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The documents below are written materials from programs that have been sponsored by the Insurance Coverage Litigation Committee. Please note: You must be a Section of Litgation member and be logged in to access the files.

All files are available in PDF format unless otherwise noted. (PDF)

Papers Available from the 2016 Insurance Coverage CLE Meeting

Insurance Coverage Litigation Committee CLE Seminar
March 5–7, 2015

Loews Ventana Canyon
Tucscon, AZ


Thursday, March 5, 2015

9:45 am – 10:55 am

CLE Plenary Session: “Well, That Didn’t Go Right”—The Judges Panel on
Perfecting Your Appeal
No one likes to lose and yet on motion, summary judgment, or trial, someone will not win. This panel of distinguished justices and judges, well versed in appeals and appellate issues, will address coverage cases on appeal: how to enhance briefing and oral argument, but also what practitioners must do below to protect the record.

Moderator: Daniel H. Rylaarsdam

Speakers: Hon. Jane Bland, Justice, Court of Appeals for the First Court of Appeals District

of Texas, Hon. Ruben Castillo, Chief Judge, N.D. Ill, Hon. Richard Dietz, Judge, Ct. of

Appeals, NC , Hon. Eileen C. Moore, Associate Justice, 4th District Cal. Ct. App.

Written Materials:
Tips For Perfecting Your Appeal

11:45 am – 12:45 pm

CLE Plenary Session Option 1: Gender Bender, Take Two: Negotiating to Win—for

Your Clients and Yourself (Ticketed: $45)

How does being a woman affect career development, legal skills, business relationships,

and the ability to negotiate for yourself? Learn from our panel of lawyers and a corporate

coach, with decades of experience in navigating the steps to career success and promoting

professional development in law firms and corporate law departments.

Moderator: Elizabeth Hanke

Speakers: Lacrecia G. Cade, Debra Holzman, Ronald L. Kammer, Lorelie S. Masters

Written Matterials
Gender Bender, Take Two:Negotiating to Win – for Your Clients and Yourself

CLE Plenary Session Option 2: Detour Ahead: Federal Court Certification of Questions

of Insurance Coverage Law to State Supreme Courts (Ticketed: $45)

Should federal courts be deciding questions of first impression in insurance coverage cases?

Is certification of questions of state law to state supreme courts a better approach? The

panel will discuss the law that has developed regarding certification and the strategic

implications for courts and counsel handling insurance coverage disputes.

Moderator: Steven R. Smith

Speakers: Hon. James G. Carr, Yvette McGee Brown, Keven D. Eiber, Max H. Stern

Written Materials:

Detour Ahead Part 1
Detour Ahead Part 2

1:00 pm – 2:10 pm

CLE Plenary Session: The Right and Duty to Settle: Bad Faith and Negligence

Exposure Associated with Third Party Claim Handling

Join a discussion of negligence/bad faith claims when a covered loss is not settled and

results in an excess verdict. This program addresses issues such as competing duties

when there are multiple claimants and inadequate limits; competing duties when there are

multiple defendants and inadequate limits; and the duty (if any) to negotiate.

Moderator: Hon. Paul Stickney

Speakers: Linda Dedman, Pamela R. Dunlop Gates, D. Chris Heckman, Lori Seitz

Written Materials
The Rigth and Duty to Settle Third-Party Liability Claims

2:20 pm – 3:40 pm

CLE Plenary Session: Young Lawyer Track—"Bending the Cost Curve" in Long-

Tail Liability Coverage: The Berkshire Hathaway Strategy

One of the purported benefits of the Berkshire Hathaway strategy is the ability to use its

market power to “bend the cost curve” of liability payments and defense cost payments, and

reduce overall spending and erosion of coverage limits. What are the impacts of this strategy

upon policyholders, insurers, reinsurers, defense counsel, and underlying claimants?

Moderator: John M. Sylvester

Speakers: Joseph R. DeHope, Jr., Anna P. Engh, Brian A. Kelly, Frances Ma,

Jonathan R. Terrell

Written Materials:
Belling the Cat
Rebutting the “Agency”
Policyholder Litigation
The Defense of Insureds and Alleged Bad Faith Delay
Reshaping the Insurance Market for the Better

CLE Breakout Sessions

4:00 pm – 5:00 pm

Young Lawyer Track—Duty—or No Duty?

Just how far do an insurer’s duties stretch? Test your mettle as the panel discusses wild and

crazy fact patterns hidden behind various briefcases, à la Howie Mandel. Did the court find a

“duty” or “no duty” in the case described? Cast your vote, and take it to the banker!

Moderator: Bridget T. Schuster

Speakers: Cory M. Figiel, Kathryn M. Knudsen, Isaac Ruiz

Written Materials
Duty—Or No Duty

Give & Take: The Battle Over Defense Dollars

This program will cover (1) the initial negotiation between carrier and policyholder

regarding defense, rates, and potential impact on later reimbursement; (2) managing the

defense process—frustrations and tips from policyholder and insurer; and (3) strategies

in pursing and defending actions for reimbursement of defense and indemnity amounts.

Moderator: Katherine E. Mast

Speakers: Robert D. Allen, Diego Garcia, Jr., Gary Thompson

Written Materials:

The Battle Over Defense and Settlement Dollars

Exploring the Excess Exposure Playbook: What to Do (and Not Do) When a Claim

Presents Exposure in Excess of Coverage

Liability claims often present exposures that exceed an insured’s policy limits, and a

claimant's settlement demand often comes when there remain unresolved questions about

liability and coverage. The panel will review recent developments in duty to settle case law

and discuss the options and strategies available for dealing with excess exposure claims.

