Shifting financial liability through contractual apportionment of risk is nothing new. But issues such as the scope of indemnity, choice of law and naming additional insureds adds so many potential wrinkles to an already complex area in which attorneys must be sure to do their homework.
The article discusses the points raised in a “recent panel entitled ‘Additional Insured Issues and Indemnification Agreements’” in which I spoke, “along with Timothy E. Delahunt, of Kenney Shelton Liptak Nowak LLP and Adam M. Shienvold, of Eckert Seamans Cherin & Mellott LLP. HB Litigation Conferences produced the panel.” Ms. Drake quoted me in the article, writing:
Indemnification agreements are “something with which people have a lot of familiarity, at least in concept, but in terms of practice the law has a lot of variations,” said Scott Godes of Dickstein Shapiro LLP.
Ms. Drake also noted my discussions of exceptions to exclusions within insurance policies for contractual liability, including exceptions for insured contracts. She also provided an overview of the supplementary payments clause found in commercial general liability insurance policies (CGL policies).
I’ll be a speaker on a panel discussing the “State of the Cyber Nation – Cases, Theories, and Damages”:
State of the Cyber Nation – Cases, Theories,and Damages
•Is actual harm still needed?
•Statutory framework – CMIA litigation, Video Protection Privacy Act, and the Driver’s Privacy Protection Act
•Notable recent cases and their impact
•Current theories of liability and claims alleged
•How to present damages in this era
•How to minimize the chance of litigation after a breach and settlement opportunities
•More sophisticated defenses
•Identity Theft Restoration Act-suing hackers? How federal courts may change the game
•Medical disclosure cases and how they fit into the mix
•Developments in insurance coverage for cyber and privacy risks
My presentation will include a discussion about the following points, in the context of insurance coverage for asbestos claims:
• The impact of products hazard versus premises/operations (non-products) claims
• The impact of the number of occurrences
• The impact of additional insureds
• Issues relating to annualized limits
• Types of actions – from Wellington arbitrations to claims alleging misrepresentation
We all know what happens in summer time – lounging by the pool, re-runs on TV, and scrambling for CLE, right? Of course, your thirst for knowledge about the latest information in the world of insurance coverage and asbestos claims remains unquenched. Do I have the solution for you! Sign up for the Asbestos Insurance Litigation Audiocast with Live Q&A. It will run on July 15, 2010 from 1:00 pm to 4:30 pm Eastern. You’ll be able to get Continuing Legal Education credit right from your desk! And, like they say on tv, “if you haven’t seen it [live when we presented this information in Philadelphia], it’s new to you!” Plus, unlike tv shows being run for an encore round, this CLE will have live Q&A. Live! You can ask questions, and you won’t have to go through voicemail jail or hear that your question is important to us, so please keep holding.* Click here for a link to the full agenda.
My presentation includes a fascinating discussion about premises/operations insurance coverage, also known as “non-products” amongst us cool insurance practitioners.
On Wednesday, June 23, 2010. from 2:00 – 3:40 pm (Eastern). I’m going to be part of a panel discussing “The Hot Buttons in Asbestos Insurance Litigation.”
We’re going to cover:
The Keasbey ruling: contribution and trigger
Allocation–pro rata or all sums: jurisdictions still at play, choice of law and related
Aggregate limits and “non-products” disputes
Insurance and bankruptcy: the current landscape
This discussion qualifies for between 1.5 to 2.0 continuing legal education (CLE) credits, depending on state requirements. View the CLE credit details.
Want to sign up? Purchase the teleconference Audio Package (includes MP3 audio recording files and handbook on CD). To order or learn more, click here, call 484-324-2755, or email allison.emery@litigationconferences.com.
My presentation will include a discussion about the following points, in the context of insurance coverage for asbestos claims:
• The impact of products hazard versus premises/operations (non-products) claims
• The impact of the number of occurrences
• The impact of additional insureds
• Issues relating to annualized limits
• Types of actions – from Wellington arbitrations to claims alleging misrepresentation
Insurance Law360 just published a piece that I wrote explaining why reinsurance information should be discoverable in the context of insurance coverage disputes between insurance companies and their policyholders. Here’s the opening paragraph:
Like that adage from political campaigns — if you repeat something often enough, it will be accepted as true — insurers in insurance coverage disputes with their policyholders assert time and time again that reinsurance documents are irrelevant to how their policy language should be interpreted and how the policyholders’ claims should be covered.
