Chapter 1: Liability Insurance: A General Introduction
1.01 Introduction
1.02 Obtaining Insurance - Applications
1.02A Severability
1.03 Binders
1.04 Certificates of Insurance
1.05 Automobile Insurance
1.06 General Policy Terms in Auto Policies
1.07 Uninsured and Underinsured Motorists Clauses
1.08 Commercial General Liability Insurance
1.09 Professional Liability Insurance
1.10 Directors' and Officers' Liability Insurance
1.11 Workers' Compensation Liability Insurance
1.12 Layers of Insurance - Primary Insurance
1.13 Excess Insurance
1.14 Umbrella Insurance
1.15 Reinsurance
Appendix 1A Commercial General Liability Coverage Form
Appendix 1B Specialty Errors or Omissions Liability Insurance Form
Appendix 1C Lawyers Professional Liability Insurance Form
Chapter 2: How to Read a Business Liability Policy
2.01 Parts of a Liability Policy Introduction
2.02 Declarations
2.03 Insuring Agreement
2.04 Definitions
2.05 Exclusions
2.06 Endorsements
2.07 Conditions
2.08 Analysis of Liability Policy - Introduction
2.09 Declarations - Named Insured
2.10 Policy Period and Monetary Limits of Liability
2.11 Insuring Clause with Definitions
2.12 Conditions
2.13 Issues Concerning Lost Policies - Introduction
2.14 Secondary Evidence of Lost Policies
2.15 Types of Secondary Evidence
2.16 Conclusion
Chapter 3: Rules of Liability Policy Construction
3-01 General Rules of Construction - Policy as Contract
3.02 Plain Meaning of Insurance Contract
3.03 Ambiguous Policy Terms
3.04 Centra-Insurer Doctrine
3.05 States Applying Contra-Insurer Doctrine
3.06 Reasonable Expectations Doctrine
3.07 Application of Reasonable Expectations Doctrine
3.08 States Applying Reasonable Expectations Doctrine
3.09 Extrinsic Evidence Concerning Intentions of Parties
3.10 Rules of Construction in Business Insurance Application of Contra-Insurer Rule
3.11 Size and Insurance Sophistication of Business Insured
3.12 Disputes Between Insurers
3.13 Involvement of Brokers and Counsel
3.14 Manuscript Policy
3.15 Rejection of Business Insured Exception
3.16 Renewal of Insurance Policy
3.17 Notice of Proposed Changes in Renewal Policy
3.18 Cancellation of Policy
3.19 Notice
3.20 Conclusion
Appendix 3A States Following Contra-Insurer Doctrine
Appendix 3B States Following Reasonable Expectations Doctrine
Chapter 4: Insured's Duty of Notice and Cooperation
4.01 Purpose of Notice Requirement
4.02 Insured's Duty to Notify Insurer - Sufficiency of Notice
4.03 To Whom Given
4.04 By or Through Whom Given
4.05 Timeliness of Notice
4.06 Late Notice
4.07 Prejudice and Late Notice
4.08 Majority View: Prejudice Required
4.09 Minority and Traditional View: Prejudice Not Required
4.10 Circumstances Excusing Late Notice
4.11 Lack of Knowledge of the Occurrence
4.12 Reasonable Belief that a Claim Would Not Arise or be Asserted
4.13 Lack of Knowledge of Coverage
4.14 Other Circumstances Excusing Late Notice
4.15 Notice Required by Other Types of Policies - Excess Insurance
4.16 Notice by Insurer
4.17 Claims-Made Policies
4.18 Insured's Duty to Cooperate with the Insurer
4.19 Insured's Failure to Cooperate Failure to Disclose Information
4.20 Insured's Cooperation or Settlement with Claimant
4.21 Insured's Refusal to Testify or Attend Trial
4.22 Insurer's Waiver of Insured's Breach of Cooperation
Chapter 5: Insurer's Duty to Defend
5.01 Assessing Insurer's Duty to Defend - Existence of Duty in General
5.02 Duty to Defend Determined by Allegations of Complaint Against Insured
5.03 Insurer's Knowledge of Extrinsic Information Concerning Allegations of Complaint
5.04 Conflicts of Interest
5.05 Self-Insured Retention and Directors' and Officers' Duty to Defend - Self-Insured Retention
5.06 Directors' and Officers' Policy
5.07 Excess Insurer's Duty to Defend
5.08 Limits of Duty to Defend - Amendment or Dismissal of Claims
5.09 Exhaustion of Policy Limits
5.09 A Exhaustion of Policy on Behalf of Less Than All Insurers