Dana A. Ferestien

Kelly Castriotta, Michael T. Skoglund, William T. Um

Written Materials:
Exploring The Excess Exposure

Transition from Primary to Excess Coverage: Effortless Step or Grand

Canyon Leap?

As mature long-tail defendants exhaust available limits, the transition between primary and

excess layers presents thorny legal issues, and practical survival obstacles. The panel will

offer advice on primary layer exhaustion, evidentiary burdens, settlement implications, policy

allocation developments, the Comerica/Qualcomm overlay, and other issues.

Moderator: Patrick J. McGrath

Speakers: Maria G. Enriquez, William Howard, Benedict M. Lenhart

Written Materials:
Effortless Step or Grand Canyon Leap?

Friday, March 6

8:00 am – 9:10 am

Doing the Settlement Two-Step: Strategies for Mediating

the Underlying Case along with the Coverage Dispute

Settling coverage disputes over pending unresolved liability claims presents special

challenges. Two experienced national mediators—one specializing in coverage, the other in

IP and CD—join a senior in-house carrier counsel and an experienced policyholder attorney

to share strategies for successfully meeting the challenge.

Moderator: Paul J. Van Osselaer

Speakers: Karl Bayer, Catherine S. Durkin, Kirsten C. Jackson

Written Materials:
Strategies for Mediating

CLE Plenaries, Breakouts, & Roundtables

9:15 am – 10:25 am

CLE Plenary Session: Cyber Attacks and Privacy Perils: Understand and Mitigate

Your Risk Through Insurance

The panel will explore the legal and regulatory developments, the trends in class action

litigation, and potential coverage for emerging cyber and privacy risks, including emerging

threats such as cyber espionage and cyberterrorism, under "legacy" insurance policies and

the newest cutting-edge "cyber" insurance products.

Moderator: Judy Selby

Speakers: Roberta Anderson, Laura Foggan, Jason Glasgow, Nadia Hoyte

Written Materials:
Understand and Mitigate Your Risk Through Insurance

10:35 am – 11:35 am

Written Materials:
Young Lawyer Track—Pre-Litigation Communications Between Insurers and Their Attorneys—Can Any Privilege Prevail?

Join a discussion of recent decisions interpreting the application at the claim evaluation stage

of attorney-client and work-product privileges. The panel will consider practical challenges

faced when counsel is retained pre-suit during claim evaluation and investigation, and joint

defense agreements and their potential impact on privilege claims.

Moderator: Michael Troisi

Speakers: Jay M. Levin, Kellyn J.W. Muller

Written Materials:

Erecting an Ethical Wall Between Coverage and Defense by Splitting Claim Files

It's Only Forum Shopping When It's Coming from the Other Side!

Insurance coverage litigation seems to span as many forum disputes as virtually any kind

of dispute. Veteran insurance litigators will discuss some of the reasons why, critique the

arguments used to support the insurer and policyholder-side positions in forum disputes,

and share insight into approaches that work best.

Moderator: Richard D. Milone

Speakers: Cyndie M. Chang, John B. Mumford, Jr., Paul A. Rose

Written Material:
Sparring Over Forum Selection in Insurance Coverage Actions

The Wall: A Close Look at the Persistent Problems Facing In-House Law

Departments Simultaneously Giving Direct-Side Coverage Advice and Monitoring

the Company's Reinsurance Program

The panel will describe the challenges inherent in giving sound coverage and reinsurance

advice to the same client company, including differences in the application of privilege

rules to coverage and reinsurance communications, and the perils of handling coverage

cases with available reinsurance protections in mind.

Moderator: Cindy Koehler

Speakers: Robert J. Bates, Arthur C. Harris

Written Materials:
A Close Look

The Changing and Challenging World of D&O Insurance

New developments and hot topics in directors and officers insurance coverage issues and

the claims that impact D&O policies. This session will go beyond the recent Supreme Court

rulings to explore important trends in securities litigation and other D&O claims. This panel

will examine important D&O policy provisions and the current areas of coverage disputes.

Moderator: Michael W. Early

Speakers: Dan A. Bailey, Angela R. Elbert, Koji Fukumura

Written Materials:
Developments in D&O Claims and Insurance: Is Anything Changing?

11:40 am – 12:40 pm CLE Breakout Sessions

Young Lawyer Track—Builder’s Risk—Structuring the Right Coverage, Avoiding

and Resolving Disputes

This session will provide war stories to address key areas of Builder's Risk coverage. It will

walk through the main areas of coverage and consider issues that arise much too frequently.

It will provide insights through the perspectives of an attorney, a construction manager, and

a forensic accountant.

Moderator: Christopher M. Brophy

Speakers: Joseph A. Castellano, James R. Murray, Joyce Wang

Written Materials:
Structuring the Right Coverage

The Science of Apology For Insurance Coverage Matters

This panel will examine the latest research on the use of apologies as a pre-litigation

strategy and a trial strategy with particular application to insurance coverage and bad faith


Moderator: Ernest Martin, Jr.

Speaker: Christopher W. Martin

Written Materials:
Insurance Coverage Matters

Best Practices to Most Efficiently Resolve Coverage Disputes
(It’s Not Personal; It’s Business)

Insurers and policyholders have the common goal of determining the best method to resolve

coverage disputes efficiently. This presentation discusses the best practices in certain

litigation and practice areas to achieve that goal.

Moderator: Gregory E. Schopf

Alexander J. Berline, Barbara Reeves Neal, DeeAnn B. Waller, Ray L. Wong

Written Materials:

It’s Not Personal

"It's Business" Construction Defects May Be Accidents, but a Company's Response to Them Is Not

This panel will discuss the unique issues companies face when defending against

construction defect litigation, including balancing the desire to maximize covered damages

and minimize liability, utilizing experts, protecting against disclosure of sensitive work

product, and avoiding cooperation clause blunders.

