When Do You Call a Coverage Lawyer?

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1 When Do You Call a Coverage Lawyer? From the perspective of the client, in-house counsel, and plaintiff counsel. Presented by ABA TIPS and Section of Litigation Insurance Coverage Litigation Committees Hosted at the offices of Neal, Gerber & Eisenberg LLP All too often, the insurance coverage lawyer is an afterthought in the litigation process. The players are familiar plaintiff s personal injury or class counsel, defense counsel retained by the policyholder or primary insurer, and claims representatives for the primary and excess insurers. The periphery includes the policyholder s general counsel or risk manager and the excess insurers monitoring counsel. Why would anyone call a coverage lawyer? This panel will focus on recent experiences in which coverage counsel, both on the policyholder and insurer side, were retained to play an important part in the litigation and settlement process. Jill Berkeley (TIPS) and Angela Elbert (Litigation), Co-Chairs and Moderators, Neal Gerber & Eisenberg, Chicago Panelists: Patti Bobb, Law Offices of Patti Bobb, Chicago, Illinois Karen J. Golden, Director, Risk Management, Kraft Foods, Inc., Northfield, IL Michael S. Franklin, Director - Specialty Strategic Claims, CNA Insurance, Chicago, IL Continuing Education Credits This program is approved for 1.0 Illinois MCLE credit hours Neal, Gerber & Eisenberg LLP Two North LaSalle Street Chicago, IL

2 American Bar Association TIPS & Litigation ICLC Regional Meeting January 9, 2013 PANEL: WHEN DO YOU NEED A COVERAGE LAWYER? Mediation: Coverage Lawyer as Captain of the Settlement * Jill B. Berkeley Neal, Gerber & Eisenberg LLP Chicago, Illinois MEDIATION: COVERAGE LAWYER AS CAPTAIN OF THE SETTLEMENT All too often, the insurance coverage lawyer is an afterthought in the process of settling complex, catastrophic claims, particularly in those cases in which the primary insurer defending the claim has not reserved rights. The players are familiar plaintiff s personal injury or class counsel, defense counsel retained by the primary insurer, and claims representatives for the primary and excess insurers. The periphery includes the policyholder s general counsel or risk manager and the excess insurers monitoring counsel. Why would anyone call a coverage lawyer? Mediation is a standard step in every case management playbook. What also should be standard, however, is to build in a process to establish the timing for mediation, the preparation for the mediation, and the strategy for securing a successful outcome. Unfortunately, none of the familiar players has the incentive to take charge of the process. Relying on the mediator, alone, no matter how skilled or experienced, is a recipe for disaster. The key to managing the settlement process and filling the gap in crucial pre-mediation communications among the plaintiff, the policyholder defendant, the primary and excess insurers and the mediator is to retain coverage counsel, sometimes designated as settlement counsel or special monitoring counsel. The plaintiff, the policyholder defendant, or the insurer can initiate the engagement. * Originally prepared for the ABA Section of Litigation 2012 Insurance Coverage Litigation Committee Women in Insurance Network Conference, October 18, 2012 Note: The comments and views expressed in this paper are solely those of the author s and can not be attributed to her firm or her clients.

3 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley I. STEPS IN THE PROCESS 1. Communicate with the defense lawyer (a) (b) (c) Meet and work with the defense attorney to understand what his/her prior evaluation has outlined in terms of liability and damages. Determine if the prior evaluation of liability and damages indicates an actual or potential conflict between the interests of the policyholder and the insurer. Create an alliance with the defense lawyer by delineating the distinct and complementary roles played by the defense lawyer and settlement counsel, explaining that the inclusion of settlement counsel means that the defense lawyer no longer has to be in the middle of the conflicting interests of the policyholder and insurer. Determine if adequate information concerning liability and damages has been provided to the insurer representatives, especially excess layers. 2. Communicate with the plaintiff s attorney, explaining that: (a) A potential action for bad faith failure to settle will require the plaintiff to make a settlement demand that: (i) (ii) (iii) (iv) Explains why a potential jury award is reasonably likely to exceed available policy limits; Sets a reasonable deadline for a response so that the claim adjuster has sufficient time to evaluate the defense file and procure adequate settlement authority; Makes a demand for policy limits (subject to confirmation of amount of remaining limits); and Provides a full release for the policyholder or sufficient consideration to support payment. (b) (c) The worst result for plaintiff is that limits may be paid. Plaintiff must be willing to participate in mediation with neutral, in order to provide insurer with opportunity to explore potential to settle for less than policy limits. 3. Work with the defense attorney, the plaintiff attorney, and the insurers to pick the mediator. 4. Convince the policyholder that it must be willing to acknowledge there is a reasonable probability that damages will exceed policy limits and have it demand that the insurer(s) pay full policy limits, if necessary, to settle the claim. 2

