In today’s blog post, Miller Friel attorney Miles Karson addresses key Employment Practices Liability insurance (“EPLI”) issues. These include considerations that corporate policyholders should keep in mind when purchasing or making claims under EPLI insurance policies. On the front end, ensuring adequate coverage for EPLI claims starts when coverage is placed. Considerations there include defense cost carve outs in certain exclusions, and the inclusion of Duty to Advance defense cost provisions. On the back end, a claim must be carefully analyzed to maximize the full extent of coverage.
In today’s blog post, Miller Friel attorney Miles Karson addresses an alarming insurance trend, namely, the increased frequency of insurance companies seeking to recoup defense costs under duty to defend insurance policies. Even more alarming is the fact that a right to reimbursement doesn’t typically exist, unless the insurance carrier does certain things, and the policyholder fails to properly object. Policyholders should apply the strategies discussed herein from the moment they receive a reservation of rights letter. Although the deck is stacked against insurance carriers when it comes to the recoupment of defense costs, policyholders can turn a good situation into a potential problem. Please watch the video to learn more.
In today’s blog post, Miller Friel attorney Miles Karson addresses how policyholders can secure insurance coverage for false advertising claims under Director and Officer insurance policies. Using a real-life example, Miles addresses a situation where a series of D&O insurers wrongfully denied coverage for numerous false advertising claims. There, the policyholder faced potential liability for the underlying false advertising claims, and looked to their existing private company D&O insurance policies for coverage. In turn, the insurance carriers asserted that a professional services exclusion in the policy precluded coverage. In the end, the insurance carriers paid the claim, but they would not have done so unless appropriate insurance recovery strategies were employed.
In this video Miller Friel attorney Miles Karson discusses the five most important excess insurance policy issues that every corporate policyholder should consider. Excess insurance is not always given proper consideration, because, after all, most excess policies “follow form” to primary insurance. Conventional insurance wisdom says, if primary insurance language is great, then excess insurance policy language should also be great. That, however, is often not the case.
Miles Karson analyzes why excess insurance is different from primary insurance, pointing out the five most important things that corporate policyholders need to be aware of with respect to excess insurance:
the excess policy exhaustion language issue;
the Swiss cheese ADR provision issue;
the “follow form” after inception issue;
the “follow form” to what policy issue: and
the ever present notice issue.
In today’s video Miles provides a deeper explanation of these topics and more. Please watch the video to learn more about how to spot the most common excess insurance problems faced by corporate policyholders.
In our three-part series, The Good, The Decent and The Ugly, Miles Karson discusses best practices for settling with primary and excess insurance carriers. This series focuses on how excess insurance policy language impacts potential settlements with excess carriers when underlying carriers pay less than their full policy limits to settle a claim.
In today’s final installment of this three-part series, Miller Friel attorney Miles Karson discusses what business should do if one or more excess insurance policies contains exhaustion language falling into the “ugly” category – that is, exhaustion language that requires exhaustion of underlying limits through payment by the underlying insurers. This kind of language is the most problematic, because the majority of courts hold that this kind of language does not permit a policyholder to contribute to settlement with an underlying insurance carrier, and still recover from an excess insurer. The first step is recognizing that excess policies contain this language so that policyholders do not unwittingly enter into a settlement that could compromise coverage. The second step is to recognize that, if a business still wants to settle, there are ways to accomplish this, but that settling must be done correctly, or coverage may be forfeited.
More broadly, Miles discusses lessons to be learned regarding the impacts of settling on excess insurance coverage by examining the full spectrum of potential coverage issues. The main takeaway for any corporate policyholder is that they need to proceed carefully at every step in the process. Watch the video to learn more about how policyholders can proceed to give themselves the best chance of recovery, even If their policy language is “ugly.”
Last week on the Miller Friel Insurance Recovery Blog, attorney Miles Karson introduced a three part “how to” series on best practices for settling with primary and excess insurance carriers. The series focuses on how excess insurance coverage language impacts potential settlements with underlying carriers when settlement amounts paid by the underlying insurance carrier areless than the underlying insurance policy limits. When settling with underlying insurance carriers, excess insurance policy language falls into three different categories: the good, the decent, and the ugly. Where an excess insurance policy falls along this spectrum dictates what kind of settlement strategy can safely be employed. This is a critical consideration, because, if settlements are done incorrectly, an excess insurer will argue that coverage has been forfeited.
The Importance of Excess Insurance Policy Language
In today’s video Miles discusses the kind of excess insurance policy language that we consider “decent.” With respect to the issue of how this language impacts settlement with underlying insurance carriers, courts have held that this kind of language is ambiguous. With this kind of language a business may want to settle with an underlying carrier for less than policy limits, fund the difference, and attempt to proceed against the excess carrier. But, with this kind of language, they are certain to face a fight. Watch the video tolearn more.
