Recording Date: August 19, 2010
223 minutes
Self Study/Alternate Format CLE: Self-study credit may be available in AZ, CA, CO, FL, GA, ID, LA, ME, NV, NH, TX, UT, VT, WA, WV and WY for watching a video or listening to an audio recording. Refer to your state bar’s MCLE guidelines for the number of reportable credits permissible via these formats.

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Agenda & Speakers

I. The Fundamentals: “All Sums” Versus Pro Rata Allocation, Terminology, and a Look Ahead
• ”All sums” versus “pro-rata” allocation: the policy-language underpinnings of the competing approaches, and how they play out in practice
• Relationship with the governing “trigger” of coverage and divisibility of covered harm
• Discussion of other allocation approaches
• Mastering the terminology: all sums, pro-rata, Owens-Illinois, the “spike,” Keene, reallocation through contribution claims, settlement credits, claim-bar orders, and more
• The state scorecard
• Trends in case law and legislative approaches
Seth Tucker, Esq., Covington & Burling LLP, Washington, D.C.
Elaine Whiteman Klinger, Esq., Christie, Pabarue, Mortensen and Young, Philadelphia

II. The Fundamentals Part II: Exhaustion of Limits and Related Issues-How Triggered Primary and Excess Policies Respond to Claims in an All-Sums Environment
• Methods of exhaustion: vertical versus horizontal, policy-language underpinnings, case law, and practical results
• “Stacking” of limits—permitted? Effect of anti-stacking clauses
• How do multi-year policies respond to continuous-injury claims?
• Differences between treatment of primary and excess policies
• Number of occurrences
Kip Makuc, Director, Navigant Consulting, Washington, DC
Michael Ginsberg, Esq., Jones Day, Pittsburgh
Mary Licari, Esq., Bates & Carey LLP, Chicago

III. What Happens After the “Spike”? Reallocation and Application of All Sums in the Settlement Context
• Reallocation options for the “spiked” insurer: contribution claims against other insurers
• Can a non-settled insurer sue a settled insurer for contribution?
• Credit to the non-settling insurer for settled policy limits—methods and practical results
• Credit based on pro-rata limits
• Credit based on actual amounts of settlements
• The all-sums rule in the settlement context: strategies and practical tools for reaching nonglobal coverage settlements
John Harding, Esq., Morrison Mahoney LLP, Boston
Franklin Cordell, Esq., Gordon Tilden Thomas & Cordell LLP, Seattle

About the Moderators

Franklin D. Cordell is a partner at Gordon Tilden Thomas & Cordell LLP  in Seattle. Mr. Cordell’s practice emphasizes advising and litigating on behalf of policyholders engaged in coverage disputes with their insurers. His experience ranges from large-scale coverage litigation on behalf of international corporate policyholders under complex coverage lines, to advising individual insureds under disability, property, auto, and other policies. Frank has written and lectured to a wide variety of groups on insurance-coverage topics. He also maintains an active litigation practice involving a wide range of non-insurance commercial disputes. Frank is a 1991 summa cum laude graduate of the Washington & Lee University School of Law, where he served as Senior Articles Editor of the Washington & Lee Law Review and was named to the Order of the Coif. Frank was a law clerk to the Hon. H. Emory Widener, Jr., of the United States Court of Appeals for the Fourth Circuit, before joining Covington & Burling in Washington, D.C. as an associate in 1992. In 1996 he became a founding attorney of GTT&C’s predecessor firm, and he was named Partner on July 1, 1998.

Eileen T. McCabe joined Mendes & Mount in 1989 and is an Equity Partner in the firm.  Eileen has represented insurers in litigation, alternative dispute resolution proceedings and mediation for over 20 years.  She has defended numerous insurers in Federal and State Courts throughout the country. Tens of hundreds of millions of dollars were or are at stake in many of these lawsuits.  Her practice also includes representing insurers in complex bankruptcy proceedings, which have included, In Re Mid-Valley Inc., In Re Federal Mogul and In Re W.R. Grace.  She also provides analyses and opinions on coverage, allocation and other insurance-related issues and has achieved favorable settlements on behalf of her clients in numerous complex matters.  Eileen is also involved in the direct defense of clients in product liability cases.