Tag Archives: Discovery

Join me for American Conference Institute’s 22nd National Advanced Forum on Bad Faith Litigation

Are you looking for a conference discussing bad faith, extracontractual liability, and other ways of obtaining damages beyond policy limits for insurer misconduct?  Of course you are.  Then you’ll want to join me in Orlando, Florida from November 30-December 1, 2011 for American Conference Institute’s 22nd National Advanced Forum on Bad Faith Litigation.

Here are the details from ACI’s website:

The essential forum that shapes the future of bad faith litigation strategies for leading outside counsel, in-house counsel and claims examiners in the insurance industry

Wednesday, November 30 to Thursday, December 01, 2011
Hyatt Regency Grand Cypress, Orlando, FL

Bad Faith Litigation returns for its 22nd installment led by a multi-disciplinary, cross-country faculty from both sides of the issue, including seasoned in-house counsel, top law fi rms and renowned jurists.

Bad Faith is continuously an area of the law that generates a significant amount of costly litigation, as the courts continue to hand down crippling verdicts. Now is the time to start preparing how to recognize the signs of a bad faith set-up and properly investigating the claims as they are presented. As the hot bed states spearhead their way toward statutory bad faith laws, litigators must be well equipped in how to defend against, and bring, a bad faith claim.

An annual tradition, American Conference Institute is proud to bring you its 22nd National Advanced Forum on Bad Faith Litigation. This conference has been fully revised and updated to account for new developments and designed to bring winning litigation strategies to even the most experienced bad faith litigators. Our expert faculty will provide effective tactics and insights from both the insurers and the policyholders. Featuring:

Insurers In-house roundtable: this specialized in-house panel will focus on 1) best practices in claims investigation and decisions; 2) settling bad faith claims before a suit is filed; 3) special issues in the life, health & disability arena; 4) dealing with your insured and much more

Viewpoints from the Policyholders Bar: with a session focused on the policyholders bar, as well as policyholder counsel point of view mixed into multiple sessions, don’t miss the chance to hear what key actions (or inactions) could lead your client into litigation.

Discussions with distinguished jurists: this session will provide attendees with highly sought after insight on effective theories and evidentiary issues, from those that have presided over bad faith suits.

Narrowly tailored panel sessions: our narrowly tailored, comprehensive panels will shed light on the most effective ways to manage discovery, recognize bad faith set-ups, properly investigate a claim, understand attorney-client privileges and work products protections, and establish successful pre-trial strategies.

This conference will provide you with the most up-to-date information and strategies on how to get the best result for your client. This is the event the industry relies on to get practical strategies for resolving coverage disputes, mitigating risk and gaining the upper hand in bad faith lawsuits.

Plus, add an extra benefit to your attendance by also registering for the Pre and Post state specific conference workshops: A. Current Events in Bad Faith: Gulf States

Post conference concurrent workshops on Bad Faith HotbedsB. FloridaC. California D. New Jersey

My panel is titled:  “Discovery: Limiting Its Scope, Responding Efficiently to Expansive Orders, Protecting Privilege, Preparing Company Witnesses for Depositions and More.”  Of course, I will not be talking about any of those things.  I will be talking about discovery from the policyholder’s and corporate insured’s perspective.  I’ll discuss how to get discovery from insurance companies, how to discover documents during a bad faith insurance coverage action, how to get an insurance company to produce documents, the role of privilege (if any) for the insurance companies when dealing with a bad faith claim, discovery of reinsurance documents, discovery of reserve documents, discovery of claims manuals, and more.

My co-panelists are:

Charles Ehrlich

SVP and Worldwide Special Counsel

RiverStone resources/TIG Insurance Company

Scott Godes

[formerly] Counsel

Dickstein Shapiro LLP

Gregory D. Miller

Director

Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C.

Michael Newman

Partner

Barger & Wolen

Our topics include:

Depositions, Interrogatories and Other Production Issues

• Having a reason for discovery

• Making the cost-benefiit decision

• Budgeting up front

• Preparing the adjuster or company executive for their deposition

– Understanding the “fear factor”

– The special problems of video depositions

• Proprietary files – can the insured get these files to support a bad faith claim?

– Manuals and guidelines

– Other insureds, policies and claims.

– Reinsurance and reserve information.

• Interrogatories: Knowing what questions to ask

• Requests for admission – the neglected tool

• Dealing with expansive discovery orders and overly broad litigation holds

– Avoiding the knee jerk reaction

• Limiting the extent of pattern and practice discovery

Privilege

• Invoking privilege

• Consequences of when company “anticipated litigation”

• Counsel’s involvement in adjustment process.

