Reflecting on an enriching experience last week at the 2024 Insurance Coverage Litigation Committee CLE Seminar. I extend my heartfelt thanks to my fellow panelists, whose insights and extensive experience added tremendous value to our “In-House Counsel - Headaches and Pain Relief Solutions” panel. Heather P. Arias, Esq., AIC's comment continues to resonate with me, reminding me of the importance of avoiding surprises when it comes to advising and counseling insurance companies; Suzanne Day's input on strategies to ensure attorney-client communications and work product are protected from disclosure leave a lasting impression, as well as Lori Siwik's valuable firsthand experiences shared about the key role that external risk managers and brokers play when faced with handling the insurance tripartite relationship in liability claims. My key takeaways from our panel discussion 1. No Surprises. Insurance companies want from (either coverage or defense) counsel substantive and timely communications, proactive strategies with a focus on resolution, and a realistic and practical view as to the exposure a case presents based on counsel’s experience and expertise. 2. There are two overarching problems insurers face from outside counsel: lack of communication and reactive versus proactive litigation strategies. 3. Some takeaways about in-house handling of claim files: - Claim files (or portions of it) within an insurance company’s records become protected by the work product doctrine when there is anticipation of litigation, which varies in every case but is generally when the insurer determines there is no coverage for the claim; carriers and policyholders alike are encouraged to split their files between pure claims handling materials and coverage dispute communications and materials; - Unless the claim file is relevant to the underlying liability action, it should not be discoverable by plaintiffs in the underlying litigation against the insured; - If materials in the claim file are created in the ordinary course of business of the insurer’s claim handling and investigation, they may be discoverable in litigation provided they are relevant to the dispute and not otherwise protected by attorney-client privilege or work product doctrine; 4. Managing potential for conflict of interests in the insurance tripartite relationship is a balancing exercise between the insured, insurer and defense counsel. Early recognition, analysis and solution of conflicts of interest that can disrupt the tripartite relationship is key, especially when the insurer defends under a reservation of rights. 5. Even when the insurer has policy-given control of the defense and settlement, the insured ultimately has the last word on whether to proceed to trial or settle the underlying case. Choosing to try a case when the insurer wishes to settle may however jeopardize the insured’s coverage, but it is a decision for the insured to assess.
This is great, Andres!
Policyholder Lawyer | Arbitrator @ American Arbitration Association | Trial Advocacy Teacher
7moGreat to get a chance to spend some time with you Andres!