5.10 Tender of Policy Limits
5.11 Apportioning Duty to Defend Between Potentially Covered and Non-Covered Claims
5.12 Effect of Insurer's Refusal to Defend - Waiver and Estoppel
5.13 Theories of Recovery for Refusal to Defend
5.14 Damages Recoverable for Breach of the Duty to Defend
Chapter 6: Reservation of Rights and Conflicts of Interest
6.01 Introduction
6.02 Reservation of Rights - Legal Basis
6.03 Types of Reservation of Rights Letters
6.04 Non-Waiver Agreements
6.05 Disclaimers/Declinations
6.06 Effect of Failure to Reserve Rights - Waiver
6.07 Estoppel
6.08 Election of Remedies
6.09 Excess Insurer's Reservation of Rights
6.10 Conflicts of Interest Created by Reservation of Rights
6.11 Intentional Act/Negligence
6.12 Late Notice
6.13 Permissive Use
6.14 Punitive Damages
6.15 Insured's Selection of Independent Counsel
6.16 Fees of Independent Counsel
Appendix 6A Insurers Letter to Insured, Conflict of Interest
Appendix 6B Non-Waiver Agreement
Appendix 6C Insurability of Punitive Damages
Chapter 7: Number of Occurrences or Claims - Deductible and Limits
7.01 Accident or Occurrence Giving Rise to Liability
7.02 CGL Insurance Damage - Fortuity Requirement
7.03 Damage Expected or Intended is Not an Occurrence
7.04 Insured's Expectation or Intention is Based on an Objective Reasonable Person Standard
7.05 Number of Occurrences
7.06 Causation Analysis
7.07 Unfortunate Event Test
7.08 Effects Analysis
7.09 Policy Language and Single or Multiple Occurrences
7.10 Timing of Bodily Injury or Property Damage
7.11 Exposure Theory
7.12 Manifestation Theory
7.13 Continuous Trigger Theory
7.14 Injury-in-Fact Theory
7.15 Special Problems Relating to Claims-Made Policies
7.16 Definition of a Claim
7.17 When is a Claim Made?
7.18 Number of Claims; Related Claims
7.19 Conclusion
Appendix 7A Directors and Officers Insurance and Company Reimbursement Policy
Chapter 8: Relationship of Multiple Insurers
8.01 Primary and Excess Insurance
8.02 Duties Owed Between Primary and Excess Insurers
8.03 Equitable Subrogation
8.04 Direct Independent Duty
8.05 Triangular Reciprocity
8.06 The Nature of the Duty
8.07 Settlement of Claims Involving Primary and Excess Insurers
8.08 Settlement for Less Than Primary Insurer's Limits of Liability
8.09 Primary Insurer Insolvency and Drop Down Liability of Excess Insurers
8.10 Cases Holding No Drop Down
8.11 Cases Holding the Excess Insurer Must Drop Down
8.12 Other Insurance Clauses
8.13 Resolving Conflicts Between "Other Insurance" Clauses
8.14 Similar "Other Insurance" Clauses
8.15 Dissimilar " Other Insurance" Clauses
8.16 Contribution by Equal Shares vs. Contribution by Limits
8.17 Conclusion
Chapter 9: Failure to Settle: Bad Faith and Extra-Contractual Liability
9.01 Introduction
9.02 Extent of Bad Faith Required - Negligence Standard
9.03 Bad Faith Standard
9.04 Circumstances Demonstrating Bad Faith or Negligence
9.05 Amount of Consideration Given to Insured's Interest
9.06 Bad Faith Actions under Unfair Claim Settlement Practice Statutes
9.07 Insured's Bad Faith Refusal to Settle - Limitations to Bad Faith Actions
9.08 Defenses to Bad Faith Actions
9.09 Damages for Bad Faith Refusal to Settle - Compensatory Damages
9.10 Punitive Damages
9.11 Damages for Emotional Distress
9.12 Attorney Fees
9.13 Conclusion
Chapter 10: The Role of the Broker
10.01 Introduction
10.02 Definition of Broker
10.03 Legal Effect of Broker's Agency Status
10.04 Duties Owed by Broker to Insured
10.05 Brokers Duty to Procure Insurance
10.06 Broker's Duty to Place Insured with Solvent or Authorized Insurer
10.07 Broker's Duty to Renew or Service the Insured's Policy
10.08 Broker's Duty to Notify Promptly of Rejection or Cancellation
10.09 Broker's Duty to Advise the Insured of Alternative Coverages or Higher Limits
10.10 Duties Owed by Broker to Insurer
10.11 Theories of Liability Asserted Against the Broker