• Relying on advice of counsel in defending against bad faith

E-Discovery

• Managing the explosion of ESI

• Understanding your obligations and the consequences of failing to preserve ESI

• Creating an internal process to successfully meet e-discovery obligations

• Methods to successfully limit production of ESI

• Learning the technical stuff

• Understanding the process of organization and being able to explain it

• Educating the court

Costs

• Minimizing discovery costs

– Planning, planning, planning; Non-waiver agreements;

“Eyes-only” agreements; Voluntary/private special master;

Avoiding discovery disputes


Interested in attending?  Click here:
Register Now

Disclaimer:

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 present clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction. The opinions expressed here belong only the individual contributor(s). © All rights reserved. 2011.

Note:  as a speaker at the conference, I will not be charged a fee to attend the remainder of the conference.

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“Pay No Attention To The Insurer Behind The Curtain!”

discovery of reinsurance treaty

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?

Now that I’ve whet your appetite on the subject, click on over to Insurance Law360 to see the article.  Or, check out the reprint here, hosted on Dickstein Shapiro LLP’s website.

Disclaimer:

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 present clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction. The opinions expressed here belong only the individual contributor(s). © All rights reserved. 2009.
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New content coming!

New posts coming!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:

  1. Insurance coverage for an improperly named insured.  The article discusses an insurance company’s duty to defend a lawsuit brought against an insured wrongly named in or served with a complaint.
  2. Insurance coverage for data breaches.  The article discusses the various forms of insurance that should respond to allegations of a data breach.
  3. Discovery of reinsurance in the context of insurance coverage litigation.  Recent cases and other materials have demonstrated that reinsurance is relevant to insurance coverage disputes, and the piece provides both an overview of why and a discussion of new decisions and public information confirming the relevance.
  4. Insurance coverage for trespass to chattels claims.  Trespass to chattels is probably something you’d never think that you’d hear after the first year of law school ended.  But the theory has been used recently in the context of cyber security claims.  The piece discusses insurance coverage for such allegations.
  5. Insurance coverage for cloud computing risks.  Cloud computing is the next big thing, it seems.  Insurance for such risks will have an ever increasing importance as cloud computing becomes more prevalent, and this piece discusses potential sources for coverage for such risks.

Disclaimer:

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 present clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction. The opinions expressed here belong only the individual contributor(s). © All rights reserved. 2009.
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Part 4 of My Speech on Insurance Coverage for Asbestos Non-Products Claims at HB Litigation Conferences

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.

Disclaimer:

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 present clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction. The opinions expressed here belong only the individual contributor(s). © All rights reserved. 2009.

myspace profile views counterNote:  as a speaker at the conference, I was not charged a fee to attend the remainder of the conference.

Part One of My Speech on Insurance Coverage for Asbestos Non-Products Claims at HB Litigation Conferences

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.

For Part 2, click here.  For Part 3, click here.

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Disclaimer:

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 present clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction. The opinions expressed here belong only the individual contributor(s). © All rights reserved. 2009.

Note:  as a speaker at the conference, I was not charged a fee to attend the remainder of the conference.

When is a lawyer not a lawyer? When the lawyer handles claims.

When is a lawyer not a lawyer? When the lawyer handles claims. Perhaps that is an overstatement regarding the title, but when a lawyer handles claims, or gives an insurance company advice in the ordinary course of claims handling business, the communications are not privileged and are not work product. That is true whether the lawyer is in-house counsel or outside counsel.

Not convinced? Case law is clear on this point, but, if you need additional convincing, look at what insurance companies have said about this. When insurance companies get involved with internecine disputes regarding allocation or reinsurance or any number of issues, they often make the same arguments that they dispute when the argument comes from policyholder’s counsel. A good example of this is the recent Southern District of New York decision in AIU Insurance v. TIG Insurance, No. 07 Civ. 7052, 2008 U.S. Dist. LEXIS 66370 (S.D.N.Y. Aug. 28, 2008) (“AIU”).

In typical insurance coverage litigation between a policyholder and its insurance company regarding an insurance company’s denial of coverage for a claim (in whole or in part), the policyholder seeks discovery of communications that relate to the claim and how the insurance company handled the claim. And, in such a typical dispute, the insurance company asserts that if any claims handling documents were copied to, written by, or allegedly created at the direction of counsel, the documents may be withheld on the basis of attorney-client privilege, the work product doctrine, or both.