Moderator: Gregory R. Chemnitz

Speakers: Carlos Diaz-Padron, Jodi Hatherly, Meghan C. Moore

Written Matterials:
Construction Defects May Be Accidents, But A Company’s Response To Them Is Not

12:50 pm – 2:15 pm Roundtable Luncheons (Ticketed: $55)

1. Who Pays When Products Fail? Determining Damage and Coverage for Claims

Involving Defective Products

Coverage for damage resulting from defective products remains a contested issue in the

courts, with different jurisdictions reaching conflicting conclusions as to what constitutes

property damage and when such damage occurs. The panel will discuss common claims when

products have failed or are expected to fail and coverage issues involved.

Speakers: Linda Bondi Morrison, David Cox, Brian DeSoto

2. Unchartered Territory: Coverage Challenges for Companies in th e P2P Space

Learn about the innovative business models and technology that drive companies and at

the same time expose them to potential liability within a complex regulatory framework.

Discuss a variety of unique coverage challenges and potential coverage gaps that P2P companies

face and explore ways to address them.

Speakers: Jan A. Larson, Cara Tseng Duffield

3. Defense Obligations Revisited: Comparing the Duty to Defend and the Duty to Pay

Defense Costs

Liability policies offer two well-known types of defense coverage, but their scope, trigger,

consequences, and enforcement vary tremendously across states. This roundtable will discuss

the advantages and disadvantages of representative states' regimes.

Speakers: Freya K. Bowen, Karen L. Toto

4. Data, Metrics, and Statistics: Managing Data for Insurance Claims

Massive insurance coverage claims often come with masses of disorganized data. Find

out here how to help your clients organize, assemble, and use this data to more effectively

manage the insurance coverage claim and the underlying defense. The panel will also

consider technological solutions to decrease the costs of gathering and sharing information.

Speakers: Joseph A. Arnold, Kami E. Quinn

5. We Have to Produce What? The Battle Over the Discoverability of Insurers'

Attorney Files in Bad Faith Disputes

In light of the Washington Supreme Court's decision in Cedell v. Farmers Insurance Company

of Washington, the panel will discuss the ongoing dispute over the application of the

attorney-client privilege and work product doctrine to insurers' attorneys'' files in bad faith

and coverage litigation from both the carriers'' and the policyholders' perspectives.

Speakers: Adam P. Doherty, Nicholas M. Insua

6. Insuring Political Risk in an Unstable World

Demand for political risk insurance has grown significantly in this environment. This roundtable

will explore the types of such insurance currently available in the market, and issues arising

in the application of these policies to various events and losses companies have experienced.

Speakers: Christopher M. Brophy, John Gibbons

7. Are We Related? In Search of Analytic Principles for Interrelated Claims


Depending on the context, a finding of relatedness may benefit either the policyholder or the

insurer. Is there a principled way to argue both sides of the relatedness coin from one case to

the next? We will discuss recent decisions regarding interrelated claims issues.

Speakers: Whitney Lindahl, Gregory Rubio

8. Coverage Conundrums in Class Actions

As the proliferation of consumer protection, privacy violation/data breach, wage/hour,

and securities claims continues, more corporate entities are becoming targets of class

action suits. This panel will address coverage issues that arise, including types of

policies typically triggered, duty to defend issues, and potential coverage defenses and


Speakers: James P. Bobotek, Tara L. Goodwin

9. Hot Topics in Environmental Coverage

This roundtable will explore current and emerging issues in the area of environmental

insurance under CGL and pollution liability policies. Potential topics include climate change,

hydraulic fracturing, odor-related claims, and rail transport of crude oil.

Speakers: Megan R. Brillault, Brian Margolies, Bryan Weiss

10. Healthcare Management Liability Insurance: False Claims Act, Provider

Reimbursement Litigation & Other Controversial Claims

This roundtable will discuss, debate, and explore the issues that arise when policyholders

in the healthcare industry seek coverage under their management liability policies for

lawsuits presenting challenging coverage issues, including False Claims Act violations,

provider reimbursement litigation, and statutory damages.

Speakers: Jeffrey A. Kiburtz, Joseph Sappington

11. Misrepresentation, Post-Claim Underwriting, and the Law of Bad Faith: Is There

a Need for Special Rules

An insurer, presented with a claim, sometimes seeks to rescind the policy based on application

misrepresentation. Some courts and commentators have identified what they regard as an

abuse of the misrepresentation defense, which they call "post-claim underwriting." This

presentation examines how bad faith law ought to deal with the issue.

Speakers: William T. Barker, Jason S. Mazer

12. What Did the Insured Do and When Did the Insured Do It?

This roundtable discussion will examine issues involved in determining the application of

prior notice, prior acts, and prior and pending litigation exclusions under professional liability

and directors and officers insurance policies and related public policy implications.

Speakers: Steven W. McNutt, William Schreiner, Jr.

13. Claims Handling Experts: How to Find Them, Manage Them, and Win with Them

For bad faith and unfair insurance practices claims, a claims handling expert is key. A discussion

of the best sources for claims handling experts, legal issues that can be raised, tips for

managing their review of documents, getting the best out of them to guide your discovery

program, and actually winning if you go to trial.

Speaker: Frances O'Meara, Elizabeth J. Stewart

14. Exploring the Coverage Issues Emerging from the Recent Avalanche of Qui Tam


Qui tam lawsuits are easier than ever to bring and plaintiffs are bringing them more

frequently. Policyholders often turn to their PII, EPLI, and D&O policies for coverage. This

roundtable will discuss emerging coverage issues from these claims, which generally

involve whistleblowers, government agencies, and confidential investigations.

