DAY ONE | WEDNESDAY, NOVEMBER 30, 2011
7:15 Continental Breakfast and Conference Registration
8:00 Co-Chairs’ Welcoming Remarks
William J. Kobokovich, Jr.
Vice President & Associate Group General Counsel
Travelers Insurance
Michael Packer
Shareholder
Marshall, Dennehey, Warner, Coleman & Goggin
8:05 The View from the Policyholders’ Bar: Tailoring Your Strategies to the New Wave of Claims Being Asserted
Joseph Jean
Member
Lowenstein Sandler PC
Darin McMullen
Counsel
Anderson Kill & Olick, P.C.
Kenneth M. Gorenberg
Partner
Barnes & Thornburg LLP
- Identifying coverage and the need for outside coverage counsel
- Duty to defend versus the duty to indemnify: Impact of differing policy terms and state laws
- Getting claims paid in a post-recessionary economy: are higher standards of proof/more documentation necessary?
- How legislation is changing bad faith claims
- Bad faith claims in general- Facts supporting bad faith awards- How recent decisions are treating bad faith claims- Bad faith trends that are here to stay
9:05 Insurers In-House Roundtable: Counsel and Claims Examiner Insights on New & Emerging Issues in Preventing Bad Faith Claims
Sean Costello
Lead Counsel
Nationwide Insurance
Erthel Mincey
CPCU ARM Manager, Home Office Claims
MetLife Auto and Home
Paul Berne
Senior Vice President, Claims
Lancer Insurance Company
Lee Routledge
Senior Vice President
SCOR Reinsurance Company
Sean Reidy
Counsel
State Farm Mutual Automobile Insurance Company
Krista Horn-Watkins
Director
Travelers Insurance
Charles Ehrlich
SVP and Worldwide Special Counsel River
Stone Resources/TIG Insurance Company
Moderator:
Thomas Segalla
Partner
Goldberg Segalla LLP
Best Practices in Claims Investigations and Decisions
- Crafting a well thought out and properly documented claims decision
- How to recognize questionable claims early on
- Can there be bad faith in the absence of coverage?
- Can there be bad faith liability if the policyholder has not been injured?
- Honest mistake? Is it bad faith?
- Use of experts
- The best ways to use experts and adjusters to determine the causes and amount of loss
- Expert reports on causes of loss – ensuring you are not getting predetermined reports
- Coverage experts?
- Investigating questionable claims: Discerning a claimant’s possible financial motive and investigating it while preserving good faith
- Recognizing when and why to settle…and when and why not to
- Making the most of the EUO
- Avoiding allegations of post-claim underwriting and having pre-determined claims outcomes
- Internal investigations
- Testing your own theories
- Video Depositions – the pitfalls for the claims examiner
Settling Bad Faith Claims before a Suit is Filed
- When and why you should settle a bad faith claim
- Best practices in reducing the settlement amount
- Mediation v. Arbitration v. Non-Binding Arbitration v. High/Low Arbitration: the pros and cons of each
Facebook; MySpace; LinkedIn; Twitter: Avoiding Hang-ups in the use of Social Media as an Investigative Tool
- Defending against allegations of invasion of privacy
- Avoiding jury resentment
Special Issues in the Life, Health & Disability Arena
- Medicare Liens and Set-asides: Wilson v State Farm
- Determining the cause of disability: accident v. sickness
- Dealing with bad faith in Worker’s Comp Claims
- When is a death accidental? Dealing with accidental death claims after intentional conduct
- Material duties of the occupation – who decides what they are?
- Self-reported injuries: the difficulties in disability claims that involve mental health issues and subjective impairments
- What to do when the insured’s health changed between the time the insurance was applied for and the time the policy was issued
Dealing with Your Insured
- Best practices for dealing with your insured after a coverage dispute when the court determines coverage exists
- What to do when your insured insists on not settling a claim and the risks of settling over the insured’s objection (especially when they have a large deductible or SIR)
- Dealing with your insured when they are underinsured – does this place you in an adversarial position?
