Recent Posts
Follow Us
twittergoogle_pluslinkedinrssyoutube
The Legal Stuff
BT Policyholder Protection Blog
0 1

16 Mar 2018 It’s Not Over Until It’s Over: An Insurer’s Continuing Duty To Defend After The Dismissal Of Covered Claims

Imagine this scenario: you are a California policyholder and have been sued in a lawsuit alleging one covered claim and multiple non-covered claims. Your insurer, applying California insurance law, thereafter recognizes both (1) its duty to defend subject to a reservation of rights and (2) your right to independent counsel based on the nature of the reservation of rights.  In the middle of the lawsuit, your defense attorney files a motion for summary adjudication that, when granted, leads to the dismissal of the one covered claim. Your insurer then threatens to stop funding the defense of the case, claiming that the dismissal of the covered claim has terminated its duty to defend. Is your insurer right under California law?   Not in our view. Both…

READ MORE
0 0

30 Jan 2018 Four More Things to Know About Certificates of Insurance

  Having previously posted “Four Things to Know About Certificates of Insurance,” I’d like to offer four more best practices to consider.   Follow up for renewal certificates   A best practice is to have a Certificate of Insurance state the policy period for each policy it describes. If you need that coverage to continue beyond the stated policy period, another best practice is to follow up for a renewal certificate. Consider whether this could be added as a term in the contractual requirement for a Certificate of Insurance. For example, let’s say your company embarks on a major expansion of its facility, and the work is expected to take 18 months. Your company hires a general contractor, and your agreement with the contractor requires…

READ MORE
0 0

25 Jan 2018 Avoid Insurance Related Risks to Help Your Bottom Line

  With the new year in full gear, your company likely has set revenue and growth goals for 2018. Unfortunately, just one uninsured or underinsured loss can often derail these efforts. Therefore, this is a great time for companies to review their insurance program and keep some of these best practices in mind:   First, check out Ken Gorenberg’s recent post that provides some great “New Year’s Resolutions for Policyholders.”   Consider reviewing your claims history over the last few years. Are there trends? Are there steps that might be available to your company to mitigate those particular risks? Moreover, how does your insurance program’s coverage limits align with those risks?   Does your company have procedures in place to determine when and how to…

READ MORE
0 0

24 Jan 2018 Tell All: Making a Case for More Dialogue in the Insurance Application Process

  Do nothing secretly; for Time sees and hears all things, and discloses all. – Sophocles   Keeping secrets during the insurance application process is a bad idea. A policyholder who responds to application questions with incomplete or evasive answers to try to save a few dollars in premiums risks losing coverage altogether when those secrets are revealed. Conversely, by providing the underwriter with the information she needs to properly assess the risk, a policyholder is more likely to receive an insurance policy that meets its coverage needs. It behooves the parties to try to make the application process a cooperative exchange of information.   But even among well-intentioned parties, a potential for disconnect exists. Each side looks at the information exchange from a different…

READ MORE
0 0

09 Jan 2018 New Year’s Resolutions for Policyholders

  The champagne bottles are empty, the football games are over, and the kids are back in school. That can only mean one thing – it’s time for New Year’s resolutions! If you are having a hard time coming up with the perfect resolution for 2018, here are some ideas for policyholders.   “I resolve to review at least the declarations pages of all my policies.” Confirm that the insured’s name is legally accurate and spelled correctly and that its address is up to date. Make sure the policy isn’t about to expire without renewal or replacement, unless you’ve already decided you don’t need the coverage anymore. Check that the coverages you selected during the application or renewal process are included and that the limits…

READ MORE
0 0

02 Jan 2018 Sold! Close Your M&A Deal Confidently by Funding Post-Closing Liabilities Through Insurance

  When a company merges with another entity and becomes a single entity, or where a company is acquired by another organization, it is critical that both parties understand their insurance programs to ensure that transactional risks are properly covered. Companies sometimes do not give adequate consideration to the possibility of future claims following a merger or sale, and do not place into the deal a funding mechanism for post-closing claims.   This article offers some ideas to consider when planning an insurance solution to such claims as part of due diligence.   Tail policies cover actions taken before the closing   If you sit on the board of a company, the completion of an M&A deal does not insulate you from being sued for…

READ MORE
0 0

26 Dec 2017 Payback: Can Settlements of False Claims Act Claims Be Covered Under D&O Policies?

In recent years, corporations have seen a dramatic upswing in claims alleging violation of the federal False Claims Act (FCA). Dating from the Civil War, the FCA at one time was a sporadically used civil law that made government contractors liable for fraudulent claims on the government. After the law was reformed in the 1980s to make it easier for individuals to sue on behalf of the government, employees and shareholders of corporations transacting with the federal government began viewing it as a powerful whistleblower statute.   With the increase in lawsuits alleging violations of the FCA, insurance companies have become more aggressive in denying outright any obligation to pay settlements of FCA claims on the grounds that they seek uninsured restitution or disgorgement. Contrary…

READ MORE
0 0

19 Dec 2017 Who Gets Coverage? Cyber Insurance and Credit Card Risks: Will Coverage Apply After the P.F. Chang’s Denial?

Authored by Scott Godes & Devin Stone   When a retailer or merchant purchases a broad cyber insurance policy to cover hacks or breaches of its point of sale systems, it could be forgiven for thinking that its insurance policy would cover the costs of fraudulent charges and card replacement costs – which can represent the majority of damages generally incurred in a payment card incident – demanded by the payment processor or the card brands. But one recent decision in the Federal District Court of Arizona has held that certain cyber insurance policies do not provide coverage for those damages. P.F. Chang’s China Bistro, Inc. v. Federal Ins. Co., 2016 WL 3055111 (D. Ariz. May 31, 2016), appeal dismissed pursuant to settlement, No. 16-16141, Dkt….

READ MORE
0 0

15 Dec 2017 The Importance of Attention to Risk Allocation Provisions in Contracts

  A recent Indiana Court of Appeals decision illustrates the importance of having an overall risk allocation strategy in contracts where appropriate, and paying close attention to the language used to express that strategy, particularly when multiple contracts and parties are involved. Contractual risk allocation provisions previously have been a focus of this blog and webinars offered by our Insurance Recovery and Counseling Group.   In Performance Services, Inc. v. Hanover Ins. Co., 85 N.E.3d 655 (Ind. Ct. App. 2017), a school district submitted a property insurance claim to its insurer, Hanover, for damage that occurred during a construction project at a high school. Hanover paid nearly $700,000 to settle the claim. Hanover later asserted a subrogation claim against two contractors who had worked on…

READ MORE
0 0

27 Nov 2017 When Should an Accident be an Accident?

  Standard commercial general liability (CGL) insurance policies provide coverage for damages the policyholder is legally obligated to pay because of property damage or bodily injury caused by an “occurrence.” CGL policies typically define “occurrence” as an “accident.” Courts define an accident as “an unexpected happening without an intention or design.” Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1283 (Ind. 2006).   Simple, right? Unfortunately, a trilogy of cases from the Indiana Supreme Court have caused confusion on this issue, particularly where the policyholder may have errors and omissions (E&O) coverage.   In Harvey, a 16-year-old girl, Brandy, fell into a river and drowned after being intentionally pushed during an altercation with a boy, Toby. Toby admitted that he intended to push Brandy, but…

READ MORE