In today’s blog post, we address how policyholders can secure insurance coverage for false advertising claims under Director and Officer insurance policies. Using a real-life example, we address 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 today’s blog post, Miller Friel attorney Kimberly Wehle wraps up her four-part series: Four Tips for Advocating Insurance Coverage Disputes. In this fourth and final installment, she discusses how effective insurance recovery lawyers approach motions practice. Sophisticated insurance recovery lawyers follow this rule when writing: short is good, but shorter is better. Insurance recovery briefs should succinctly explain a client’s position on both the facts and the law. Brevity comes from careful editing and intelligent analysis, and, it is an essential part of good legal writing. Brevity is especially important with motions practice. Unlike lawyers litigating a case, judges simply don’t have time to think through every nuance of the case. Insurance recovery lawyers need to do that for the judge, and present to the judge a brief and concise argument as to why their client is entitled to coverage.
In today’s blog post, Miller Friel attorney Kimberly Wehle continues her four-part series, Four Tips for Advocating Insurance Coverage Disputes. In this third installment, she discusses how effective insurance recovery lawyers build a theme for the case and tell a great story. Although great trial lawyers do this as a matter of course, effective story telling should begin at the commencement of the case. This is especially important with insurance recovery law. If insurance issues are briefed in a purely technical fashion, an opportunity to stir the intellectual and factual curiosity of the court may be lost. One way to engage the court’s intellect is to consistently tell your client’s story in a clear and compelling way.
Don’t miss Thursday’s final post in the series; Part Four, Short Is Good, But Shorter Is Better.
In today’s blog post, Miller Friel attorney Kimberly Wehle continues her four part series, Four Tips for Advocating Insurance Coverage Disputes. In the second part of this series, she addresses an essential characteristic that insurance recovery lawyers need to win cases: the ability to think like a judge. She emphasizes that judges have brilliant legal minds. But, time pressures may not allow judges to build a deep reservoir of knowledge pertaining to specialized legal disciplines such as insurance recovery law. Unless handled correctly, complexities in insurance recovery law can lead to confusion and waste a judge’s time. Effective advocacy in insurance recovery law requires that complex legal arguments be distilled down into a simple yet comprehensible format. Given the complexities of insurance recovery law, this is not always an easy task.
Her series continues next week with part three, addressing theory of the case, and telling a great story.
In today’s blog post, Miller Friel attorney Kimberly Wehle introduces her four part series, Four Tips for Advocating Insurance Coverage Disputes. In this first part, she addresses the critical importance that choice of law plays in any corporate insurance coverage dispute.
The series begins with this topic to highlight how critical choice of law can be to the final outcome of any large insurance claim. Insurance coverage law is governed by state law, which can vary drastically from state to state. Interpreting the exact same policy language under two different sets of substantive law can result in entirely different results. For example, applying one state’s law, the claim may be covered, but the same may not be true if a different state’s law is applied. The law that applies can also vary issue-by-issue in the same case. Accordingly, choice of law is something that needs to be considered very early for each insurance claim, and it needs to be managed effectively throughout the claims process to maximize chances of a favorable outcome across the entire range of insurance issues presented.
Miller Friel, PLLC is pleased to announce that Bernard P. (Bernie) Bell has joined the firm as a partner, serving clients from Miller Friel’s Washington, DC, and New York offices. Mr. Bell was previously a partner in the Washington, DC office of Jones Day, a top 10 AmLaw Global 100 law firm.
Bernard P. Bell, Miller Friel, PLLC
A nationally recognized insurance recovery practitioner, author and speaker, Mr. Bell has served as lead counsel pursing insurance recovery across a full range of disputed claims. His recent representations include engagements to recover property damage and business interruption losses caused by catastrophic events at refineries, petrochemical plants, industrial facilities, golf courses and hospitality venues. For decades, he has successfully pursued recovery under D&O and other liability policies for the costs of defending and resolving government subpoenas and investigations, and various breach-of-duty, securities and ERISA claims. He also advises clients on environmental, cyber, privacy and transactional insurance products, including tax position, representation and warranty, and environmental insurance policies.
“We hire only top tier insurance recovery lawyers like Bernie; he is a tremendous addition to Miller Friel,” said Mark Miller, co-founder of Miller Friel. “I’ve known Bernie since I first practiced with him 20 years ago,” added Brian Friel, co-founder and Managing Partner. Brian Friel commented that, “Bernie also shares our vision of how our firm’s model — focusing exclusively on corporate policyholders – can deliver better services than many big law general practice firms with insurance coverage practices.” Miller noted, “he is also highly respected among clients and within the insurance recovery bar. Bernie will play a key role in growing the firm.”