Speakers: Manuel Mungia, Jr., Jared Zola

15. The Changing Landscape of Insurance for Infringement Claims

A discussion of the changing scope of coverage under different types of policies for

patent, copyright, trademark, and trade dress claims, and how companies in different

businesses may face different needs.

Speaker: Erin L. Webb

16. The Big E's: Eight Corners and Extrinsic Evidence

Exceptions to the “Eight Corners” rule challenge established notions regarding the breadth

of the duty to defend and may leave policyholders more susceptible to early claim denials.

This roundtable will survey recent case law addressing these exceptions and provide an

opportunity to discuss missteps of policyholders and insurers in the duty to defend.

Speakers: Christopher C. Frost, William T. Um

17. Construction Product Class Actions in Residential Construction—The New

Frontier for Insurers and Insureds?

The product class action presents policyholders and carriers with unique issues involving

the substantive claims and the remedies available to successful plaintiffs. We will

discuss a few of the unique claims and insurance issues presented by the class action

form of litigation against homebuilders and contractors.

Speakers: John H. Podesta, Jeffrey J. Vita

18. Complex Business Interruption Claim Disputes

The discussion will include recent legal decisions regarding business interruption claims. The

panel will also discuss and analyze legal and claim calculation disputes arising from recent

natural disasters including the Napa earthquake, Superstorm Sandy, the Thailand floods, and

the earthquake/tsunami in Japan.

Speakers: Samuel Arena, Gregory S. Thaler

19. Cyberliability: Where Should a Company and its Directors and Officers Turn for

Insurance Coverage?

Every company, director, and officer should now know the importance of protecting against

cyberliability. With a view toward recent governmental and agency positions on cybersecurity

and cyberliability, we will examine potential sources of insurance coverage with a focus on

protections for directors and officers.

Speakers: Parker Lavin, Brian S. Scarbrough

Saturday, March 7

8:00 am – 9:10 am CLE Plenary Session

Counting for Coverage: How Many Occurrences Were There?

The number of occurrences impacts how many deductibles/SIRs must be paid, available limits,

and how many policies are triggered. Counsel will present hypothetical arguments based on

actual cases involving temporal and non-temporal occurrences, and a Supreme Court justice

will provide insight on effective briefing and arguments at the appellate level.

Moderator: Tred R. Eyerly

Speakers: Karin Aldama, Rina Carmel, Hon. Peter Maassen, Demetrius Rush

Written Materials:
How Many Occurrences Were There?

9:20 am – 10:20 am CLE Breakout Sessions

Young Lawyer Track—Estopped in the Name of Coverage: Litigating the Effect of

ROR and Denial Letters

Reservation of rights and denial letters often become the central focus in coverage litigation.

The content and timing of these letters can be the difference between coverage and no

coverage. The panel will explore the latest case law trends, provide tips for litigating these

issues, and tips from both sides for writing and responding to these letters.

Moderator: Seth Friedman

Speakers: Vijay V. Bondada, Rahul Karnani, Sherilyn Pastor

Written Materials:

Waving Goodbye to Coverage Defenses: Litigating the Effect of Denial Letters
Estopped in the Name of Coverage

The Ethics of Witness Preparation in a Coverage Case— Prepare Your Witness … But Not TOO Much!

The panel will discuss due diligence in selecting the proper witnesses from whom to obtain

background facts, considerations to address for former employees of the client, and navigating

balance between refreshing recollection and "putting words in mouths of" witnesses.

Moderator: Joseph G. Harraka, Jr.

Speakers: Chauntis T. Jenkins, Angela Krahulik, Leslie Thorne

Written Materials:
Prepare Your Witness .. But not TOO much!

Product Recall Insurance: It's Not Just for Food Contamination Anymore

Product recalls have meant losses and liability for hundreds of companies. The insurance

industry has responded with new coverage products geared toward technology, life sciences,

and medical devices, among other industries. Just how good is this coverage, and what issues

arise when companies make claims? This panel will address these questions and more.

Moderator: James J. Cooper

Speakers: Joseph F. Bermudez, Suzan F. Charlton, Bradley Murlick

Written Materials:
Product Recall Insurance

Social Media—The Impact on Coverage Disputes and Litigation

Join us for a discussion of emerging trends in cyber insurance and coverage for defense and

indemnity when the use of social media is involved. We will also discuss using social media

when investigating coverage issues and the admissibility of social media content, including

but not limited to Facebook profiles and Twitter feeds at trial.

Speakers: James M. Davis, Neil E. Hansen, Rick Kubler

Written Materials:
Recent Developments in Discovery of Social Media Content

10:30 am – 11:30 am CLE Breakout Sessions

Young Lawyer Track—The Underwriter Deposition Zone: Practice Tips and

Potential Pitfalls

There is a deponent with information as vast as space and as timeless as the creation of a

policy. It is the middle ground that has been known to strike fear in the heart of the deponent

and counsel alike. This is the dimension of the underwriter. It is an area that we call the

Underwriter Deposition Zone.

Moderator: Amy J. Woodworth

Speakers: Sarah R. Anchors, Matthew Elstein, Tyechia L. White

Written Matterials:
The Insurer's Perspective
The Polidyholders Perspective

Oops, My Policy Limits Are Gone. Who Do I Sue Next?

This program will explore potential pitfalls and practical solutions for brokers, insurers,

and counsel where claim expenses erode policy limits available to settle claims, including

subsequent claims for professional negligence against brokers and defense counsel, and

bad faith claims against insurers.

