2013 Committee Insurance CLE Seminar Table of Contents


2013 Insurance Coverage Litigation Committee CLE Seminar



Thursday, February 28, 2013

1:00 pm – 2:10 pm | CLE Plenary Session 1: The Bodily Injury Concept in Liability Policies Revisited
When bodily injury occurs affects several aspects of liability coverage, from trigger to limits. Recent medical studies have allowed insurers to challenge older trigger and claim classification principles. This program will discuss insurer challenges (and policyholder responses) to timing of injury in a variety of cases, including Keasbey and Crane.

Moderator: Alan Palmer Jacobus

Speakers: Ellen MacDonald Farrell, Kelley A. Harvilla,
Peri N. Mahaley, Karen L. Stevenson

Written Materials:
The Bodily Injury Concept in Liability Policies Revisited, 30 Years On


2:15 pm – 3:20 pm | CLE Plenary Session 2: Make It Or Break It – Tips and Strategies for Maximizing The Value Of A Corporate Deposition In Your Coverage Case
This program will address the important role of corporate depositions in coverage cases, and will provide effective strategies for preparing for and taking/defending these depositions. Using segments from real and fictional depositions, the panelists will address issues and disputes that often arise during corporate depositions in coverage cases.

Moderator: John B. Mumford, Jr.
Speakers: James P. Bobotek, Ted A. Howard, Georgia Kazakis,
Ruth S. Kochenderfer

Written Materials:
Make It Or Break It – Tips and Strategies for Maximizing The Value Of A Corporate Deposition In Your Coverage Case

3:35 pm – 4:45 pm | CLE Plenary Session 3: Idol 2013 – Jury Selection in State and Federal Courts
In its third year, the ICLC Idol program addresses the practical skills necessary to impanel a jury. The audience serves as the jury pool and will be subjected to voir dire in coverage litigation involving an emerging area. After hearing from judges, ICLC attendees will vote for their favorite contestant.

Moderator: Louis Chiafullo
Speakers: Jamie R. Carsey, Michael E. Cobo, Valarie H. Jonas, Toyja E. Kelley, Angela P. Krahulik, Hon. M. Hannah Lauck, Jerold Oshinsky, Anna D. Torres

Written Materials:

Jury Selection in Insurance Coverage Litigation 

Friday, March 1, 2013

8:00 am – 9:05 am | CLE Plenary Session 4: More Deep Water on the Horizon: Lessons Learned from the Gulf Oil Spill Coverage Litigation
This panel will explore current issues and developments in the ongoing Deepwater Horizon oil spill insurance coverage litigation between BP (majority owner of the well), Transocean (owner of the rig), and relevant Insurers that issued policies to Transocean under which BP claims rights as an “additional insured.” Key issues to be addressed may include: the nature and scope of “additional insured” rights in oil & gas insurance policies and drilling contracts; the interplay of indemnity and insurance issues in such contracts; and how the insurance market may change in the wake of the Gulf of Mexico spill

Chauntis T. Jenkins

Speakers: Simon Boxall, Evans M.L, Allan B. Moore

Written Materials:
05 07 2012 Appellants’ Opening Brief

07 11 2012 Counsel for Appellees, Certain Underwriters at Lloyd’s London and Certain Insurance Companies

08 13 2012 Appellants’ Reply Brief

9:10 am – 10:15 am | CLE Plenary Session 5: Are the Shoemaker’s Children Barefoot: How Well Do You Know Your Own Lawyers’ Professional Liability Coverage?
You be the Judge! Please join us for an interactive, audience participation seminar aimed at focusing our laser-like collective attention on some key—and surprising—issues respecting our own lawyers’ professional liability coverage. This is one program your firm will surely tell you not to miss!

Moderator: Robert P. Thavis
Speakers: Mary Borja, Amy L. Ledoux, Anthony B. Leuin,  
Chester D. White

Written Materials:
Lawyers’ Professional Liability Coverage Issues Respecting “Legal Services” and “Damages” 

Prior Knowledge Provisions and Duty to Defend: An Exception to the Four-Corners Rule


10:30 am – 11:30 am | CLE Breakout Sessions

1. Recent Developments in Insurance Law and their Impact on Construction Risks
A survey of recent court decisions on Insurance Coverage that impact construction risk management, and vice versa  including: (1) defense and indemnity of class actions, (2) trigger and allocation between a client’s direct insurance and additional insured coverage;  (3) policy exclusions, and (4) What is an “occurrence”/what constitutes “property damage”?