4 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley 5. Take charge of communicating with the insurers (a) (b) Provide the insurers with information regarding liability and damages to support the demand and an opinion to support potential for excess liability. Plot out the timeline between when information is provided to insurers, when they should be responding, and when mediation will occur. 6. Understand what the insurers response to the plaintiff s demand will be prior to the mediation. 7. Share the information with the mediator in advance of the mediation. 8. Meet with the other defendants and their counsel to work out a strategy for making offers before and during the mediation. In some cases, not all these steps will be necessary. In other cases, the settlement counsel may have to come up with creative ideas for how to make an end run around other arguments. For instance, settlement may be complicated by multiple layers of policies that may have to be exhausted, one by one, before being able to dismiss the litigation in its entirety. The plaintiff may have demands for settlement that involve non-insurance assets, for which he insists the policyholder provide. Whatever the issue, settlement counsel with a background in coverage litigation should have the experience to maneuver around the insurance issues. II. BE READY FOR THE INSURER S ARGUMENTS All too often, insurers will create obstacles to the mediation and settlement timing and process. Settlement counsel needs to be prepared to respond to whatever issues are raised. Her experience in dealing with these situations is an advantage to anticipate the hurdles that have to be overcome. By no means exhaustive, the following are examples of typical insurer positions and bad outcomes for insurers who rely on these arguments. Excess Insurer: I have no exposure until the primary policy is exhausted. In Schmitz and Ewing v. Great American Assurance Company, 337 S.W.3d 700 (Mo. 2011), Ewing died as a result of injuries suffered when a safety cable snapped, and a portable rock climbing wall fell. The climbing wall was owned and operated by Floyd, pursuant to a contract with Columbia Professional Baseball, LLC ( CPB ). Schmitz and Ewing, the decedent s parents, settled with Floyd for $700,000, leaving CPB as the sole remaining defendant. Virginia Surety Company provided primary liability insurance coverage to CPB in the amount of $1 million, and Great American provided excess liability insurance to CPB in the amount of $4 million. After Floyd settled and was dismissed, CPB repeatedly contacted Virginia Surety and Great American requesting a defense for the wrongful death lawsuit, but neither insurer agreed to defend CPB. Virginia Surety subsequently denied coverage, stating the claim fell under an exclusion barring coverage for accidents involving amusement rides. Great American notified CPB that, absent primary liability coverage, Great American owed no contractual responsibility to provide excess liability coverage. 3

5 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley CPB and plaintiffs entered into an agreement, authorized under Missouri law, whereby plaintiffs agreed to limit execution of any judgment against CPB to the proceeds available under the liability insurance contracts provided by Virginia Surety and Great American. The trial court conducted an evidentiary hearing and entered a wrongful death judgment in the amount of $4,580,076. In an equitable garnishment action against Virginia Surety and Great American, seeking to enforce the wrongful death judgment against the insurers, the trial court held the exclusion did not apply to a rockclimbing wall. Consequently, Virginia Surety was required to indemnify CPB for the wrongful death judgment. Virginia Surety paid $700,000 and plaintiffs executed a partial satisfaction of judgment for the wrongful death judgment, but in the sum of $1 million the Virginia Surety policy limits, not the amount of the settlement payment. The trial court further held that Virginia Surety s payment of less than the full amount of Virginia Surety s limits of liability coverage, in exchange for a full release of liability from any obligation to pay the remainder of its primary limits of liability coverage, did not constitute exhaustion as contemplated by the terms of the Great American insurance contract. Consequently, the trial court held Great American had no obligation to make any payment of excess liability insurance coverage to Ewing for the wrongful death judgment. On appeal, the Missouri Court of Appeals held that the Great American exhaustion clause was a condition precedent that had not been met, and thus Great American was not obligated to make any payments to appellants under its policy for the wrongful death judgment. The Supreme Court of Missouri reversed both courts and held that the excess insurance policy did not require the primary insurance policy to be exhausted in the form of a cash payment. Citing Handleman v. U.S. Fidelity & Guaranty Co., 223 Mo. App. 758, 18 S.W.2d 532, 534 (Mo. Ct. App. 1929), the court noted it has long been recognized that parties to an insurance contract are free to define what constitutes exhaustion of an underlying insurance policy for purposes of triggering the payment obligations of the excess carrier. Accordingly, the court examined the language of the Great American policy, which contained a provision describing, When Loss is Payable, that stated: Coverage under this policy will not apply unless and until the Insured or the Insured s underlying insurance is obligated to pay the full amount of the Underlying Limits of Insurance. When the amount of loss has finally been determined, we will promptly pay on behalf of the insured the amount of loss falling within the terms of the policy. The court reasoned that this language obligated the insurer to promptly pay the amount of loss falling within the terms of the policy if (1) the insured or the insured s underlying coverage is obligated to pay the full amount of its underlying limits of insurance, and (2) the amount of loss is finally determined. It found that the equitable garnishment court erred in finding that the primary policy was not exhausted, given the excess policy s promise to pay when the underlying insurance was obligated to pay its full limits. The court noted, Obligated to pay has a different meaning than has already paid. The court also rejected Great American s reliance on cases from other jurisdictions that have rejected settlements that stipulate exhaustion without paying the full underlying limits, including Comerica Inc. v. 4

