How to Avoid E&O Exposures When Using Interpreters

Q: If our agency needs to use an interpreter to communicate with a customer, what do we need to do to document the exchange? We are concerned a customer might later say they didn’t understand or weren’t give the correct information by the interpreter.

Response 1: Be very careful and document the conversation in detail. I would seek guidance from your agency and your carriers. An article by Big “I” Virtual University faculty—E&O Exposures Involving Non-English Speaking Prospects—addresses a similar question.

The concern is not just in completing the application. It is also with handling claims and the ability of the insured to testify through an interpreter in the event of a large claim. The ongoing service of the account is also going to be complicated. 

Back in the late ‘70s we had an influx of immigrants from Vietnam and Laos seeking refuge in our city. By virtue of proximity to one of the sponsoring churches, we insured many of new community members and worked through church-sponsored interpreters. An underwriter from one of our companies contacted us and asked that we back off with “Asian” submissions. Wow! Imagine that today? The reality was that, over time, these folks proved no more and no less of an issue than our English-speaking clients.

Response 2: Ask the interpreter to sign a sworn declaration that they have translated your questions from English to the client’s language and vice versa.

Response 3: Carefully note the use of an interpreter during your business transactions with the insured. It’s also important for the interpreter to be qualified to communicate the complexity of the issues under discussion. It may also be prudent for you to arrange an interpreter to transmit a translation of your letters delivering the quotes and policies.

It’s common sense that anyone you have a business relationship with should have insurance, including professional coverage if applicable. Contracts are also important, especially when things go bad.

Response 4: I think the applicant bears the responsibility of understanding a contract before signing. If the applicant can't understand the contract, for whatever physical or mental reason, it is their responsibility to gain understanding by whatever device is necessary, such as a hearing aid, glasses or an interpreter.

The problem you face is that the courts make you responsible for judging the competence of your applicants. If common sense tells you the person is incompetent, and you make the sale anyway, you'll get sued and you'll probably lose. If a person needs an interpreter, they should hire one. If you arrange for the interpreter, you might increase your responsibility for the accuracy of the translation.

Response 5: Duong v. Salas (2004) highlighted three problems that arise in this situation:

  • Does anybody know if the interpreter understood the discussion?
  • Does anyone understand what the interpreter said to the other party?
  • Does anyone really know if the other party understood the interpreter?

I have taught many errors & omissions classes and never come across a solution that made me feel secure.

Response 6: One approach is to document back the details of your conversation and share them with the client. Your management system may allow you to add a translation along with the English version of all correspondence.

Response 7: Best practices would dictate that any translation service should be vetted by an official agency. There would, of course, be some sort of cost included with a translator, which must be clearly communicated to the client.

If your market contains a significant number of people who need specific translation assistance, it might be cost-effective to hire staff who speak multiple languages. Recording all transactions would also be a good risk management technique. Standard policy language should also be made available in whatever language a customer needs.

This question was originally submitted by an agent through the VU’s Ask an Expert Service, with responses curated from multiple VU faculty members. Answers to other coverage questions are available on the VU website. If you need help accessing the website, request login information.