The Relationship Between the Carrier and Defense Counsel

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1 CONSTRUCTION LAW From the Carrier s Perspective By Marie Roehm and Mary Ann Vorndran The Relationship Between the Carrier and Defense Counsel The key word for all aspects of these lawyerclient relationships, including the relationship of defense counsel to the insured, is communication, preferably timely, knowledgeable and helpful communication. This article surveys the relationship between defense counsel and the defending carrier, also known as the insurer, in the defense of an insured in one or more construction defect proceedings. This relationship is actually three-sided, or tripartite, with the insured as the focus. Other articles address the complex relationship created when an insurer defends an insured using counsel selected, instructed, and paid by the insurer. The rules and guidelines for that relationship vary among jurisdictions and are beyond the scope of this article. In this article, we attempt to convey an insurer s perspective, expressing some of a carrier s concerns and interests. Here we give priority to the relationship between the defending lawyer and the carrier; however, the article of course includes references to an insured client and the paramount duty of both to defend it diligently. We consider three aspects of the defense counsel- carrier relationship: (1) its formation, (2) the defense of the insured in a single set of claims and (3) the maintenance of the lawyer- carrier connection when the lawyer is retained by the carrier to represent different insureds in distinct proceedings. The key word for all aspects of these lawyer- client relationships, including the relationship of defense counsel to the insured, is communication, preferably timely, knowledgeable and helpful communication. For defense counsel to perform well, she or he must understand what the insured and what the insurer each need and want and be able Marie Roehm is claim supervisor and staff counsel for Blair & Company in Valencia, California, a thirdparty administrator and insurance services company. Ms. Roehm, a lawyer with extensive coverage and claims handling experience, oversees claims management on multiple programs, handles complex claims, audits and other projects, and provides legal advice. Mary Ann Vorndran is claims manager for the Navigator s Group, Inc., in Stamford, Connecticut, an international commercial property & casualty specialty insurance company. Ms. Vorndran has over 24 years of commercial insurance experience, with an emphasis on commercial construction claims and construction defect. 50 For The Defense June 2014

2 to explain how she or he will take care of each client. This article is addressed to defense counsel, although it may be of some interest or use to claim representatives and others as well. Formation of the Defense Counsel-Carrier Relationship When someone learns that she or he is involved in a construction defect claim, one of the first questions asked is Do you have insurance? The claimants and the targeted parties builders, sellers, developers, subcontractors, design professionals all look for insurance as a source of money for investigation and evaluation, for repairs, for settlement, for damages awards, and for the lawyers that usually become involved. A targeted party may retain its chosen lawyer and then, if it has applicable insurance policies, seek to have the lawyer continue as its defense counsel. Whether or not a carrier agrees to this arrangement depends in part on the wording of the applicable policy and in part on the qualifications of the proposed defense counsel. For example, under California Civil Code section 2860 (c), which allows an insured to select its own defense counsel under certain circumstances, [w]hen the insured has selected independent counsel to represent him or her, the insurer may exercise its right to require that the counsel selected by the insured possess certain minimum qualifications which may include that the selected counsel have (1) at least five years of civil litigation practice which includes substantial defense experience in the subject at issue in the litigation, and (2) errors and omissions coverage. The insured seeking to have its brotherin-law the criminal attorney represent it is unlikely to be as successful as the insured asking the carrier to consent to a defense by an experienced civil litigator with some background in construction. Yes, we have seen such requests. A carrier may also reasonably request evidence of professional liability insurance on the law firm and some type of support team or network. A lawyer who is part of a law firm with other lawyers, paralegals, and administrative assistants can more reliably do the job and receive assistance adequately in the event of a personal distraction than a one person enterprise. Upon learning of an actual or potential construction defect claim, many targeted parties give notice of the claim to the party s insurance broker, which in turn notifies at least one insurer that issued a policy naming that party and preferably tenders the defense and indemnity of the claim to all policies known to have been purchased by that party, usually asking that defense counsel be appointed. A search may also be undertaken for other insurance policies naming the party as an additional insured or providing coverage to an indemnitor of the party so that those policies may receive notice and invitations to join the defense. This practice reflects the fact that most commercial general liability policies issued to developers, builders and subcontractors include a duty to defend and provisions giving control of the defense to the insurer. Professional