Corporate Counsel and Business Insurance: Interfacing With Risk Management

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1 Corporate Counsel and Business Insurance: Interfacing With Risk Management ACC Legal Quick Hit John Kazanjian and Nicole Weinstein December 10, 2015

2 Top 5 Tips

3 Pollution Legal Liability Contractor s Pollution Environmental Impairment Business Interruption Directors & Officers OCIP Remediation Stop Loss PREMIER PROPERTY #1 Review Your Policies COMMERCIAL UMBRELLA Excess Liability Cost Cap Professional Liability Contingent Business Interruption Commercial General Liability Errors & Omissions Underground Storage Tank Pollution Property 3

4 Know Your Program: Policy Examples Commercial General Liability Commercial Property Umbrella & Excess D&O E&O Environmental / Pollution Legal Liability 4

5 Counsel s Role before Coverage Is Bound ü Talk to your risk manager ü Review the policy application ü Review the policy itself before binding Ø Choice of law and arbitration provisions Ø Standard form vs. Manuscript policies 5

6 Tip # 2: Know a Claim When You See One

7 CGL Example 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. 18. "Suit" means a civil proceeding in which damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies are alleged. "Suit" includes: a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 7

8 Example Claim Definition in a Professional Liability Policy 8

9 Example Claim Definition in a Pollution Policy 9

10 Coverage Beyond a Claim 10

11 Tip #3: Give Notice

12 Notice of Potential Claims Duties in the Event of Occurrence, Offense, Claim or Suit a. You must see to it that we are notified as soon as practicable of an occurrence or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the occurrence or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the occurrence or offense. 12

13 Notice of Claims or Suits Duties in the Event of Occurrence, Claim or Suit (Cont.)... b. If a claim is made or suit is brought against any insured, you must see to it that we or our authorized agents receive written notice of the claim or suit as soon as practicable. c. You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or suit 13

14 Notice to Excess Carriers What s the potential exposure? What does the policy say? Duties in the Event of Occurrence, Claim or Suit 1. You must see to it that we are notified as soon as practicable of an occurrence which may result in a claim for damages under this policy. To the extent possible, notice should include: a. How, when and where the occurrence took place; b. The names and addresses of any injured persons and witnesses; and c. The nature and location of any injury or damage arising out of the occurrence. 14

15 Claims Made Notice If not reported during the policy period, the policy provides no coverage But sometimes there is an Extended Reporting Period 15

16 Claims Made Notice Once notice has been given, subsequent claims may relate back 16

17 Tip #4: Find Coverage from Someone Else

18 Potential Sources Predecessor or Successor Owner/Tenant Indemnitors Purchase Agreements Operating Agreements Vendor Agreements $ And make sure to get a copy of the policy to review! 18

19 Tip #5: Don t Take No for an Answer

20 Summary: Top 5 Tips 1. Review your policies 2. Know a Claim when you see one 3. Give notice 4. Get coverage from someone else 5. Don t take no for an answer 20

21 Questions? John H. Kazanjian Principal New York Insurance Coverage (212) Nicole B. Weinstein Associate New York Insurance Coverage and CERCLA (212) John H. Kazanjian is the Managing Principal of Beveridge & Diamond, P.C. s New York, New York office and a member of the Firm s Management Committee. He also chairs Beveridge & Diamond s Insurance Coverage and Recovery practice. Mr. Kazanjian has over thirty-five years of experience in complex civil and commercial litigation, including trials and appeals in federal and state courts throughout the country. Nicole B. Weinstein focuses her practice on insurance recovery, environmental litigation, and regulatory matters. Nicole excels at identifying avenues of coverage and defense, and in distilling complicated requirements into understandable terms. Ms. Weinstein serves as co-chair of the Emerging Issues Subcommittee of the American Bar Association s Section of Litigation Insurance Coverage Litigation Committee. Thank You! This presentation is not intended as, nor is it a substitute for, legal advice. You should consult with legal counsel for advice specific to your circumstances. This presentation may be considered lawyer advertising under applicable laws regarding electronic communications. 21