10.12 Negligence Theory
10.13 Negligent Misrepresentation and Fraud
10.14 Breach of Fiduciary Duty
10.15 Breach of Contract
10.16 The Insured's Duty to Read the Policy as a Defense to Broker's Misconduct
10.17 The Broker's Right to Litigate the Issue of Coverage as a Defense to Liability
Part II Litigation and Arbitration in Insurance Disputes
Chapter 11: Choice-of-Law Resolution in Insurance Cases
11.01 Introduction
11.02 Choice-of-Law Resolution
11.03 The First Restatements Lex Loci Approach
11.04 The Second Restatements Most Significant Relationship Test
11.05 Governmental Interest Analysis
11.06 Choice Influencing Considerations
11.07 Variations in Method Application - Issue Splitting and Multiple Risk Policies - Depecage
11.08 Multiple Risk Policies
11.09 Federal-State Differences
11.10 Tort-Contract Distinctions
11.11 Conclusion
Appendix 11A State-by-State Approach
Appendix 11B Summary of Results: Breakdown by Rules Applied
Chapter 12: Declaratory Judgment Litigation Issues and Strategies
12.01 Introduction
12.02 Statutory Basis for Declaratory Judgment Actions
12.03 Jurisdiction, Venue, and Service of Suit Causes
12.04 Proper Parties
12.05 Justiciable Controversy
12.06 Preemptive Suits and Prior Pending Actions
12.07 Burden of Proof of Insured and Insurer in Declaratory Judgment Action
12.08 Right to Trial by Jury in a Declaratory Judgment Action
12.09 Attorney Fees Incurred in Declaratory Judgment Actions
12.10 Fees Not Recoverable
12.11 Fees Recoverable
Chapter 13: Discovery and Case Management in Declaratory Judgment Actions
13.01 Scope of Discovery
13.02 Attorney-Client Privilege
13.03 Work Product Doctrine
13.04 Waiver of Privilege
13.05 Protective Orders
13.06 Reinsurance and Privilege
13.07 Reserves Information and Privilege
13.08 Discovery of Claims of Other Insuneds
13.09 Case Management and Cost Sharing
Appendix 13A Joint Defense Agreement
Appendix 13B Sample Protective Order
Appendix 13C Sample Case Management Order
Appendix 13D Sample Cost Sharing Agreement
Chapter 14: Arbitration in Insurance Disputes
14.01 Introduction
14.02 Arbitration Statutes
14.03 The Arbitration Agreement - Formal Requirements
14.04 Broad and Narrow Arbitration Clauses
14.05 Avoiding the Arbitration Agreement for Drafting Deficiencies or Formation Defects
14.06 Arbitration Procedure - The Demand to Arbitrate
14.07 Appointing the Arbitration Panel
14.08 Arbitrator Partiality
14.09 Time Within Which Arbitrators Must Act
14.10 Scope of Discovery
14.11 Parties to the Arbitration
14.12 Arbitration Award - Form and Content of the Award
14.13 Effect of the Award
14.14 Grounds for Vacating the Award
14.15 Appealing the Award
Appendix 14A Sample Arbitration Clauses
Appendix 14B Sample Arbitrator Disclosure Statement
Part III Special Litigation Problems
Chapter 15: Litigating Directors and Officers Coverage Claims
15.01 Introduction
15.02 Directors' and Officers' Policies - Two-Part Claims-Made Policy
15.03 Possible Insureds
15.04 Wrongful Act
15.05 Loss
15.06 Costs Included in Limits
15.07 Claims-Made" Fonn
15.08 Rescission of the D&O Policy Based on Fraud or Misrepresentation
15.09 Cancellation/Non-Renewal of Policy
15.10 Defense Cost Reimbursement under D&O Policies
15.11 Obligation to Reimburse Contemporaneously
15.12 No Obligation to Reimburse Contemporaneously
15.13 Allocation of Defense Costs
15.14 Exclusions
15.15 Deliberate Dishonesty Exclusion
15.16 Insured vs. Insurer Exclusion
15.17 Regulatory Exclusion
15.18 Personal Profit Exclusion
15.19 The Securities Exclusion
15.20 Fines & Penalties
Chapter 16: Advertising Liability Coverage
16.01 Introduction
16.02 Advertising Liability Clauses
16.03 The Importance of the Nexus to Advertising Activity in Restricting Policy Coverage
16.04 International Insurance Co. v. Florist Mutual Insurance Co,
16.05 National Union Fire Ins, Co. v. Siliconix, Inc
16.06 Bank of the West v. Superior Court