- Balancing the need to investigate causation and scope of damage versus allegations of delay and fi nancial vulnerability
10:20 Morning Coffee Break
10:30 Pinpointing the Bad Faith Set-Up in the Early Stages to Avoid Litigation
Charles Sinclair
VP, Claims Legal Director
Zurich North America
Kevin Willging
Senior Counsel & 2nd Vice President,
Claim Legal Group-Extra Contractual Litigation Travelers
Larry R. Levine, Esq., CPCU
Assistant VP/Department Head, Corporate Litigation & Asst. General Counsel
Infinity Insurance Companies
Edward Loftus, CPCU
Senior Claims Examiner
Amica Mutual Insurance Company
Ted Colquett
Partner
Wilson & Berryhill, P.C.W.
Edward Carlton
Shareholder
Quilling, Selander, Lownds, Winslett & Moser, P.C.
- How bad faith claims are being created by plaintiff lawyers
- Red Flags: what claims adjusters need to watch closely
- The set-up letter: recognizing and disabling this common trap
- Dealing with time limited demands and conditions that seem inconsistent or impossible to meet
- Once a suit is fi led: defending against bad faith set ups
- Instituting claim practices to avoid common mistakes
11:40 Proven Strategies for Bad Faith Claims Where Multiple Layers of Insurance Are Involved
William J. Kobokovich, Jr.
Vice President & Associate Group General Counsel
Travelers Insurance
Brian P. McDonough
Partner
Zelle McDonough & Cohen LLP
Michael Hamilton
Partner
Nelson, Levine, de Luca & Horst, LLC
The Duty of the Primary Carrier
- Claims of bad faith between insurers
- Duty for the primary to settle within policy limits?
- Assessing the primary carrier’s good faith
- Evaluating claims handling procedures
- What standard should be applied?
- Properly allocating risk and coverage amongst insurers
- When should a primary insurer sue for contribution?
- Attorney’s fees: who pays what?
Potential Duty of the Excess Carrier
- Extra contractual liability due to TPA’s actions
- Does the excess carrier owe any duties to the primary carrier?
- Responsibilities before tender and post tender
- Does an excess carrier have to suffer an excess verdict to have a claim for bad faith?
- Can TPA’s be held liable under a conspiracy theory of bad faith?
- How are different jurisdictions handling these types of issues
- What responsibilities to the carriers have to these administrators
- Handling insured’s with significant SIR deductibles
- Delegating the claims handling function to the TPA - is this delegable?
12:45 Networking Luncheon for Speakers & Delegates
1:50 Investigation: Once a Claim Has Been Presented, How to Thoroughly Investigate It to Avoid Bad Faith Allegations
Paul Berne
Senior Vice President, Claims
Lancer Insurance Company
Mark Shapiro
Shareholder
Akerman Senterfi tt LLP
Michael Packer
Shareholder
Marshall, Dennehey, Warner, Coleman & Goggin
- Analyzing and evaluating the insured liability
- Strategies on conducting an effi cient investigation process
- How much is too much?
- Cost effective ways to conduct a claim investigation
- Special concerns in surveillance of the insured
- Learnings from the Opposition: how the plaintiff Bad Faith lawyers view Insurance Company investigations
- What to do when the investigation is inadequate - fixing problems before they become Bad Faith issues
- SIU and Fraud Investigation: How to prevent this from becoming a bad faith landmine
- Handling more extensive investigations due to fraud
- Recognizing injury embellishment
- How to prevent the fraud through proper investigation tactics
2:50 Afternoon Refreshment Break
3:00 Innovative Pre-Trial Strategies for Defending Against Bad Faith Claims: Procedural Considerations, Attorneys Fees, Pleading Standards, Motion Practice, Settlement and Beyond
Lewis Collins
Partner
Butler Pappas Weihmuller Katz Craig LLP
David Strauss
Member
King Krebs & Jurgens PLLC
Wesley Payne
Partner
White and Williams LLP
Timothy Strong
Partner
Steptoe & Johnson LLP
Summary Judgment
- Is bad faith always a jury question?