Moderator: John H. Podesta
Speakers: Seth M. Friedman, Vanci Y. Fuller, Jeffrey J. Vita

Written Materials:
Allocation of Coverage Between Direct and Additional Insured Coverage

Exclusions Gone Awry: Misinterpretations of the Contractual Liability and Faulty Workmanship Exclusions Pose a Threat to the Construction Industry

A Survey of Recent Case Law Regarding Whether Faulty Workmanship an “Occurrence” in a CGL Policy

Recent Developments in Insurance Law and the Impact on Construction Risks


2. T
he High Cost of Privacy Violation Lawsuits and How Insurance May Provide Some Cover
The number of class action lawsuits filed against companies alleging violations of privacy and data breach is on the rise. This program will provide an update on the latest developments regarding these lawsuits and explore how insurance coverage may be a potential resource to address the costs to defend such class actions.

Moderator: William T. Um
Speakers: Helen K. Michael, Andrew L. Marqulis

Written Materials:
That Was A Secret! – Insurance Coverage for Privacy Violation Lawsuits

3. Reservations Required
or Not?  Recent Trends Concerning Reservation of Rights Letters and the Impact on Defense Handling, Control and Conflicts of Interest
Issues such as right to and choice of, independent counsel, settlement, and use of billing guidelines are standard fare in coverage litigation when an insurer defends under a reservation. Recent case law allowing an insurer who fails to reserve rights to later challenge coverage could take these disputes to a whole new level.

Moderator: Jeffrey O. Davis
Speakers: Nicholas J. Boos, Kitty K. Brennan , Kendric M. Cobb

Written Materials:
Reservations Required – or Not? Recent Trends Concerning Reservation of Rights and the Impact on Defense Handling, Control and Conflicts of Interest

Expert WitnessesCan’t Live With ‘EmCan’t Live Without ‘Em. Tips On The Use and Misuse Of Experts In Bad Faith And Coverage Cases
This program will provide guidance regarding expert testimony in bad faith and coverage trials. The panel will discuss the law and techniques relating to the use of expert witnesses to persuade the jury, including the discovery of expert opinions and the admissibility of expert testimony at trial. Following the discussion, the panel will demonstrate techniques pertaining to preparation of experts, the deposition of experts and expert testimony at trial in connection with a hypothetical case. The audience will be asked to propose the appropriate rulings of the court regarding the pre-trial and trial demonstrations.

Moderator: Jason S. Mazer
Speakers: Jeffrey M. Cohen, Karen Cusato, Robert Romero,

Written Materials:
The Use and Misuse of Expert Testimony in Bad Faith Actions

The Admissibility of Expert Testimony in Insurance Coverage Litigation Since Daubert


11:35 am – 12:35 am | CLE Breakout Sessions

5. Idol 2013– Jury Selection in State and Federal Courts
In its third year, the ICLC Idol program addresses the practical skills necessary to impanel a jury. The audience serves as the jury pool and will be subjected to voir dire in coverage litigation involving an emerging area. After hearing from judges, ICLC attendees will vote for their favorite contestant.

Moderator: Louis Chiafullo
Speakers: Jamie R. Carsey, Micahel E. Cobo, Valarie H. Jonas, Toyja E. Kelley, Angela P. Krahulik, M. Hannah Lauck, Jerold Oshinsky, Anna D. Torres

6. You Say ‘Covered Consequential Loss’, I Say ‘Non-Covered Inflicted Injury’: The Developing Law of Insurance Coverage
The case law addressing insurance coverage for alleged consequential loss in the form of “rip and tear” or “get to” damages continues to develop and evolve.  The panel discusses arguments for and against coverage for these damages - often significantly exceeding the cost of repairing already damaged property – and the case trends nationwide.

Moderator: Rebecca DiMasi
Speakers: John C. Bonnie, Eric Hilton, Charles Stuaber

Written Materials:
Coverage for “Rip and Tear” Costs: A Case Law Survey 


7. Bad Faith: Where is the Line?
Most states recognize a cause of action for bad faith, but determining where the line is can be far from easy. This panel will consider three areas where disputes may arise, investigation of first-party claims, evaluation of third-party claims, and conduct of coverage litigation, and debate a "hard case" hypothetical for each in an attempt to draw a line that might provide guidance to insurers and policyholders alike.

