Day 1 - Thursday, June 23, 2016

7:30
Registration and Continental Breakfast
8:00
Co-Chairs’ Welcome
8:05
Recent Case Law Rulings Impacting Allocation: Before Coverage and Allocation Can Even Be Addressed, Examining the Latest Significant Choice of Law Issues and Key Variations in How States Deal With Competing Interests for Insufficient Limits and
9:05
Employing Pro Rata vs. All Sums Methods and Recent Nuances in Trigger and Occurrences: Trigger Theories, Allocation Among Triggered Policies and Among Parties or Claims, What Various States Have Done with Trigger and
10:20
Morning Break
10:35
Latest on Stacking, Viking Pump/Warren, Non-Cumulation and/or “Other-Insurance” Clauses, and Anti-Stacking Provisions
10:55
Intervention in Underlying Action for Special Jury Verdicts to Affect Allocation: Questions to Ask in the Underlying Case to Avoid Impairing Coverage Issues
11:35
Transition to Umbrella and Excess Coverage: Primary Coverage Exhaustion, Exhaustion of Policy Limits, Horizontal Exhaustion, Duty to Defend and Zieg/Qualcomm, and Exhausting SIR/Deductibles
1:05
Networking Luncheon for Attendees & Speakers
2:05
Allocation of Toxic Tort, Asbestos, Environmental, and Other Long-Tail Claims
3:05
Bankruptcy or Insolvency post-Owens-Illinois/ Carter-Wallace, Farmers Mutual, and Ward Sand: How to Allocate When There Are Solvent Policies Above or Below an Insolvent, Treatment of Periods Insured by Insolvent Carriers in Long-Tail Allocations, and
4:00
Afternoon Break
4:10
Contribution Claims: Relationship Between Allocation and Rights of Contribution in Various Jurisdictions and Obstacles to the Assertion of Contribution Claims
5:10
Interplay of Allocation Issues in the D&O Space and Allocation of Defense Costs in the D&O Context
6:25
Conference Adjourns to Day Two

Day 2 - Friday, June 24, 2016

7:30
Continental Breakfast
8:10
The Reinsurer’s View of Allocation — Allocation Issues and Methodology When Reinsurance is Involved, Including Follow The Fortunes/Follow the Settlements Trends
9:30
Break
9:45
Allocating a Settlement and Mediation Tips and Strategies
12:00
Conference Ends

Day 1 - Thursday, June 23, 2016

7:30
Registration and Continental Breakfast
8:00
Co-Chairs’ Welcome

Laura A. Foggan
Partner
Wiley Rein LLP

Ira J. Belcove
Partner
Butler Rubin Saltarelli & Boyd LLP

8:05
Recent Case Law Rulings Impacting Allocation: Before Coverage and Allocation Can Even Be Addressed, Examining the Latest Significant Choice of Law Issues and Key Variations in How States Deal With Competing Interests for Insufficient Limits and

Sophie Lambrou Seibert
Claims Manager
Starr Adjustment Services, Inc. — A Member of Starr Companies

Alexander E. Potente
Partner
Sedgwick LLP

Julie Dean Larsen
Partner
Kutak Rock LLP

Peter L. Tracey
Partner
Perkins Coie LLP

Allocating among multiple policies is a jurisdictionally sensitive issue. With different states having different laws, it is important to keep abreast of what various states are contemplating and what approaches they are taking when dealing with the issues of allocation. This session will provide you with a comprehensive review of the year’s most important rulings. Follow along as counsel well versed in the new caselaw developments over the past year engage you in an indepth examination of the recent decisions impacting allocation. Participants will learn what these cases reveal about trends in insurance allocation as well as recommendations for how practitioners can update their strategies in response to recent developments going forward.

​the Status of the Insured (“Named Insured”/“Additional Named Insured”/“Additional Insured”)

9:05
Employing Pro Rata vs. All Sums Methods and Recent Nuances in Trigger and Occurrences: Trigger Theories, Allocation Among Triggered Policies and Among Parties or Claims, What Various States Have Done with Trigger and

Katherine E. Tammaro
Partner
Wilson Esler Moskowitz Edelman & Dickler LLP

John M. Nonna
Partner
Squire Patton Boggs

Benedict M. Lenhart
Partner
Covington & Burling LLP

Jeanine D. Clark
Partner
Margolis Edelstein

Ira J. Belcove
Partner
Butler Rubin Saltarelli & Boyd LLP

Figuring Out What Method to Employ and How to Go About Allocation

  • Pro rata vs all sums: What is it based on
  • “All sums” allocation; Pro rata; Time-on-the-risk times limits
  • “All sums”: When operating under “all sums” theory
  • ‘Equal shares’ method for allocating defense costs vs. ‘pro-rata’ method
  • What level of transparency is required by policy holders and how much do they need to disclose as to their dealings with other insurers?
  • Triple trigger vs. All sums
  • Re-allocation among insurers after an all-sums allocation