“Miller Friel’s partners each have in excess of 20 years of experience pursuing insurance recovery at some of the world’s largest and finest law firms,” Mr. Bell said, also adding:
I share Miller Friel’s belief that we can bring our experience and collective judgment, gleaned from decades ‘in the trenches,’ to assist our clients from an agile platform that is not compromised by legal or business conflicts with insurance companies. Miller Friel has demonstrated that a cohesive, highly trained team of dedicated insurance coverage lawyers delivers unsurpassed value to clients.
Mr. Bell further stated, “I look forward to working with Miller Friel to build on their record of efficiently handling the world’s most complex and difficult insurance disputes, and to further establish Miller Friel as the leading insurance recovery law firm in the country.”
Mr. Bell is a graduate of Colgate University and the Fordham University School of Law, where he was an editor of the Law Review. He is a Fellow in the American College of Contractual and Extra-Contractual Counsel.
In today’s post, Brian Friel addresses one of the most common reasons for denial raised by insurance carriers today: retroactive date exclusions. These retro-date exclusions have become a favorite reason for denial by insurance carriers, but they are seldom applicable. In this video, Brian addresses a typical scenario. A client came to us with a denial letter from its insurance carrier that relied primarily on a retro date exclusion.
After carefully reviewing the policy, we determined that the retroactive date exclusion did not apply. We took our argument to the insurance company, explained our reasoning, and the insurance company retracted its denial, resulting in a multimillion dollar settlement for our client.
This arc — from denial letter, to coverage analysis, to positive outcome — is highly repeatable. We use this kind of approach for each and every one of our corporate policyholder insurance clients. A denial letter from an insurance carrier is not the end of the road for an insurance claim; it is an invitation to re-examine the claim and negotiate. Corporate policyholders have the opportunity to overturn a denial of coverage, but this typically cannot be done without skilled legal assistance.
Watch the video to learn more about how corporate policyholders can overturn insurance claim denials based on retroactive date exclusions, and please feel free to contact us if you have any questions.
In this video we discuss 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.
We analyze 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 this video we provide 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.
When a claim comes in, it is important for corporate policyholders to look at all potentially applicable insurance policies, which include not just the most obvious kinds of coverage. Multiple insurance policies typically cover a single claim. The reason for this is that lawsuits often allege more than one thing. Within a single claim, certain allegations may trigger D&O (Director and Officer) coverage, others may fall under E&O (Errors and Omissions) coverage, while others may trigger EPLI (Employment Practices) coverage. More often than not, a claim will extend into multiple lines of coverage, effectively multiplying the potential coverage. Insurance policies are complex, and the law controlling coverage even more so. What corporate policyholders do early in the claims process is critical.
This video addresses the ninth biggest mistake made by corporate policyholders: not understanding potential conflicts of interest when pursuing insurance claims. To call this a mistake made by corporate policyholders, however, is misleading. The reason why corporate policyholders misunderstand conflicts in insurance cases is because they are seldom provided with sufficient information to identify insurance recovery law conflicts of interests.
Panel Counsel Relationships with Insurance Carriers
The larger United States law firms offer a wide range of legal services to clients, and “one stop shopping,” for high quality lawyers at a selected firm often makes sense. It is not uncommon for a company to utilize one law firm for a variety of legal disciplines. And, if litigation ensues, it is a benefit to the company if the chosen law firm is also panel counsel for their insurance carrier. That way, the matter can be defended using a law firm the corporation trusts.
Potential Insurance Conflicts of Interest
This model, however, does not work with insurance recovery claims. Most large multi-practice law firms have conflicts when it comes to providing advice on insurance claims. Some directly represent insurance companies in transactional and litigation matters, and seek waivers to represent corporate policyholders whenever an opportunity to help a corporate policyholder arises. Most large law firms also serve as panel counsel. Law firms that rely on litigation typically want to be listed as panel counsel, as that permits them to represent policyholders in litigation, and get paid, at least in part, by insurance carriers.
In either the waiver or the panel counsel situation, insurance carriers ask for something from the law firms representing them. If defense counsel is asked to handle an insurance claim, policyholders should be aware of their limitations. For example, in exchange for being listed as panel counsel, law firms must agree to many things, which typically include, not filing bad faith lawsuits, not deposing executives at the insurance company, and providing the insurance company with a “heads up” before litigation is filed. The overriding view is that insurance companies will not tolerate law firms that turn against them. This which makes it difficult or impossible for any law firm with insurance company relationships to zealously represent the interests of a corporate policyholder client.
If your are in-house counsel tasked with handling an insurance claim, watch this video to better understand what kinds of questions should be asked to avoid insurance recovery law conflicts of interest.
