All posts by Mark Miller

Insurance Coverage Litigation – Insurer and Policyholder Perspectives

Insurance Coverage litigation may be, by some, considered a last resort. That is, a process to enter into when all other avenues of settlement have failed. In certain situations, however, insurers file early declaratory judgment actions. In others, policyholders sue soon after receipt of a denial of coverage letter. There appear to be other considerations at play.

The stakes can be high for both insurers and policyholders, and the perspectives on litigation from both the insurer and policyholder perspectives are seldom discussed together. Here, two insurance coverage litigation adversaries candidly discuss what factors and considerations should go into insurance coverage litigation.

To understand better what goes into insurance coverage litigation cases, we put together a panel of two insurance trial experts in the field, Deborah L. Stein of Simpson Thatcher, (addressing the insurance company side of the equation), and Mark E. Miller of Miller Friel (addressing the policyholder side of the equation). The full course is available from PLI and the PowerPoint for the presentation is linked here. Insurance Coverage Litigation PLI

Six topics were covered:

  • Pre-Litigation – what goes on prior to filing suit;
  • Filing a Complaint – what drives the decision;
  • Motions to Dismiss – valuable to both sides;
  • Discovery – using it effectively;
  • Summary Judgement – a critical juncture;
  • Trial – best practices and perspectives.

At the risk of oversimplifying, here are some of the highlights on the competing  policyholder / insurer perspectives on insurance coverage litigation:

1. Pre-Litigation – what goes on prior to filing suit

Compile information;
Correspond with policyholder;
Evaluate dispute, jurisdiction, timing of claim issues.
Full evaluation of the claim – law, facts;
Send well-drafted letters to insurers refuting denials;
Compliance with policy conditions, even if waived;
Develop strategy to maximize recovery.

2. Filing a Complaint – what drives the decision

Issue of first impression;
How clean are facts and law;
Duty to defend law;
Duty to indemnify law;
Coverage issues vs. valuation issues;
Key question – will filing suit maximize legal recovery. Look at:
a) Choice of law;
b) Law of jurisdiction
c) Risk of being sued first
d) Insurer reputation
e) Insurer conduct / bad faith
f) Reasons for denial (potentially legitimate vs. industry custom and practice;
g) Overall case strategy.

3. Motions to Dismiss – valuable to both sides

Case specific – be selective in filing;
Possible filings for:
a) Jurisdictional and standing issues;
b) Whether claimant is an insured;
c) Timing of injury (outside of period);
d) Undisputed law and facts;
e) Bad faith;
f) Statutory claims handling causes of action.
File if insurer filed suit in wrong jurisdiction;
Care taken so complaints cannot be dismissed.

4. Discovery – using it effectively

Build your defenses and themes from the discovery you produce and obtain, but don’t force a story;
Document Requests – think about types of documents you need; request further documents in depositions;
Interrogatories – Use strategically (identification of documents, witnesses, facts); untargeted interrogatories not helpful;
RFAs – look for discrete admissions; use for authentication;
Depositions – usually the most effective tool; prepare, prepare, prepare; remember that you are still discovering.
Focus Discovery on elements of proof at trial;
Offensive Discovery – use it to build the story of improper denial; don’t waste time taking 30(b)(6) depositions;
Defensive Discovery – this is where cases are lost; prepare witnesses properly, as insurance issues are too complex to understand without preparation; pay extra attention to those that know about insurance (risk managers and brokers);
Know the rules; be prepared;
Recognize that no document has ever spoken for itself;
Think about what documents you need authenticated, and what documents you don’t.

5. Summary Judgement – a critical juncture

Frame issues wisely;
Consider purpose: resolve dispute, avoid trial; knock out claims; obtain direction from court;
Evaluate facts and law;
Know undisputed facts necessary for motion;
Be true to record; don’t overreach.
Overall goal is to get to trial;
Consider proactive motions such as duty to defend motions;
Motions and responses need to be drafted so the Court comes to the conclusion that you are right;
Insurance jargon and insurance complexities are not your friend.