6 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley Zurich American Insurance Co., 498 F. Supp.2d 1019 (E.D. Mich. 2007), Citigroup, Inc. v. National Union Fire Insurance Co., No. H , 2010 WL (S.D. Tex., May 28, 2010), and Trinity Homes LLC v. Ohio Casualty Insurance Co., No. 1:04 cv 1920 SEB DML, 2009 WL (S.D. Ind., Sept. 25, 2009), rev d 629 F.3d 653 (7th Cir. 2010). The court noted that each of these cases involved distinguishable policy language expressly requiring actual payment as a condition of exhaustion. Concluding, [c]ourts must interpret an insurance policy as written, not as the insurance company wishes it were written, the court found that Great American s policy contained no requirement that the underlying limits of insurance must be exhausted by payment. Insurer: We do not have enough information. The court in Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 961 N.E.2d 1067 (2012), held that an excess insurer was liable to the plaintiff in an underlying lawsuit against its insured for statutory damages totaling double the amount of the judgment entered against the insured. The insurer s improper settlement conduct after liability and damages had become reasonably clear including making inadequate settlement offers, delaying mediation by stating that it needed additional discovery, and failing to make an initial settlement offer until a few weeks before trial - constituted unfair claims settlement practices in violation of the Massachusetts Insurance Code, G.L. c. 93A, 9 and G.L. c. 176D, 3(9)(f). The underlying claim, which resulted in an $11.3 million judgment against the insured trucking company, arose out of a collision between a passenger car and one of the insured s trucks. The defendants filed an appeal of the judgment and, while the appeal was pending, the plaintiff sued the excess insurer for failing to effectuate a prompt, fair, and equitable settlement of its claim under G.L. c. 176D, 3(9)(f). In posttrial settlement negotiations, the parties eventually settled the negligence claim for $9 million. Agreeing with the trial court that the excess insurer had willfully and knowingly breached its duty to make prompt and sufficient settlement offers to the plaintiff once liability (including damages) had become reasonably clear, the Supreme Judicial Court held that the proper measure of damages under G.L. c. 93A, 9 and G.L. c. 176D, 3(9)(f), was a multiple (two or three times) of the amount of the judgment entered in favor of the plaintiff. Therefore, the court held that the excess insurer was liable to the underlying plaintiff for statutory damages of approximately $22 million. Insurer: We are not going to settle because we have a coverage defense. In Transportation Insurance Company v. Piedmont Construction Group, LLC, 686 S.E.2d 824 (Ga. Ct. App. 2009), a fire extensively damaged a building at a college while a contractor was performing renovation work in the building. A subcontractor soldering copper pipes in one of the rooms accidentally ignited a wooden wall stud, starting a fire that destroyed the roof. Transportation Insurance, the contractor s CGL insurer, denied both coverage and a defense based on a policy exclusion that provided the insurance did not apply to that particular part of real property on which the contractor or any subcontractors were performing operations, or that must be restored, repaired, or replaced because your work was incorrectly performed on it. Transportation argued that the phrase that particular part referred to the entire building that was being renovated. The contractor responded that the renovation was limited to less than one-fifth of the building, and that the damage was not due to defective workmanship resulting only in damage to the contractor s work, a contract claim, but an unforeseeable accident resulting in damage to other property, sounding in tort. The trial court rejected Transportation s argument that the business risk exclusions applied to the entire building, and entered summary judgment in the contractor s favor. Transportation appealed. 5