Trigger

  • Developments in “Trigger” of Coverage and developments in the law in different jurisdictions on how they apply continuous trigger
  • Use of statistical evidence to show dates of injury or damage and how this affects trigger
  • How do policies get triggered?
  • When coverage is first triggered
  • Who has the burden of proof as to when coverage begins for indemnity (as opposed to duty to defend) and what level of proof of exposure is necessary to trigger an indemnity obligation?
  • Delaying trigger dates and how it’s fought off

Occurrences

  • Number of occurrences and contractual definitions of occurrence
  • What constitutes an occurrence for purposes of any self-insured retention or policy limits

Number of Occurrences, Contractual Definitions of Occurrence and More

10:20
Morning Break
10:35
Latest on Stacking, Viking Pump/Warren, Non-Cumulation and/or “Other-Insurance” Clauses, and Anti-Stacking Provisions

Laura A. Foggan
Partner
Wiley Rein LLP

Robert M. Horkovich
Partner
Anderson Kill, P.C.

Amy R. Paulus

Clausen Miller P.C.

Jennifer Hecker
Claims Counsel
Swiss Re

Viking Pump/Warren dispute, Non-Cumulation and “Other Insurance”, Application of Anti-Stacking Provisions/Clauses

  • The Viking Pump/Warren dispute: assessing the latest on whether allocation is impacted by non-cumulation/prior insurance clauses in policies. What’s the impact in New York and elsewhere?
  • Addressing the latest on cases such as Viking Pump in which policyholder advocates are trying to unwind pro rata allocation rules by contending that they cannot apply if insurance contracts contain anti-stacking provisions
  • Pro rata: Viking Pump and non-cumulation clause: NJ’s “hybrid” approach and other recent decisions
  • The interplay between allocation and non-cumulation and/or other-insurance clauses
  • “Other insurance” clauses vs. public policy: basics of the operation of Other Insurance clauses, and the resolution of conflicts between competing clauses

“Stacking”: What Can Be “Stacked?”; Differences Among Jurisdictions on the Issue of “Stacking”; Multiple Years of Coverage and Multi-Year Policy Issues

  • Stacking” of insurance coverage — what kinds of losses implicate “stacking”?
  • What kinds of policies may be potentially “stacked”?
  • SIR stacking: In what states and in what circumstances is it appropriate to “stack” self-insured retentions
  • In what states can multiple years of coverage be “stacked”?
  • Annualization of Limits on Multi-Year Policies
  • Differences among the jurisdictions concerning whether “stacking” of Policy Limits is always permitted, never permitted, or permitted only sometimes

10:55
Intervention in Underlying Action for Special Jury Verdicts to Affect Allocation: Questions to Ask in the Underlying Case to Avoid Impairing Coverage Issues

Benjamin A. Blume
Member
Carroll McNulty Kull LLC

Robert W. DiUbaldo
Shareholder
Carlton Fields Jorden Burt, LLP

11:35
Transition to Umbrella and Excess Coverage: Primary Coverage Exhaustion, Exhaustion of Policy Limits, Horizontal Exhaustion, Duty to Defend and Zieg/Qualcomm, and Exhausting SIR/Deductibles

Seth D. Lamden

Neal, Gerber & Eisenberg LLP

William T. Um
Counsel
Kilpatrick Townsend & Stockton LLP

Gerald P. Konkel
Partner
Morgan, Lewis & Bockius LLP

Wm Scott Patterson
Senior Coverage Counsel NAC Claims Legal Group
Zurich North America

Jacquelyn A. Beatty
Shareholder
Karr Tuttle Campbell

Primary Coverage Exhaustion, Exhaustion of Policy Limits, Horizontal Exhaustion

  • What Are the Rights and Obligations Between Primary and Excess Coverage?
  • Difficulties and methods for demonstrating primary exhaustion so that a policyholder can access its excess coverage
  • Exhaustion of underlying coverage and attachment of excess: is exhaustion by payment required, or can underlying layers be exhausted by settlement?
  • Exhaustion by layers or at least all primary before excess
  • Exhaustion of Policy Limits: How Does Primary Coverage Have to Exhaust in Order to Bring Excess Coverage onto the Risk?; Proving exhaustion of policy limits?
  • Is there horizontal exhaustion in a strict sense or are rights controlled by other insurance causes?
  • Can indemnity agreements or statutes alter or affect exhaustion requirements?
  • Can excess layer be reached if a policy holder settled with primary insurer for less than the limit amount?
  • To what extent does a policy holder need to satisfy any gaps before the first layer of excess can be reached?