6. Trial – best practices and perspectives

“Your trial presentation wasn’t complicated enough,” said no one ever;
Keep it simple;
Know elements and evidence; consider burdens;
Prepare order of proof;
Remember the big picture;
Humanize witnesses; don’t be over-technical and don’t stretch;
Don’t overuse documents.
Trial preparation starts on day one, as everything that is done is for the purpose of trial;
Develop case theme based on discovery;
Simplify case to its essential elements and tell your story;
Be likable, interesting, and nice;
You are painting a picture. You decide what to put on the canvas. Opponent will try and mess up your beautiful painting. Don’t let this happen.

Although there is enough material on any one of these topics to fill an entire CLE course, this CLE is a good start for in house counsel faced with the task of managing either insurance coverage litigation or an insurance claim.  Moreover, policyholders seldom get the insurance company counsel perspective, which is always valuable when assessing a claim. All that and more can be found in this course.

The most important information I got from presenting this course is:

  1. Claim denials can be reversed, but sending a nasty letter will not do the trick.
  2. Rather, well-crafted letters rebutting each and every error made in an insurer’s denial letter is the way to go.  This requires mastery of the facts and law.
  3. Prepare for trial from the moment you become aware of the claim.
  4. Letters are drafted for the Court.
  5. There are ample opportunities to make mistakes, and policyholder self-inflicted wounds are the most common way that insurance coverage cases are lost.
  6. Develop your story, and refine that story through discovery.
  7. Push for trial.  If an insurer wants to settle, they know who to call.
  8. When preparing for trial, think about painting a picture for the judge and jury.  You decide what colors to use, and what to put into the record.  Insurers will try and mess up your painting.  Don’t let them.

For other Miller Friel PLI presentations on the topic of insurance, please see Top Ten Insurance Issues for Non Insurance Lawyers, State of the Art D&O Insurance.



Insurance Policy Enhancements to Coverage

Best practices for securing insurance policy enhancements to coverage should not be a confusing issue.  Insurance brokers, who are essential to placing coverage, offer pre-approved insurance policy enhancements to coverage, and shop for the best price. Some corporate policyholders stop there, which is great, until a claim comes in.  When an insurer denies the claim, the policyholders rightly question why their claim was denied.  All too often, the insurer cites to an insurance policy enhancement to coverage, that was not really an enhancement to coverage, but a limitation to coverage.

Insurance Policy Placement — A One-Sided Process, Even With the Best Insurance Broker

There is nothing better than a great insurance broker.  But, not all brokers understand that the gold standard for insurance policy placement involves more than just price and adding pre-approved broker enhancements to coverage to the policy.  Depending on the company, an integrated legal /broker team may be warranted.   There, the broker focuses on price, and obtains the best language they can find. Then, the suggested program is evaluated by policyholder counsel to determine if the proposed language functions as intended.  The result is that the policyholder binds the best possible coverage for their specific needs.

This is not a complicated or expensive process, but the essential piece, legal review, can be overlooked if policyholders conclude that pre-approved endorsements are all that is needed to secure the best possible coverage.

Price is Important But Price is Not the Only Factor

Focusing only on price is a disservice to corporate policyholders. The purpose of insurance is to provide coverage for claims.  Insurers sell a promise, and that promise is only as good as the language contained in the insurance policy.  Yet, Insurance policies are one sided.  They are drafted by some of the best insurance company lawyers in the industry, and are designed to cover less rather than more.  Standard form policies are marketed to brokers and policyholders with the understanding that many corporate policyholders will accept their terms and conditions, as proposed, without alteration.

Standard Policy “Improvements” Can Create More Issues Than They Solve

Naturally, most corporate policyholders push back on policy language.  Insurers expect this and have contingencies to appease policyholders.  Insurers and brokers have developed standard pre-approved “improvements” to coverage that are added by the broker as endorsements to the policy.  The policyholder  may then be told that they have all of the improvements, and that the coverage is great.  The problem with these improvements, like the policy itself, is that they were expertly drafted by insurance company lawyers who understand insurance law in all 51 jurisdictions.   Many times, an “improvement” to coverage actually takes away coverage afforded by recent case law.   Hence, an insurance policy with all of the bells and whistles recommended by a broker in good faith,  may provide less coverage than the original policy.

Learning From Insurance Company Practices

Insurance coverage for any given claim is determined by ever changing insurance case law and statutes.  Insurers constantly monitor these developments, as it is a critical part of their business.  Policy language is adjusted based on the law.  Pre-approved forms are adjusted to limit coverage.