liability policies, D&O policies, and other types of insurance policies may have different provisions. When a commercial general liability carrier learns of a claim against an insured, after its initial determination of potential coverage for the claim, the carrier usually selects and assigns defense counsel. Many carriers have a list of approved law firms or individual lawyers, sometimes known as panel counsel, from which they routinely choose firms or lawyers to defend insureds. How does a lawyer or law firm get on such a list? First, you must somehow acquire construction defect defense experience, a support team, and professional liability insurance. Working for other construction defect lawyers or representing construction industry clients or both are the usual paths to acquire some expertise. Lawyers with a background in architecture, engineering, hands-on construction, or claims administration have a head start. Second, you must learn about each carrier that you want to represent. Is it domestic or foreign? What kind of policies does it write? Does it have in-house claim administration or use a third-party administrator (TPA)? Who currently administers its construction defect claims? Who selects defense counsel? Claims handlers are the daily contact point, but the people deciding which firms are approved are usually higher up. What is that specific carrier s approach to claims handling? From the practical standpoint, what hourly rates will that carrier pay and what are its case management guidelines, billing formats, reporting timetables and other requirements? For example, does that carrier Many carriers have a list of approved law firms or individual lawyers, sometimes known as panel counsel, from which they routinely choose firms or lawyers to defend insureds. prefer flat fee billing? What, if anything, can you charge for travel time? Then you can again ask, do you want to work for that carrier? Third, you establish contact with the appropriate people and promote yourself. We leave the specific details to your imagination. Attending industry events such as DRI seminars and meetings is one way. Good communication will be very important during this process. Learning a specific carrier s structure, operations and philosophy carries over into the second stage of the relationship, defending an insured on behalf of a carrier. Sending a timely communication to an insured telling it who will be its defense lawyer for a claim marks the transition. Counsel-Carrier Teamwork: Defending a Claim Against an Insured Most carriers have a formal or informal set of guidelines for defense counsel. The details will vary. But the concern that certain timetables be met and certain parameters satisfied are typical. Remember that such guidelines vary from carrier to carrier and that you will not necessarily receive a printed list. Make it a priority For The Defense June

3 CONSTRUCTION LAW regardless to find out what is expected of defense counsel. The time that each claim representative has to review reports and to conduct an independent case analysis and evaluation varies from carrier to carrier and desk to desk. Ask what information a carrier wants and needs. Remember that the claim representative will have documents and Claims handlers are the daily contact point, but the people deciding which firms are approved are usually higher up. What is that specific carrier s approach to claims handling? information that you may want and need, too. For example, ask about other claims against the same insured. On a more technical level, find out what form of communication and what format is preferred so communication is rapid and clear. Does a carrier prefer , telephone calls, or letters? Make sure that your software and servers can send and receive the size and type of documents that the carrier s software and servers accept. Do not have gaps in communications of substance because the form is incorrect or you cannot handle the volume. How to defend a construction defect claim properly is beyond the scope of this article. But in addition to doing your job as a defense lawyer, there is much that you can do to facilitate a carrier s contribution to the analysis and defense of the claim and thus bring about a faster, more reasonable resolution for an insured. Other Insurance When it becomes necessary to defend an insured, all applicable insurance policies should be identified, the proper contact information for each obtained and tender of the defense of the proceeding made on 52 For The Defense June 2014 behalf of the insured. If your carrier does this and does not want your assistance, or if someone has already done it, you still must have a list of policies, tenders, and responses, both to protect the insured s interests and so that you can prepare to respond to typical discovery and inquiries by mediators. Very possibly you will make tenders in the insured s name. If so, you will need certain information from the insured, its insurance broker or brokers, and possibly the carrier. From an insured s policy application a carrier will have information about earlier or subsequent policies. A carrier may also have information from other claims involving the same insured. You may have to coordinate reporting and billing to more than one carrier, possibly using different billing software or reporting formats. Further, you may have to work with legal cost management vendors retained by a carrier. In these situations effectively communicating with your claim representative or carrier contact can make your life easier. Your billing staff may have to track retentions, bill and collect different percentages of each bill from different carriers, or otherwise do more than total up fees and costs and note