Speakers: Rina Carmel, Tred R. Eyerly, Demetrius E. Rush, John S. Vishneski, III

Written Materials:
Bad Faith: Where is the Line?



8. Are You Still Covered? D&O Insurance After the Facebook IPO, the JOBS Act, and Efforts to Curb Clawback Coverage
It’s now more important than ever to understand Directors & Officers insurance coverage available for new risks and emerging claims. This program will address shareholder claims in the wake of the Facebook IPO, potential crowdfunding and roadshow claims under the JOBS Act, and the background and prospects for D&O clawback coverage.

Moderator: Andrew Deutsch
Speakers: Sina Bahadoran,  JP Kennedy, Sherilyn Pastor
Written Materials:
What to Watch in D&O Coverage: Clawbacks, the Jobs Act, and the Facebook IPO

12:35 pm – 2:00 pm |  Roundtable Luncheons

1. Never Take ‘No’ for an Answer from Your Insurance Company – The Importance of the Insured’s Notice and Post-Denial Conduct in Recovering Insurance Proceeds
Many insurers count on insureds to simply “go away” after an initial denial of coverage—and many insureds will do just that. But an insured should always have a coverage attorney review the denial to see whether coverage or a defense may be available under the prevailing law, and to push back on the insurer when appropriate and when it is in the insured’s best interests. Once the denial is issued, the insured is essentially free to defend or settle as it sees fit, and then charge the settlement and defense costs back against the insurer. However, there are still limits within which the insured must work, and must carefully document its losses for the insurance claim. Policyholder coverage counsel and risk management consultant will provide real-world examples of insurance recoveries (following initial denials) for policies dating back 60 years(!) in some instances.

Speaker: James J. Leonard , Andrea Tecce

2. Gold Mine or Land Mine? A Practical Discussion of Underwriting and Claims Handling Discovery
Underwriting and claims handling materials can contain the richest evidence for an insured and, conversely, the most troublesome source of information for an insurer. When is an insured entitled to it and how does she get it? When can an insurer withhold it and how does he refuse it?

Speaker: Sarah M. Hall,  Whitney R. Lindahl

3. Mind the Gap!: Avoiding Unexpected Gaps in Insurance Programs
As risks become more complex, organizations require multiple policies to cover them, leading to the additional risk of coverage gaps. For example, gaps can occur between D&O and E&O policies, and between successive claims-made policies. This program identifies substantive and technical coverage gaps, and addresses underwriting solutions and claims challenges

Speakers: Nancy D. Adams, Mary E. McCutcheon

4. Political Risk InsuranceKey Coverage Issues
This program will provide an overview of Political Risk Insurance (PRI) including: a) overview of PRI coverage and key coverage terms, b) the main players on the policyholder and insurer sides, c) major types of typical PRI claims, d) key areas of PRI coverage dispute, e) the leading PRI coverage cases and rulings, f) the role of PRI  in international investment deals, g) public vs. private PRI, and h) PRI  current trends.  

Speakers: Benedict Lenhart, Gregory Schopf

5. Choose Your Weapons Wisely: Rescission, Reformation, Cancellation, and Other Coverage-Litigation Artillery
Sometimes an insurer's best coverage defense is a good offense that goes beyond a garden-variety declaratory relief action. This program will examine alternative tools in carriers' arsenals, including rescission, reformation and cancellation, as well as policyholders' options to combat such lesser-used tactics and practical strategies for resolving coverage disputes.

Speakers: Terrance J. Evans, Miles C. Holden, Katherine E. Mast

6. Defense Costs – Can They Be Allocated Between a Policyholder and Insurer?
Can coverage for defense costs, as indemnity or part of a duty to defend, be allocated between a policyholder and insurer based on covered and uncovered claims, periods of insurance and self-insurance, or other factors?  We will examine key decisions and the current split in the case law.