- Strategies to achieve “good faith” as a matter of law
- What is the standard for bad faith?
- Bringing and defending against summary judgment motions
Strategic Pointers in Defending Underlying Coverage Decisions & Affirmative Defenses to Bad Faith
- How to handle coverage decisions based on facts that are within the insurer’s knowledge but are not stated in the complaint
- Is the “genuine dispute” doctrine still a viable defense?
- Strategies on attacking and defending the bad faith claim
- What to do when you lose the coverage determination
- Comparative bad faith as an affi rmative defense
- How to argue (for and against) interpreting policy coverage expansively and/or reading policy exclusions narrowly
- No harm, no foul: Arguing against bad faith where a claim dispute is ultimately resolved and paid in favor of the claimant
Choice of Law/Forum Selection
- How to end up where you want to be:
- Strategies on winning the forum battle
- Arbitration/Mediation v. Court: the advantages of each
- Knowing where you can win: which forums are the best for your case?
- Diversity: how to defeat removal and common diversity arguments
Attorney’s Fees
- Bringing and defending against claims for attorney’s fees
Settling Underlying Liability Claims
- How involving your insured in settlement decisions can impact a bad faith claim
- Best practices where there is a possibility of an excess verdict
- Settling for the policy limits with less than all known claimants
4:15 Discovery: Limiting Its Scope, Responding Efficiently to Expansive Orders, Protecting Privilege, Preparing Company Witnesses for Depositions and More
Charles Ehrlich
SVP and Worldwide Special Counsel
RiverStone resources/TIG Insurance Company
Scott Godes
Counsel
Dickstein Shapiro LLP
Gregory D. Miller
Director
Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chatman, P.C.
Michael Newman
Partner
Barger & Wolen
Depositions, Interrogatories and Other Production Issues
- Having a reason for discovery
- Making the cost-benefit decision
- Budgeting up front
- Preparing the adjuster or company executive for their deposition
- Understanding the “fear factor”
- The special problems of video depositions
- Proprietary files- can the insured get these fi les to support a bad faith claim?
- Manuals and guidelines
- Other insureds, policies and claims.
- Reinsurance and reserve information.
- Interrogatories: Knowing what questions to ask
- Requests for admission – the neglected tool
- Dealing with expansive discovery orders and overly broad litigation holds
- Avoiding the knee jerk reaction
- Limiting the extent of pattern and practice discovery
Privilege
- Invoking privilege
- Consequences of when company “anticipated litigation”
- Counsel’s involvement in adjustment process.
- Relying on advice of counsel in defending against bad faith
E-Discovery
- Managing the explosion of ESI
- Understanding your obligations and the consequences of failing to preserve ESI
- Creating an internal process to successfully meet e-discovery obligations
- Methods to successfully limit production of ESI
- Learning the technical stuff
- Understanding the process of organization and being able to explain it
- Educating the court
Costs
- Minimizing discovery costs
- Planning, planning, planning; Non-waiver agreements; “Eyes-only” agreements; Voluntary/private special master; Avoiding discovery disputes
5:30 Conference Adjourns
DAY TWO | THURSDAY, DECEMBER 1, 2011
7:30 Continental Breakfast
8:00 The View from the Bench: Judicial Views on Effective Theories and Evidentiary Approaches
The Honorable Donetta W. Ambrose
U.S. Dist. Ct., W.D. Pa.
The Honorable John Coughenour
U.S. Dist. Ct, W.D. Wash.
The Honorable Jeanne E. Scott (Retired)
U.S. Dist. Ct., C.D. Ill.
The Honorable James O’Hara
U.S. Dist. Ct., D. Kan.
The Honorable F.A. Gossett, III
U.S. Dist. Ct., D. Neb.
The Honorable Anthony Mohr
Calif. Superior Court, Los Angeles Co.
