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Use of Pro Forma/Specimen Policies in Massachusetts PDF Print E-mail

 

DATE:      June 12th, 2017      

TO:          Massachusetts Agents and Approved Attorneys 

FROM:     Massachusetts Underwriting Department 

RE:          Use of Pro Forma/Specimen Policies in Massachusetts

                Underwriting Bulletin No. 01-2017-MA

 

Requests for a "Pro Forma" or "Specimen" policy (hereinafter a "Pro Forma") in commercial, and sometimes residential, transactions have become commonplace. A Pro Forma is a SAMPLE of a policy provided to a proposed insured in conjunction with a Commitment so that the language and format of the proposed policy is available for review before closing. The proposed policy may or may not issue depending upon compliance with the Commitment requirements.

 

A Pro Forma is NEVER to be issued in lieu of a Commitment and is NOT to be used as a substitute for a Commitment. A Commitment must always be issued. Further, the Commitment must never contain any endorsements or coverages unless the specific underwriting requirements for their issuance are included or have been satisfied.

 

Also, inconsistent versions of an "exculpatory clause" have been used in the issuance of a Pro Forma. Claims have been made alleging that the endorsements or coverages contained in a Pro Forma were "promised" or "agreed to". Consequently, it is important to use a proper exculpatory clause.

To ensure the use of a uniform exculpatory clause, the following language has been approved by the Company and must be included in a Pro Forma:

 

This is a Pro Forma Policy. It does not reflect the present state of the Title and is not a commitment to (i) insure the Title or (ii) issue any of  the attached endorsements. Any such commitment must be an express written undertaking on appropriate forms of the Company.

 

Furthermore, the following guidelines must be adhered to when issuing a Pro Forma:

  • The above exculpatory clause should appear in a prominent location on Schedule A of the Pro Forma.
  • NO Policy Number should be used on a Pro Forma "jacket", schedule, or endorsement. The words "PRO FORMA" or "NONE" should appear in any Policy Number section.
  • An Amount of Insurance may be shown if requested, but it is preferred that "PRO FORMA" or "NONE" be inserted instead.
  • NO Signature should appear on a Pro Forma "jacket", schedule, or endorsement. Signature lines should be left blank or contain the words "PRO FORMA".
  • NO Date of Policy should appear on Schedule A of the Pro Forma. Instead, the words "PRO FORMA" or "NONE" should be used.
  • Only ALTA or pre-approved endorsements should be attached to, or referenced in, a Pro Forma. Do NOT include endorsements that contain new or modified language that has not been approved by your underwriter.

If you have any questions or concerns regarding this Bulletin, or if you or your staff are unfamiliar with the Pro Forma process, do not hesitate to contact our underwriting department.

 

 

 
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