Understanding how excess insurance responds once underlying insurance policies have been settled is one of the most important and least understood areas of insurance coverage law today. The primary-excess settlement issue is present in most any claim that triggers more than one policy layer. When faced with considerable liability, primary insurance carriers often want out. But, they still wants some “credit” – however small – for the coverage defenses they have raised. That “credit” may come in the form of settling for an amount less than policy limits. In the meantime, the excess insurers sit back and argue that they have no reason to engage, because their policy limits have yet to be reached. In reality, excess insurers are hoping that the policyholder makes a mistake in settlement that will arm them with an additional coverage defense. This is a common trap that arises in most large insurance claims, and unless handled properly, can be a setup for disaster.
Today’s video is the first in a three part series designed to help policyholders recognize and navigate some of the complex issues that arise when considering partial insurance settlements. In this three part video series, Miles Karson discusses the under-appreciated topic of excess insurance policy language, with a particular focus on exhaustion provisions. Excess policy exhaustion language falls into one of three general categories: (i) the good, (ii) the decent, and (iii) the ugly. As Miles discusses in today’s video, the “good” exhaustion language unambiguously allows a policyholder to settle with its primary or other lower-level insurers for less than policy limits and still access its excess insurance policies. Indeed, excess insurers rarely, if ever, challenge this language. By negotiating this kind of language into their excess policies, policyholders can sidestep some of the potential problems that can occur later. Additional information on the subject can be found in our prior blog post entitled, Settling With Underlying Insurers For Less Than Policy Limits: the Good, the Decent, and the Ugly.
Founding Name Partners of Miller Friel, PLLC, Brian Friel (Left) and Mark Miller (Right)
In today’s video, Miller Friel attorney Miles Karson addresses the best time to retain coverage counsel. Oftentimes, businesses are reluctant to retain outside coverage counsel, instead, relying on the advice of insurance brokers and defense counsel. Unfortunately, we are often retained after others have made significant errors with respect to the handling an insurance claim. Given that many critical decisions are made at the earliest part of a claim, it makes sense for business to retain outside coverage counsel at the onset of any significant matter. Retaining coverage counsel at the earliest stages allows us to lay the foundation for recovery that might otherwise be forfeited. The more proactive a policyholder is in involving coverage counsel, the better the result. Moreover, involving coverage counsel early in the process allows them to objectively evaluate and analyze an insurer’s conduct in the claims handling and evaluation process. The best case scenario, is that the longer a policyholder waits to engage coverage counsel, the more catch up coverage counsel will have to do if a claim is denied. The worst case scenario is that if coverage counsel is not consulted early in the claims process, coverage for some or all of the claim may be forfeited.
Insurance carriers utilize coverage counsel at the earliest stages of any large claim, and so too should policyholders. With any large business insurance claim, coverage counsel can add value, both by preventing costly mistakes, but also by setting a path for full recovery in the future.
As an insurance recovery law firm, Miller Friel exclusively represents corporate policyholders. This exclusive focus directly translates to a higher value for our clients.
This is an example of how far reaching and harmful an insurer’s bad faith conduct can be – where the insurer deprives its policyholder of the very security for which it bargained for and exposes its policyholder to the very risks from which it sought protection. This is the essence of bad faith conduct. In addition, this video points out some of the intricacies of bad faith law, the necessity of knowing a policyholder’s potential bad faith claims and remedies at the onset of a claim, and the importance of understanding and analyzing the insurer’s conduct at each stage of the insurer-policyholder relationship.
Having analyzed and litigated bad faith claims in numerous jurisdictions, Miller Friel is uniquely equipped with the experience to identify potential bad faith claims and to integrate bad faith claims into an overall insurance recovery strategy.
If, after watching, you have any questions about your own coverage, please give us a call at 202-760-3160.
In today’s video blog post, Miller Friel attorney Miles Karson continues his discussion of Bad Faith claims. Bad Faith claims against an insurance carrier can be the “great equalizer,” leveling an otherwise unequal playing field between insurer and policyholder. However, it is not always enough to know that the law of most states recognize that an implied covenant of good faith and fair dealing in every insurance contract.
Maximizing Bad Faith Recoveries
Maximizing bad faith recoveries requires in an depth knowledge of the complexities and differences of each state’s bad faith laws. Different states recognize different types of bad faith claims, impose different conditions on bringing bad faith claims, and afford different bad faith damages. In order to maximize the strength of a potential bad faith claim, it is critical for coverage counsel to identify all potentially applicable states’ laws, know the types of bad faith claims recognized under those states’ laws, and evaluate the entirety of the insurer’s conduct.
Because of the intricacies of bad faith law, and the complexities involved in choice of law analysis, it is important to hire coverage counsel who not only understands bad faith law, but who also has experience and success at litigating bad faith claims. Having analyzed and litigated bad faith claims in numerous jurisdictions, Miller Friel has the experience to integrate bad faith into an overall recovery strategy, and use bad faith as a tool to maximize recovery. See Miller Friel Case Resolution.
To learn more about how we have used integrated bad faith strategies to drive insurance recovery settlements, please give us a call at 202-760-3160.