7 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley In affirming the trial court s ruling, the appellate court agreed that the term that particular part in the exclusions referred not to the building as a whole, but only to the room and the plumbing on which the subcontractor was working prior to the fire starting. The damage to the rest of the building clearly resulted from an unpredictable business accident that created additional damage outside the original contractual scope. The appellate court reasoned that the contractor was not asking Transportation to guarantee the quality of work it already performed, but rather for damages caused by an accidental fire due to its subcontractor s negligence. Consequently, Transportation breached its contract with the contractor when it refused to indemnify it for the damages caused by the fire. The appellate court criticized Transportation for stubbornly relying on a single Georgia decision of Sapp v. State Farm & Cas. Co., 226 Ga. App. 200, 486 S.E.2d 71 (1997). In Sapp, the court held that business risk exclusion unambiguously excluded certain renovation work from coverage. However, all of the claimed damages related directly to the cost of repairing and replacing the alleged negligent work of the Sapp defendants. Unlike in Sapp, the damages in this case were not limited to repairing or replacing the work on which the subcontractor was working when it accidentally started the fire. By ignoring the obvious possibility that at least a portion of the building was covered by the policy notwithstanding the business risk exclusions, and relying on a misreading of a single Georgia decision while ignoring the substantial body of law in opposition, Transportation took the risk of not providing a defense and exposed itself to a bad faith claim. Because Transportation failed to set forth any defense to a determination of bad faith other than its meritless reliance on the business risk clauses of the policy, the appellate court concluded that the trial court s finding of bad faith as a matter of law was eminently justified. Insurer: We are going to control the defense, even though there is potential excess liability. In Transport Insurance Company, Inc. v Post Express Company, Inc., 138 F.3d 1189 (7th Cir. 1998), Frazier was injured while unloading cargo from a tractor-trailer owned by Post Express and operated by its employee, Fuller. Frazier sued his employer, Norfolk & Western Railway, under the Federal Employers Liability Act (FELA). The employer filed a third-party action against Post Express, which tendered the defense to its liability insurer, Transport Indemnity. Transport defended under a reservation of rights based on late notice. The jury in Frazier s FELA suit concluded that both Post Express and the railroad had been negligent. It set damages at $2.3 million, of which Post Express s share was 90 percent. Transport s policy limit was $1 million; Post Express was responsible for the remainder. Transport sought a declaratory judgment that Post Express must bear the full loss. Post Express counterclaimed and demanded that Transport cover the whole verdict. After a bench trial, the judge concluded that Post Express had satisfied the notice requirement in the policy, and a second jury trial began. The second jury concluded that Transport acted in bad faith when it defended Post Express against Frazier s claim and therefore must satisfy the entire judgment. On post-trial motions, the judge ruled that an insurer with a fairly debatable defense to coverage cannot be responsible for bad-faith conduct of the defense in the underlying litigation. Both sides appealed. The Court of Appeals affirmed the jury s bad-faith finding, explaining that a rational jury could conclude that Transport gambled with its client s money. The court found that Transport adopted a trial strategy designed to minimize its own likely outlay. The court held the district court in error for applying the bad faith fairly debatable standard. 6

8 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley Transport relied on Stevenson v. State Farm Fire & Cas. Co., 628 N.E.2d 810 (Ill. App. 1993), and Mowry v. Badger State Mut. Cas. Co., 385 N.W.2d 171 (Wis. 1986). Both cases involved insurers who, while attempting to determine their responsibility under their respective policies, bypassed an opportunity to settle on favorable terms. The court distinguished the cases because in both, the insured was represented by independent counsel, and neither case dealt with an insurer s strategy that shifted risk to the insured. Because Transport did not authorize Post Express to hire its own conflict-free lawyer and conduct its own defense, a fiduciary duty arose between Transport and Post Express. The court explained that if the insurer controls the defense, it must give the insured s exposure equal weight with its own. Insurer: We are only paying our share; others have to contribute. In OneBeacon America Insurance Company v. American Motorists Insurance Company, No US App. LEXIS 9881 (6th Cir. May 17, 2012), the U.S. Court of Appeals for the Sixth Circuit put an end to OneBeacon s attempts to shirk responsibility for a jury verdict of $42 million in compensatory damages, prejudgment interest of $19.6 million, $12 million in attorney fees, and $3.2 million in past interest on the attorney fees. Although essentially an insurer-versus-insurer dispute, the case reflects a lengthy, tortuous path for parties who enter into early settlement. Ultimately, the Court s holding is a victory for policyholders and insurers who act reasonably in settling disputes. In 1999, Goodrich filed a complaint against several insurers, including OneBeacon, in the Summit County, Ohio, Court of Common Pleas, contending that the insurers were contractually obligated to indemnify Goodrich against claims by the federal government for soil and groundwater contamination at Goodrich s Calvert City, Kentucky, plant. Prior to the litigation, in 1995, Goodrich settled with American Motorists Insurance Company ( AMICO ), a primary insurer with which it had a $55 million policy. OneBeacon, an excess carrier that did not settle with Goodrich, had a policy that attached once AMICO s liability exceeded $20 million. A jury verdict was returned against OneBeacon and its co-defendant, Certain London Market Insurance Companies ( Lloyd s ). OneBeacon received a set-off of $20 million to reflect its position as an excess insurer. Following the jury verdict, OneBeacon sought settlement credits to reflect the coverage amounts that Goodrich had already received from the settling insurers. The trial court decided, however, that the universe of claims that AMICO and other insurers settled via their agreements with Goodrich was not coextensive with the claims for which OneBeacon was found liable. The trial court noted that if OneBeacon thinks it is entitled to contribution from other insurers, let it proceed against them. OneBeacon did just that. OneBeacon sought declaratory relief for equitable contribution from AMICO in the Summit County Court of Common Pleas. AMICO then removed the case to federal court on diversity grounds. Ultimately, the district court held that the instant action was a second bite at the apple for OneBeacon and adopted the state trial court s logic that the jury award and AMICO s coverage were not one in the same. The district court determined that Ohio law was not clear as to whether a non-settling insurer could seek contribution from a settling insurer, but that OneBeacon failed to uphold its burden of persuasion. The district court granted AMICO s motion for summary judgment. On appeal, the Court of Appeals held that settlement can exhaust a settling insurer s policy, and that such exhaustion precludes a non-settling insurer from seeking equitable contribution from the settling insurers. Such a position best comports with the Ohio Supreme Court s proposition that: [t]he law favors prevention of litigation by compromise and settlement. Given the explosion of litigation so characteristic of the modern era, it is essential that the settlement of litigation be 7