But reinsurance information is not irrelevant, of course. In fact, it’s just the opposite in the context of coverage disputes. Why, then, do insurance companies argue so vociferously that reinsurance is not discoverable?
Insurance companies fight to keep reinsurance documents from seeing the light of day in coverage disputes with their policyholders because reinsurance documents contain relevant, and likely unguarded, discussions of the appropriate insurance coverage for the claims, as illustrated by insurers’ and reinsurers’ publicly available briefs, pleadings and exhibits to court filings.
I give several reasons why reinsurance is discoverable and why it’s relevant. For example, in one of the sections, I explain that “reinsurance documents are relevant because they discuss the policyholder’s claims, how those claims fit within the disputed insurance policies, and notice of the claims.” And what could be more relevant to a coverage dispute than that?
Claims Magazine just published a piece that I wrote, titled, “Discerning the Duty to Defend: When A Company is Incorrectly Named In A Lawsuit.”
In the piece, I discuss insurance companies’ duty to defend when a plaintiff names the wrong entity – your company – to a lawsuit:
In tort litigation — asbestos bodily injury tort litigation in particular — corporations occasionally are served with (and become parties to) lawsuits in which the plaintiffs named the wrong entity as a defendant to the action. In those instances, does the wrongly named corporation’s insurance company have a duty to defend the action? In a word, yes.
Using an example of a hypothetical company, I illustrate what could happen in tort litigation and in the process of seeking to enforce an insurance company’s duty to defend when the plaintiff has named the wrong company, but the hypothetical company has been served with the lawsuit nonetheless:
Let’s consider the hypothetical company of “Smith Insulation, Inc.” Surely a risk manager or claim handler can imagine instances in which Smith Insulation, Inc. is served with a complaint that names some variation of the company’s name as a defendant, such as “Smith.” That is not uncommon in asbestos litigation. Even if Smith Insulation, Inc. was wrongly named as a defendant — perhaps there was another company with a similar name, like Smith Insulators Corporation, that allegedly caused the injury or damage — Smith Insulation, Inc. should be defended by its insurer(s) nonetheless.
I explain why there is a duty to defend such claims, starting with the following basic premises:
Standard form general liability insurance policies have a duty to defend policyholders, even if the claims against the policyholders are groundless, false, or fraudulent. When a complaint, if liberally construed, could be covered under a policy with a duty to defend, the insurance company “must come forward to defend the insured no matter how groundless, false or baseless the suit may be.”
Generally, an insurance company’s duty to defend arises whenever there is a potential for coverage, even if the underlying complaint is vague or poorly drafted.
Loyal readers, I know that I have not updated the site with new content for longer than I’d prefer. Rest assured that I have been working on a number of pieces, all of which are close to being finished. I’ll either make them available here or put links here so that you can get to the content.
But for those of you who are hungry for more content, here’s an overview of the pieces that are coming:
Kirk says that it’s “[a]n interesting post,” the original and complete version of which is found over at the Adams Drafting blog, because Ken Adams, Adam Scales, and I address an issue that Kirk says will cause “[b]illions and soon trillions of dollars [to] change hands based on the meaning given or found by court’s deciding insurance coverage cases for underlying toxic tort cases.”
Kirk was kind enough to conclude that “[t]he following words from Scott are key:”
“Although the term was designed to be a clarification of coverage, it comes as no surprise to someone who represents policyholders when claims have been denied that insurance companies would have courts believe that instead, “occurrence” was designed to support coverage denials or limitations. Insurance companies also are happy to argue conflicting interpretations of “occurrence,” depending on which interpretation will mean less coverage for the policyholder in the dispute at issue.”
Kirk, thanks very much for commenting on the post! And for those of you with an interest in mass tort litigation questions, both in the national and international arenas, be sure to visit GlobalTort and add its feed to your news reader, as I’ve done.
Can astute contract drafting can forestall all contract disputes? No, it cannot. Most contract disputes, sure. But not all.
Ken thought about this issue in the context of insurance policies, specifically, as to the interpretation of the term “occurrence.”
