why won’t they pay my claim? (clm 018)

Recording of this session via any media type is strictly prohibited.

Why Won’t They Pay My Claim? (CLM 018)

Tuesday, April 29, 2014, 1:45-3:45

David GoodwinTracy JurusikBarbara Miller


Introduction

Meet the panelists What we’re going to discuss• Identifying and presenting a claim• What happens after the claim arrives at the

insurance company• What happens if the insurer disputes the claim

A case study


What is a claim?

Ordinary meaning – demand for money Common definitions of “claim”• Lawsuit• Written demand for money• Tolling agreement request?• Investigation?• Subpoena?


Page 4

A claim is made… now what?


Identifying and Presenting a Claim

Set up process with law department to receive threats/lawsuits (prior to claims being presented)

Review threat/lawsuit for potential coverage Review reporting requirements for every

potential policy Report threat/lawsuit to broker(s)


Identifying and Presenting a Claim

Ensure broker follows reporting guidelines outlined in policy and timely reports claim Form of reporting (letter; email; bordereaux) Content of notice

Follow up for acknowledgments from insurers Notify law department of potential

involvement of insurers and consent provisions


Page 7

What Happens Once the Broker Gets the Claim/matter?


What happens after the claim reaches the broker

Review the materials received from the Insured – from the perspective of a claim adjuster

Does the information appear to be related to anything that was previously reported?

Do we have a “Claim” as defined in the Policy?



If we have a “Claim” what is the date the “Claim” was first made?

Which type of policy is triggered based on the alleged wrongful acts in the “Claim”?

Which policy period is implicated and do we have any late notice issues?

Do the allegations in the “Claim” trigger more than one Policy?



If more than one Policy is implicated – how do the “other insurance” clauses in each Policy operate?

Are there any applicable exclusions in the Policy that may come into play?

Once we know which Policy and policy period, report the matter to the entire applicable tower



What are the choice of counsel provisions in the Policy?

Does the insurer or the insured have the “duty to defend”?

Does the applicable Policy have a panel counsel requirement?

Does the Insured’s choice of counsel comply with the Policy’s counsel requirements?



If we don’t have a “Claim” should we consider reporting a “notice of circumstances” if allowed under the Policy?

Factors to consider in a submitting a “notice of circumstances”

Once a “Claim” or “circumstances” reported, review acknowledgment and reservation of rights letters for accuracy and response



Understand the Policy’s consent provisions and confirm compliance

Insurer responses to claim Acknowledgement of coverage Reservation of rights/request for information Denial Silence



Broker response to reservation of rights Broker response to silence Broker response to coverage denial

Typical process following denial What you can and cannot do What your broker can and cannot do



Facilitate the flow of information between Insured’s counsel and the Insurers

How to communicate with insurers Confidentiality issues/will agreements help? Disclosing privileged information? Avoiding waiver

Periodic calls and meetings Identify and head off problems


Case Study Part 1


Page 17

What Happens If the Insurer Refuses to Pay?



Evaluate insurers’ reasons for refusing Insurer definitely right? Iffy? Arguable? Insurer wrong

Legal issues or factual questions? How do you tell who is right?



Do you need outside assistance? Broker Consultant In-house counsel Outside counsel

Process of evaluating the claim Legal uncertainties Factual uncertainties



First steps Gather policies Learn facts

Process of evaluating the claim Legal uncertainties Factual uncertainties

Respond to insurer



Negotiate Informal negotiation Broker and insurer? Client and insurer? Counsel and counsel? Effective negotiation strategies

What if negotiation doesn’t work?



Does policy have an “ADR” clause? Mandatory choice of mediation or arbitration? Mandatory arbitration?

What is mediation? How a mediation works

What is arbitration? How an arbitration works Pitfalls of an insurance arbitration What if you have a multi-policy program?



Litigation Where do you file? What do you allege?

Litigation – how it works Litigation process Discovery – documents; written discovery; depositions Motion process Settlement conference/mediation Trial/appeal


Case Study Part 2


Questions, Final Comments and Contact Information

David GoodwinCovington & Burling LLP

[email protected]

Tracy JurusikWillis Americas

[email protected]

Barbara MillerWells Fargo Corporate Finance Group

[email protected]

why won’t they pay my claim? (clm 018)

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