9 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley facilitated, not impeded. So long as there is no evidence of collusion, in bad faith, to the detriment of other, non-settling parties, the settlement of litigation will be encouraged and upheld. The Court found that a decision allowing OneBeacon to pursue equitable contribution from AMICO would not only fail to encourage settlements, it would actively discourage such settlements. An insurer would have no incentive to settle with a policyholder if it knew that it would be liable to another insurer down the road. And an insurer considering going to trial would be economically rational in doing so if the expected value of prevailing at all exceeds the expected cost of defending the lawsuit. Insurer: We will pay, but we are going to chase you for reimbursement. In United States Fidelity & Guarantee Company v. United States Sports Specialty Association, 270 P.3d 464 (Utah 2012), the Supreme Court of Utah held that an insurer is not entitled to seek reimbursement or restitution unless the insurer s right is expressly provided in the policy. The Court specifically rejected following the law of those jurisdictions that allow reimbursement through an extra contractual claim of unjust enrichment. The dispute arose under somewhat unusual circumstances, but reflects a common situation in which the insurer, having defended under a reservation of rights, offers to settle the claim against the insured, but wants to maintain its reservation of rights to deny that coverage exists and pursues coverage litigation against the insured to seek reimbursement. A seven-year-old spectator was struck in the head with a bat during an adult softball game sponsored by United States Sports Specialty Association ( USSSA ). The liability policy issued by USF&G was approximately $2 million. Jury awarded roughly $6.1 million against USSSA. Initially, USF&G contended it was only liable up to its $2 million policy limit. USSSA, however, argued that USF&G should pay the entire judgment, alleging USF&G had conducted its defense in bad faith, as demonstrated by conflicts of interest, failure to communicate, refusal to accept settlement offers within policy limits, and other misconduct. Ultimately, USF&G paid the entire judgment under a unilateral reservation of rights. USSSA never agreed to any reservation and refused to sign the settlement agreement. USF&G urged the court to follow the analysis in Blue Ridge Insurance Company v, Jacobsen, 25 Cal.4th 489, 22 P.3d 313 (2001), which had allowed restitution under a theory of unjust enrichment. The Court rejected the California case and found the reasoning set forth in Excess Underwriters at Lloyd s London v. Frank s Casing Crew & Rental Tools, Inc., 246 S.W.3d 42 (Tex. 2008), to be more persuasive, finding that allowing recovery under an equitable theory of unjust enrichment is generally inconsistent with the terms of an express contractual agreement. Obviously, if the insurer wanted to preserve a right to pay settlements and seek reimbursement, it should have put it in writing. As the Court so aptly concluded: The right of an insurer to recover reimbursement from its insured distorts the allocation of right unless it has been specifically bargained for an insurer s claim to an unbargained-for right to reimbursement from its insured presents a perverse manipulation of risk that has no place in our law. Insurer: We are not settling, and we re not telling you you re at risk. In R.C. Wegman Const. Co. v. Admiral Ins. Co., 629 F.3d 724 (7th Cir. 2011), the court found that an insurer that controlled the defense, but failed to notify the insured of the potential for damages to be awarded in excess of the policy limit, was liable for the entire excess judgment. The court found that the insurer had a conflict of interest due to the settlement demand exceeding the policy limits. 8

