Sterling Education Seminar. Liability Insurance: How Insurance is Written and Why You Need to Know. Alexandrea L. Isaac Hartford, CT Sept.

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1 Sterling Education Seminar Liability Insurance: How Insurance is Written and Why You Need to Know Alexandrea L. Isaac Hartford, CT Sept. 20, 2011

2 The Insurance Contract Contract between the insurance company and the policyholder Standard Contract Principles Policy language determines obligations

3 The Insurance Contract Policy interpretation: The doctrine of contra proferentum ( against the author of proffer ) controls

4 The Insurance Contact When will a court apply the doctrine of contra proferentum? Policyholder must show: 1. Policy language is ambiguous 2. A reasonable interpretation

5 The Insurance Contract Types of Insurance Policies Commercial General Liability Professional Liability Directors & Officers Employment Practices Liability Property Builder s Risk OCIP/CCIP Pollution Homeowners Medical/Dental

6 The Insurance Contract 1 st Party v. 3 rd Party First Party Policies Homeowners Commercial Property Medical/Dental Builder s Risk Third Party Policies Commercial General Liability Professional Liability Directors & Officers Employment Practices Liability Homeowners

7 The Insurance Contract What will trigger a policy? An event; Covered by policy; and During the Policy Period

8 The Insurance Contract Occurrence v. Claims Made Occurrence-Based Commercial General Liability Commercial Property Pollution Claims Made Professional Liability Directors & Officers Employment Practices Liability

9 The Insurance Contract Occurrence/Trigger (cont.) Sample Deemer Clause The definition of Occurrence is amended to include the following provision: In the event of continuing or progressive bodily injury or property damage over any length of time, such bodily injury or property damage shall be deemed to be one occurrence and shall be deemed to occur only when such bodily injury or property damage first commenced.

10 The Insurance Contract Policy Number Named Insured Policy Period Limits of Insurance Deductible or SIR Premium List of Endorsements Policy Declarations

11 The Insurance Contract Knowing the Difference between Deductibles & SIRs Deductible Paid and reimbursed First Dollar Defense SIR Policyholder s responsibility No defense Choice of counsel

12 The Insurance Contract Limits of Insurance Aggregate v. per occurrence Defense inside/outside limits Deductible v. self-insured retention

13 The Insurance Contract Policy Components Insuring Agreement Exclusions Conditions Definitions

14 The Insurance Contract Who is an Insured Entity Organizations added by endorsement Individual Insured Directors, officers and employees

15 The Insurance Contract Layers of Insurance Primary Excess can have multiple

16 The Insurance Contract Excess Policies Catastrophic Loss Follow form

17 The Insurance Contract

18 The Insurance Contract Allocation Multiple policy years 6.25M 6M CUA CUA CUA CUA CUA CUA CUA M WESTCHESTER Per Occurrence Limits 4M 3M 2M 1.25M 1M GL GL RA GL RA NGA NGA NGA NU RELIANCE SIR NGA ICG SIR k SIR SIR SIR SIR SIR SIR 12/31/88 12/31/89 12/31/90 12/31/91 12/31/92 12/31/93 3/1/95 3/1/96 1/31/97 1/31/98 1/31/99 1/31/00 1/31/01 1/31/02 Eff. Dates 12/31/94 1/31/96 12/31/ Policy ICG from 12/31/95 to 1/31/96 is not listed in Westchester's Schedule of Underlying Insurance

19 The Insurance Company s Responsibilities To Defend and Indemnify Look to the Insuring Agreement

20 The Insurance Company s Responsibilities Insuring Agreement Duty to indemnify for claims arising from negligent acts, errors or omissions with respect to professional services

21 The Insurance Company s Responsibilities Defense Obligation Carrier must defend if there is a potential for coverage based on the complaint potential for coverage liberally interpreted Reasonable defense costs

