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Commercial Insurance Blog

Claims made – Prior Acts and Tail Coverage

Posted by Geoffrey Gordon on Mon, Aug 21, 2017 @ 11:52 AM

Claims made policies have distinct limitations on occurences that happened before the policy's incetion and after the need for ongonig coverage stops. View our claims made vs. occurance comparison chart HERE.

Prior Acts

Priority Acts Gordon Altantic Insurance Norwell, MA

Prior acts are those that happened before the policy went into effect. If a claims-made policy is first issued on January 1 of this year, the policy will not provide coverage for anything that happened in December of last year or earlier. The timeline below shows graphically how this works. An exception is when there had been prior insurance coverage and an earlier date (retro date) acknowledged specifically in the policy.

Retro Date

The retro date is the first day an 'occurrence' will be covered if a claim is brought. The earliest is usually be the first day of the first claims-made policy. If the first policy goes into effect today, no coverage is afforded for anything that happened yesterday or earlier. The inception date will become the retro-date for the policy, and usually remains on future policies.

Occasionally "Full Prior Acts" option is offered, meaning there is no limitation of protection for some tort that happened previously. Carriers will do this when policies have been in effect for a period that generally exceeds normal discovery periods. For example, we have had Errors and Omission insurance for over 40 yerars. We now have "full prior acts" E&O protection.

Tail coverage

Tail coverage refers to insurance that is purchased after a business stops buying current coverage, but wants protection for those 'incurred but not reported' (IBNR) claims: the ones that are out there that we just don't know about yet.

tail coverage Gordon Atlantic Insurance Norwell, MA

This coverage is usually bought by professional service businesses when they close. The professional needs some protections for work that was done where a claim may be brewing, but simply not aware of yet. Rather than continue to buy liability insurance after closing the business, the professional can buy this limited coverage. This is usually available contractually, and can be purchased for various lengths of time. Most common are one, three, five and 10 years.

Always work with a professional when considering these specialized terms.

Not sure about a claims made policy?  Read our blog titled, "Claims Made Versus Occurrence Liability Form."

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Tags: retro date, tail insurance coverage, claims made insurance, prior acts

Claims Made Versus Occurrence Liability Form

Posted by Geoffrey Gordon on Wed, Aug 16, 2017 @ 02:48 PM

A claims made policy treats the timing of a claim differently than the common, standard 'occurrence' policy.

Here's how it works.

Suppose you have a policy that runs from January 1 to January 1. In November of the current policy year someone at your building slips on the steps and falls down and hurts themselves. You don't hear about it…until sometime the following spring when the demand from the injured person's lawyer reaches you. In this example the fall, meaning the actual 'occurrence' that prompted the claim, happened in the first policy year, but the claim was actually made in the second policy year. The more traditional 'occurrence' liability policy, the first policy that was in effect when the occurrence happened defends the claim. This is based on the time of the occurrence, that is, November in the earlier policy, when the accident happened. A "Claims – made" policy would use the second policy, when the claim – the lawsuit - was actually made.

claims made versus occurance liability

History

This newer approach was developed in response to lengthy time lags between claims occurring and insurance companies learning about them. This reached a crisis point in the 1970s with the explosion of asbestos and similar industrial or pollution related claims. When lawsuits drained policy limits, policy language gave access to previous years' policies as well. These piled-on claims were never contemplated in the pricing of the insurance; the industry needed a way to close the books on certain types of long tail liability. The solution was what we now call the 'claims made' policy.

Insurance companies like claims-made better to close their books on liabilities that have occurred but that nobody knows about yet. These policies are most common with professional liability, some 'products liability', Employment Practices, Directors and Officers, and other specialty lines, particularly those with long 'tails', or discovery periods. Read our blog describing tail coverage and prior acts HERE.

There are many other factors that characterize these highly specialized policies; customizing a policy to meet your specific needs should not be taken lightly. Some of those features are highlighted on this comparison sheet.

Always work with a professional, such as the professionals at Gordon Atlantic Insurance in securing this coverage.