10 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley Budrik, a worker at a construction site managed by Wegman Construction Company, was injured in a fall and sued Wegman, along with other potentially liable entities, for negligence. The case went to trial, Budrik prevailed, and a judgment for a little more than $2 million was entered against Wegman. Admiral had issued a liability insurance policy to Budrik s employer, which named Wegman as an additional insured, with a single occurrence limit of $1 million. Admiral accepted Wegman s defense and controlled the defense of the underlying personal injury suit. Through its defense of the underlying suit, Admiral knew that Budrik had sustained serious injuries, with long-term pain and suffering, permanent physical disabilities, and substantial loss of income and medical expenses. Admiral also knew Budrik made a settlement demand of almost $6 million, presenting a realistic possibility of a potential loss to Wegman in excess of Admiral s $1 million policy limit. Admiral failed to warn Wegman of this possibility, but if it had, then Wegman could have given notice under an excess liability insurance policy with limits of $10 million. Wegman did not realize that the Budrik suit presented a realistic possibility of a loss exceeding Admiral s policy limit until a few days before the trial. Wegman then notified its excess insurer, but the excess insurer refused coverage on the ground late notice. Wegman contended that Admiral breached the implied contractual duty of good faith that insurance companies owe their insureds, by failing to promptly inform it of the potential for damages in excess of the $1 million policy limit. Admiral argued that it had no conflict of interest concerning defense or settlement of the suit or duty to notify the insured of a potential conflict until settlement negotiations began or the insured demanded that it try to settle the case. On appeal, Justice Richard Posner identified the fundamental issue as the emergence of a potential conflict of interest between insurer and insured in the midst of a suit in which the insured is represented by a lawyer procured and paid for by the insurer. When Admiral learned from its counsel of the extent of Budrik s injuries and the potential for a judgment in excess of policy limits, a conflict arose between the interests of Admiral and Wegman, such that Admiral s failure to inform Wegman and proceeding to trial with the hope of avoiding liability but risk of an excess judgment amounted to gambling with an insured s money and a breach of fiduciary duty. (Citing Cramer v. Ins. Exchange Agency, 174 Ill. 2d 513, 221 Ill.Dec. 473, 675 N.E.2d 897, 903 (1996).) Here, Judge Posner reasoned that if Wegman had hired a new lawyer upon being promptly informed of the conflict back in May 2005, that lawyer would have tried to negotiate a settlement with Budrik that would not exceed the policy limit; and if the settlement was reasonable given the risk of an excess judgment, Admiral would have been obligated to pay under Myoda Computer Center, Inc. v. American Family Mutual Ins. Co., 389 Ill.App.3d 419, 330 Ill.Dec. 501, 909 N.E.2d 214, (2009). Moreover, since Wegman had excess insurance, notification of the risk of an excess judgment would have enabled it to notify its excess insurer promptly. Judge Posner cited the court s earlier holding in Twin City Fire Ins. Co. v. Country Mutual Ins. Co., 23 F.3d 1175, 1179 (7th Cir. 1994) (Illinois law), noting that a correlative to the standard provision that authorizes a liability insurer to control the defense of claims is the duty not to gamble with the insured s money by forgoing reasonable opportunities to settle a claim on terms that will protect the insured against an excess judgment. The Twin City decision reasoned that if not for this implied duty, the insurance company would be tempted to take cases to trial that could be settled at or near the policy limit, placing the policyholder in a Heads I win, tails you lose, position. If the policyholder lost at trial, the insurance company would be no worse off than if it settled. In either case, it would have to pay the policy limit. On the other hand, if the policyholder won, the insurance company would have saved the limit. 9

11 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley Insurer: We are not settling until there s a demand. The court in Yan Fang Du v. Allstate Insurance Co., 681 F.3d 1118 (9th Cir. 2012), held that an insurer s implied covenant of good faith and fair dealing imposes a duty to attempt to settle an underlying action when the liability of its insured has become reasonably clear, even where the underlying claimant has not made a settlement demand. The appellate court held that although the particular facts before it did not support a finding of bad faith, the trial court erred when it rejected a proposed jury instruction stating that in determining whether the insurer acted in bad faith, the jury could consider whether the defendant did not attempt in good faith to reach a prompt, fair and equitable settlement... Prior to the Yan Fang Du decision, California courts had not directly addressed the issue of whether an insurer can face bad faith liability for failing to initiate settlement negotiations before the underlying claimant has made a settlement demand within policy limits. However, California courts and a majority of courts across the country have held that an insurer is liable for the amount of a judgment or settlement against its insured in excess of policy limits if the insurer, in bad faith, refuses to accept a settlement demand made by an underlying claimant for an amount less than the remaining policy limits if, at the time the demand is made, there is a reasonable probability that the insured could be held liable at trial for damages in excess of the policy limits. The Yan Fang Du holding is consistent with this rule, which is based on an insurer s obligation to treat the interests of its insured equal to or greater than its own interests deciding whether to settle. The Yan Fang Du decision also is consistent with the nature of the protection from liability provided by the duty to defend itself. Given that the sole purpose of the duty to defend is to minimize or eliminate liability, the duty to timely negotiate a settlement when liability is clear is an integral component of the duty to defend. See, e.g., Swedish American Hospital Association of Rockford v. Illinois State Medical Inter-Insurance Exchange, 395 Ill. App. 3d 80, 916 N.E.2d 80 (2d Dist. 2009) (observing, the good-faith duty to settle is... an extension of the duty to defend ). It is reasonable for an insured that purchases litigation insurance to expect that its insurer will take all measures to protect it from liability, including effectuating settlements of claims. Moreover, imposing an obligation on an insurer to initiate settlement negotiations when liability is reasonably clear addresses the concern that insurers have much less of an incentive to settle claims than their insureds, even when liability is clear, due to the substantially disparate financial impacts that the failure to negotiate a settlement could have on an insurer and insured. Liability that exceeds policy limits could drive an insured out of business. A liability insurer s business model, on the other hand, expressly contemplates absorbing judgments. As one court explained: [I]t is more important to an individual, who is only a casual, sporadic, and infrequent litigant, whether he wins or loses a lawsuit which may eat up his life s savings than it is to a professional litigant, such as an insurance company, which is in the business of litigation, collects premiums and sets up reserves for the purpose of paying verdicts, and can set off against each other the lean and fat verdicts, so that the wins and losses average out over the long pull. Ripepi v. American Insurance Companies, 234 F. Supp. 156, (W.D. Penn. 1964). CONCLUSION When defendants assume that their insurers will protect them in catastrophic cases, they are too often shocked when they are faced with potential excess or uninsured exposure. In these situations, defense lawyers are often ill equipped to navigate the conflict between the policyholder and its insurers. The policyholder coverage lawyer can offer a unique perspective and important insights into how to maneuver the case to a successful settlement. Getting the coverage lawyer involved early, embedding the coverage 10