Moderator: Laura Hanson

Speakers: Mary E. Borja, Robert P. Thavis, Chester White

Written Materials:
Insurer Considerations and Strategies Where Defense Is Within Limits

Which Came First, The Chicken or the Egg? How Courts Apply the Concurrent

Causation Doctrine to Resolve Coverage Disputes in First-Party Property Claims

This program will present a number of hypothetical situations and demonstrate how the

jurisdiction considering each scenario might reach a different conclusion as to coverage

depending on the way it applies the concurrent causation doctrine through discussion

between policyholder and carrier counsel as well as in-house counsel.

Moderator: Kirsten C. Jackson

Speakers: Matthew R. Dornauer, Kathryn E. Kasper, John S. Vishneski III

Written Materials:
Which Came First, the Chicken or the Egg?

Municipalities are Policyholders Too: A Review of the Unique Insurance Coverage

Issues Cities and Towns Are Facing

This program will review a number of insurance issues that local governments are facing,

including divergent case law regarding coverage for civil rights claims; coverage for

investigations/claims arising from increased scrutiny of municipal debt issuances; and the

interplay of insurance with governmental immunity and public records laws.

Moderator: Brent W. Huber

Speakers: Niquelle R. Allen Winfrey, Nicholas Reuhs, Michelle R. Valencic

Written Materials:
A Review of Unique Insurance

Coverage Issues Faced by Cities and Towns11:40 am – 12:50 pm CLE Ethics Plenary Session

Point/Counterpoint—An Ethics and Insurance Law Debate

This ethics seminar is modeled on the famed Saturday Night Live skit "Point/Counterpoint.”

Two policyholder and two insurer side debaters will address recent coverage opinions, while a

moderator comments on ethical issues presented. Audience participation is encouraged during

this educational—and humorous—interactive program.

Moderator: Steve Brower

Speakers: Daniel E. Tranen, Elizabeth T. Simon, Ivan Snyder Jennifer C. Wasson

Written Matterials:
An Insurance and Ethics Law Debate



Insurance Coverage Litigation Committee CLE Seminar
March 5–8, 2014
Loews Ventana Canyon
Tucscon, AZ


Thursday, March 6

CLE Plenary Sessions

What the Bench Wants, What the Bench Needs, Whatever Makes the Bench Happy…

Like the Christina Aguilera song, keeping a judge happy “sets you free”… or not. This panel of prominent jurists addresses the care and feeding of judges handling coverage cases and/or confronting insurance issues in the course of litigation. Learn what the judges think about our pleadings, arguments, and what they want and need.

Moderator: Mary Craig Calkins
Speakers: Hon. Ruben Castillo, Hon. Victoria G. Chaney, Hon. Sophia H. Hall, Hon. R. Brooke Jackson

Written Materials

Women’s CLE Plenary Session: Gender Bender—Does Being a Woman Really Matter in This Business?

This session includes a lively discussion between men and women about whether or not being a woman in this industry really matters. Does our gender get in the way of traditional law firm settings? Does being a woman affect business relationships, compensation, flexible scheduling, or settlement negotiation? When do these issues present an ethical dilemma? Tips from a corporate coach will also be included.

Moderator: Elizabeth Hanke
Speakers: Lacrecia G. Cade, Amy M. Green, Lori S. Masters

Written Materials

CLE Ethics Plenary Session: Ethics Considerations: Managing the Tripartite Relationship Among Insurers, Policyholders, and Defense Counsel

This panel will explore the ethical minefield that constitutes the so-called Tripartite Relationship. Our panel will include both insurer-side and policyholder-side coverage counsel, defense counsel, and a member of a state attorney disciplinary commission. We will present interesting and challenging hypotheticals and will encourage audience participation!

Moderator: Neil B. Posner
Speakers: Michael W. Early, Theodore A. Howard, Melissa A. Smart

Written Materials

The Perfect Storm: Delay, Defenses, and Damages in Catastrophe Property Claims

This session will provide examples and hypotheticals of claims following catastrophic loss. We will address the pitfalls of catastrophic claims adjustment including investigation, delay, policy conditions, cooperation (or lack thereof), institutional bad-faith, and a discussion of recoverable damages—including attorney fees, prejudgment interest, business interruption, and consequential and punitive damages.

Moderator: Damian D. Daley
Speakers: Curtis Hutchens, Andrea L. DeField, Meghan C. Moore, Melissa M. Sims

Written Materials

P4.1 The Perfect Storm: Delay, Defenses, and Damages in Catastrophe Property Claims

CLE Breakout Sessions

Young Lawyer Track—Insurance Law Jeopardy

This session will start with a robust discussion of key aspects of insurance law and will end with a lively game of insurance \"Jeopardy!\" with significant audience participation. The main “take-aways” from this presentation will be a better understanding of insurance disputes, some thought-provoking “war-stories,” and some great prizes.

Moderator: Christopher Brophy
Speakers: John E. Heintz, Judy Selby, Ray L. Wong

Written Materials

B1.1 Insurance Law Jeopardy

My Building Survived the Storm, But Will My Business?

The effects of a regional crisis like Sandy can mean trouble for a business including income loss caused by immediate physical damage or even when the business itself wasn't physically damaged. To what extent will business interruption or related time element coverage extensions apply?

Moderator: Dorothea W. Regal
Speakers: R. Steven Anderson, Paulette Sarp, Gary Thompson

Written Materials

B2.1 My Building Survived the Storm, But Will My Business?