amounts paid. So they will need flexibility. If excess insurance may become involved, that carrier may monitor the case at first and later become more directly involved. Again, this may fall into your to do list or be handled, at least during the monitoring stage, by the claim representative. Another task that a claim representative or a defense counsel may do is to prepare a time on risk matrix regarding available insurance that calculates the percentages of any settlement or judgment that each policy or carrier will pay or which claims or homes are allocated to each policy or carrier. Further, if you represent a general contractor or developer, creating and using an additional insured matrix will assist you with tracking and creating reports on the status of tenders and participation. Policy Limits Contemporary commercial general liability policies often include defense expenses inside the policy limits. In this scenario, if your projected defense budget and the possible size of a claim may exceed the applicable policy limits, a number that you need to ascertain for each participating policy, you need to be aware of the costs associated with defending your client. Some cases may require careful planning and evaluation to avoid spending money that you will need for a settlement or a defense that you might conduct effectively for less. You have to gauge an insured s and the carriers interests carefully in these situations. When a formal settlement demand that an insured receives exceeds the available policy limits, each jurisdiction has procedures specifying how such a demand must be treated. You must discuss with an insured and the carrier or carriers the merits of the demand and how to respond best. You need to know the specific duties of an insurer in this situation in your jurisdiction. Similarly, if multiple claimants make demands that collectively exceed the available policy limits, you need to be aware of the law of your jurisdiction guiding carriers in such situations. Some states allow insurers to settle multiple claims on a first come, first served basis even if that ultimately exhausts a policy, leaving later claims partially or entirely undefended and unpaid. Others call for a collective approach. The case law addressing these situations arose at a time when most policies paid defense costs separately from the policy limits. Now that defense costs are usually included in the policy limits, acting in good faith when defending and settling claims requires considering that additional factor. So plan your settlement strategy accordingly and be prepared to explain it to your insured client and any involved mediator. Reserves and Settlement Authority To meet regulatory requirements, estimate the money needed to fund a settlement or judgment, to run an efficient business, and to pay the attorney bills, a carrier must establish reserves, or projected estimated costs, for the defense and indemnity of each claim. These case reserves will be based in large part on your reporting. A carrier appreciates your detailed, thorough analysis of a claim and your detailed budget, which will change as a claim progresses. Case reserves are important to defense counsel because they relate to settlement

4 authority. Learn your carrier s procedures and timetables for setting reserves and granting settlement authority, which normally does not exceed a reserve. Many carriers require that they review a request for settlement authority for a settlement that exceeds a certain amount for which the claim representative has desk authority, which can mean that a supervisor or higher manager and sometimes a roundtable of persons who meet periodically will review the request to settle. A TPA is often required to obtain authority above certain thresholds from the insurer. This takes time. How many mediations or settlement conferences have you attended that stalled because certain parties had inadequate or no settlement authority and could not obtain it for days, weeks, or even months? This wastes everyone s time and money: yours, an insured s if he or she must attend, and a carrier s. This does not mean that every mediation has to have the potential to result in a settlement that day. Many initial mediations benefit the parties by eliciting and sharing information and arguments so that a reasonable evaluation can be made. It is prudent to prepare the insurer for when the time comes to put money on the table. Although, carriers have different reserving philosophies and practices, a good rule of thumb is to keep in mind that a carrier s reserves most likely will be based on the range of likely outcomes, not on your best day in court. Similarly, your evaluation of a claim and your requests for settlement authority should take into account the possibility that your arguments will not all prevail or that the claimant s testimony will be more convincing than your client s version of events. Your evaluation of the case should be realistic. Every claim representative has suffered the last minute scramble when defense counsel suddenly ups the amount recommended for settlement by a factor of 2 to 10, due to new information or a convincing mediator and whether an increase in settlement authority is warranted to resolve the claim and avoid the cost of a trial. By all means believe in your case and project confidence that an insured s exposure is modest or nil when dealing with opposing counsel and a mediator or judge, but do not blind yourself to the potential strength of the opposition s case or blue sky your evaluation to a carrier. A carrier that has inadequate reserves and does not have time to follow normal procedures for increasing a reserve is subject to criticism during an audit by the carrier