12 Mediation: Coverage Lawyer as Captain of the Settlement Jill B. Berkeley lawyer into the defense team, and permitting the coverage lawyer to handle the communications with the insurers and the plaintiff attorneys, will often be the key to guarantee that the mediation will reach an amicable resolution. Jill B. Berkeley NEAL GERBER EISENBERG Neal, Gerber & Eisenberg LLP Two North LaSalle Street Suite 1700 Chicago, IL Phone Fax Visit our Blog: Follow me on Twitter https://twitter.com/jillberkeley NGEDOCS:

13 KAREN J. GOLDEN Karen J. Golden is the Director of Risk Management and Real Estate for Kraft Foods Group, Inc. in Northfield, Illinois. Kraft is North America s 4 th largest consumer packaged food and beverage company with annual revenues of more than $19 billion. The company has an unrivaled portfolio of products in the beverage, cheese, refrigerated meats and grocery categories. Its iconic brands include Kraft, Maxwell House, Oscar Mayer, Planters and JELL-O. Karen is responsible for all aspects of Kraft s Risk Management function, including operational risk management, enterprise risk management, claims management, loss control, and traditional insurance procurement. She also manages Kraft s extensive real estate portfolio, which includes over 19 million square feet of owned locations and nearly 12 million square feet under lease. Prior to this position, she held the following Risk Management positions: Senior Vice President of Risk Management for R.R. Donnelley & Sons Company, the world s premier provider of print and related services; Vice President of Risk Management for Career Education Corporation, the world's largest on-campus provider of private, forprofit post secondary education; Director of Risk Management for PepsiAmericas, Inc., the second largest domestic bottler and distributor of Pepsi products, where she also served as the President of Whitman Insurance Company, PepsiAmericas captive insurance company domiciled in Vermont; and Risk Manager for Sears, Roebuck & Co., the nation s second largest retailer. Before entering the Risk Management arena, Karen practiced as an attorney at Williams & Montgomery, Ltd. and Dowd & Dowd, Ltd., concentrating in complex insurance coverage defense litigation for environmental and toxic tort actions. Karen maintains her law license in the State of Illinois. She obtained the Chartered Property/Casualty Underwriter designation in 1993 and the Associate in Risk Management designation in She is a member of the Risk and Insurance Management Society and the Society of CPCU, where she served as a member of the Board of Directors of the Chicago Chapter. During the last two decades, Karen has lectured at numerous seminars, moderated panel discussions and chaired risk management conferences. She also acts as an arbitrator involving insurance and reinsurance contracts. Karen received her Juris Doctor from Loyola University of Chicago and her Masters in Business Administration from the Kellogg Graduate School of Management at Northwestern University. She did her undergraduate work at Northwestern University where she obtained a Bachelor of Science degree in Communications with minors in Political Science and Economics.

14 Michael S. Franklin Director - Special Strategic Claims CNA 333 South Wabash Avenue, 38th Floor Chicago, Illinois Tel. (312) Fax. (312) Education University of the Pacific - McGeorge School of Law Experience Director - Specialty Strategic Claims CNA Insurance March Present (1 year 11 months) Greater Chicago Area Director and Claims Counsel, Law Department CNA Insurance January March 2010 (5 years 3 months) Greater Chicago Area Senior Counsel Fireman s Fund Insurance Company (3 years)