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Tags: insurance, malpractice, professional liability, occurrence form, retro date, tail coverage, E&O

Excluding Sub-Contractors from General Liability

Posted by Geoffrey Gordon on Tue, Aug 08, 2017 @ 03:29 PM

Excluding Sub-Contractors from General LiabilityWe have noticed a trend in our office for general liability policies to exclude coverage for the acts of subcontractors. Because this is a deviation from traditional language, this change can create a problem, and needs to be addressed.

The origin of this endorsement is clear: lower costs. Within any contracting operation, if a sub-contractor's actions prompt some kind of lawsuit, the general contractor will almost always be included as a defendant. That's just how it works. When those suits arising from the lower level of sub-contracting operations can't reach the general contractor's insurance, it will cost less. We recommend that contractors hiring other contractors include an agreement whereby the subcontractor names the contractor as an additional insured. The purpose of this is to ensure that the insurance for the offending party defends both. See our video and blog that outline the importance of additional insured status in any contracting operation.

Many insurance underwriters providing coverage to general contractors will require that these agreements are in place, and that additional insured status is documented before providing coverage.

Contractors and subcontractors insurance Norwell MA

The latest iteration of this trend is CGL's policy excluding coverage for the actions of subcontractors. In short, it puts teeth into the requirement that each party has their own insurance to protect others from their actions.
If all the payments and insurance are buttoned up tightly, this exclusion should not, in theory, pose a problem to a general contractor. However, everyone in the construction business knows that managing subcontractors is a complicated affair fraught with unknowns. For example, if a plumber, electrician, or other tradesmen brings in their own subcontractors to meet deadlines or trade specialties, is it reasonable for the general contractor to have to police these guys as well? A lot of the work that actually gets done on a building or renovation site is arranged with long-standing informal relationships that may or may not have written agreements outlining what happens when somebody gets hurt. If the plumber's cousin, whose insurance cancelled last year because he was mostly working for someone else, causes damage or an event where someone is hurt, the lawsuit will go to the next level up. If the plumber and general contractor purchased lower-cost insurance with a subcontractor exclusion, we have an uninsured event.

What can a contractor do?

Have good legal counsel draft a subcontractor agreement to be used whenever hiring someone else. At minimum, such agreements should have these features:
  • Hold harmless and indemnification agreements, creating separation between entities;
  • Requirement to name the hiring contractor as an additional insured;
  • A requirement for subcontractors to hold their subcontractors (the cousin, in our example above) to the same standards outlined in the agreement.
  • Required notice by the subcontractor to alert the hiring contractor if their insurance terminates.
  • Statements that the insurance is primary and noncontributory.
  • Any agreements include specific limits of insurance, with $1 million per occurrence and $2 million aggregate, and including products and completed operations. Higher limits are common with larger companies.
  • Once executed, get insurance certificates documenting the carrier name, policy expiration dates and issuing agency
  • Keep on file based on expiring insurance policy dates.

Tags: Additional Insured, subcontractors

Water Flow Detection Systems

Posted by Geoffrey Gordon on Wed, Aug 02, 2017 @ 04:05 PM

Be_prepared_for_home_damage_from_surprise_storms_with_homeowners_insurance_from_andrew_g_gordon_inc.jpg

Water flow detection systems, or little devices that will monitor when water is escaping into a home or building when nobody is inside, have become one of the latest gadgets for homeowners who have or may experience water leakage in their homes or condos.

You may be thinking a water flow detection system would be overkill for monitoring things going on at home. However, considering the high cost of repairing a home, apartment, or condo with water damage, purchasing these little devices may be justified.  

The greatest economic justification for water detection systems is in multi-story condominium and apartment buildings.  A broken water pipe or running water while someone is away always makes its way downhill, as is, downstairs.  Thus, a leak in the third or fourth floor will almost inevitably cause damage to units on the first and second floors.  Water damage can be incredibly expensive to repair: requiring at least new flooring, drywall, and mold prevention, and often includes damage to other property, too. Lengthy repairs can also mean staying elsewhere while repair work is done. 

There are several different variations of flow detection systems to choose from; most good ones require installation by a qualified plumber.   This is not something that you want to do Saturday afternoon by yourself: hire a qualified professional.  When properly installed and set up, these little devices can alert you or your building maintenance contacts that water is flowing without the interruptions characteristic of normal use.  Once the device is alerted, it can shut off automatically or send a notification to one or many mobile devices.