AIU involved the same scenario, but used the opposite arguments. AIU sued its reinsurer for coverage of a settlement relating to asbestos claims that AIU entered into with its policyholder, Foster Wheeler Corporation. See 2008 U.S. Dist. LEXIS 66370, at *2-*4. After receiving the reinsurance claim, over the course of approximately five months, TIG requested numerous documents from and conducted an audit of AIU. See id. at *4-*7. AIU then sued TIG for failure to indemnify AIU. See id. at *7.

During the discovery process, “TIG withheld and redacted documents on the basis of attorney-client privilege and the work-product doctrine.” Id. AIU refused to accept TIG’s assertions of privilege and work product, and moved to compel: All the documents listed on TIG’s privilege log and the full text of certain documents on TIG’s redaction log[, including] . . . (1) documents relating to TIG’s handling of claims . . . and TIG’s July 2007 audit of AIU’s files and (2) documents relating to commutations between TIG and other insurance companies that purport to show the economic prejudice TIG suffered as a result of AIU’s late notice of Foster Wheeler’s claims. Id. at *8 (footnotes omitted).

From the perspective of policyholder’s counsel, that motion is quite surprising. After all, in insurance coverage actions between insurers and policyholders, insurers argue consistently that the exact information that AIU sought in AIU is privileged.

Indeed, AIU’s arguments, as the court’s opinion’s illustrates, could have been pulled from a policyholder’s brief:

“AIU contends that the documents withheld on the basis of the attorney-client privilege should be produced because they do not involve legal communications (Plf. Mem. at 12). Specifically, AIU argues that many of these documents were not drafted by TIG’s in-house or outside counsel, as reflected by the information provided on the privilege and redaction logs. AIU also claims that numerous documents drafted by Staley and Pascale and not distributed to TIG’s counsel were improperly withheld on the theory that they were prepared “at the direction of counsel.” Lastly, even where the privilege and redaction logs indicate that TIG’s counsel drafted or received a document, AIU contends that TIG’s counsel was acting solely in an investigatory function (Plf. Mem. at 12-13). Id. at *25-*26 (emphasis added).

AIU’s arguments, as summarized by the court, are absolutely correct. Insurance companies cannot rely on attorney-client privilege or the work-product doctrine to withhold communications that reflect claims handling in the ordinary course of business. It is well established that claims handling and analysis is business advice in the ordinary course of an insurer’s business, and communications regarding such advice is not privileged. See, e.g., Brooklyn Union Gas Co. v. Am. Home Assurance Co., 23 A.D.3d 190, 191, 803 N.Y.S.2d 532, 534 (2005) (“[d]ocuments prepared in the ordinary course of an insurance company’s investigation to determine whether to accept or reject coverage and to evaluate the extent of a claimant’s loss are not privileged [and] . . . do not become privileged merely because an investigation was conducted by an attorney”) (citation and internal quotation marks omitted). The AIU court agreed, ordering TIG to produce a number of documents, including claims handling documents created by in-house counsel who was acting in a business capacity for the purposes of evaluating the AIU claims. See AIU, 2008 U.S. Dist. LEXIS 66370, at *28-*32.

The AIU court also followed the principle that insurance companies cannot rely on the work-product doctrine to withhold such documents. “Application of the work-product doctrine to an insurance company’s claims files has been particularly troublesome because it is the routine business of insurance companies to investigate and evaluate claims.” AIU, 2008 U.S. Dist. LEXIS 66370, at *34-*35. Thus, attorney-created “documents in a claims file created by or for an insurance company as part of its ordinary course of business are not afforded work-product protection.” Id. at *35.

Overall, the court applied the same principles that policyholders usually cite when moving to compel claims handling documents. And on that basis, the court granted AIU discovery over a number of documents that TIG had withheld as privileged (and that other insurers attempt to withhold on a regular basis). So, if you are in an insurance coverage dispute, and the insurer asserts privilege or work product protections over claims handling documents created in the ordinary course of business, look to AIU’s successful arguments to support your argument that such documents should be produced.

This was posted originally at Lexis’ Insurance Law Blog.

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Disclaimer:

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 present clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction. The opinions expressed here belong only the individual contributor(s). © All rights reserved. 2009.

Insurance companies’ public filings: chock full of information helpful to policyholder counsel

If you represent policyholders, you’ve heard it countless times from opposing counsel: reserves information is not relevant, and it won’t be produced. And if you represent insurance companies in coverage disputes, you’ve probably repeated it like it’s gospel. Similar arguments are made for other policyholder information: insurers refuse to produce such information, arguing that it’s too burdensome to produce or irrelevant. Case law on the issues is mixed, so it often helps to turn to the facts and the contentions of the parties when moving to compel this information on behalf of policyholders.