Legal Fees in the Coverage Case: Ideas For Today, Realities for Tomorrow

What is happening now and what does the future hold for fees in coverage cases? Can incentive fees work? Are carrier claims leaders and in-house counsel chiefs interested in changing the paradigm? Perspectives from all sides moderated by an independent consultant to both companies and law firms.

Moderator: Joseph W. Bauer
Speakers: Jacqueline Brettner, Meghan Magruder, Keith Moskowitz, Richard C. Woollams

Written Materials

B3.1 Legal Fees in the Coverage Case: Ideas for Today, Realities for Tomorrow

Cyber Insurance 101: Preventing, Recovering from, and Insuring Against Cyber Attacks

The program will examine the emerging intersection of insurance law and cyber issues. Specifically, this program will inspect traditional policy provisions in various types of insurance policies to see how courts are addressing policy language when applied to occurrences arising from data breaches, hacking, and other cyber issues. The presentation will also focus on what considerations are important in obtaining relevant insurance coverage to protect companies' assets, cost-effective security measures, and the impact of regulatory requirements and sanctions.

Moderator: Guna Kirhnere Rogers
Speakers: Kirsten C. Jackson, Elissa K. Doroff, Kathryn E. Kasper, Michael B. Rush

Written Materials

B4.1 Cyber Insurance 101: Coverage Issues Related to Cyber Attacks and Cyber Insurance

Friday, March 7

CLE Plenary Sessions

Caught in the Crossfire: Impact of Coverage Issues and Firearm Legislation for Gun-Related Claims

As mass shootings make news, liability coverage for firearm-related claims has become a hot issue. This session explores key coverage issues under various policies, the insured’s affirmative defense of self-defense, and the impact of gun-related laws on underwriting, the existence of coverage, and the defense of underlying actions.

Moderator: Steven C. Teebagy
Speakers: Rina Carmel, Tred Eyerly, Thomas D. Underbrink, Nick M. Insua

Written Materials

P5.1 Caught in the Cross Fire: Impact of Coverage Issues, Defense Issues, and Firearm Legislation for Gun Claims

The American Law Institute's Principles of the Law of Liability Insurance Project—Restating the Law or Rewriting It?

In its Principles of the Law of Liability Insurance Project, the American Law Institute has undertaken an ambitious effort to codify key principles of liability insurance law. The project’s reporter, along with project advisers representing insurers, policyholders, brokers, and judges, will discuss the more controversial proposals in the draft principles.

Moderator: Prof. Tom Baker
Speakers: Vanita M. Banks, John G. Buchanan, Hon. William F. Highberger, Douglas R. Richmond

Written Materials

CLE Breakout Sessions

Young Lawyer Track—Mediation Boot Camp 101: Preparing Your Coverage Case for Resolution

This program will provide helpful strategies for resolving coverage disputes through mediation, including the steps that attorneys can take to prepare their case for resolution at mediation. New practitioners (or those new to coverage litigation) will find this program particularly helpful.

Moderator: Katherine E. Mast
Speakers: Terrance J. Evans, Miles C. Holden, Hon. Rebecca Westerfield (Ret.)

Written Materials

Yours, Mine, or Ours? The Evolution of Additional Insured Coverage

This panel will discuss the evolution of additional insured coverage under liability policies. We will offer insights on the revisions of additional insured provisions through the years, including the most recent changes introduced by ISO in 2013. We will also address some of the complex coverage issues that arise when a policyholder and additional insured seek coverage under the same insurance policy.

Moderator: Ruth S. Kochenderfer
Speakers: James P. Bobotek, Ernest Martin, Jr., John B. Mumford, Jr., Scott Patterson

Written Materials

B6.1 Yours, Mine, or Ours? The Evolution of Additional Insured Coverage Under CGL Policies

Shhh! Why the Attorney-Client Privilege May Not Protect Communications with Coverage Counsel

Insurers regularly employ outside counsel to offer coverage opinions during claim adjustment. But are those communications protected by the attorney-client privilege? The surprising answer may be no, which has important implications for discovery, claim adjustment, and bad-faith litigation.

Moderator: Christopher C. Frost
Speakers: Dean Lonnie T. Brown Jr., Eileen L. Parsons, Hon. R. David Proctor

Written Materials

B7.1 Shhh! Why the Attorney-Client Privilege and Work Product Doctrine May Not Protect Communications with Coverage Counsel

Between a Rock and a Landfill: Five Dilemmas at the Intersection of Environmental and Insurance Law

Long-standing rules regarding coverage for environmental matters often create dilemmas for policyholders and insurers facing an administrative action initiated by the EPA. The panel will discuss five areas of tension: Duty to Defend, Property Damage and Occurrence, Voluntary Payments, Proof of Coverage or Proof of One's Own Liability, and RI/FS costs.

Speakers: Francis E. Chin, Cindy Hunter, David E. Schoenfeld, Jodi D. Spencer Johnson

Written Materials

B8.1 Between a Rock and a Landfill: Five Dilemmas at the Intersection of Environmental and Insurance Law

Young Lawyer Track—The Care and Feeding of In-House Counsel: Practical Tips and Legal Considerations for Litigated Matters

This program will include a discussion of the following: (1) do's and don'ts when working with in-house counsel on litigated matters; (2) protecting counsel's files from discovery; (3) defending the general counsel's deposition; (4) litigation holds and who is responsible for them; and (5) litigation guidelines and whether they are helpful cost-savers or ethical minefields.

Moderator: Suzan F. Charlton
Speakers: Ginamarie Alvino, Michele Beasley, Robert Ryan, Paul Tenner

Written Materials

B9.1 The Care and Feeding of In-House Counsel: Practical Tips and Legal Considerations for Litigated Matters

Health Care Data Breaches: Emerging Insurance Issues and Legal Considerations

Health care organizations are subject to new mandates to implement electronic health records, pressure to keep patient information secure as the risk of health care data breaches rises. Our panel will discuss the role of insurance in addressing these growing risks, and related coverage concerns.

