An American Editor

August 21, 2017

From the Archives: Business of Editing: Liability Insurance — Nyet

(The following essay was originally published on
 An American Editor on May 22, 2013.)

One problem with working as an editor for large organizations is the contract that the organization wants you to sign. Some of the clauses have validity, others I wouldn’t sign regardless of the promised fee (see, e.g., The Business of Editing: Contracts — A Slippery Slope and Editors and Contracts: Editor Beware!). Recent discussions on various lists have focused on another requirement: the requirement to carry liability insurance (an errors and omissions policy) for such things as defamation and other events that have nothing to do with editing.

These contracts are boilerplate and prepared by attorneys who rarely have a clue about what an editor does for the express purpose of covering all of the possible arcane matters that can affect a publisher. As editors, we need to say “Nyet!” to these inapplicable clauses.

When I am faced with a demand for errors and omissions insurance, I ask the client to specify clearly and precisely against what risks I need to insure myself and against which the client will seek indemnification. I point out, for example, that defamation is not something an editor does; it is something a writer does. I make it a point to educate the client as to what precisely an editor does and does not do, after which I ask the client whether I am being hired as an editor or to perform some other function, one that has the potential to make me wish I were insured.

If the client expects me to undertake tasks that could make me liable for such things as would be covered by an errors and omissions policy, I know I need to decline the job — because it is not an editing job. Copyeditors don’t decide dosages or medicines, don’t determine whether a beam’s angle is correct, do not determine whether a street is a dead end or a highway on-ramp, or whether a named person is properly described.

I also ask the client whether the client truly believes that anyone would issue an errors and omissions insurance policy that protects against subjective decisions. What I mean is this: What insurance company will insure against my choosing to refer to people as “that” instead of “who” (as in “the patients that” vs. “the patients who”) or will reimburse the client for my use of “followup” (which the American Heritage Dictionary 5e says is OK, along with “follow-up”) as opposed to “follow-up” (which is the only form accepted by Merriam-Webster Collegiate 11e)?

“And what,” I ask clients, “if I use recur when it should be reoccur” (in case you are wondering, except, for example, in medicine, recur means to occur repeatedly whereas reoccur means to occur again once; in medicine, recur is used for both meanings)? “Do you really think an insurance company is going to pay a claim for my using one over the other?” What if I don’t use serial (Oxford) commas or if I do use them and the nonuse/use changes meaning (as in the infamous “eats, shoots and leaves”)?

Every editor knows that issues of language and grammar are rarely right-wrong matters; rather, they are matters of opinion in the sense that both sides of a language and grammar question can be, and often are, correct. How do you insure against making a decision that can be correct but just doesn’t tickle a client’s fancy? Perhaps spelling is in a separate category most of the time, but as followup versus follow-up illustrates, spelling is not in a separate category all of the time.

Clients are intelligent; what clients are not is omniscient. Consequently, when I am faced with a contract clause that requires me to obtain errors and omissions insurance, I endeavor to educate the client. First, I ascertain what the client thinks my job is. Then I educate the client as to what my job really is. If we cannot come to agreement on the parameters of the job I am being hired to do, I say thank you and walk away. To do otherwise is to bring me trouble.

A fundamental rule of editing is that client and editor must agree on the parameters of the job or the client needs to find someone else to do the job. Any editor who fails to grasp and embrace this rule is bound to have unsuccessful client relationships.

After I educate the client about what my job is, I undertake to educate the client as to why the insurance clause should be stricken. The usual response by a client is that if the clause has no relevance to my work, then we’ll leave it and ignore it. Alas, to agree to leave and ignore is to invite danger (for me) into the client-editor relationship. Meaningless clauses need to be struck, not ignored, because once a contract is signed, the unstruck clause is no longer meaningless. It may be that I cannot be held liable for defamatory text written by the author, but I still need to buy the insurance or be in breach of the contract. And do I really want to incur the expense of defending against a client’s attempt to make me liable for not catching that the dose should be 12 mg, not 120 mg?

If the client insists on retaining the clause, I send a revised estimate for the project. I take my original price and add to it a price for the purchase and administration (i.e., my administration) of the insurance. I submit that revised price to the client and explain that my other clients do not require such insurance and that it will be a special purchase just for this client, thus the additional charge. In addition, because the purpose of the insurance is not to protect me but to protect and indemnify the client, the only beneficiary of the insurance is the client, so it is only fair that the client pay the cost.

My experience has been that at this point the client is willing to strike the clause. But I am prepared for when the client simply says sign or go. I always will (and have occasionally had to do so) choose go and refuse to sign.

The only insurance I carry specifically for the benefit of clients is Worker’s Compensation. I maintain such a policy because it proves to the IRS that I am an independent contractor and clients who worry about proving that I am not an employee accept the certificate of insurance in lieu of all other items of proof, such as copies of tax returns or lists of clients, that they would otherwise require (and which I do not wish to divulge).

Part of being a businessperson is drawing lines that I will not permit clients to cross. Those lines are important. They form the basis of the relationship between me and my clients. One of my lines is that I will not sign contracts that contain terms that are not applicable to what I am hired to do, especially if those terms will cost me money.

What do you when faced for a demand for an errors and omissions insurance policy for your copyediting work?

Richard Adin, An American Editor

2 Comments »

  1. Because I work mainly with independent novelists who sign my contract, not t’other way around, I haven’t had to deal with errors and omissions insurance, or other nasty clauses. Nevertheless, I need to go through the same educate-the-client process to make sure we both understand what is expected of each other and agree upon it before starting the job. This process has spared me tons of trouble and has resulted in a 100% payment record, without hassle. It’s all part of “drawing lines that I will not permit clients to cross. Those lines are important. They form the basis of the relationship between me and my clients.” In modern psychology terms, we have “good boundaries.”

    Like

    Comment by Carolyn — August 21, 2017 @ 6:15 am | Reply

  2. Contracts can be a thorny subject for many freelance editors, so I’m looking forward to Dick Margulis and Karin Cather’s session on that topic at this year’s Communication Central “Be a Better Freelancer”® conference (www.communication-central.com/conferences/). I’ve been asked to accept contracts requiring liability or E&O insurance a few times over the years, and have only had to stand my ground to the point of losing a job over it once. Everyone else has understood that these requirements don’t apply to a sole proprietor with no employees, no heavy equipment, no travel on the client’s behalf, etc.

    Like

    Comment by Ruth E. Thaler-Carter — August 22, 2017 @ 9:33 am | Reply


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