Policyholders, however, may unintentionally rely on insurance brokers to interpret the law and tell them what the policies cover.  Insurance companies know this as well.  But, insurance companies do not rely on insurance brokers to tell them what their policies mean.  Instead, they rely on lawyers, and they have many of them at their disposal.  See   Where Have all of the Insurance Lawyers Gone

Fixing the Problem of Insurance Policy Enhancements to Coverage

Although insurers are intently focused on insurance law when approving policy language, policyholders are at a distinct disadvantage.  Insurance brokers, upon who policyholders rely, don’t practice law and will readily admit that they cannot opine on what the policies cover .  The best they can do, is try.  And they do a valiant job at that.  But, without an understanding of the law, their proposed adjustments to policy language may not be proper.

Selecting appropriate policyholder counsel for insurance policy review, however, can be difficult. Virtually every law firm in the country advertises their ability to review insurance policies.  Most of these firms represent insurance carriers.  Some openly claim that because they wrote the policy forms for insurers, they are uniquely suited to revise them for policyholders. That could be true, but it raises questions of loyalty, and makes one wonder if such a firm would later advise an insurer on how to avoid revisions they made for a policyholder, because they are, in fact, uniquely suited to do so.  Call me old fashioned, but it does not seem right for a law firm to play on both sides of the corporate fence.

Either way, the best practice for securing insurance policy enhancements to coverage is for corporate policyholders is to not accept an insurance program without legal review.

Miller Friel represents corporate policyholders in insurance coverage disputes.  We litigate and resolve complex insurance claims on behalf of some of the world’s finest companies. We also see the worst of the worst insurance company tactics.  Some of this can be avoided if care is taken at the front end when policies are being underwritten.

The important thing is that policyholders find a corporate insurance recovery law firm to review their policies.   There are many law firms doing this, but only a few are doing it correctly.   Moreover, there are drastic differences in how effectively policyholder law firms address the problem.  The important thing for policyholders to recognize is that the process of insurance policy placement, from start to finish, is one sided in favor of insurers.

Miller Friel handles insurance policy reviews for select corporate clients with complex insurance programs.  For those we cannot serve, we are happy to recommend unbiased counsel to assist.

Insurance Broker RFPs

Insurance broker RFPs are one of the best ways for corporations to select qualified insurance brokers.   The practice of using RFPs for the selection of insurance brokers, however,  is underutilized, and, even when used, it does not always provide meaningful information.   Typical RFPs elicit a canned marketing presentation and lots of glad-handing.  Interesting, perhaps, but certainly not the best way to test broker abilities and approach.

Insurance Broker RFPs — Obtain Useful Information by Asking the Right Questions

The best way to keep brokers moving in a direction that is consistent with corporate interests is to have perspective brokers submit RFPs every several years. The problem with most insurance broker RFPs is that they seldom get to the issue of how good brokers are at placing coverage or assisting with respect to claims. To get this kind of information, RFPs need to be specifically targeted at current insurance issues.

To be useful, broker RFP questions need to be targeted.  From an insurance law standpoint, questions should be designed to address three critical issues.  First, how the insurance broker addresses important insurance policy language issues.  Second, how the broker deals with insurance provisions that are one sided towards insurance company interests.  And, third, how hard the broker pushes for policyholder (as opposed to insurer) interests.

The following select questions, for a technology company insurance broker RFP, gives an idea of just how specific RFP question need to be to elicit an appropriate response:


For Discussion Purposes Only
Not to Be Used Without Prior
Consent of Miller Friel, PLLC

I.  Commercial General Liability

  1. Please provide examples of the best advertising injury language you have secured for a company like [INSERT CLIENT NAME], and your opinion on whether or not you will be able to achieve similar results for [INSERT CLIENT NAME].
  2. Examples in policies of this kind where you have been able to secure patent coverage; same for trademark.
  3. Please provide examples of the best data and software coverage language you have been able to obtain for clients.

II.  Technology Errors and Omissions

  1. Examples of the best technology policies you have secured for clients, and things that you would improve with respect to that language.
  2. Please provide examples of how you have secured coverage for false advertising.
  3. Examples of whether you have secured coverage under such policies for patent claims.

