Course / Program Material 2007 TIPS 15th Annual Insurance Coverage Litigation Committee Program - Tucson AZ
Lyndon and Rebecca look at severability issues from the policyholder's perspective, seeking to protect the coverage afforded to the innocent insureds ("white hats") under a policy where the not-so-innocent insureds' ("dark hats") conduct places coverage in jeopardy. Severability issues abound when an insurer seeks to rescind a policy or assert policy exclusions. Lyndon's and Rebecca's paper looks at the current state of the law and devises some practical considerations for representing "white hats." They also include an appendix that surveys the key cases in several jurisdictions, a great resource for practitioners.
Lyndon and Rebecca also address the two possible components of a severability clause that affect rescission claims and how they each work, then looking at the importance of where the clause is located in the policy. (Who knew that the clause's location could restrict or limit its applicability?) Finally, they address what constitute a material misrepresentation and whether jurisdictions require knowledge of a misrepresentation or whether an innocent, material misrepresentation is a sufficient basis to rescind a policy. Lyndon and Rebecca next turn to the application of the severability clause in connection with policy exclusions, looking at the significance of the words "the," "an," and "any" and reviewing how courts sometimes treat co-insured differently. Finally, Lyndon and Rebecca stress the importance of negotiating a full severability clause or obtaining separate, additional insurance to cover the co-insured.
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