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19 Jill B. Berkeley Partner/Chair p f Practice Area: Insurance Policyholder Cross-Border Education: Northwestern University School of Law, J.D., 1975 University of Michigan, B.A., with high distinction and honors, 1972 Bar Admissions: Illinois Jill B. Berkeley chairs the firm s Insurance Policyholder Practice Group. In 2012, Chambers USA reported that Clients describe her as a breath of fresh air in litigation. Jill represents policyholders and claimants in insurance coverage disputes involving toxic torts and hazardous wastes, environmental pollution, construction, products liability, intellectual property, firstparty property, business interruption and excess liability matters. In addition to her robust litigation practice, Jill offers her clients strategic advice on insurance coverage to help them manage risk and has served as an arbitrator and mediator. She has counseled clients in connection with all types of insurance policies, including directors and officers and professional liability, commercial general liability, first-party property and builder s risk, and personal and advertising injury liability. Jill s client base is focused on utilities, general contractors, manufacturers, professional service providers, financial institutions, trucking companies, and real estate developers, though her experience stretches to other industries as well. Representative Matters: Her representative experience includes: Visit our Policyholder Insurance Law Blog at: Visit The Illinois Insurance Index Online at: Union Elec. Co. v. Energy Ins. Mut., Ltd., 2012 U.S. App. LEXIS (U.S. Court of Appeals, 8th Cir., 8/27/12) Court reversed dismissal of suit seeking reimbursement of $30 million payment to State of Missouri for environmental remediation holding Missouri public policy may void arbitration clause. Union Elec. Co. v. Aegis Energy Syndicate 1225, 2012 U.S. Dist. LEXIS (E.D. of Mo. 8/23/12) Court denied motion to compel arbitration on basis of policy provision agreeing to submit to Missouri courts. Fox v. Will County, et al., 2012 U.S. Dist. LEXIS (N.D. Ill. 8/15/12) Obtained ruling that Section 1983 attorney award constitutes damages in excess following form policy Omegaflex v. Pacific Employers Insurance Company, Mass.App. No. 09-P-628 (11/16/10) Developed the strategy for obtaining recovery for defense costs incurred by product manufacturer in class action, in which threat of property damage was alleged. Neal, Gerber & Eisenberg LLP Two North LaSalle Street Chicago, IL

20 United States Fidelity And Guaranty Company v. VOA Associates, INC., 2009 WL (N.D.Ill. 8/27/09) Obtained a ruling from trial court denying insurer s motion for summary judgment on late notice. American Economy Insurance Co. v. Holabird & Root, 886 N.E. 2d 1166 (Ill. App. 2008) Obtained a ruling from the Illinois Appellate Court affirming additional insured coverage for an architect in a subcontractor s CGL policy. Country Life Ins. Co. v. St. Paul Surplus Lines Ins. Co., 422 F. Supp. 2d 977 (C.D. Ill. 2006) Obtained a trial court ruling that an insurer s coverage counsel s files had to be produced because its counsel was acting as an adjuster. Indemnity Insurance Company of North America v. Melton Truck Lines, Inc., 2004 WL (N.D. Ill., 9/7/04) Obtained dismissal of declaratory judgment in favor of a prior pending policyholder complaint in another jurisdiction. Utica Mutual Insurance Company v. The David Agency, et al., 327 F. Supp. 2d 922 (N.D. Ill. 2004) Obtained a ruling from the Northern District of Illinois applying Illinois estoppel rules to a situation in which the insurer failed to disclose a conflict of interest. Aetna Cas. & Sur. Co. v. O Rourke Brothers, Inc., 776 N.E.2d 588 (Ill. App. 2002) Obtained a ruling from the Illinois Appellate Court on application of estoppel, number of occurrences and the duty to defend misrepresentation claims. American States Ins. Co. v. Koloms, 177 Ill. 2d 473, 479-N.E.2d 80 (1997) Obtained an appellate court ruling and wrote the briefs in the precedent-setting Illinois Supreme Court decision rejecting application of the absolute pollution exclusion to a release of carbon monoxide from a landlord s furnace. In addition to the above reported cases, Jill is involved in the following matters. Representing professional service firms sued by Bankruptcy Trustees and others to secure funding from E&O insurers for settlements within policy limits of claims alleging breach of fiduciary duty, dishonest acts, fraud, and statutory violations in Chicago, downstate Illinois, Louisiana, Delaware, and Florida. Representing landowners, developers, and manufacturers to secure coverage as additional insureds or indemnities for liability arising out of contractors and subcontractors work for personal injury and property damage suits brought by injured workers or third parties. Representing health care providers in securing coverage under E&O and Managed Care Liability policies for alleged class action suits arising from privacy claims, civil rights violations, and other statutory violations in Chicago, downstate Illinois, California, Florida, and Colorado. Honors: Year after year, leading industry publications and legal directories recognize Jill as a top attorney in her field. She is consistently ranked in Chambers USA in the top level in Illinois and nationally, The Best Lawyers In America, Lawdragon 3000, International Who s Who of Business Lawyers, Leading Lawyers of Illinois (Top 100 Attorneys and Top 50 Leading Women Business Lawyers in Illinois), and Illinois Super Lawyers (Top 100 Attorneys and Top 50 Female Attorneys). In 2012, she was elected a Fellow of the newly formed American College of Coverage and Extracontractual Counsel in acknowledgment of achieving the highest standards of creativity, ethics, efficiency and scholarship

Mediation Coverage Lawyer as Captain of the Settlement

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