Excess Insurance Issues Relating to the Duty to Defend and the Zieg/Qualcomm Dispute

  • Does a settlement for less than full limits prevent the policyholder from ever exhausting so it can never collect from the excess policies in that year?
  • The Zieg/Qualcomm dispute: Does a policyholder have to collect 100% of underlying coverage before being able to access excess coverage? Or are excess insurance companies relieved of their obligations if an underlying insurance company pays less than 100% of its limits?
  • Does a primary carrier’s settlement for less than its full limits trigger the excess policy status?
  • Settlement considerations when in a Qualcomm Jurisdiction
  • How to allocate a settlement after an insurer or insurers refuse to defend
  • Where do key jurisdictions stand with respect to these issues?
  • Case law regarding duty to defend by excess carriers
  • Case law regarding possible drop down by excess carriers SIRs/Deductibles: How Are They Different, How Are They Satisfied, Exhausted and Allocated
  • How SIR’s, deductibles and retro agreements are dealt with by courts in allocating coverage
  • Application of SIRs/deductibles/fronting policies in the allocation
  • SIR exhaustion
  • Differences between retentions and deductibles
  • Satisfying retentions/deductibles
  • Exhaustion of retentions/deductibles
  • Allocation and retentions/deductibles?

1:05
Networking Luncheon for Attendees & Speakers
2:05
Allocation of Toxic Tort, Asbestos, Environmental, and Other Long-Tail Claims

Dennis Helewa
Vice President & Assistant Counsel, Claims
SCOR Reinsurance

Brett H. Ludwig
Partner
Foley & Lardner LLP

Justin F. Lavella
Partner
Blank Rome LLP

Jeffrey O. Davis
Partner
Quarles & Brady LLP

  • Latest on allocations where an insured is involved in ongoing litigation in multiple states such as toxic long tail torts
  • Analyzing asbestos claims and allocating them to insurance policies on behalf of policyholders, insurers, bankruptcy trusts, future claims representatives and financial institutions
  • In the context of asbestos, is each separate personal injury claim an occurrence or are all claims against the company an occurrence or all claims at one particular site the occurrence?; Products v. Premises (Non-Products)
  • Allocating among triggered policies and among parties or claims
  • Forecasting future asbestos related liability; asbestos bankruptcies involving an injunction protecting settling parties
  • Availability of insurance for environmental or asbestos claims after the mid-1980s: does unavailability collapses the allocation period, and if so, how to establish that insurance was or was not available
  • Whether an insured’s decision to continue producing a product for which it cannot obtain insurance should defeat the unavailability argument
  • Excess exposure in coverage actions brought in connection with pollution exposures
  • Jurisdictions that are dealing with workers compensation exclusivity issue for former employees who may now be able to sue in court and the insurance coverage issues that arise when the courts open up that issue for new claimants

3:05
Bankruptcy or Insolvency post-Owens-Illinois/ Carter-Wallace, Farmers Mutual, and Ward Sand: How to Allocate When There Are Solvent Policies Above or Below an Insolvent, Treatment of Periods Insured by Insolvent Carriers in Long-Tail Allocations, and

Robert Lenahan
Associate General Counsel
Legion Insurance Company (in liquidation)

Bridget M. Gillespie Esq.
Shareholder
Picadio Sneath Miller & Norton, P.C.

Frank Winston Jr.
Partner
Steptoe & Johnson LLP

  • Owens-Illinois/Carter-Wallace and insolvent insurers — how expansive is the ruling being applied?
  • Insolvency of Policy Holders vs. Gaps in Coverage Which Includes Insurer Insolvency
  • When and to what degree does the state guaranty fund participate: Responsibility of State Guaranty Associations in allocation schemes; responsibility of state guaranty funds in paying the insolvent share
  • The Farmers Mutual decision in NJ opened up a lot of questions that the court did not address. How to adapt in response? What’s the impact of the Ward Sand holding that the statutory changes that were the basis for the Farmer Mutual decision only apply to post December 2004 insolvencies?
  • Drop down for insolvencies where you sit above an insolvent or drop over and pay your percentage first where you are participating in a layer with insolvencies: how one allocates where there are solvent policies either above or below an insolvent
  • Treatment of periods insured by insolvent carriers in long-tail allocations