Speakers: Parker J. Lavin, Brian S. Scarbrough

7. Who Is An Insured? Update On Successors’ Rights To CGL Coverage, “Post-Loss” Assignments And Related Issues
A review of developments concerning the rights of corporate successors and asset purchasers to coverage under predecessors’ CGL policies. Program will discuss what “post-loss” assignment means in the context of liability coverage. Related issues include whether conflicts in the underlying defense and multiple occurrences preclude assignment.

Speakers: David E. Schoenfeld, Joe Thacker

8. Cancellations, Collapses and other Catastrophes -- Insurance Coverage for Live Events
Several types of insurance coverages exist to protect against liabilities faced by performing acts, venues, sponsors, promoters, and others in connection with live events, including (a) event cancellation insurance; (b) nonappearance insurance; (c) general liability insurance for liabilities faced when concertgoers are injured at the event; and (d) property insurance for damage to the insured’s own property and business interruption losses.

Speakers: Mark Boon,  Suzy P. White

9. Claims and Coverage Issues Under Commercial Property Policies
This workshop will discuss key components of builders risk policies and provide attendees with a comprehensive approach to preparing claims and analyzing coverage through the use of real-life examples to illustrate claims and coverage scenarios.

Speakers: Tracy Alan Saxe, Timothy B. Walker

10. Strategies in the Mediation and Settlement of Multi-Party Cases
Multi-party coverage cases present special problems when trying to settle all of the competing interests. Two experienced coverage mediators, with the aid of the roundtable members, will lead a discussion of the various ways to sort through the competing interests and focus the parties on settlement.

Speakers: Jeff Kichaven, Paul J. Van Osselaer

11. An Excess Carrier’s Duty to Defend: A Slippery Slope or A Tangled Web?
This roundtable will cover issues relating to an excess carrier’s duty to defend, including the effect of “follow form” and “pay and walk” provisions, vertical versus horizontal exhaustion, self-insured primary coverage, insolvency of policyholder or underlying insurers, and allocation among insurers where settlements exceed primary policy limits.

Speakers: Natalie G. Maciolek, Ellen M. Van Meir

12. Protect the Pocket : Risk Management and Insurance issues in the Sports and Entertainment Industries
Sports and Entertainment venues are exposed to a wide variety of risks that need to be properly managed. This program will discuss the risks associated with these facilities.The program will also focus on the types of insurance which can protect against lawsuits alleging injury to spectators or athletes, damages from suits against management and other related types of insurance to protect against the associated risks.

Speakers: Caleb E. Jay, Carla Varriale

13. Is There an App for That?  How Technology has Transformed the Major Insurance Case

This panel will discuss technology’s transformative power. Technology touches all aspects of an insurance case and the desire for more data by all parties continues to grow. But have DVD’s simply replaced boxes of paper or are we really getting better information? Is there an app for that? You betcha’

Speakers: Joe Bauer, Elizabeth Hanke, Rick Woollams

14. Legal Ethics and the Relationships Between Insurers, Policyholders and Defense Counsel
This lively roundtable program will explore how the rules of ethics impact counsel for insurance companies, policyholders, and defense counsel as they deal with coverage issues, as well as the defense and resolution of complex claims. We will discuss a variety of topics including the control of defense counsel under duty to defend policies and the special relationships created under indemnity policies.

Speakers: Michael W. Early, Neil B. Posner

15. The Impact of Foreclosure and Other Economic Factors On Insurance Coverage and Measurement
Foreclosure and other related financial issues continue to affect a litany of coverage and measure issues. From whether an insured is entitled to recover replacement cost or actual cash value, to the applicability of ordinance and law coverage, many different coverages are potentially impacted. This panel examines developing case law, practical considerations in terms of assignments of rights and obligations, and practice pointers in addressing these complex issues.

Speakers: Joseph D. Jean, Gregory D. Miller

16. “Now You See It, Now You Don’t”: The Continuing Duty of Good Faith
Insurers have a duty of good faith to their policyholders, but how far does that duty extend? What happens after a lawsuit is filed but information about a claim is still being exchanged? An insurer’s continuing duty of good faith varies by state and can create pitfalls for the unwary insurer or additional theories of recovery for the savvy policyholder.  Counsel for insurers and policyholders alike will benefit from this overview of the elusive continuing duty of good faith.