16.07 A Meyers & Sons Corp. v. Zurich American Insurance Group
16.08 Lazzara Oil Co. v. Columbia Casualty Co.
16.09 Nexus Requirement Held to be Satisfied
16.10 Jefferson-Pilot Fire &. Casualty Co. v. Booth, Prichard dc Dudley
16.11 John Deere Insurance Co. v. Shamrock Industry, Inc.
16.12 Coverage for Infringement of Trademark and Trade Dress
Chapter 17: Litigating Environmental and Toxic Tort Coverage Claims
17.01 Overview of Environmental Coverage Concerns
17.02 Potentially Available Coverages - Commercial General Liability Coverage
17.03 Environmental Impairment Liability Coverage
17.04 Other Coverages
17.05 Typical Environmental Coverage Issues
17.06 Is There a "Suit" Requiring a Defense? - Potentially Responsible Party Letters
17.07 Administrative Orders
17.08 Are Damages Sought?
17.09 Was There an Occurrence, and Related Issues? - Accidental, Unexpected, and Unforeseen Injury
17.10 Known Risk
17.11 Number of Occurrences
17.12 Timing of Property Damages
17.13 Potentially Applicable Exclusions: Overview
17.14 The Standard Pollution Exclusion
17.15 Types of Pollution Governed by the Standard Pollution Exclusion Clause
17.16 To What Type of Pollution Does the Pollution Exclusion Apply?
17.17 The Sudden and Accidental Exception
17.18 Cases Holding "Sudden" Means "Unexpected"
17.19 Cases Holding "Sudden" Has Temporal Meaning
17.20 What Does Accidental Mean in the Sudden and Accidental Exception?
17.21 Interplay Between "Occurrence" and the Standard Pollution Exclusion
17.22 Cases Holding Pollution Exclusion Clause in Coextensive with Occurrence Definition
17.23 Cases Holding Pollution Exclusion Clause Not Coextensive with Occurrence Definition
17.24 The Absolute Pollution Exclusion
17.25 Owned Property and Care, Custody, or Control Exclusions
17.26 Choice of Law
17.27 Forum Non Conveniens in Multi-Site Litigation
17.28 Personal Injury Coverage for Environmental Claims
17.29 Regulatory Estoppel
17.30 Allocation
17.31 Investigation Costs-Defense or Indemnity
Chapter 18: Employment Liability Coverage
18.01 Introduction
18.02 Comprehensive General Liablility Insurance
18.03 Review of Other Liability Insurance
18.04 Employment Practices Liability Insurance (EPU)
Appendix 18A Specimen Policy and Application
Chapter 19: Fiduciary Responsibility Insurance
19.01 Introduction
19.02 Fiduciary Liability
19.03 Claims-Made Policy
19.04 Named Insured
19.05 Wrongful Act
19.06 Loss or Damages
19.07 Insuring Agreement
19.08 Deductible and Limits
19.09 Exclusions
19.10 Claims-Made Extension Clause
19.11 Other Key Policy Provisions
19.12 The FRIP Policy as Compared to Other Insurance Policy Forms
19.13 Conclusion
Table of Cases
Table of Authorities
Index
CD- ROM Table Of Contents
Part I Overview of Basic Insurance Issues
Chapter 1: Liability Insurance: A General Introduction
Appendix 1A Commercial General Liability Coverage Form
Appendix 1B Specialty Errors or Omissions Liability Insurance Form
Appendix 1C Lawyers Professional Liability Insurance Form
Chapter 6: Reservation of Rights and Conflicts of Interest
Appendix 6A Insurers Letter to Insured, Conflict of Interest
Appendix 6B Non-Waiver Agreement
Appendix 6C Insurability of Punitive Damages
Chapter 7: Number of Occurrences or Claims - Deductible and Limits
Appendix 7A Directors and Officers Insurance and Company Reimbursement Policy
Part II Litigation and Arbitration in Insurance Disputes
Chapter 13: Discovery and Case Management in Declaratory Judgment Actions
Appendix 13A Joint Defense Agreement
Appendix 13B Sample Protective Order
Appendix 13C Sample Case Management Order
Appendix 13D Sample Cost Sharing Agreement
Chapter 14: Arbitration in Insurance Disputes
Appendix 14A Sample Arbitration Clauses
Appendix 14B Sample Arbitrator Disclosure Statement
Part III Special Litigation Problems
Chapter 18: Employment Liability Coverage
Appendix 18A Specimen Policy and Application