The Honorable Mark Davidson
11th District Court of Harris County (TX)
Moderator:
Laura Foggan
Partner
Wiley Rein LLP
- Discovery issues:
- Winning arguments to obtain or limit discovery
- Pattern and practice evidence: how far should the court go?
- Claims of privilege: when is an attorney really acting as an adjuster?
- How relying on the advice of counsel as a defense might open your claim file and privileged documents
- Which arguments are the most effective for winning or limiting punitives?
- Getting the verdict you want: what are the jury hot buttons and which arguments work?
- Judicial pet peeves in bad faith cases
- Where are the “hot bed” states heading
- Will bad faith become statutory?
- How will these changes affect the future of bad faith claims
9:30 New Concerns, Legislation and Emerging Trends in the Punitive Damage Arena
Sean Costello
Lead Counsel
Nationwide Insurance
Michael Hannan, III
Partner
The Weathington Firm, P.C.
- Significant recent punitive damage recoveries and case law development – favorable and unfavorable
- Legislative action: where do the states stand on capping punitive damages?
- Trend toward exclusive statutory remedies with bad faith penalties against insurers in lieu of traditional punitive damages
- Does an insurer which conducts settlement negotiations on behalf of its insured need to consider otherwise uncovered punitive damages in making settlement decisions?
- If it fails to do so, and punitive damages are awarded against the insured, can the insured, or its assignee, recoup them as consequential damages from the insurer due to its bad faith failure to settle the underlying claim?
- Litigating/trying the bad faith case:
- How insurance companies can proactively mitigate the potential for bad faith/punitive damages?
- When can the plaintiff get the financials of the insurance carrier?
- Strategies to keep punitive damages claims from reaching the jury
- Trial strategies/arguments to drive up or hold down punitive damages
- Other instances of bad faith as evidence in a trial
10:30 Morning Coffee Break
10:40 Litigating Questionable Coverage: Strategies for Avoiding Bad Faith when Dealing with Reservations of Rights, Declaratory Judgment Actions, Partially Covered Claims and Rescission
Robert Allen
Partner
Meckler, Bulger, Tilson, Marick & Pearson, LLP
Dennis Wall
Principal
Dennis J. Wall, Attorney At Law, A Professional Association
Julia Molander
Partner
Meckler, Burgler, Tilson, Marick & Pearson LLP
Defending Under a Reservation of Rights
- Where is there bad faith exposure when you relinquish control of the defense?
- What can be recouped when it is later determined there was no duty to defend?
- Are insurance companies opening themselves up to a bad faith claim just for seeking recoupment?
- What kind of control can the insurance company exercise once there is a right to independent counsel?
- What is a “courtesy defense”?
Declaratory Judgment Actions
- Convincing the court to make a coverage determination before an underlying liability trial
- When is a DJA a defense to a Bad Faith Claim, and when not?
- The interplay between DJAs and Reservations of Rights.
Bad Faith Considerations in Part Covered/Part Not Covered Claims
- Coverage in cases where there is a policy exclusion in place
- Dealing with anti-concurrent cause provisions
- “Known Loss” arguments and Insurance Bad Faith issues
- Dealing with settlement demands within policy limits
Rescission
- How will health care reform affect rescission?
- What is the standard for rescission?
- Statutory Rescission vs. Common Law Rescission
- Rescission by the Policy Provision – the same or different?
11:40 ETHICS: Attorney-Client Privilege & Work Product Protections
Jason Mazer
Shareholder
Ver Ploeg & Lumpkin PAE.
Kay Fuller
Director of Litigation
Martin & Seibert
Matthew Sekits
Shareholder
Bullivant Houser Bailey
- What is discoverable?
- Proper scenarios to waive protection
- Types of conduct that may be considered an “implied waiver”
- Protecting and asserting the privilege as to attorney-client privilege and the work product doctrine• Review of privileged documents in preparation of 30(b) witnesses: waiver?
12:40 Lunch for Workshop B/C/D participants
Conference Details