III.  Directors and Officers Liability

  1. Please provide examples of the best definition of “Claim” language that you have been able to secure for clients.
  2. Please give examples of how this language was found to cover governmental investigations.
  3. Please provide examples of the best definition of “Loss” language that you have been able to secure for clients.
  4. Please provide examples of how this definition of “Loss” language was found to cover fines and penalties assessed against the policyholder.
  5. Please provide examples of how you have narrowed the scope of the bump up exception to the definition of “Loss” to avoid potential application to traditional fiduciary duty claims.
  6. Please provide the best punitive damages coverage language that you have been able to secure for clients.

IV.  Claims-Made Coverage Generally (D&O, E&O)

  1. Please provide examples of the best interrelated wrongful acts language that you have secured for clients.
  2. Please provide examples of the best prior-notice exclusions that you have secured for other clients.
  3. Please provide examples of the best prior-knowledge exclusions you have been able to secure for clients.
  4. Please provide examples of the best prior-claim notice language that you have secured for other clients.
  5. Please explain how you structure such interrelated wrongful acts, prior-notice, and prior claim exclusionary language so that insurers cannot claim that neither current nor past policies cover otherwise covered claims.
  6. Please provide examples of the best conduct exclusions you have been able to secure for clients.
  7. Please provide your position on whether applications are necessary for renewal policies, and examples of when you have instructed insurers that applications are not warranted.
  8. Please provide examples of when you have revised standard-form application language to protect the insured.
  9. Please provide examples of situations where you have had insurers waive warranty requirements; please provide examples of the same when coverage was new (not renewal coverage).
  10. Examples of when you have challenged prior and pending dates proposed by an insurer, and the outcome of such challenge.

V.  Other

  1. Your recommendations on the best additional time-element provisions for [INSERT CLIENT NAME], with examples (including extra expense, royalties, contingent time element, interruption by villi or military authority, ingress/egress, extended period of indemnity).
  2. Please provide examples of how you have revised exclusions in policies to make certain that all terrorism related activities under TRIA for certified acts of terrorism are covered, including dirty bombs and bio-terrorism.
  3. Please confirm that you will be able to secure pre-approval of defense counsel, by endorsement, for the following law firms: [INSERT NAMES OF PREFERED DEFENSE COUNSEL].
  4. Please provide examples of the best endorsements you have secured for clients providing for approval of pre-selected defense counsel, and identify what, if anything, additional you recommend adding to such endorsements.
  5. Please provide examples of the best hourly rates you have been able to secure for defense counsel.
  6. Please provide examples of how you have worked with coverage counsel both in litigation and pre-litigation to resolve claims.
  7. Please provide your recommended course of action to preserve legal privilege for discussions you may have with for [INSERT CLIENT NAME] concerning claims.
  8. Please provide examples of insurers pressuring your firm with respect to a policyholder claim, and how you dealt with it, and whether your firm will take similar action with respect to [INSERT CLIENT NAME].
  9. Please provide your examples of situations where you have challenged arbitration language in an insurance policy prior to issuance, and the outcome of such challenge.
  10. Please provide examples of the best ADR provisions you have secured for clients, and why you believe that such language is advantageous.
  11. Please provide examples of the best warranty language that you have been able to secure for clients.

Most RFPs will contain what the insurance broker believes are their strongest selling points, like, how much coverage they place. who their clients are, their great relationships with insurers, and the fact that they have claims people on staff.  This information will be provided even without an REP.  RFP questions should be designed to address something more.  In the insurance context, that more is how well the broker pushes issues to benefit the policyholder.

Top Ten Insurance Recovery Issues For Corporate Policyholders

More now, than any other time that we can remember, policyholders in corporate insurance recovery cases seem to be getting it wrong.  Policyholders are losing corporate insurance recovery cases that they deserve to win.  As we study insurance coverage decisions, we cannot help but notice the cause of the problem:  policyholders are either being given bad advice, or they are making critical preventable mistakes.   This is the reason why we developed this Top Ten List of Insurance Issues for Non-Insurance Lawyers. 

