How do the retroactive date, defense costs and deductible work on media liability insurance?

Is my past work covered? The retroactive date and prior acts

Most media liability is written claims-made. The policy answers a claim first made while it is in force, about content first published on or after the retroactive date printed on the declarations. A story published the day before that date is not covered by this policy, however good the story was.

On a first policy the insurer often sets the retroactive date to the day coverage starts. For a reporter with years of published work that leaves the whole archive outside the policy. You can ask for an earlier date, sometimes back to when you began publishing, and when there is no retroactive date at all the policy is said to give full prior acts.

Whether a market agrees depends on the account. A brand-new buyer has no prior media policy to carry a date over from, so the underwriter is being asked to cover work it never saw. Expect to sign a statement that you know of no claim or complaint over past work, expect any known matter to be excluded, and expect some markets to offer prior acts only at an extra charge or not at all. Ask for it on the submission and see who says yes.

Deadlines limit how far back the real exposure runs. Texas gives a libel plaintiff one year from when the claim accrues, while a copyright claim can be brought for three years. An old video with a borrowed photo in it can outlast a libel deadline by years, so prior acts matter more for a video archive than for a print one.

Once you have a retroactive date, keep it. Renew without a gap, and when you move to a new insurer ask it to match the old date. A new policy with a new date quietly gives up coverage for everything before it.

Are defense costs inside or outside the limit?

Inside the limit, often called defense within limits or an eroding limit, means every dollar spent on lawyers reduces the money left to pay a settlement or judgment. Outside the limit, or defense in addition to limits, means the lawyers are paid separately and the full limit stays available for the claim itself.

On a $1,000,000 limit with defense inside, a claim that costs $300,000 to defend leaves $700,000 for a settlement or a judgment. A $2,000,000 aggregate is the most the policy pays in a year across every claim, so two expensive defenses can use most of it. With defense outside, the same claim leaves the whole $1,000,000 in place.

Many media forms put defense inside the limit, and some offer it outside or add a separate defense limit for more premium. For a reporter covering public officials this is the line that matters most, because the likeliest bad outcome is a long defense of a case you win, not a large verdict. Read the limits section of the quote, where it will say whether claim expenses are included in or in addition to the limit.

A won anti-SLAPP motion can bring fees back. In Texas the court must award costs and reasonable fees when it dismisses under the Citizens Participation Act. That money arrives after the motion, the hearing and any appeal, and your policy may give the insurer a right to it for what it paid. A media lawyer decides whether to file the motion. The policy pays while it is argued.

How do deductibles work on a media policy?

Media policies call it a deductible or a retention, and it is usually per claim. On most forms it applies to defense costs as well as to any settlement, so you pay the first part of the lawyers’ bill before the insurer pays the rest. Some forms apply it only to damages, so ask which yours does.

A higher deductible lowers the premium, and a carrier usually offers a few steps to choose from on the quote. The one small-publisher quote in our records with its terms written down was $1,000,000 per claim and aggregate with a $5,000 deductible, at about $1,970 a year. That is one quote, not a market range.

Choose the deductible you could pay this month without hardship, because a demand letter that turns into a claim spends it first. A reporter whose likeliest claim is a nuisance suit from an official gets more from a low deductible than from a lower price.

Does one policy cover my own channels and my freelance work?

It does if the covered media definition says so. Some forms list the outlets they cover on the declarations, often called scheduled media, and cover only those. Others cover your media activities wherever they appear. A schedule that names your website and your YouTube channel may not reach a story you sold to a newspaper.

Put every outlet on the application: each website, newsletter, YouTube channel and Facebook page you run, and each outside publication you write for. Then read the definition on the quote and ask the underwriter in writing whether freelance work for third parties is covered and whether user comments on your pages are.

The outlet’s own policy is a separate question. Some newspaper and broadcaster policies extend to freelancers for work done for them, many cover only employees, and some freelance agreements ask you to indemnify the outlet. Ask your editor whether freelancers are insureds on the outlet’s media policy and whether it covers your piece. Ask who pays the deductible, whether your contract makes you indemnify them and whether their lawyer reviews stories before publication. Get the answers in writing, because a claim is the wrong time to learn them.

When both policies could apply, the order is set by the policies’ other insurance clauses and the contract, not by who you call first. Tell both insurers about any claim.

What moves the price

We have bound two media liability policies, at $3,000 and $6,500 in annual premium before fees, which is too few to publish a range. What moves the price is the same on every quote. The limit and whether defense is inside it come first, then the deductible, how far back the retroactive date reaches and your revenue. Underwriters also weigh whether you investigate, accuse or name people, how large the audience is, whether you have had a demand letter and whether someone reviews contentious stories before they run.

A written prepublication routine helps both the price and the answer, even a short one: who checks the facts, when a lawyer reads a story and how corrections are handled.