22 The Insurance Company s Responsibilities Duty to Indemnify Liability Falls within terms of coverage

23 The Policyholder s Responsibilities Notice (Occurrence) Notice (Suit) Cooperation No Voluntary Payments

24 The Policyholder s Responsibilities Notice as soon as practicable Late Notice & Prejudice

25 The Policyholder s Responsibilities Cooperation Communication Provide documents Status of events Consent before settling

26 The Policyholder s Responsibilities Voluntary Payment Payment of expenses Unilateral Settlement

27 Umbrella Policies Unlike an excess policy that sits above one policy or tower of coverage, an umbrella policy sits above of and in between specifically scheduled insurance policies.

28 Umbrella Policies Two ways to reach an umbrella policy Exhaustion of primary Primary does not cover (may cover)

29 Umbrella Policies If picking up coverage that to which this is no primary coverage a deductible or SIR may apply. If primary is exhausted the umbrella may have duty to defend.

30 Common Coverage Disputes Coverage Analysis Is claim within scope of insuring agreement? (Check endorsements) Does exclusion eliminate or restrict coverage for claim? (Check endorsements) Are there any exceptions/qualifications to exclusion which restore coverage?

31 Common Coverage Disputes Coverage Analysis Have policy conditions been satisfied? What are the limits for the loss? Are there any deductibles, SIRs, or co-pays? Is insured entitled to supplementary payments, interest, etc?

32 Common Coverage Disputes Are you an insured?

33 Common Coverage Disputes Additional Insured Typical additional insured situations: Landlord-tenant/lessor-lessee Contractor-subcontractor Vendor-vendee AI has same rights and obligations as Named Insured Limits are shared

34 Common Coverage Disputes Does the exclusion apply?

35 Common Coverage Disputes Exclusions Construed narrowly Conspicuous, plain and clear Exceptions construed broadly Burden of proof is on insurer

36 Insurance Coverage Litigation Insurance Coverage Litigation: What to Expect Denials/RoR Choice of Law/Venue issues Voluminous Special Defenses Missing Policies

37 Insurance Coverage Litigation Insurance Coverage Litigation: Potential Claims Against Insurers Declaratory Judgment Breach of Contract Bad Faith Breach of Fiduciary Duty UTPA/UIPA Misrepresentation Fraud Spoliation

38 Insurance Coverage Litigation The Declaratory Judgment Action

39 Insurance Coverage Litigation Anatomy of a DJ Action DJ actions seek a judicial declaration of the rights and obligations of the parties. DJ actions are pursuant to statute and may be brought in Federal Court (Federal Declaratory Judgment Act) or State Court.

40 Insurance Coverage Litigation Anatomy of a DJ Action (cont.) Typically brought by insured when insurer denies coverage and underlying claim is pending Alternative for insured is to sue insurer for breach and seek damages Viability of DJ action: Not affected by noaction clause in policy Can be brought to resolve coverage issues among multiple insurers

41 Insurance Coverage Litigation Anatomy of a DJ Action (cont.) Conditions for DJ: 1. Party seeking declaratory judgment has an interest, legal or equitable, as to party s rights or other legal relations; 2. There is actual bona fide and substantial question or issue in dispute or substantial uncertainty which requires settlement; 3. Even if alternate procedure exists, court is of opinion that party should be allowed to proceed with claim for declaratory judgment.

42 Insurance Coverage Litigation DJ Action - Strategy Choice of Law/Conflicts of Law Insurance coverage law is state specific Specific state s law may be outcome determinative

43 Insurance Coverage Litigation DJ Action Strategy - Example A. Policyholder in NJ B. Insurer in Illinois C. Broker in NY NJ law on issue favors policyholder Illinois law on issue favors insurer Conflicts of Law place of contracting v. most significant relationship test

44 Insurance Coverage Litigation In Closing CGL is litigation insurance Give notice early and often Never destroy policies

45 Thank You! Alexandrea L. Isaac Saxe Doernberger & Vita, P.C.

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