Products Liability and Insuring Protection. ForanGlennonPalandechPonzi&Rudloff PC

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1 Products Liability and Insuring Protection ForanGlennonPalandechPonzi&Rudloff PC

2 Personal Injury Property Damage Economic Loss

3 User (consumer) of ultimate product containing spring gets injured or dies. Employee of customer integrating spring into ultimate product gets injured or dies.

4 Ultimate product containing spring damages other property. Spring damages customers property during integration into ultimate product

5 Product defect results in poor or inadequate performance or Risk of Personal Injury or Property Damage Delay Product Recall

6 Personal Injury Consumer/Employee of Customer Product Liability Design Defect Manufacturing Defect Failure to Warn Customer Warranty (contractual) Indemnification (Contractual and Common Law) Breach of Contract

7 Property Damage Third Party Negligence Warranty Strict Tort Liability Customer Negligence Warranty Strict Tort Liability

8 Economic Loss Warranty Breach of Contract

9 Claim or Suit for Bodily Injury and Property Damage Economic Loss Generally Not Covered (no occurrence)

10 Boundaries of Legal Remedies and Insurance Coverage are not the Same.

11 Property Damage means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it.

12 Property Damage to impaired property or property that has not been physically injured, arising out of: 1) A defect, deficiency, inadequacy or dangerous condition in your product or your work ; or 2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to your product or your work after it has been put to its intended use.

13 Impaired property means tangible property, other than your product or your work, that cannot be used or is less useful because: a. It incorporates your product or your work that is known or thought to be defective, deficient, inadequate or dangerous; or b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by the repair, replacement, adjustment or removal of your product or your work or your fulfilling the terms of the contract or agreement.

14 Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: 1) Your product ; 2) Your work ; or 3) Impaired property ; if such product, work, or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it.

15 Consult with your Broker Submit Claim if any Chance for Coverage Insurer: Acknowledges coverage and pays for defense and any indemnification Defends under a reservation of rights Denies Claim and sues for Declaratory Judgment

16 If Coverage is Acknowledged Selection of Counsel Settle or Go to Trial Discovery and Litigation Decisions If Insurer Defends Under a Reservation of Rights Selection of Counsel Settle or Go to Trial Discovery and Litigation Decisions Litigation Position Adverse to Coverage

17 If Insurer Denies Claim: Possible Declaratory Judgment Action Loss of Policy Defenses Other Than Coverage Should Carrier Deny Claim

18 No Right to Selection of Counsel unless such Right is Written into Insurance Policy (typically an underwriting consideration at enhanced premium) Insurer Refusal to Settle for Policy Limits gives rise to Insurer Exposure for Bad Faith Duty to Cooperate is a Condition for Coverage. You can turn that Duty into a Benefit by Demanding that Attorney Inform you on Case Status/Progress/Strategy. Chinese Wall between Insurer Appointed Counsel and Insurer

19 What is your Exposure?? Know Your Contract What are you in store for?? Demand a litigation plan and budget What do you want to achieve?? Vindication Fiscal Sanity Business Relationship

20 Presentation Provided by: ForanGlennonPalandechPonzi&Rudloff PC Attorneys: Thomas B. Orlando & Douglas J. Palandech 222 N. LaSalle, Suite 1400 Chicago, IL Main: Fax:

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