​When and to What Degree Does the State Guaranty Fund Participate

4:00
Afternoon Break
4:10
Contribution Claims: Relationship Between Allocation and Rights of Contribution in Various Jurisdictions and Obstacles to the Assertion of Contribution Claims

Bryan Feldscher
Senior Claim Counsel, NAC Claims Legal Group
Zurich North America

Charles E. Leasure III
Partner
Shipman & Goodwin LLP

Christopher B. Kende
Member
Cozen O’Connor

Robert D. Goodman
Partner
Debevoise & Plimpton LLP

  • Jurisdictional differences in the Relationship Between Allocation and Rights of Contribution
  • Obstacles to the assertion of contribution claims, either by “spiked” insurers in joint & several jurisdictions, or by non-settling insurers in bankruptcy situations
  • In “all sums”, contribution claims between insurers and set offs between insurers
  • Can other insurers bring contribution claims against those insurers that settled with the policy holder?
  • Impact of settlements on claims against non-settled carriers, e.g. settlement credits, contribution rights, etc.

5:10
Interplay of Allocation Issues in the D&O Space and Allocation of Defense Costs in the D&O Context

Joseph P. Monteleone
Partner
Rivkin Radler LLP

Susan White
Partner
Manatt, Phelps & Phillips, LLP

Edward Ellis
Vice President
Markel Global Reinsurance

Jeffrey L. Kingsley
Partner
Goldberg Segalla

Miles R. Afsharnik
Senior Vice President & National Claims Director Professional Risk Practice
Wells Fargo Insurance

  • Allocation of defense costs between covered and non-covered claims
  • Allocation of defense costs among covered and non-covered parties under liability policies, and allocation of defense costs incurred by an individual sued in covered and non-covered capacities
  • Impact, if any, when policy is a duty to defend vs. duty to pay defense costs
  • Allocation issues where policies cover only directors and officers and not the entity
  • How to address uninsured periods/extent of uncovered coverage terms/conditions breaches in the allocation
  • Allocation of exclusions: Drafting as well as legal issues
  • Allocation when policy contains an allocation provision
  • How are defense costs and indemnity allocated, if at all?
  • Possible allocation disputes amongst insureds

6:25
Conference Adjourns to Day Two

Day 2 - Friday, June 24, 2016

7:30
Continental Breakfast
8:10
The Reinsurer’s View of Allocation — Allocation Issues and Methodology When Reinsurance is Involved, Including Follow The Fortunes/Follow the Settlements Trends

Michael J. Blair
Vice President – Environmental Claims
Gen Re – A Berkshire Hathaway Company

Lee Routledge
SVP Claims & Litigation — The Americas
SCOR Re

Robin C. Dusek
Partner
Freeborn & Peters LLP

Marc L. Abrams
Member
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Lawrence S. Greengrass
Senior Counsel
Mound Cotton Wollan & Greengrass LLP

  • Why allocation matters to reinsurers?
  • Allocation Methodology in a Reinsurance Context
  • Allocation and new developments in the “follow the fortunes/follow the settlements” clauses, trends and recent cases
  • To what extent is a reinsurer bound by its cedent’s allocation
  • Is a cedent’s allocation always binding on its reinsurer?
  • Key points of contention between cedents and reinsurers
  • How binding are a cedant’s settlement allocations
  • Latest case law affecting allocation
  • How arbitrators view allocation disputes

9:30
Break
9:45
Allocating a Settlement and Mediation Tips and Strategies

Jeff Kichaven
Principal Mediator
Jeff Kichaven Commercial Mediation

Cassandra S. Franklin
Managing Attorney – Claims Coverage Counsel
Allianz Global Corporate & Specialty

Steven C. Schwartz
Partner
Chaffetz Lindsey LLP

  • Control of underlying claims, including selection of counsel and settlement, with multiple carriers and ROR letters
  • Strategies when negotiating settlements in jurisdictions with unsettled allocation issues, multiple claimants, and concepts unfamiliar to plaintiffs’ counsel and insureds
  • How to allocate a settlement after an insurer or insurers refuse to defend
  • How to allocate a settlement between covered and non-covered defendants — the “larger settlement” approach versus the “relative exposure” approach
  • How to allocate a lump sum settlement between covered and non-covered claims
  • Temporal allocation among carriers on the same risk in settlements
  • How to address voluntary payments outside insurance
  • Navigating disputes over limits or coverage in mediation
  • Unique considerations for mediating allocation among consecutive policy periods, overlapping types of coverage, and/or multiple parties
  • Setting the stage in advance of mediation
  • How to select an effective mediator for allocation

12:00
Conference Ends