Moderator: Arden B. Levy
Speakers: Katherine M. Keefe, Maria VanDerLaan, Ngozi Nnaji

Written Materials

B10.1 Data Breaches in Health Care: New or Heightened Risks, Emerging Insurance and Legal Considerations

Success in Insurance Coverage Mediation: Yesterday, Today, and Tomorrow

The \"state of the art\" in mediation advocacy has changed. Have you kept up? There are new and better ways to prepare, to conduct opening joint sessions, and to deal with confidentiality. And, the biggest challenge remains the simultaneous settlement of liability and coverage issues. Come and learn what works today and about trends for the future.

Moderator: Jeff Kichaven
Speakers: Jeff M. Cohen, Althea Garvey, Vincent E. Morgan

Written Materials

B11.1 Critics Warn NYC Commercial Mediation Pilot Could Backfire

Divergent Worlds of US and UK Insurance Law

For decades, London insurers have been a leading force in the global insurance market, and the US tort liabilities of US and multinational policyholders have dominated the need for their products and services. Yet, despite a shared language and legal heritage, shared purposes and principles, and even shared policy terms and conditions, the interpretation, application, and presentation of general liability policy disputes can yield very different results and lead to very different understandings in the hands of an English tribunal, lawyer, or claims handler than in the hands of their American counterparts. Understand both the substantive and practical differences of preparing and presenting insurance disputes in London arbitrations. This presentation will examine what accounts for these often outcome determinative differences and their practical impacts for insurers and policyholders.

Moderator: Rita Davis
Speakers: Allan B. Moore, Stephen Moriarty QC, Joanna Page, Thomas R. Newman

Written Materials

B12.1 An American Abroad: The Divergent Worlds of U.S. and U.K. Insurance Arbitrations

Saturday, March 8

CLE Plenary Sessions

Guesswork, Luck, and a Little Duct Tape: Predicting Outcomes and Presenting Winning Arguments in the Ever-Changing Realm of Conflicts of Law

Analysis and discussion of the sometimes nebulous, unpredictable, and inconsistent nature of conflicts of law rules and outcomes nationwide through presentation of recent case law. Discussion of traps for the unwary and practice pointers where purported “rules” are sometimes not what they seem. Case law trends and increasing use of hybrid rules borrowing elements of competing conflicts approaches will be discussed.

John C. Bonnie
Hon. J. Michelle Childs, Rupa Cornell, Paul DeGiulio

Written Materials

P7.1 Guesswork, Luck and a Little Duct Tape: Predicting Outcomes and Presenting Winning Arguments in the Ever-Changing Realm of Conflicts of Law

CLE Ethics Plenary Session: Find Out Who Is the Weakest Link: An Ethics and Insurance Law Debate

Who is the Weakest Link? This ethics discussion will consist of two policyholder and two insurer side debaters who will engage in a round robin debate over recent ethics insurance coverage opinions. The audience will determine which side prevails and which side is the Weakest Link.

Rahul Karnani
Josephine H. Hicks, Elizabeth T. Simon, Daniel E. Tranen, Jennifer C. Wasson

Written Materials

P8.1 Find Out Who is the Weakest Link – An Ethics and Insurance Law Debate

PowerPoint Presentation

Wage Hour Insurance

CLE Breakout Sessions

Young Lawyer Track—An Excess Carrier's Duty to Defend: A Slippery Slope or a Tangled Web?

This program focuses on issues relating to an excess carrier’s duty to defend, including the effect of “follow form,” \"drop down,\" and \"pay and walk\" provisions; vertical and horizontal exhaustion rules; implications of self-insurance; underlying insurers’ insolvency and allocation among insurers where settlements are in excess of primary policy limits.

Patrick J. Murphy
Jeff A. Turkell, Brian E. Cothroll, Ellen M. Van Meir

Written Materials

B13.1 An Excess Carrier’s Duty to Defend: A Slippery Slope or a Tangled Web?

Berkshire Hathaway, the New Goliath: Strategies for the Boy David

The unprecedented concentration of long-tail insurance risk at Berkshire Hathaway through \"retroactive reinsurance agreements\" has generated enormous cash flow for Berkshire's investments. With so much at stake, understanding Berkshire's strategy will be critical for years to come. This program will address the implications for policyholders, ceding insurers, and reinsurers.

John M. Sylvester
Vijay V. Bondada, Laura Foggan, Jonathan R. Terrell

Written Materials

Indemnity, AI, and the BP Oil Spill

In February, a panel of the Fifth Circuit Court of Appeals found that BP was an additional insured under Transocean's policies, then withdrew that decision and certified important additional insured/indemnity questions to the Texas Supreme Court. In this session, the panelists will discuss indemnity and additional insured issues in the energy industry, the issues that are currently pending before the Texas Supreme Court, and other insurance issues impacting the insurance coverage industry resulting from the BP oil spill.

Tracy Alan Saxe
Seth Friedman, Chris Heckman, Chauntis T. Jenkins

Written Materials

B15.1 Indemnity, AI, and the BP Oil Spill

It's Not Nice to Brag, But Is It Disparagement? Recent Trends in Coverage for Implied Disparagement Claims under the Lanham Act

An emerging issue with regard to insurance coverage for claims made under the Lanham Act is whether policies respond to matters in which claims are made based on disparagement by implication. Both state and federal courts have been attempting to address the coverage issues raised by such claims.

