Monthly Archives: December 2022

Smoke Damage a Source of Friction for ‘Standing Home Survivors’

Posted on by
Reply

Jim Sams | Claims Journal

The lingering impact of smoke and soot is complicating insurers’ efforts to resolve homeowners claims from the Marshall Fire, which destroyed 1,084 homes in Boulder County, Colorado last December.

An in-depth report posted online this week by the nonprofit Boulder Reporting Lab told the story of “standing home survivors,” homeowners who did not suffer fire damage but have not returned to their homes because of concern about toxic particulates left behind from wildfire smoke. A county official told the Reporting Lab that 13,000 to 14,000 houses within the burn area were not destroyed, giving an indication of the potential extent of smoke damage.

The Marshall Fire ripped through 6,000 acres in the communities of Superior, Louisville and Marshall outside of Boulder on Dec. 30, 2021. Catastrophe modeler Karen Clark & Co. estimated insured loss amounted to $1 billion.

Amy Bach, executive director of United Policyholders, said about 600 standing home survivors are sharing information on Facebook or attending weekly support group meetings held at the Louisville Recreation Center in an effort to get their homes properly remediated, cleaned and restored and secure fair insurance payouts to cover the costs, according to the report.

Bach told the Reporting Lab that a lack of standards for indoor air quality is exacerbating disputes and delays for homeowners who filed insurance claims. Homeowners are left feeling like the process is arbitrary and up to individual adjusters, she said.

Researchers with Colorado University Boulder measured the air quality in standing homes within the fire area within two to three weeks of the fire. Joost de Gouw, a chemist with the university, said samples showed that volatile organic compounds, including toxic chemicals such as benzene and formaldehyde, lingered in the houses up to four weeks after the fire.

But researchers are also concerned about particulates that settled on surfaces. They told the Reporting Lab that those particles can release gaseous compounds over time. CU Professor Colleen Reid said researchers don’t know how concentrated those emissions are, or how long they will last.

As a result, many standing home survivors are choosing to stay out of their homes, the report says.

The quality of work by remediation companies hired to clean smoke-damaged homes varies greatly, according to the owner of an environmental testing firm in Lafayette, Colorado. Judith Sawitsky, co-owner of Weecycle Environmental Consulting, said her company tested 75 to 80 smoke-damaged homes after the Marshall Fire.

Sawistsky told the Claims Journal Thursday that she found most local remediation companies did a good job, but many of the out-of-town vendors that swarmed in after the disaster did not. She said a large portion of the homes that her company tested after cleanup “were inadequately cleaned.”

Frequently, soot was left clinging in corners, Sawistsky said. Also, some homeowners are sensitive to the chemicals that restoration companies use to remove odors.

Sawitsky said she often has to butt heads with industrial hygienists appointed by insurance carriers.

“The pushback from some of the insurance companies is unwarranted, is my feeling about it,” she said. “If you have something that is not right and your client is getting sick and the property isn’t back to its pre-loss condition, there shouldn’t be any pushback.”

Chip Merlin, owner of a law firm that represented policyholders headquartered in Tampa, Florida, chimed in to voice his support for the “standing home survivors” in a blog post on Thursday. He noted that he had previously written a blog post about insurers giving the runaround to homeowners with smoke damage claims after the Marshall Fire.

“It does not take a genius to figure out that some insurers want to remediate less and pay less, while the policyholder customers want assurance that their homes are safe to return, which will cost more,” Merlin wrote.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

This Year Don’t Let the Grinch Steal Your Insurance

Posted on by
Reply

Vivek Chopra and Mattison (Mattie) Kim | Perkins Coie

Forfeiting insurance coverage on a covered claim is a quick way to ruin the holidays. Every year, tens of thousands of covered claims are left unpaid due to clerical mistakes by policyholders or their brokers. These unpaid claims are not a matter of legal interpretation (e.g., “does the ‘flood exclusion’ preclude coverage for windstorm damage?” or “is my insurer obligated to defend me in copyright litigation?”).

Rather, we are addressing a far-too-common situation in which an insurer—playing the Grinch as usual—weasels out of paying on an undoubtedly covered claim purely because of an administrative error by the policyholder or its broker. These can result from a late notice, failing to include a building on a schedule of locations, or missing a proof of loss deadline.