Because the winter of 2015 was such a destructive season, many insurance companies are now spreading deductibles to unit owners to spread the risk.   A trend that we see in condominium insurance, these 'per unit deductibles', may be applied for water damage and other specifically listed events such as wind or ice damage.  Thus, water damage isn't just the problem for the association as a whole: in many condo complexes, and especially those that had losses in 2015, it is now a problem for individual unit owners.   Now more than ever, taking proper precautions to reduce the chance of water damage, may save you a ton of money in the long run.

To find out more about risk management for your home or building, contact Gordon Atlantic HERE or call us at (781) 659-2262.

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Tags: Water damage, condominium, home maintenance, Water Flow Detection Systems

Can Changing Your Legal Entity Status Affect Your Insurance?

Posted by Geoffrey Gordon on Fri, Jul 28, 2017 @ 11:16 AM

Know how your legal entity status affects your commercial business insurance policy with andrew gordon incChanging the legal entity type of your business can affect your insurance but changes affect different lines differently.  For most kinds of insurance, carriers will usually change the “named insured”  based on a request from the customer, provided there are no material changes in the scope of the operation.  If there are changes in the operation, such as change in management, ownership, or strategic direction, then a new policy is usually underwritten and re-written. 

Worker's Compensation is one kind of insurance greatly affected greatly however. A change from proprietorship to corporation or corporation to LLC, for example, will result in material changes to the Worker's Compensation insurance. Worker's Compensation costs are a direct function of payroll; owners’ payroll is fixed statutorily and differs for proprietorship, corporations, LLC's, and partnerships. 

Because the payroll amount of compensation in a corporation can be managed through distributions, deductions to qualified plans and other accounting practices, Worker's Compensation assigns a minimum payroll of $10,400 and maximum of $52,000 annually for officers (with >25% ownership). Thus a corporate officer taking no payroll (and living only on distributions) will still be charged as though his or her payroll was $10,400.  Conversely, a corporate officer making $500,000 a year is capped at $52,000. Although included officers are automatically subject to this payroll floor and ceiling, owners with 25% or greater ownership may opt out. The opt out form is linked here.

Proprietorship is different. Unlike corporations where corporate officers are included by default, proprietorship excludes owners by default. As with the option of corporate officer opt-out, proprietors may opt in. When this is the case, their payroll is statutorily set at $41,300 (as of October 2012 and is subject to change). Partners in partnerships and members in LLC's are treated the same as proprietors for Worker's Compensation purposes: default not covered, may opt-in.

Why opt-in? The most important reason… you’re covered! If you get hurt at work, the policy will pay medical expenses and lost wages. Why opt-out? To keep workers compensation costs low.

Some contractors will require that their sub-contractors include workers comp insurance on the owners. The purpose is to prevent payments to these contractors from being charged to the general contractor’s payroll and subsequent charge. To make the distinction clear, certificates of workers compensation insurance usually state in the comments section whether owners are included or excluded.  

Businesses are dynamic and changes to corporate structure are one of many changes that businesses experience. If you are contemplating a change in business entity structure have your attorney and your insurance agent or risk partner collaborate or on how this might affect your risk and insurance program. Or contact us for customized solutions.

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Geoff Gordon

Tags: commercial, comp, workers, compensation, legal, insurance, Business, proprietorship, entity, status

Reputation Management and Brand Control

Posted by Geoffrey Gordon on Fri, Jul 21, 2017 @ 11:59 AM

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We recently heard from a customer of ours which had had a terrible terrible event happen at their company.  Naturally we cannot share any details, but suffice to say that it was the sort of event that newspaper reporters love to cover, but that can cause tremendous harm to a company's brand.   That fact that management has a well communicated policy prohibiting what happened, and was entirely unaware of the activity until when everyone learned about it, doesn't matter. This stuff sells newspapers and today internet eyeballs, and a story like this can deeply tarnish a longstanding, well crafted brand. 

So a really bad event this happens at your company, what's the first thing you do?

First, understand the press, because they will want to know all the details.  Remember that reporters have a job to do, and that includes seeking multiple sources to find and research and  tell a story that sells.  Your job is to help them do their job in a fashion that is not harmful to your company's brand. 