Speakers: Christopher Frost, Eileen Parsons

17. Evolution: The Past, Present and Future of Insurance Coverage Issues
A discussion of how coverage matters have evolved and may continue to change. Speakers will address the evolution of select coverage issues, such as changes in the types of cases being litigated, use of technology, role of insurers, litigation strategy, new insurance products, and industry consolidation.

Speakers: Charles Browning, Marla Kanemitsu, Dan  Maloney

18. Cyber Legislation and Regulation: The Full Employment for Lawyers Acts
Recent federal and state laws and regulations create new and expanded breach reporting and fiduciary disclosure requirements arising from a company’s cyber-security risks and exposures. They also will generate D&O claims, including securities fraud and derivative litigation. And who wins? Lawyers, of course.

Speakers: Richard J. Bortnick, Elissa Doroff, Scott Godes


19. Viability of Insurer’s Recoupment Requests
Insurers often offer a defense before coverage questions are resolved. A recurring issue is whether insurers can recoup defense costs from policyholders if a claim is ultimately found to be uncovered. This roundtable will consider whether and when policyholders must reimburse their insurers.

Speakers: William T. Barker, Clifford J. Shapiro


20. Wearing Two Hats: When Are Outside Coverage Counsel's Documents Discoverable?
Addresses the difficult work product and attorney-client privilege issues that can arise when outside coverage counsel is retained by the insurer early in the claims investigation process and becomes heavily involved—particularly where the policyholder alleges bad faith in later coverage litigation, arguably putting outside coverage counsel’s role at issue.

Speakers: Jonathan G. Hardin, Kathryn E. Kasper


21. Coverage for Social Media Claims
The use of social media is a major paradigm shift in American business. It poses risks, however. The round table will discuss these risks, coverage available under traditional policies, and the kinds of policies being offered that specifically address these risks.

Speaker: Mike DiSilvestro, Rebecca Woods

22. Superstorm Sandy

Lively debate on first-party coverage issues, from definitional disputes (was it a “hurricane”?) to business interruption, ingress/egress, civil authority, and more.

Speakers: Hillary Coombs Jarvis, Lorelie S. Masters, Clark Schweers


Saturday, March 2, 2013

8:00 am – 9:00 am | CLE Plenary Session 6: The Deal-SlayersSettlement Landmines in Recent Case Law
Settlement isn’t easy. Insureds who settle tort claims may lose coverage; insurers who don’t may face bad faith. Insureds who settle primary coverage may forfeit excess coverage.  Settlement credits may eviscerate settlement recoveries. And D&O settlements are minefields for all concerned. This panel addresses recent cases creating these and other settlement traps.  

Moderator: John G. Buchanan
Speakers: Mary Craig Calkins, Russell B. Gregg, Rebecca Westerfield, Written Ray L. Wong

Written Materials:
The Deal-Slayers—Settlement Landmines in Recent Case Law

Insurance Can Impact your Mediation: Top 10 Issues to Address to Ensure that Coverage Disputes do not Impede Settlement

Power Ponint


9:05 am – 10:05 am | CLE Breakout Sessions
9. Practitioner’s Pulse: Enforcing D&O Insurance Coverage Subject to the Insured v. Insured Exclusion
In the wake of the FDIC’s pursuit of failed bank executives, D&O coverage litigation has intensified. A major coverage battleground has emerged in an unsettled area of law: the Insured v. Insured “IvI” exclusion. The panelists will track the evolution of the exclusion from its application during the S&L crisis to the current crisis.

Moderator: Andres Rivero
Speakers: Susan Brune, Elizabeth Fitzpatrick, Victor F. Mustelier, John O'Neil


10. Recovery of Diminished Value for First Party Homeowner/Commercial Property Claims
On May 29, 2012, the Georgia Supreme Court held that an insured had the right to recover for diminished value to real property after the property has been damaged and repaired. With this landmark decision, Georgia has become one of the first states to authorize recovery of diminished value under a property policy. This program will focus on the arguments for (policyholder) and against (carrier) extending real property coverage to stigma damage and the effects this Georgia decision will likely have on the insurance industry and policyholder litigation.   

Moderator: R. Tyler Bryant
Speakers: Diego Garcia, Jr., Meghan C. Moore, Gary Thompson

Written Materiasl:
Recovery of Diminished Value for First Party  Homeowner/Commercial Property Claims

11. 10 Things You Need to Know About London Market Practice

Litigation practice involving London market insurers, including Lloyd’s, presents unique challenges. This seminar discusses these issues from the policyholder-client, London insurer, and litigation counsel perspectives, including how London market placement works (and how that affects client relationships), jurisdiction and service, potential application of foreign law, and discovery.

