover all our possible liabilities resulting from an expert determination process?
My interpretation of the Hiscox policy is that they will pay a court-ordered judgement against you or a settlement negotiated by them. If you implemented expert determination, then your payment to your counter-party would always fall under those two categories, assuming you allowed Hiscox to handle your settlement negotiations. Therefore, it seems clear that Hiscox would cover that payment.
What about the payment of fees for the expert?
The Hiscox policy says that they will reimburse you for your “claim expenses.” Those are expenses you incur during the dispute process. Within the defition of “claim expenses,” Hiscox explicitly includes, and I quote, “Fees of experts incurred in the investigation of a claim.” So it seems clear expert fees are covered.
To summarize, all liabilities and expenses related to a dispute resolved by expert determination appear to be covered by a typical professional liability policy. You can speak with your own insurance provider to confirm.
Get the expert determination clause.