First, a little background into the problem.  Lawyers are critically important to corporate policyholders, both with respect to advising on claims, but also with respect to reviewing coverage.  Lawyers, whether in house, or at an outside law firm, are some of the first to become aware of potential claims.   Ever evolving insurance coverage case law, a complex statutory overlay governing insurer conduct, and incomprehensible insurance jargon, can make it difficult for lawyers to obtain straightforward answers to insurance problems.  Fortunately, a little knowledge goes a long way towards preventing corporate policyholder missteps. 

As history has shown, it is not all that easy to obtain accurate advice on corporate insurance issues.  As most partners at large prestigious law firms know, insurance ties with the legal industry are are vast and complex.  Arrangements between law firms and insurance carriers to control corporate insurance claims are widespread.  Most large law firms represent insurance carriers in some capacity, and rules of engagement with insurers are often adopted to keep insurance company business, and to minimize law firm financial backlash from insurers when they pursue corporate insurance claims.  These rules of engagement may include, among other things, a prohibition on filing bad faith lawsuits, limitations on discovery against insurers, and an understanding, that if things get rough, strings will be pulled to pull off the attack dogs.

Non-insurance lawyers looking into insurance claims should also be aware that insurance brokers face similar challenges.  Any good insurance broker will admit that they are walking a find line when it comes to providing advice on corporate insurance claims.  Insurance brokers are typically paid by insurers, and, in many instances, they are financially rewarded based on losses paid on their accounts.  They make more if their client-policyholders do not make claims.  As a result, their first reaction may be not to tender a claim, or to try and convince a policyholder that a claim is not covered.  If a policyholder persists, the next step that brokers use to manage the claims process is to involve their in-house claims advocacy group.   These in-house claims advocacy groups serve the purpose of managing client expectations by helping them align policyholder client beliefs with insurer demands.  Communications with broker claims advocacy lawyers, however, are likely not privileged, and given their goal of compromising claims, they oftentimes create smoking gun documents that can seriously harm a policyholder’s coverage position.

Non-insurance lawyers should should take these considerations into account.  Many a policyholder has been persuaded by an insurance company lawyer or insurance broker to compromise a claim, or worse yet, to drop a claim that an insurer is passionate about denying.  Independent accurate claims advice is difficult to find.

Top Ten Insurance Recovery Issues For Corporate Policyholders

Our top ten list of insurance recovery topics for non-insurance lawyers includes:

  1.  Notice,
  2.  Defense Costs,
  3.  Government Investigations,
  4. Independent Investigations,
  5. Cyber/Intellectual Property Claims,
  6. D&O Insurance Terms and Conditions,
  7. Post-Merger Acquisition Claims,
  8. Rescission,
  9. Criminal Activities, and
  10. Privilege.

1.  Notice

Insurance policy notice provisions are often treacherous for policyholders, but with proper analysis, coverage can be preserved.

2.  Defense Costs

The second issue in our continuing analysis of the top ten insurance issues for non-insurance lawyers is the full recovery of defense costs.  Insurance carriers make it difficult for policyholders to get a fair read on coverage.

3.  Governmental Investigations

More often than not, governmental investigations are covered.

4.  Independent Investigations

Insurance Recovery Issues For Corporate Policyholders

The fourth topic in our list of Top Insurance Issues for Non-Insurance Lawyers is coverage for so-called voluntary or independent investigations.

5.  Cyber and Intellectual Property (IP) Claims

Insurance Recovery Issues For Corporate Policyholders

In this video, we address an oftentimes overlooked area of coverage, that is, coverage for cyber and intellectual property claims under general liability insurance policies.  Don’t overlook “advertising injury” coverage provided in general liability insurance policies.

6.  D&O Insurance Policy Terms and Conditions

Sophisticated organizations routinely engage outside counsel to review their Directors and Officers liability insurance policies.  If done correctly, it can result in vastly superior coverage.  But, relying on standard forms and pre-drafted policy enhancements can be a recipe for disaster.

7.  Post-Merger/Acquisition Claims

Corporate acquisitions and spin-offs are common.  Most people involved in corporate acquisitions are aware of the concept of tail coverage, but certain things need to be done to a tail policy if an acquiring organization intends to pursue coverage.


8.  Rescission of Insurance Policies

In the last ten years, there has been an explosion of rescission claims by insurers.  More and more, insurers are asserting rescission as an additional reason for denial of coverage.  In reality, rescission is a drastic remedy that has no place in insurance law.