So here’s my question: Couldn’t insurance companies draft policies—and an insurance policy is just another kind of contract—in such a way as to bring clarity to the meaning of “occurrence”?
Ken, however, explains that he is not an expert in the area of insurance. To get some perspective on the issue, he turned to Professor Adam Scales and me:
Normally I think through such issues on my own. But I know next to nothing about insurance, and I’m not inclined to give myself a crash course in the subject, so for my own edification I consulted two people who have experience with this issue. I offer you their thoughts, in case this is an issue of any interest to you.
In my discussion of the issue, I explain:
The meaning of “occurrence” is a question that has been contested for some time in courts across the United States, with questions of whether potential or actual underlying liability against a policyholder is considered an occurrence, and, if so, just how many occurrences are there under one or multiple insurance policies. Adding to the complexity, the question has been answered in multiple ways by state and federal courts (not to mention arbitrators) across the country.
* * *
Although the term was designed to be a clarification of coverage, it comes as no surprise to someone who represents policyholders when claims have been denied that insurance companies would have courts believe that instead, “occurrence” was designed to support coverage denials or limitations. Insurance companies also are happy to argue conflicting interpretations of “occurrence,” depending on which interpretation will mean less coverage for the policyholder in the dispute at issue.
For the conclusion that I offer, as well as the comments that Ken Adams and Adam Scales offer, head on over to the Adams Drafting blog to read more.
I just received an e-mail with a link to Part Four of my speech on “non-products” (premise-operations) coverage for asbestos claims against former asbestos insulation contractors, installers, and insulators. The speech was at HB Litigation Conferences’ Emerging Asbestos Litigation Conference held March 9-11, 2009, in Beverly Hills, at the Four Seasons Hotel. The clip of the speech is below. And if you’re interested in purchasing the materials from the conference (video and handouts), head over to HB Litigation’s site.
I spoke at HB’s Emerging Asbestos Litigation Conference held March 9-11, 2009, in Beverly Hills, and HB Litigation Conferences has been kind enough to put my presentation online. In the first of three clips, I discuss coverage concepts including product hazard, premises, completed operations hazard, and more. This is Part One.
Recently, I gave a presentation regarding insurance coverage for the people at HB Litigation Conferences. The conference was Emerging Trends in Asbestos Litigation. Along with two co-panelists, I presented on insurance coverage issues for insulation contractors and premises owners who are facing asbestos claims. The presentation, which you can find here: Insurance_Coverage_Issues_for_Asbestos_Non-Products, discusses the potential for multiple policy limits of insurance coverage to apply to asbestos claims.
Discussion of the New York Supreme Court’s decision ruling that unaggregated premises/operations (aka “non-products”) insurance coverage is available to a class of asbestos claimants.
Read the rest of what Lexis has featured as “expert commentary” here, on Lexis. (Subscription required)
Law360, New York (August 10, 2007) — One of the most hotly contested questions in the asbestos insurance coverage area is whether certain asbestos-related bodily injury claims fall outside of the products hazard and completed operations hazard in standard form comprehensive general liability (“CGL”) policies.
Insurers view this as a “bet the company” dispute because third-party claims that fall outside of those hazards—so-called non-products claims—are not subject to aggregate limits in most CGL policies….
Read the rest of the post here, at Law360. (Subscription required)
This article contains a discussion of premises/operations insurance coverage for insulation contractors facing asbestos claims, the multiple limits of coverage available for such claims, and the burden of proof required when litigating such claims between policyholders and insurance companies.
This blog is for informational purposes only. This may be considered attorney advertising in some states. The opinions on this blog do not necessarily reflect those of the author's law firm and/or the author's past and/or current clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction.
NOTE THAT ANY CASE DECISIONS, COURT OPINIONS, RULINGS, AND/OR RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.
Welcome to The Corporate Insurance Blog. This blog is for corporate policyholders, risk managers, and in-house counsel who deal with insurance policies, programs, purchases, renewals, claims, and recovery.
Scott N. Godes writes and maintains this blog. Scott’s LinkedIn page is found here. E-mail Scott.
In her article, Indemnification Agreements: Who Benefits From Your Coverage?, author Samantha Drake writes about insurance coverage, indemnity agreements, and additional insureds.
Posted by Scott Godes 