And before you stop reading, comfortable like a warm blanket that this could never happen to you, be aware that even the smartest elves can forfeit coverage on a covered claim. Just last month, The New York Times reported that Harvard University, a pretty good school near Boston, after having received $25 million in coverage from its primary insurer for defense costs in a class-action lawsuit, may have forfeited an additional $15 million in coverage from its excess insurer. This occurred because the university failed to provide the excess insurer timely notice of the lawsuit. Put down the eggnog and read that again slowly: the primary insurer was paying for years on a covered claim, but the excess insurer—with the exact same policy language—can escape its crystal-clear coverage obligation because someone did not copy the excess insurer on a notice letter. The mistake is simple, and the ramifications are huge. Trust us; there is no quicker way to get on the Naughty List!

Four Steps for Coverage

So, this holiday season, we suggest you give your company (and yourself) a gift by following these four easy steps to avoid forfeiting potentially millions of dollars of insurance coverage—coverage you and your company have already purchased—for covered claims:

  1. Copy and paste the notice provisions in all company policies into a single document and share that document with the relevant people in the legal department. Someone unfamiliar with an insurance policy can get lost looking for the notice provisions, given that most policies are at least 40 or 50 pages long. Putting the operative language on a single sheet makes it far more likely that company employees will appreciate and understand it. Please note whether each policy provides coverage on an “occurrence” basis or a “claims made and reported” basis. While it is likely that a company’s general liability policy is occurrence based and requires notice of an “occurrence, offense, claim or suit” “as soon as practicable” (which generally means prompt under the circumstances), a company’s professional liability, directors and officers liability, employment practices liability, cyber, and errors and omissions policies are very likely “claims made and reported” policies. This means coverage under these policies is only available if the claim—a demand letter, a lawsuit, or sometimes a subpoena—is first received by the company and notice is provided to the insurer during the policy period (or shortly thereafter). Many state courts interpret these reporting provisions strictly. A common issue our clients confront is that a demand letter is received in year one, but it does not evolve into a lawsuit until year two. In those situations, a client often provides notice in year two, and the insurer denies coverage because the demand letter from year one arguably qualified as a claim that the insured should have reported in year one. Ouch!
  2. Compile a list of all lawsuits, demand letters, and subpoenas served on the company this past year and confirm that notice has been provided to the appropriate insurers. We realize that this list could run into the thousands for our larger clients, and we assume a tracking system is already in place. In our experience, the decision to provide notice is made at the outset and often by junior members of the legal or finance teams. However, lawsuits can evolve over time, and initial determinations regarding potential loss can be inaccurate. Several years ago, a sophisticated financial services client assigned a junior paralegal in the law department to review every incoming suit. The paralegal reviewed a complaint in which the amount at issue appeared minimal and determined notice under the company’s E&O policy was unnecessary because of a sizable retention. Unfortunately, the suit was a class action and while the damages claimed by the named plaintiff were minimal, the size of the potential class made the exposure huge. This error was discovered well after the end of the policy period of the claims-made-and-reported E&O policy in effect when the lawsuit was first received by the company. No fun! It’s far better to err on the side of reporting claims and potential claims to your insurer, even if you think the claims are meritless, won’t exceed the retention or deductible, or aren’t covered under your policy language.
  3. Pull the schedule of locations from your company’s property policy and confirm that all locations are listed. While larger property programs often include “unintentional errors or omissions” and “newly acquired property” endorsements, which provide coverage for locations accidentally left off a list of covered locations or for buildings purchased after the policy begins, this coverage can be limited. Nothing feels more like finding a lump of coal in your stocking than realizing after a major loss that the damaged building was left off the schedule of locations. This happens more often than expected, but it’s easy to avoid with a review of the schedule of locations.
  4. Check all of the definitions of “insured” in your company’s policies and confirm they include all of the entities in your company’s corporate structure. Definitions of “insured” can vary, and some policies include long lists of related entities as “additional named insureds.” In our experience, eyes tend to glaze over when looking at these lists, and confirming their accuracy is often not a very high priority during policy renewal. We recommend taking a beat this holiday season, grabbing a slice of fruitcake, and assigning the right person in the finance department to confirm the accuracy and completeness of your policies’ definition and/or list of covered insureds.