9.  Insurance Coverage For Criminal Activities

Many non-insurance lawyers assume that criminal activities are not covered by insurance; in fact, the exact opposite is true.

10.  Privilege

In our final installment of the Top Ten Insurance Issues For Non-Insurance Lawyers we address the issue of privilege.  Case law addressing insurance broker communications has not ended well for policyholders, but steps can be taken to minimize adverse results.

Questions About Corporate Insurance Recovery

Over the years, insurance recovery law has become highly specialized.  The nuances of insurance law may fall outside the scope of in-house or outside counsel expertise.  Knowing what questions to ask can go a long way towards identifying  key insurance issues and preventing needless insurance-related mistakes

We hope that this series was helpful.  If you have any questions about these or any other corporate insurance coverage issues, please feel free to contact us.

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Business Checklist To Maximize Hurricane Insurance

When a business suffers damage from a major hurricane or storm, most or all of its losses should be covered by traditional property insurance.  Although this kind of Hurricane Insurance is pervasive, navigating claims can be exceedingly difficult.  And, given the advice the insurance industry gives about property insurance,  it is no surprise that many policyholders are conditioned to minimize  rather than maximize coverage.  To maximize insurance coverage, businesses need to take certain steps.

Business Checklist for Hurricane Insurance

Hurricane insurance is part of most traditional “All Risk” property insurance policies

A Hurricane Insurance Checklist for Business

After a hurricane or storm, businesses should take the following steps:

1.  Give Notice to Applicable Insurance Companies.  A business should provide immediate notice to its insurance carriers.  In a worst case scenario, the lack of notice could result in losing all coverage. Coverage counsel can help you decide which policies may provide coverage so that proper notice can be sent.

2.  Mitigate Loss; Preserve Evidence.  Serious storm damage needs to be cleaned up immediately for both business and insurance reasons.  For a business, it needs to get back to work.  From an insurance perspective, a policyholder needs to mitigate its loss or risk. Ideally, the quick cleanup actions and immediate repairs will be coordinated with the insurance adjuster, as the insurance carrier is obligated to pay for those immediate repair costs.  Sometimes, however, a business must act before the adjuster is available or willing to view the damage.  In that situation, the business should preserve evidence through photographs and videos.

3.  Keep a Record of Communications with the Insurer.  Keeping a written record of communications with the insurance adjuster is important for two reasons.  First, it will help you keep track of what both policyholder and the insurer need to do and make sure each side is on the same page.  Second, it will make it harder for an adjuster to abandon an oral commitment made, which sometimes happens when that commitment ends up costing the insurer more than anticipated.

4.  Fully Assess Damage and Hire Needed Experts.  Although damage from a storm may seem obvious, there may be a lot more damage than is initially apparent.  In order to maximize coverage, a business should make sure it assess all physical damage and lost business income it has suffered.  That full assessment often means that a business must hire experts to help with the claim, including engineers, accountants, and coverage lawyers.  Most or all of these expert services are covered under the insurance policy as well.

5.  Don’t Miss Deadlines.  Insurance policies contain numerous time deadlines that can be traps for businesses.  For example, most policies contain a specific deadline, such as 60 days, to submit a sworn proof of loss to the insurer.  If a business misses that deadline, it may lose coverage.  Coverage counsel can help keep track of deadlines and obtain extensions as needed.

6.  Request Partial Payments and Advances as Needed.  Often, a business needs insurance funds for cleanup and repair before the insurer has made a final determination on the claim.  In those situations, a business can obtain a partial payment or advance on its insurance claim.  However, to avoid potential traps in these situations, such as when an insurer may seek a broader release than the scope of its payment, coverage counsel should be consulted.

7.  Don’t Accept Less Coverage Than You’re Entitled.  Full or partial denials of coverage should not cause a business to give up on its coverage.  Without well-reasoned push back from policyholders, significant insurance proceeds are left at the table.  Consult with experienced coverage counsel, and don’t accept no for an answer.

Maximizing Hurricane Insurance Coverage

Property insurance claims are difficult to manage.  While Insurance industry jargon and insurance industry custom and practice have evolved towards minimizing coverage, the law and policy language typically favor a maximization of coverage.  In the end, the most important part of any claim is to conduct a legal analysis of coverage.