itself, excess insurers and reinsurers. This creates stress for the claims personnel involved, and you will not have made friends in the process. One strategy for addressing a gap between your belief about an offer and a settlement amount and a possible higher amount is to be prepared in advance of final negotiations and request that your claim representative or carrier consider granting some additional authority if you may later need it. This allows you to include in your settlement negotiation a step in which you must go ask for more money, if warranted, yet you attempt to hold the desired line. If additional authority is arranged as needed, you may still protect the carrier but the carrier is briefed about unanticipated and unreserved increases. The Insolvent or Absent Insured Defense counsel should be up to date on the law of the jurisdiction and venues related to the representation and appearance of insolvent insureds, whether they are simply out of money or formally bankrupt, or absent insureds, whether they are dissolved or missing and undetectable. If you need to appear or to intervene on behalf of a carrier, to possibly file a notice of a bankruptcy stay, to possibly submit discovery responses compiled without input from an insured without incurring sanctions, or otherwise take such extraordinary extra steps, you should be prepared. Medicare Reporting for Bodily Injury Claims Bodily injury claims from construction defects are uncommon, fortunately. Mass accidents such as the Hyatt sky bridge collapse in Kansas City are rare. We see only a few homeowners unlucky enough to be next to the cabinet that falls off the wall or under the dropping candelabra. However, the number of claimants alleging claims from moisture, mold, spores, fungi, and similar sources continues to grow. We also see some claims for physical symptoms from emotional distress allegedly due to the construction defect or the claim process, such as when any destructive testing might cause a heart condition. Federal law, and in particular Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (Section 111), imposes on insurers mandatory reporting requirements and possible federal liens on claim payments with respect to certain claimants who receive compensation from liability insurance with respect to medical expenses or a release of medical liability for medical expenses. Carriers are required to identify which claimants have received benefits or are eligible for benefits from Medicare or Medicaid. Whenever a construction defect claim includes a bodily injury or medical component, the carrier must comply with the applicable laws and regulations. The initial reporting and screening process usually takes days. Then if eligibility is confirmed, the claim and any settlement or award will have further reporting requirements. The carrier and its representatives face liabilities and penalties if this is not done. As a result, you may be asked to obtain each claimant s Social Security number and other relevant information that claimants often do not want to provide. This information, especially the Social Security number, needs to be handled with care and protected from casual disclosure and misappropriation. Special reporting and data storage procedures may be needed. Some carriers contact claimants directly to get this information; others use defense counsel. Some defense counsel have standard discovery requests for this purpose. Keep in mind that if this information is requested and not provided, a carrier may be unable to authorize settlement on other than a conditional basis, subject to receiving and processing the information. Bodily injury and medical claims also often involve coverage issues distinct from the property damage claims. Different policies or years or limits of coverage may be involved, since the time when the claimant suffered an injury, which often triggers coverage, may differ from the time when the alleged property damage occurred. Depending on the circumstances, Coverage C, Medical Payments may offer a source of limited settlement funds that can For The Defense June

5 CONSTRUCTION LAW resolve or ameliorate some claims without needing to be paid under the formal Bodily Injury limits. Found in many commercial general liability policies, Coverage C provides, more or less, depending on the policy form, that a carrier will pay medical expenses as described below for bodily injury caused by an accident: You may have to coordinate reporting and billing to more than one carrier, possibly using different billing software or reporting formats. Further, you may have to work with legal cost management vendors retained by a carrier. (1) On premises you [the insured] own or rent; (2) On ways next to premises you own or rent; or (3) Because of your operations; provided that: (1) The accident takes place in the coverage territory and during the policy period; (2) The expenses are incurred and reported to us within one year of the date of the accident; and (3) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. b. We will make these payments regardless of fault. ISO Form CG This Medical Payments amount available under Coverage C is usually about $1,000 $5,000 per person. Check the specific policy for the premises involved and 54 For The Defense June 2014 the amount of the policy limit. If an insurer does pay under Coverage C and does not obtain a complete release of liability, be sure to have the claimant sign an acknowledgment that this payment is not an admission of liability or coverage. Coverage Issues Defense counsel should not be caught between an insured and an insurer when there is a reservation of rights or partial denial of coverage or any situation other than total coverage with enough policy