Liability insurance for a fraud investigation agency
A fraud investigation agency carries the mistakes of its investigators and holds an archive with the most sensitive data there is. Those two risks land on different policies.
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In brief
Public and employers' liability insurance (AVB) is about injury and property damage suffered by third parties. For an agency that liability runs through Article 6:170 of the Dutch Civil Code for your own staff and through Article 6:171 of the Dutch Civil Code for self-employed investigators and surveillance operatives you engage in the course of your business. In concrete terms it concerns damage during fieldwork or at a client's premises: a damaged window frame after equipment was installed, a tripod knocked over, a collision in a car park during surveillance.
The centre of gravity lies elsewhere. An insufficiently supported conclusion leading to dismissal, to a benefit being stopped or to a claim being rejected produces a claim for loss of income and reputational damage. That is pure financial loss, excluded on the AVB, and belongs on professional indemnity insurance tailored to investigation work. Also consider whether run-off after cancellation is arranged: in this work claims often arrive years later.
As an agency you require a licence under the Wet particuliere beveiligingsorganisaties en recherchebureaus (the Dutch Private Security Organisations and Detective Agencies Act) and you work with a privacy code of conduct, vetted staff and set retention periods. Your archive is therefore a risk in itself: if it leaks, those concerned can rely on Article 82 of the GDPR and your client has a notification duty at the same time. The costs of putting matters right and of notification belong on cyber insurance. See also investigation and fraud enquiries.
This page deals with one situation. The full overview is on Compare public and employers' liability insurance (AVB).
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What to look out for
Four subjects that work differently at an agency with staff than for a self-employed investigator.
Quality assurance at report level
One investigator who puts a conclusion too firmly can affect the whole agency. Work with a fixed report structure separating facts, sources and interpretation, and with a second reader before a report goes out. On larger risks, insurers ask about precisely that internal check.
Surveillance operatives hired in
Self-employed people you engage are not automatically covered. Have 'third parties engaged' added to the policy schedule or require liability insurance of their own with a suitable business activity. If they in fact work under your direction, your duty of care under Article 7:658(4) of the Dutch Civil Code.
The safety of your own people
Surveillance work in the evening, confrontation interviews and home visits bring threats and aggression with them. Article 7:658 of the Dutch Civil Code requires you to give instruction, have a reporting procedure and assess risky assignments. Injury to a member of staff falls under the employers' liability section, provided that is included.
Retention periods and access
Files you keep longer than necessary increase your exposure with nothing in return. Set a period for each type of assignment, restrict access to those working on the file, and encrypt anything that leaves the office. Fines from the Dutch data protection authority remain outside every insurance in any event.
What does your premium depend on?
- Payroll and number of investigators: this determines the scale of the exposure
- Annual turnover: a measure of the number of files
- Share of fieldwork and surveillance: outdoor work produces more physical damage and more privacy risk
- Use of self-employed contractors: this determines whether third parties engaged need to be included
- Size and security of the archive: this counts in the cyber assessment
- Sum insured and excess: per claim and per insurance year
Insurers weigh these details differently. That is where your saving is.
What is covered
| Situation | AVB | BAV |
|---|---|---|
| An investigator damages the parquet floor of the person concerned during a home visit | Yes | No |
| A camera belonging to your agency falls out of its mounting and damages the client's contents | Yes | No |
| A benefit is stopped on the strength of your report and the conclusion does not survive an appeal | No | Yes |
| A claim about a closed file arrives years later, when your policy has already been cancelled | No | Provided that |
| Your file archive leaks and those concerned hold the agency liable | No | No |
| An investigator hits a parked car during surveillance | No | No |
With a professional indemnity policy, pay particular attention to the run-off period: in this work claims arrive late.
Frequently asked questions
This is what people ask us most.
An investigator goes beyond the limits of the assignment. Does the agency carry that?
Towards the injured party, yes: as an employer you are liable for the mistakes of those working under you under Article 6:170 of the Dutch Civil Code. For cover, the question is whether it was a mistake or knowingly unlawful conduct. In the latter case Article 7:952 DCC can block payment for the person who acted intentionally, while cover for the agency remains in place.
Our client requires a data processing agreement. Does that change the insurance?
The agreement governs your role in the processing of data, not your cover. It does often make explicit which liability you accept in the event of a leak. Check whether that obligation goes beyond what the law imposes on you, because liability accepted by contract is usually excluded on liability policies as regards the excess part.
What if a report only leads to a claim years later?
Then the cover basis is decisive. Most professional indemnity policies work on a claims-made basis, so the moment the claim is brought. If the policy ends and no run-off cover is arranged, a later claim about old work falls outside cover. Arrange that run-off when you switch or wind up the business.
Are the costs of legal defence included?
On a covered claim the insurer usually bears the cost of defence, even where the claim is ultimately rejected. If the claim falls outside cover, because it concerns pure financial loss on an AVB for instance, you bear those costs yourself as well. That is often the most expensive side of an unfounded claim.
Every situation is different. For these situations we have a separate page.
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