Moderator: Richard Leedham
Speakers: Sarah Turpin, Stephanie Manson, Joseph L. Ruby

Written Materials:
10 Things You Need to Know About London Market Practice


12. “Is That Reasonable?” – Efforts to Control the Cost of Defense
The cost of defending claims continues to increase.  How do insurers attempt to control those costs, and do these efforts improperly interfere with the defense or create ethical problems for defense counsel?

Moderator: Charles A. Jones
Speakers: Adam P. Doherty, Marla Kanemitsu, Megan A. McClellan

Written Materials:
Simple Strategies to Manage and Reduce Defense Costs

10:20 am – 11:2 0am | CLE Breakout Sessions
13. Survey Says: The Feud Over Insurance and Indemnity Provisions in Business Contracts
Question: “Name three ways a company can reduce its litigation risk.”
Answer: “Survey says…Transfer it, insure it, or limit it.”
Using a format akin to the popular “Family Feud” game show, in which two teams' answers are compared to an audience survey, contestants including in-house lawyers will share their thoughts on effective ways to transfer, insure or limit corporations’ litigation risks and costs. No answer is necessarily right or wrong but intended to launch an informative discussion. Topics will include insurance provisions, indemnity provisions, liability limitations, and
similar risk transfer and risk avoidance measures. Question categories will address statutory limitations, “magic” words, types of insurance, and recent court decisions.

Moderator: Kenneth M. Gorenberg
Speakers: Stefan R. Dandelles, Michele L. Fenice, Fay Lemberg, Joseph Perkin

Written Materials:
Indemnity and Insurance Provisions in Commercial Contracts

14. Whaddya Mean It’s Not Covered?!?! Assessing Potential Broker Liability For Claims Insurers Deny

This panel will discuss obligations that insurance brokers owe to both policyholders and insurers, claims brokers may face when they allegedly fail to satisfy those obligations, strategies to make and avoid broker claims, potential defenses to liability, and recent developments and emerging trends in the law.

Moderator: Arden B. Levy
Speakers: Matthew J. Dendinger, Douglas W. Gastelum, Lisa M. Kauffman

Written Materials:
Broker Liability: An Overview of Key Considerations and Emerging Issues

15. Recent Developments in the Selection, Conduct, and Disqualification of Reinsurance Arbitrators

This session will address arbitrator conduct and trends in the selection of reinsurance arbitrators, including neutral panels and the refined bases for disqualification, as described by recent rulings. The panel will also discuss the responsive behavior of arbitrators with respect to conflict disclosures, and the exercise of their authority as triers of fact, decisionmakers, and stewards of discovery and motion practice.

Moderator: David Attisani
Speakers: Amy S. Kline

Written Materials:
Recent Developments in the Selection, Conduct and Disqualification of Reinsurance Arbitrators

PowerPoint 1

PowerPoint 2

16. Insurance Coverage for Sexual Abuse Claims

Legislation under consideration in New York, New Jersey, Pennsylvania and Massachusetts could provide a ‘window’ in which to bring sexual abuse cases now barred by statutes of limitations. This program will discuss trigger, allocation, knowledge-based defenses, public policy and other issues regarding insurance coverage for abuse cases.

Moderator: David J. Baldwin
Speakers: Ernest Martin, Jr., Richard C. Mason, Kathryn M. Metz

Written Materials:
Liability Insurance Coverage for Sexual Abuse Claims

11:25 am – 12:30 pm | CLE Ethics Session 7: Ethical Issues in Mediations and Arbitrations
Mediations and arbitrations pose unique ethical issues. This panel will explore such issues as:
- Are advocates subject to candor and Rule 11 type standards?
- What ethical constraints do mediators face in pushing parties to settlement?
- Does mediation confidentiality preclude parties and mediators from disclosing bad faith conduct in mediation?

Moderator: John E. Heintz
Speakers: John Bickerman, Christina Dixon, Laura Foggan, Deborah Rothman

Written Materials:
Ethical Issues in Mediations and Arbitrations