We have a coverage case in the office that’s 15 years old, with no end in sight. The amazing thing is, it’s not even a particularly complicated case. I don’t want to go into too much detail or give the names of the parties, because the matter is still pending. But even if we eventually
Allocation
Allocation of insurance coverage for mass torts
By Gene Killian on
I was lucky enough to be invited to speak at a CLE conference in New York last week on the subject of mass torts. (Full disclosure: I was on the wedding “B list.” My good friend Jeff Pollock, a fantastic policyholder-side lawyer, had to cancel at the last minute because of professional commitments, and…
The Shortcomings of D&O Insurance
By Gene Killian on
Here’s how a major insurance company (Travelers) describes D&O insurance: “Directors & Officers (D&O) Liability insurance helps cover defense costs and damages (awards and settlements) arising out of wrongful act allegations and lawsuits brought against an organization’s board of directors and/or officers. These types of claims have become increasingly common and directors and officers…
Developments in insurance coverage for asbestos-related liabilities
By Gene Killian on
I’m not sure which is more grimly entertaining: watching old advertisements for cigarettes (see here), or watching old advertisements for asbestos products (see here). If you’re an executive in the front office of a company that acquired an asbestos manufacturer, however, you might fail to appreciate the dark humor. A few years back,…
Is “occurrence” an ambiguous term?
By Gene Killian on
There’s a famous (apocryphal?) story about Cato the Elder, one of the leaders of ancient Rome. Cato was obsessed with destroying Carthage (now Tunis), the Roman Empire’s rival. He would end every speech (and apparently most conversations) with “Carthago delenda est” – Carthage must be destroyed. The story goes that when Demosthenes (a prominent Greek…
Enforcing insurance coverage for “intentional” business torts
The other day, I was talking with a lawyer who represented a plaintiff in litigation relating to a failed business transaction. He was lamenting the fact that, if he were to take judgment against the defendants, there wouldn’t be insurance to help satisfy the claim, since, according to him, “no insurance company is ever going…
Insurance insolvency and allocation-of-loss
By Gene Killian on
A few years back, we wrote about the New Jersey Supreme Court’s decision in Farmers Mutual Ins. Co. v. New Jersey Property-Liability Guarantee Assn. In Farmers, the Court held that, in the context of long-tail claims, any damages or defense costs allocated to insolvent policies could not be assigned to the policyholder.
When…
Beware the differences between indemnity agreements and insurance policies
I used to know a guy who worked for a major, nationally known public adjustment company. In years where there were no major hurricanes or tornado incidents, he would literally walk around looking like he had the weight of the world on his shoulders. He never overtly wished death or destruction on anyone (as far…
The Allocation of Defense Costs in Long-Tail Claims
By Gene Killian on
The great CLE instructor Jim McElhaney, a Professor Emeritus at Case Western, used to tell the story of a “professional expert” testifying at trial on cross-examination. The guy was apparently a kindly old gentleman with an Irish brogue, and also an engineer, and indeed made most of his money in the litigation game.
“You’re a…
Contribution claims between insurance companies
By Gene Killian on
Settling complex insurance claims involving multiple carriers can be like playing three-dimensional chess. (Since I can’t even play one-dimensional chess, that means it’s really difficult.) I once had a multimillion-dollar environmental insurance coverage settlement fall apart because one of the participating carriers would not assume an extra 1% of the coverage, despite (or perhaps because…