We’ve given you a list; be sure to check it twice! Don’t let the Grinch rob you of your insurance coverage because of an avoidable clerical error or administrative oversight. Check your policies, provide timely notice to insurers, and enjoy a safe holiday with your loved ones.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Defense Costs For Long-Tail Claims: Making The Most Of Your Insurance Coverage

Posted on by
Reply

John B. Mavretich and Waymon T. Peer | Venable

Long-tail claims involve continuous or progressive injuries that occur over the course of multiple years. Often these claims occur in the context of long-latency diseases, such as those arising from asbestos exposure, or long-term pollution releases in the environmental context.

Business entities may be found liable for these “long-tail” exposures and, as a result, may be required to pay large sums in damages. Since the “bodily injury” or “property damage” occurs over the course of multiple years, successive years of insurance policies may provide coverage. Determining the availability for insurance coverage in these instances can be a complex exercise and depends largely on applicable state law.

In general, when dealing with insurance coverage for damages or settlements, jurisdictions have adopted either the “pro rata” or “all sums” approach. Under the “pro rata” approach, when multiple policies are triggered, insurance carriers are responsible only for the portion commensurate with that insurer’s time on the risk. For example, if one insurer issued the policies for 5 out of the 10 years at issue, that insurer would be allocated 50% of the responsibility. By contrast, under the “all sums” approach, each of the “triggered” insurance carriers is jointly and severally liable for the entire loss, up to the applicable policy limit.

An additional layer of complexity arises in the context of legal fees expended in connection with defending against the long-tail claim, since most occurrence-based policies provide a duty to defend that does not reduce the policy limits and continues through the claim’s resolution. Insureds should closely examine the policy language and relevant case law to determine the availability of coverage for these fees.

Jurisdictional Approaches

In general, insurance carriers will argue that they are responsible only for a “pro-rata” share of defense costs, but this argument often does not withstand scrutiny. For example, in an ongoing long-tail case in Massachusetts (where indemnity costs are generally allocated on a pro-rata basis, subject to certain exceptions), the insurance carriers recently argued that defense costs should be similarly allocated based on a time-on-the-risk formula. Crosby Valve LLC et al. v. OneBeacon America Insurance Company, et al.,1284 CV 02705-BLS2 (Mass. Super. Ct. Feb. 22, 2022), order superseded on different grounds by July 19, 2022 order on a motion for reconsideration. The judge disagreed, finding that apportionment is not appropriate with respect to the duty to defend. In a subsequent order, the court reiterated that the insured is “entitled to a full and complete defense from every insurer having a duty to defend” and the defending carrier may not allocate any defense costs to the insured, even for uninsured portions of the relevant time period. Crosby Valve LLC et al. v. OneBeacon America Insurance Company, et al.,1284 CV 02705-BLS2 (Mass. Super. Ct. July 19, 2022) (quoting Rubenstein v. Royal Ins. Co. of Am., 44 Mass. App. Ct. 842, 849 (1998) (“Quite simply, the rules that govern allocation of defense costs are different than the rules that govern allocation of indemnity costs”)).

On the other hand, certain states have endorsed pro rata allocation of defense costs for long-tail claims. See, e.g., Sec. Ins. Co. v. Lumbermens Mut. Cas. Co., 826 A.2d 107 (Conn. 2003); Towns v. N. Sec. Ins. Co., 184 Vt. 322 (Vt. 2008); Arceneaux v. Amstar Corp., 200 So. 3d 277 (La. 2016).

Finally, other courts have refused to endorse a standard allocation method and, instead, focus on the particular language of the insurance contract to determine the appropriate allocation method. See, e.g., Danaher Corporation v. Travelers Indem. Co., 414 F. Supp. 3d 436, 449 (S.D.N.Y. 2019) (quoting Keyspan Gas E. Corp. v. Munich Reinsurance Am., Inc., 31 N.Y.3d 51, 58 (2018)).