Kathryn V. Lindley
Matthew Elstein, Joanne Sarasin, Karen Stevenson, Amy Woodworth

Written Materials

B16.1 It’s Not Nice to Brag, But Is It Disparagement? Recent Trends in Coverage for Implied Disparagement Claims under the Lanham Act

Young Lawyer Track—Who Cares About Policy Conditions? Why These Sometimes Overlooked Policy Provisions Matter

Policy conditions are an important but sometimes overlooked part of any insurance policy. This program addresses common issues that arise under the policy conditions. Topics will include notice, investigation of claims, cooperation clauses, and voluntary payments.

Diego Garcia
Andrew Deutsch, Tonya Newman, Steven Weisman

Written Materials

B17.1 Who Cares About Policy Conditions? Why These Sometimes Overlooked Policy Provisions Matter

Wrap-Up Insurance Challenges for Coverage Attorneys from Implementation Through Completed Operations

Insuring a project with Wrap-Up insurance creates unique challenges to insurance coverage attorneys. This program will look at some of the unusual challenges and potential conflicts presented by Wrap-Ups from both the carrier and policyholder perspectives that occur when the wrap is implemented, during ongoing operations, and finally when post construction defect arise.

John H. Podesta
Mary Borja, Shaun Crosner, Jeffrey Vita

Written Materials

The 2013 ISO Changes—One Year Later

This program will focus on analysis and explanation of the significant 2013 ISO general liability form changes, impact on contracts in various industry segments, insurance market responses to the changes, and industry effects, with the benefit of approximately a year of working with the changes.

Jeremiah M. Welch
Carlos Del Carpio, Rebecca DiMasi, Julian D. Ehrlich

Written Materials

B19.1 2013 Insurance Services Office CGL Changes: Implications to Risk Transfer

Insurance Coverage for Wage & Hour and Class-Action Lawsuits

Presenters from Chicago, London, and Southern California, which include a Beazley underwriter, an Aon broker, and policyholder/insurer counsel will offer insights into Wage & Hour insurance practice. They will address new EPLI/D&O/E&O policy forms that include express Wage & Hour coverage as well as those that do not.

Steven Brower
David A. Gauntlett, Trudy Hardin, Eric Ross

Written Materials

B20.1 Insurance Coverage for Wage and Hour Claims Under a Variety of Insurance Polices



Insurance Coverage Litigation Committee CLE Seminar: March 2013, Tucson


  • Articles

»That Was a Secret! – Insurance Coverage for Privacy Violation Lawsuits

Andrew L. Margulis, Helen K. Michael, William T. Um

» Reservations Required – or Not? Recent Trends Concerning Reservation of Rights and the Impact on Defense Handling, Control and Conflicts of Interest

Jeffrey O. Davis, Patrick J. Murphy, Nicholas J. Boos, and David Ajalat

» The Use and Misuse of Expert Testimony in Bad Faith Actions

Jeffrey Michael Cohen and E. Kelly Bittick Jr.

»The Admissibility of Expert Testimony in Insurance Coverage Litigation Since Daubert

Robert J. Romero, Jeffrey M. Cohen, Jason S. Mazer, and Karen Cusato

» Coverage for “Rip and Tear” Costs: A Case Law Survey 

John C. Bonnie, Melissa C. Lesmes, Charles E. Stauber, and H. Eric Hilton

» What to Watch in D&O Coverage: Clawbacks, the Jobs Act, and the Facebook IPO

Andrew Deutsch and Erin Doran

»Ethical Issues in Mediations and Arbitrations
John E. Heintz, John Bickerman, Christina Dixon, Laura Foggan, Deborah Rothman

Women in Insurance Networking CLE Workshop:  October 18, 2012, Washington, DC



Beyond Rainmaking 101 – Generating Business as a Woman in Insurance

Powerpoint Presentation

Insurance Coverage Litigation Committee CLE Seminar: March 2012, Tucson


  • » Click here for the entire list of program materials.


Insurance Coverage Litigation Committee CLE Seminar: March 2011, Tucson.


  • » Click here for the entire list of program materials.



2010 Section of Dispute Resolution Midyear Meeting

At the 2010 Section of Dispute Resolution Midyear Meeting in Orlando, the Committee cosponsored a panel discussion on current trends and recent developments in international arbitration. Topics included: efforts by international arbitral tribunals to reduce time and costs by revising their rules and guidelines; hot issues in enforceability; the threat of corruption and its effect on the arbitration process; and what implications the proposed Arbitration Fairness Act would have on international arbitration.

Panelists were: Joan C. Grafstein, JAMS, Atlanta, Georgia (Moderator); M. Cristina Cardenas, Astigarraga Davis, Miami, Florida; A. Stephens Clay, Kilpatrick Stockton LLP, Atlanta, Georgia; John W. Hinchey, King & Spalding, Atlanta, Georgia; Edward M. Mullins, Astigarraga Davis, Miami, Florida.

Insurance Coverage Litigation Committee CLE Seminar: March 2010, Tucson

  • » Click here for the entire list of program materials.

Insurance Coverage Litigation Committee CLE Seminar: March 2009, Tucson

  • » Click here for the entire list of program materials.

Insurance Coverage Litigation Committee CLE Seminar: February/March 2008, Tucson

Insurance Coverage Litigation Committee CLE Seminar: March 2007, Tucson

Insurance Coverage Litigation Committee CLE Seminar: March 2006, Tucson

Insurance Coverage Litigation Committee CLE Seminar: March 2005, Tucson

Insurance Coverage Litigation Committee CLE Seminar: March 2004, Tucson

Show & Tell in the Courtroom-The Use and Abuse of High-Tech in Insurance Coverage Cases (2004)

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