To ensure a consistent and controlled message, a single spokesperson should be named immediately to handle all inquiries from the press.  A corollary to this is that other people within the organization should be immediately, clearly, consistently, and repeatedly directed, that only the named spokesperson should talk to the press. Any good reporter will try to contact other people; expect this and do your best to limit leakage and disparate messaging by consistently and repeatedly reminding employees who talks to the press.

A reporter can ask your spokesperson any question, and the spokesperson can answer with any answer.  Here are the most important answers to questions about the company's being in the news:

  1. We have had an incident involving… (be genuine, but non-specific when privacy or brand quality is a factor).
  2. The incident is under investigation, and we are cooperating fully with the appropriate authorities.
  3. We don't have all the facts and details, but will let you know when we know more.

If this sounds familiar from soundbites you've seen on the 6 o'clock news, it is because this is the gold standard response to show that you are a good community citizen, you are taking action, you are cordial to the press, ..without revealing any more details than necessary.

Never say "No Comment", and Never Lie.  The first says "guilty", and the second never ends well.

Whenever possible use one of the above statements for answers on follow-up questions that will come from reporters.  Use different words if needed, to say the same thing.  For example instead of "we don't have all the facts and details", you can say, "we just don't know enough about that yet".  Don't be blatant with stonewalling, but control the information flow.

As quickly as possible, and certainly after the first onslaught of reporters and cameras, hire a PR professional.  Let a professional guide the flow for you.  Some insurance carriers include "Image Restoration" coverage to pick up the expense of a professional public relations person.

Soon enough, another story will grab the attention of reporters, and you can get back to rebuilding your business reputation through the traditional means you've always used.

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Tags: management, media, press, news, reporting, reputation

Volunteers in Insurance Programs

Posted by Geoffrey Gordon on Fri, Mar 17, 2017 @ 01:14 PM

How volunteers are handled differs with different types of insurance. The general liability policy does include protection for the actions of volunteers; Worker's Compensation on the other hand does not include volunteers.

 In the standard general liability policy, which most businesses use commonly, names volunteers under the definition of who is an insured? Who is an insured is important, because it names who the insurance company will defend against a lawsuit or other legal action.  Volunteers are specifically listed in the most commonly used General Liability language. 

Worker's Compensation is more nuanced, but seems to have been well established by the courts. Coverage begins with the definition in Massachusetts laws: chapter 152 is the Massachusetts law that addresses Worker's Compensation definitions and other features.  Section 4 of that law defines employees as those persons under contract or higher, with exceptions for certain categories such as real estate agents, consumer products sales people, cab drivers, and others specifically excluded.  Clarifying further the "contract for hire" section, in Lowery v. Klemm, 446 Mass 572, 580 (2006), 

the Massachusetts Supreme Court wrote that "Worker's Compensation statute does not apply to volunteers... "

This volunteers appear not to be considered employees. 

Coverage for those ordinarily excluded as mentioned above, such as real estate agents, cabdrivers, and consumer products sales people, is available with a specific endorsement, but this does not apply to volunteers.

These categories notwithstanding it's easy to get conflicting interpretations from the state. The Department of Health and Human Services posts an on-line brochure stating that volunteers do have Workers Compensation coverage, but the Department of Industrial Accidents and the Worker's Compensation bureau disagree.  Given that the departments that oversee Worker's Comp directly are on the ‘no coverage’ side of this equation, we expect claims made by volunteers would not be honored.

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Tags: Volunteers

Insurance for an IT Company

Posted by Val Feeney on Tue, Jan 31, 2017 @ 10:05 AM

Many IT companies grow steadily for several years without having the risk and insurance program evolve to match the needs of a larger enterprise.   When a company first opens, insurance is one of many simple checklist items: get essential general liability and workers compensation in place.   As the business grows and evolves, risks are attended to more on an ad hoc basis than with a strategy or plan in place.

Cyber_Lock.jpgBut the risks and exposures that IT companies face are greater and more complex than just a few short years ago.    Add a little growth and new services, and that early insurance program can't do what it's supposed to do: protect the business.