Recommendations

When pursuing coverage for defense costs related to long-tail claims, insureds should keep the following in mind:

  • Locate all applicable insurance policies and provide notice under each
    • As an initial matter, commercial general liability policies are occurrence-based, so each policy period in which the alleged damage occurred could be available to respond to a claim. It is imperative that insureds provide prompt notice under all policies (primary and excess) for the entire exposure/long-tail period.
  • Don’t assume the carrier is permitted to apportion defense costs
    • An insurance carrier will typically take an initial stance that it is responsible only for an allocated portion of defense costs based on the number of policies issued by the carrier that are triggered by the claim. This is because pro-rata allocation enables the carrier to limit its defense cost exposure and allocate periods in which the company may not have coverage back to the policyholder to be self-insured. It also potentially allows a carrier that has issued multiple policies to trigger multiple deductibles/retentions. Insureds should demand that the carrier provide adequate case law to support its position that pro-rata allocation applies to their defense costs. You may find that the carrier’s position has no foundation in applicable law.
  • Examine all possible choices of law
    • The choice of law applicable to the interpretation of an insurance policy can involve a complex analysis, and there may be arguments that different states’ laws apply. Insureds should explore all possible options and determine whether the law of a favorable jurisdiction (for example, a state that has strong “all sums” case law) is applicable to the policies’ interpretation.
  • Make arguments based on the specific policy language
    • Insureds’ first resort should always be the policy/contract language, especially in jurisdictions where no bright-line rule has been adopted as to the allocation method for long-tail claims. For example, the presence of a non-cumulation clause generally weighs in favor of an all-sums approach.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

The Benefits Of Hiring A Consulting Expert

Posted on by
Reply

Paige McKirahan | WIT Legal

In a world where every industry seems to be in flux, legal disputes are becoming more and more complex. And while your legal team may be well-versed in all aspects of your specific sector, there are cases where employing a subject matter expert to aid in the creation of your litigation strategy can be crucial in obtaining a successful verdict.

While bringing in testifying experts to speak in deposition or at trial can be beneficial, it is also important to consider how a consulting expert may be able to positively contribute to your proceedings. Testifying experts provide opinions, specialized knowledge, and reports, all of which are discoverable. But consulting experts can help your team behind the scenes, and the earlier you engage with them, the stronger your stance will be.

Why should you work with a consulting expert?

In short, consulting experts are available to act in your best interest and to help you and your client form a tactical approach to the given dispute. Unlike testifying experts, consultants will not appear in court; the facts known and opinions held by these experts are not discoverable, and they do not need to be concerned about Daubert challenges or disqualifications. They are also usually available at a lower bill rate than testifiers.

Consulting experts work to analyze the opposing expert’s stance along with the strengths and weaknesses of the case to advise you on how to best disprove their presented arguments.

Some of their functions involve:

  • The education of attorneys and clients on the special issues of the case, allowing them to speak to or understand the true issues in the dispute. They can even guide attorneys in deciding whether or not to take on a case as consultants can help predict what complications may arise during litigation.
  • Helping their clients determine if a theory or opinion is sound prior to discovery through running tests or experiments in the field. This is a great resource in the early stages of litigation and can help form the basis for an argument that is used in a deposition.
  • Helping their clients decide which items to include in discovery and how to make them as effective as possible as well as advising counsel on what to pursue from the adverse party during discovery
  • Providing additional experts in the field from their network to help further inform their client’s litigation strategy.

In addition to helping find other experts, consulting experts can also become testifying experts – but that comes with its own set of complexities. Consulting experts must be vigilant about maintaining privilege and guarding communications if there is the potential for them to act as a testifying expert for the case in the future.

Consulting experts and their impact

What is it like being a consulting expert, and how can they impact litigation? Muriel Médard, Ph.D., a WIT IP Advisory Panel member and current NEC Professor of Software Science and Engineering at MIT, explains that “acting as a consulting expert allows an overall view, clear synthesis, and more effective approach than reactively managing litigation in a piecemeal, myopic fashion. For example, if multiple patents are being considered, different expert witnesses may be working on those individual patents, but common technical issues among those patents might be missed.”