For more on this topic, please see Property Insurance – The Value of a Second Look; What 17th Century Piracy Teaches Us About Property Insurance; Five Things You Need To Know About Property Insurance Part 1 (The Property Insurance Claims) Minefield), Part 2 (Presentation of the Claim), Part 3 (Insurance Company Accountants), Part 4 (Most Claims Settle), Part 5 (Know the Law); History’s Best Property Insurance Decisions (Fountain Powerboat); The Real Value of Property Insurance (Covering Business Income Loss).

When Should You Sue Your Insurance Carrier – An FCPA Investigation Case Study

Insurance carriers litigate for a living, and are oftentimes planning a proactive lawsuit before a policyholder even hires coverage counsel.  Nonetheless, businesses with large insurance claims are typically skeptical of suing insurance carriers.

This video addresses a concrete example of how to use litigation to maximize claim value.  Here, a lawsuit was filed, and within weeks the insurance carrier was talking settlement.  To learn more, please watch the video.

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Insurance Recovery Law: History’s Best Decisions: The Brillhart Decision


The next case in our series Insurance Recovery Law: History’s Best Decisions turns back the clock to 1942 for the Brillhart decision.  Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942).  Although decided in 1942, Brillhart is extremely valuable today..

Nowadays, corporate policyholders are facing an all-to-common scenario.  When a business tenders a claim, an insurance carrier should evaluate the claim, and provide a defense.  Many insurers have abandoned this approach for a more adversarial route.  With those insurers, rather than providing a defense, they sue seeking a declaration of no coverage.  Their strategy is to sue when the corporate policyholder is weakest, and that time is typically just after the corporate policyholder has been sued in an underlying lawsuit.  Favorite forum for these insurers, Federal Court.

If the rash of insurer-filed declaratory judgment lawsuits are the epidemic, Brillhart is the cure.  In reality, insurance coverage lawsuits have no business in federal court, and Brillhart sets the standard for the doctrine of abstention, which provides a mechanism for dismissing insurance company filed federal Court declaratory judgment actions.

In today’s video, Mark Miller explains how this often overlooked doctrine can be used to help policyholders.

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Insurance Recovery Law: History’s Best Decisions: The Penford Case


Our next case in our series “Insurance Recovery Law: History’s Best Decisions” is the Penford case from 2011.  See Penford Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 662 F.3d 497 (8th Cir. 2011).   Although this case had a tragic outcome, it illustrates what not to do in the corporate insurance arena. 

In Penford, after years of litigation, the insurance broker lost the case.  If case was a one-off situation, one could understand a mistake being made.  We highlight this case, however, because the way Penford and its broker handled this claim, is similar to the way that many claims are handled today.  

The problems in Penford are raised whenever an insurance broker attempts to act as a claims advocate.  Watch the video to understand what happened, and to devise a plan that properly utilizes insurance broker expertise and contacts to settle a claim. 

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D&O Insurance Coverage for Government Investigations


This video addresses a real life situation were a D&O insurance carrier agreed to pay for defense of an investigation, but attempted to pay for only half of the defense costs incurred.  As is typical for these kinds of governmental investigations, both the SEC and DOJ were involved.  One agency issued a subpoena triggering coverage, and the other agency monitored the situation.  The D&O insurance carrier alleged that there were two investigations, and offered to pay only half of the costs incurred. 

Please watch the video to learn more about how to defeat this common argument.

D&O Insurance Coverage for Government Investigations

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Reversing Insurance Claim Denials Part 3: Negotiating a Resolution



In our final installment of this series addressing best practices that businesses can employ to reverse business insurance claims, Mark Miller addresses strategies that can be employed to negotiate a favorable settlement.  At every step, insurance carriers pass the ball back to the policyholder, hoping that the policyholder will go away.  Insurance claims adjusters, with a slew of insurance company lawyers behind the scenes, drive the process, and are often unwilling to change their position unless they see both corporate and professional risk.  A policyholders prime objective, therefore, is to create risk for the insurance carrier and the individuals involved in the claims adjustment process.  If done in a highly professional manner, the insurance carrier will make it known that they want to settle.  If done improperly, a mess is about to ensue.

To learn more about the process, and how to successfully walk the line, watch the video.

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