We recently were referred to a growing IT company and discovered these 5 areas not attended to, each which could quickly put them out of business, and not addressed in their old program:

  1. Professional Liability (AKA – E&O) – The advice a professional gives to its customers is very important, and can lead to the clients success, or in some bad cases, its failure. If a client claims the IT Company provided bad advice, or misguided the client, if there are financial damages, the company may be sued.  Professional Liability insurance provides defense coverage and judgments the Company/Professional from allegations of 'errors' or 'omissions'.  (More)
  2. Cyber Liability – The IT Company was surely assisting its clients with the creation and setup of servers, phones, computers, Wi-Fi and other services and if the client ever gets hacked and loses sensitive customer information, the IT Company may be on the hook. Cyber Liability insurance protects the IT Company for this exposure.  (See: How Target was hacked via it’s HVAC System)
  3. Business Interruption – If the company’s office was destroyed by a fire or storm and could not operate because its infrastructure (servers, laptops, etc.), the IT Company could lose significant revenue before coming back on line. It may not be able to make its payments for rent, vendor contracts, employee wages, utilities, etc.  Adding Business Income coverage protected them for this kind of lost revenue. 
  4. Employment Practice Liability – Termination of a bad employee can create a significant legal threat to any company, not just the IT industry. If the company does not follow the right steps to fire an employee properly, that employee could sue the company for unfair employment practices.  EPLI coverage protects companies in this, and other employment events, including allegations of discrimination in hiring and other employment practices.   
  5. Business Personal Property (BPP) – The IT Company had inventory, computers, cable, equipment, and other items that valued well over $100,000 in its office that has no coverage under a 'liability' policy. If the office was damaged by a fire or other event, the company could have lost all the investments in the physical stuff.  BPP coverage protects the company’s “stuff.” 

Each example above can be mitigated with an organized risk management program in place to help buy insurance smartly.  Risk management paired with insurance such as using a good HR partner for hiring and firing can lower your chances of getting sued by a disgruntled employee. 

Knowing your true risk and addressing it carefully will help you “sleep easy at night” in case disaster strikes. 

Val_Feeney.jpg

Cyber Liability  Guide  Contact Us

Tags: IT, risk management, Cyber Liability, liability claims, business property

Construction and development tips when working near water or wetlands

Posted by Guest Blogger on Fri, Jan 27, 2017 @ 12:22 PM

Keeping water clean and abundant is important to us all which is why our federal, state and local governments have regulations that protect our water.  Here are some practices for before, during  and after construction, especialy when excatating or grading, to  keep water protected and to avoid violating storm water quality laws:

 

Before Construction:

Design with Water in Mind -Use low impact development design principles to minimize creating stormwater in the first place. By minimizing paved surfaces, concentrating development to retain as much of the natural landscape as possible, treating runoff using green infrastructure like rain gardens and grassed swales and staying as far away from surface water and wetlands as possible you will reduce the risk of damaging protected natural resources. 

 

During Construction:

Construction site owners and operators who disturb greater than ONE acre (in some towns the trigger can be less) are required to prepare and implement a Stormwater Pollution Prevention Plan that includes:

  • implement erosion and sediment controls (inspect and maintain to ensure they are functioning properly before and after rain events)
  • stabilize soils
  • manage dewatering activities
  • implement pollution prevention measures
  • provide and maintain buffers around surface waters
  • prohibit certain discharges, such as motor fuel and concrete washout
  • utilize surface outlets for discharges from basins and impoundments

Linked here is a 2-page pdf that describes those practices from an off-site resource.

 

After Construction:

The key to stormwater management is prevention of problems. Here are tips to keep pollutants out of the water.

  • Keep dumpster areas swept clean of litter, debris and sediments—and keep them covered. Schedule regular pick-ups. 
  • Sweep parking lot, walkways and patios on a regular basis. Do not use a hose to wash down pavement.
  • Keep stormdrains clear of debris and landscaping materials.
  • Avoid excessive salting in the winter, and sweep up spills.
  • Pour washwater down a sanitary sewer (sink or toilet), never down a stormdrain.
  • Use non-toxic cleaning products and organic lawn chemicals.
  • Water lawns and gardens only. Don’t allow irrigation to spray onto pavement.