limits to defend and pay. However, you cannot keep your head in the sand. To know how to advise an insured about the limits of insurance coverage via your representation and about an insured s possible exposure to liability that a policy may not cover and to be able to negotiate with claimants effectively, you need to have some grasp of coverage issues involved in a claim when you defend one. You can ask your claim representative to participate in negotiations if necessary or to explain some issues to an insured, but you need to know what is going on. Read the reservation of rights letter sent to an insured if one issued and is available to you, read the policy, and get a grasp of the issues. If coverage counsel becomes involved for an insured or a carrier or both, communicate with them. Representing Multiple Parties You may be asked to represent both a business and its principal or chief executive. You may be asked to represent both a tile installer and a fence builder. Whether you are governed by the ABA Model Rules, the California Code of Ethics, or another set of professional standards, representing multiple parties requires careful analysis of actual and potential conflicts and often the execution of waivers or consent forms. Undertaking this analysis is your responsibility as defense counsel and deciding whether or not you can properly represent more than one party ultimately is your decision to make. An insured with multiple parties often prefers joint representation, and most carriers welcome the cost savings. However, your ethical duty is to your clients, the insureds and the carrier. This means that you must decide whether you can do this. Again, good communication will help you analyze the situation well, make the decision, and then explain the result to your clients. Educating a Carrier in General Whether the subject is the procedural options for an absent insured, the requirements for responding to a demand in excess of policy limits, the grounds for a motion for summary judgment, or some other relevant issue, be ready to explain the law and practice in your jurisdiction and venue to your claim representative. She or he may or may not be familiar with ins and outs of particular proceedings. Many claims representatives deal with claims across multiple jurisdictions. Despite diligently satisfying their continuing education requirements and experience in some settings, your claim representative may not be familiar with the issues or rules that apply to a claim. Determining the degree of education or explanation needed or wanted is another function of good communication. Maintaining the Counsel- Carrier Relationship Once defense counsel has done a good job and satisfied a carrier defending one insured in one proceeding, getting a second assignment becomes easier. If that sequence evolves into becoming approved or panel counsel, a book of business may result. The process for becoming panel or approved counsel varies from carrier to carrier; again, find out the requirements and personnel of the carriers that you serve. You never stop checking in with a carrier to be sure that you satisfy them while appropriately defending your client insured. Defense counsel still must do a competent job for each insured, but now, without compromising the commitment to each individual insured, defense counsel must also keep the big picture and a carrier s interests in mind. Ideally, defense counsel consistently follows a carrier s claims handling guidelines and matches or exceeds the performance of other defense counsel. You do not want insureds to complain that you ignored them or did a poor job. Yes, we know that every insured that you represent contends that he or she did a perfect construction job and resents having to pay the deductible and being accused of poor workman-

6 ship, but that is not your fault. Settlements are usually reasonable and verdicts may not be excessive. Indeed sometimes they are even favorable. Claims representatives will like to work with you because you make their jobs easier. You understand what they are trying to do. You treat them with respect. Management sees good numbers on audits, and they look good because they have properly reserved files with reasonable defense to indemnity ratios. You have or your supervising partner has good communication with the carrier personnel running the claims department and selecting counsel. The number of unpleasant surprises has been minimal, and in hindsight they were unpredictable or unpreventable events. Much of this, again, rests on doing your homework and keeping in touch. One common means of improving your relationship with a carrier is doing a presentation on relevant law and procedure for the claims handlers. Another is visiting with the claims handlers or management. Offer to do this and see the response that you receive. Management of a nationwide claims operation will not have time to entertain visits from defense counsel if counsel from all 50 states visited annually and thus may discourage such visits. However, a local claims staff may benefit from a lunch presentation for which you can also receive CLE credit. Communicate and find out what benefits a carrier. Assuming quality standards are met and we have seen an impressive number of excellent defense counsel over the years sooner or later money becomes a central topic of discussion. You would like to be paid appropriately; the carrier wants to be sure that it is not paying too much. In concluding, we recommend again research and communication so that you each meet your goals. May you have good results in all your assignments and a good relationship with your carrier clients! For The Defense June

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