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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Insurance

Date & Time
  • event Date

    Tuesday, March 1, 2022

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00

This CLE webinar will discuss when prior rulings on coverage do not bind an excess insurer that follows form and when it can challenge the primary carrier's coverage, settlement, and payment decisions, including the theory of "improper erosion."

Faculty

Bentz Thomas
Shareholder
Holland & Knight LLP

Mr. Bentz Jr. practices insurance law with a focus on D&O, cyber and other management liability insurance policies. He leads Holland & Knight's D&O and Management Liability Insurance Team which provides insight and guidance on ways to improve policy language and helps insureds maximize their possible insurance recovery. Mr. Bentz also co-chairs the firm's Insurance Industry Team.

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Lee Nathan
Shareholder
Gray Duffy, LLP

Mr. Lee focuses his practice on civil litigation matters, including personal injury, insurance coverage, and business-related disputes, and has particular expertise pertaining to asbestos issues. He also represents subcontractors in construction-related claims and has successfully litigated on behalf of numerous clients in civil proceedings, including at evidentiary hearings and trials. Mr. Lee works closely with clients from case inception to resolution to obtain the best possible outcome.

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Taylor Elizabeth
Shareholder
Reed Smith

Ms. Taylor focuses her practice on Insurance Recovery. She has experience representing and advising corporate policyholders at various stages including risk management counseling, claims handling, and insurance coverage litigation. Ms. Taylor has worked on coverage disputes under various types of insurance policies including commercial general liability, business income, directors and officers liability, fiduciary liability, and employment practices liability. She has also collaborated with the firm’s financial industry group and global regulatory enforcement group defending financial institutions in litigation and representing corporate clients in government investigations.

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Description

An excess carrier that follows form usually may not challenge the underlying insurer's payment decisions on claims it is asked to cover. But whether a policy follows form on all the relevant issues is not always clear. The parties must examine the specific policy language at issue, any provisions purporting to give the excess insurer the right to challenge the primary's decisions, and how it is used to determine whether the excess policy differs in some material way from the primary coverage.

If a court has reviewed coverage on the underlying policy, the parties may be bound by "law of the case" or traditional preclusion principles. But excess carriers may still challenge the reasonableness of any settlement decisions and pressure reluctant primary insurers to resolve claims prudently.

Recently some excess insurers have argued the theory of improper erosion, the situation where an insurer is alleged to have wrongly paid and used up (or exhausted) an underlying layer of coverage. The facts can get complicated when the excess policy only covers some but not all claims of the primary.

Listen as this experienced panel discusses when prior rulings on coverage do not bind an excess insurer that follows form and when it can challenge the coverage, settlement, and prior payment decisions.

Outline

  1. Following form and its variations
  2. Challenging claims treatment the excess is asked to cover
  3. Challenging claims treatment the excess is not asked to cover
  4. Binding effect of prior judgments
  5. Recent decisions

Benefits

The panel will review these and other key issues:

  • If a follow-form insurer is denied the opportunity to dispute the validity of a primary insurer's payment, can it challenge a prior payment decision by the primary insurer?
  • Can the excess carrier dispute the validity of claims it is not asked to cover?
  • Can allegations of "improper erosion" be the basis of a bad faith claim by the primary carriers? By the insured?
  • What type of specific language clearly and unambiguously reserves the excess carrier's right to second-guess lower-tier insurers' coverage decisions?
  • When multiple claims are involved, does the order and timing of the submission of claims matter?