 

NSRWA logo.png

This blog guest written by our friend, North and South Rivers Watershed Association executive director, Samantha Woods, at http://www.nsrwa.org/http://www.nsrwa.org/

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Business Owners: Consider Google

Posted by Gordon Atlantic Insurance on Sun, Jan 22, 2017 @ 09:00 AM

As social media engineer, I spend most of my time on the internet where I run into lots of great tools. Lately, I’ve become a bit of a Google addict. Now, most computer users are familiar with Google’s incredible search engine, but are unaware of the whole host of formidably effective tools that Google offers FREE. Google’s innovations have been so useful to me; I decided to write about them.

Business owners should operate with google and commercial insurance from andrew gordon inc

Google Chrome:

I’ll start with the big guy. Most PC users use Internet Explorer for web browsing …I’m so sorry. As someone who dealt with the frustrations of IE for many years before switching to Firefox and then Chrome, I can highly recommend Chrome as a replacement. Google Chrome is lightweight, offers fast web browsing that works seamlessly with Google applications and offers applications for download. It also feels incredibly intuitive to use; you could download it today and wouldn’t notice a huge difference from Internet Explorer, but deal without whatever problems and bugs are plaguing the latest version of IE.

Google Documents:

My personal favorite. The idea is that you can store and edit your documents through Google, which is incredibly useful for business:

  • The documents can be retrieved from any computer with internet, and can be categorized into folders like your documents on your hard drive.
  • Where Gdocs hit it out of the park is with sharing your documents. You can choose to give anyone else with a Google Account rights to view and/or edit your document. You can even have multiple people working on a document AT THE SAME TIME. For real.
  • You can save documents in a wide variety of formats, including PDF or HTML
  • You can upload your Microsoft Word documents straight to Google Docs
  • Let’s say you’re working on a group project, and after editing a document for weeks, you decide your version that you had last month was better. Good thing GDocs allows you to access the complete revision history of the document, and recall it from any of its previous stages
  • Oh yeah, everything that I said above also works with Powerpoint presentations and Excel spreadsheets that you’re familiar with in Excell are available for use in Google though their spreadsheet funcion

Google Calendar:

Another incredible feature. You can create an online calendar of your tasks and events, which can also be shared with anyone else with a Google Account. You can also create several color coded calendars to organize your events. It can even send you notifications through email o to your smartphone. I’ve used Google Calendar to organize my life for about a year now. When someone asks me for my availability, I just email them a screenshot of my week, print out a copy for their desk, or share it with them directly. I can even choose to only share my work schedule with them so they don’t know that I marked the Mythbusters marathon for watching!

gmail good for businesses, wikipediaGoogle Mail:

I’m not going to spend any time raving about Google Mail, but I would urge you to at least check it out. It’s just as great as the other tools and just as free.

 

Google Reader:

For those of you who manually check your favorite blogs and websites, join the 21st century and open a Google reader account. You can add the RSS feeds of your favorite blogs and websites and receive all your updates in one user-friendly application. I used to read the newspaper, but now read my news feed. It’s like my own customizable newsfeed from my favorite columnists, authors, and bloggers.

Google+:

This is Google’s new social media system, still in beta. Getting an invite is tough right now, but if you’re in, you’ll notice that it’s an upscale, cleaner Facebook. Instead of having 768 friends that see everything you do, you put your friends into circles then publish each post only to the circles that you select. So my family doesn’t have to see my school-related posts, and effectively eliminates the awkward 60-year-old-great-aunt-flora-commenting-on-every-status-you-post syndrome. Facebook does offer these tools as well, but they’re little used and frankly, Google just does it better. Google plus also offers group video chat and the ability to separate your news streams by your circles which is refreshing. Again, Facebook does offer a similar service, but it takes some headache to put in place. G+ also includes a feature called Google Sparks, which partners with Google’s search engine to match your interests with random content from the internet that it thinks you’ll like; it’ usually right. Basically, while it still has some catching on to do, Google plus represents a cleaner version of Facebook paired with the brute functionality of Skype and the addictiveness of StumbleUpon. If you can, check out Google plus.

What’s really cool is that if you choose to use all of these Google services, you can manage almost everything important though Google. I rarely have to open external programs anymore. Google does it all.

Tip of the Hat,

CF

Business Quote

Corbin Foucart. Andrew G. Gordon Insurance

Tags: commercial, gmail, Google, chrome, calendar, plus, documents, docs, bussineses, consider, insurance, Business

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