She went on to say that “consulting experts can provide perspective and context to make sense of the ensemble of information that arises from expert witnesses from each side. In other cases, a consulting expert can provide non-discoverable advice regarding the strengths and risks in a case, say an IPR matter or an infringement one, to aid the legal team in its inquiries and be prepared for possible difficult issues that may arise.” Sometimes, a consulting expert might simply be able to guide the selection of experts in terms of needed background and specialization in complex technical multi-patent matters. Overall, a consulting expert’s ability to interpret and distill multifaceted technical information directly benefits the legal team’s work.

If you need a consulting expert to help inform your strategy and stay ahead of the curve with upcoming litigation, WIT has teams of world-class professionals comprised of:

  • Academics who act as a trusted authority in a certain subject matter or field. These experts can offer a deeper understanding of academic prose and an educated look at niche areas of each industry.
  • C-Suite executives who know the ins and outs of corporate operations and have experience working at the highest levels of management at firms and in government. These experts give your litigation team an understanding of best business practices and what the inner workings of the corporate business structure may look like.
  • Engineers who have the know-how to handle a wide range of tasks and can conduct research, due diligence, and analysis. These experts are highly technical, have excellent attention to detail, and can provide an in-depth look at the processes that create data and products across industries.
  • Regulators with the experience and insider knowledge to help counsel understand and communicate complex issues involving policies and regulations within industries. These experts are constantly examining each industry for potential issues and know the ins and outs of existing policies.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

An Uncompromising Insurer: What is a Policyholder to Do?

Posted on by
Reply

Eric Jesse | Lowenstein Sandler

Eric Jesse addresses the unfortunately common experience during mediation of when an insurer balks at settlement resolutions: should a policyholder walk away, “pay and chase,” offer the right to receive insurance proceeds, or stand its ground?

Speakers:

Eric Jesse, Partner, Insurance Recovery

READ THE TRANSCRIPT

Eric Jesse: Hi, I’m Eric Jesse, partner in Lowenstein Sandler’s Insurance Recovery Group, and welcome to “In the Know.”

Today, we are going to talk about an all-too-common experience that policyholders face when trying to resolve an underlying claim or lawsuit.                              

So the company has been sued, it has insurance coverage, and it goes to mediation with the plaintiff to try to resolve the lawsuit. At mediation, there’s a live settlement opportunity where the insurer should be contributing, but the insurer is dug in with no or low settlement authority and is refusing to step up. What is a policyholder to do?

One option is to just walk away from the mediation. But if the parties are at mediation, the goal is usually to settle and to bring about that global peace, so this option is obviously not ideal or preferred.

Another option, which is also certainly less than ideal, is the “pay and chase” approach. Here, the policyholder pays the settlement out of their own pocket while reserving the right to chase the insurance company for reimbursement. The insurer wins at least in the short term because it has avoided paying, and if the insurer later agrees to contribute, the insurer will almost certainly try to pay less than what the policyholder paid. Unfortunately, the reality is that sometimes the situation calls for this approach. If so, the policyholder needs to be aware of policy language that gives the insurer consent rights over a settlement. The best practice here is to have the carrier agree in writing to waive that policy’s consent requirement with all the parties otherwise reserving their rights so that the policyholder can put the underlying case to rest while having the option to continue to pursue insurance.

A third option that can be beneficial to the policyholder is paying the plaintiff some money, but also giving the plaintiff an assignment of the right to receive insurance proceeds. This has the benefit of bringing the policyholder resolution while the insurance recovery becomes the plaintiff’s burden to bear. Here, the parties will need to make sure that, depending on the applicable state law, that the assignment to be given will be valid.

Last but not least, the policyholder has the option to stand their ground in the face of insurer bad faith. This often involves utilizing coverage counsel to parachute into the mediation, to bring the hammer, to compel an insurer’s contribution. Here, the policyholder is going to be challenging baseless coverage defenses and also relying on defense counsel’s exposure analysis to justify that settlement opportunity. But most importantly, if the policyholder can secure a settlement offer within policy limits, then the policyholder can press a bad faith claim. And in this situation, the policyholder’s leverage with the insurer is maximized because there is case law in many states that says when a policyholder receives an offer within limits and the insurer refuses to pay it, the insurer will be on the hook for any resulting judgment against the policyholder, even if that judgment exceeds policy limits.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.