Contrary to what their coverage counsel assert in litigation, the insurance companies themselves have made public statements demonstrating that such information is relevant and easily collected. One outstanding resource for this information is the SEC filings made by publicly traded insurance companies. Particularly in the context of latent injury claims, these public statements often refute many, if not all, of insurer-side coverage counsel’s assertions that reserves are not relevant to the coverage dispute at hand, or that it’s too difficult to gather information on other policyholders.

Consider a typical asbestos coverage dispute. In such an action, both sides dispute the meaning of numerous terms, often in standard form insurance policies, or, even if manuscript policies, standard form terms and definitions that were not modified for the particular policyholder. Insurers analyze that exact information in the ordinary course of their business, and they do this a regular basis. They discuss the analyses in detail in their public filings. For example, consider AIG’s Form 10-Q  for the second quarter of 2008, dated August 6, 2008. On page 65 of that filing, AIG reveals that when it sets reserves* for asbestos claims, it engages in a “comprehensive ground-up analysis.” That phrase is telling – it means that AIG considers, in detail, its accounts (i.e., other policyholders) with asbestos liabilities, and studies them to determine the appropriate reserves. As the discussion in the Form 10-Q is a bit limited, AIG refers to its 2007 Form 10-K where additional detail is provided. The 2007 Form 10-K explains, at page 60, that AIG’s “[g]round-up analyses take into account policyholder-specific and claim-specific information that has been gathered over many years from a variety of sources.” In that same filing, at pages 59 and forward, AIG discusses its reserving process for asbestos and environmental claims. AIG explains that its management “continually review[s] and update[s]” its reserves for such claims, which is a tip-off to the types of AIG personnel who are involved with such decisions (helpful when considering depositions) and that the decisions are made in the ordinary course of business (helpful when refuting assertions that reserves are privileged).

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*A reserve is a “provision to satisfy obligations as of a specified date.” See, e.g., Actuarial Standards Board, Actuarial Standard of Practice No. 36, Statements of Actuarial Opinion Regarding Property/Casualty Loss and Loss Adjustment Expense Reserves (Mar. 2000), at 3.  Reserves must meet IRS standards and be reasonable in light of the insurance company’s obligations. See, e.g., Physicians Ins. Co. of Wisconsin, Inc. v. C.I.R., T.C. Memo. 2001-304, 82 T.C.M. (CCH) 918, T.C.M. (RIA) 2001-304, 2001 RIA TC Memo 2001-304 (U.S. Tax Ct. 200).

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More significantly, AIG explains that its personnel “evaluate . . . asbestos and environmental claims utilizing a claim-by-claim approach that involves a detailed review of individual policy terms and exposures.” AIG performs such a review of “[e]ach claim . . . at least semi-annually.” Indeed, “AIG staff produced the information required at policy and claim level detail for nearly 1,000 asbestos defendants. This represented over 95 percent of all accounts for which AIG had received any claim notice of any amount pertaining to asbestos exposure.”

Read that again: AIG staff gathered and analyzed information on over 1,000 policyholders! If AIG can review all its claims on a claim-by-claim approach in the ordinary course of business, for reporting purposes, can it really be unduly burdensome for AIG to produce even just a fraction of that information on other policyholders in the context of a multi-million dollar lawsuit? As AIG is not the only P&C insurer that engages in such reviews, insurers’ protests that requests for information relating to other policyholders – often limited to reasonable numbers, such as twenty other policyholders – is too burdensome, their public disclosures suggest otherwise.

Finally, consider the types of analyses that insurance companies perform when setting reserves for latent injury claims. Again, using AIG as the example, when setting those reserves, AIG “generally evaluates exposure on a policy-by-policy basis, considering a variety of factors such as known facts, current law, jurisdiction, policy language and other factors that are unique to each policy.” For “each significant account [,] . . . AIG’s claim staff [examined the analysis] for reasonableness, for consistency with policy coverage terms, and any claim settlement terms applicable.”

Isn’t that what is at issue in a coverage case: the meaning of “policy coverage terms?” When arguing about the propriety of discovery that is granted beyond the eight corners of the complaint and the policy, these disclosures should suggest that relevant information exists, is created in the ordinary course of business, and would not be too burdensome to produce.

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This was posted originally at Lexis’ Insurance Law Center.

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Disclaimer:

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 present clients. By reading it, no attorney-client relationship is formed. If you want legal advice, please retain an attorney licensed in your jurisdiction. The opinions expressed here belong only the individual contributor(s). © All rights reserved. 2009.