Resolving Insurers’ and Insureds’ Settlement Dilemmas When Policy Limits Are Insufficient: Multiple Insured and Multiple Claims

January 27th, 2023|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Resolving Insurers' and Insureds' Settlement Dilemmas When Policy Limits Are Insufficient: Multiple Insured and Multiple Claims Liability insurers, depending on the jurisdiction, may have to accept a policy limit settlement demand when liability is reasonably clear and the amount of the judgment "likely" will exceed the policy limit. Unique problems arise when an insured faces multiple claims from a single occurrence, liability is clear, and the policy limits are insufficient to settle all claims. Options for dealing with the issue exist, but all potentially expose the insurer to bad faith claims. The panel will explore different approaches, the jurisdictions that follow them, and solutions that offer insurers the best protection from extracontractual claims.Equally vexing is the situation in which more than one insured, such as both the owner of a vehicle and its driver, are covered under one policy. A claimant might demand the policy limits but release only one of the insureds. In such a situation, the insurer could face bad faith claims from one insured for refusing to settle and from the other for agreeing to settle.An interpleader action may not be the answer. Interpleading policy limits can leave the insurer vulnerable to accusations of artificial exhaustion, abandonment of the duty to defend, and a bad faith claim that the insurer shirked its duty to use policy funds to limit the [...]

Construction Builders Risk and CGL Insurance: Scope of Coverage, Covered Losses, Exclusions, AI Endorsements

January 26th, 2023|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , , |

Construction Builders Risk and CGL Insurance: Scope of Coverage, Covered Losses, Exclusions, AI Endorsements: Mitigation Construction- Related Disputes; Key Challenges for Claims Under Builders Risk Vs CGL Coverage Counsel to builders and developers must consider are who is covered, what property is covered, what limits and sublimits apply, and when/how coverage applies. Because builders risk policies are not standardized, coverage varies dramatically between insurers. Coverage disputes often arise over the types of costs recoverable, calculation of economic damages, and the coverage exclusions and exceptions.For liability disputes, CGL coverage must be adequately placed to cover construction risks during the course of construction as well as after. Typical issues include who is covered, the scope of coverage, and exclusions and conditions that apply.Counsel often must also navigate the interplay between builders risk policies, CGL policies, including wrap policies, and professional liability policies. These issues are influenced by the language of the policies and the parties’ contractual obligations to each other. Attention to the details is necessary to ensure coverage is triggered when necessary.Listen as our authoritative panel guides you through the characteristics of builders risk and CGL insurance policies and how these policies are used to mitigate developer and contractor risks. Outline Builders risk policies Contractual requirements Scope of coverage Troublesome exclusions and conditions Common issues and practice pointers CGL policies [...]

Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution

January 26th, 2023|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution Assessing Harm, Proving Divisibility of Harm Defense Absent a Bright-Line Test, and Apportioning Costs The U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for divisibility under CERCLA. However, there is no bright-line test for determining divisibility, and the courts have taken different approaches in evaluating this issue.In decisions involving the Fox River in Wisconsin and the Upper Columbia River in Washington state, as well as opinions from courts in Rhode Island and South Carolina, judges and parties have wrestled with the critical question for divisibility: is the harm "theoretically capable of apportionment"?If a court answers this question with a yes, the party seeking to limit its liability succeeds. If the answer is no, that party must try again under a much less favorable equitable allocation approach. These and other opinions addressing the divisibility/apportionment divide continue to guide courts, litigants, and pre-litigation parties as they attempt to settle or otherwise resolve responsibility at contaminated sites.Listen as our authoritative panel examines the statutory language and what the Burlington Northern decision and its progeny mean for divisibility. The panel will also review cases applying this problematic technical issue and offer practice pointers on which circumstances lend themselves to a divisibility defense and how to present it. Outline Divisibility defense [...]

Environmental Audits: Privilege, Voluntary Disclosure, and Other Legal Issues

January 11th, 2023|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

Environmental Audits: Privilege, Voluntary Disclosure and Other Legal Issues: Ensuring Compliance With Environmental Laws, Responding When Violations Are Discovered Environmental audits allow companies to proactively identify and address environmental problems before civil litigation or enforcement actions arise. The EPA and many states offer companies incentives to encourage compliance, including self-reporting identified issues in order to be eligible for potential reduced or eliminated penalties.Whether a newly acquired or long-standing business, companies and their counsel must take measures to ensure ongoing environmental compliance and environmental audits provide an avenue for detecting and correcting potential problems. Regular self-auditing can help reduce governmental penalties and limit injunctive relief faced in enforcement actions, apart from voluntary disclosure of noncompliance to regulatory agencies.There are potential risks associated with voluntarily uncovering and documenting violations, as well as with the disclosure of violations. Audit findings can be evidence of compliance gaps and a company's knowledge of those holes. And audit disclosures may not always lead to a clean resolution of disclosed violations with the regulatory agency. Disclosed information could still lead to enforcement action and also may provide ammunition in private actions against the disclosing party.Listen as our panel of environmental attorneys examines environmental enforcement policies and environmental auditing programs. The panel will discuss privilege and its exceptions, as well as the pros and cons of voluntary disclosures. The panel will also [...]

PFAS Consumer Fraud Litigation

January 4th, 2023|Categories: Emerging Issues Webinars, Emerging Litigation & Risk, Featured On-Demand, Tort Webinars, Torts-On-Demand-CLE|Tags: , , , , , , , , , , |

HB Litigation Conferences presents a CLE-eligible webinar PFAS Consumer Fraud Litigation and Regulation On August 26, 2022, yet another PFAS consumer fraud lawsuit was filed against a product manufacturer in which it is alleged that since the products contained PFAS and the company marketed the products as environmentally friendly and safe for use by consumers, a proposed class of consumers was deceived into buying the allegedly unsafe products. The lawsuit is not an isolated incident, as there have been over 20 such lawsuits, almost all of them filed in 2022. With the ever-increasing media, political and scientific attention being given to PFAS, the panelists predict that these lawsuits will continue to increase at an exponentially increasing rate moving forward against companies of all sizes that manufacture and supply products. Bringing together almost 20 years of product litigation experience and decades of scientific expertise in the field of chemicals such as PFAS, the panelists will discuss the legal issues that companies are facing from current or legacy uses of PFAS (whether intentional or not) and practical solutions that can be taken pre-lawsuit to understand and minimize risk.  Questions answered: What do state and federal regulations say about PFAS in drinking water? If your company doesn’t use the two original types of PFAS, are you at less risk of [...]

U.S. Government Enforcement Actions: Regulatory remediation settlement trends and claims administration best practices

December 1st, 2022|Categories: Emerging Issues Webinars, Emerging Litigation & Risk, Featured On-Demand, Tort Webinars, Torts-On-Demand-CLE|Tags: , , , , , , , , |

HB Litigation Conferences presents a complimentary CLE-eligible webinar on-demand Government Enforcement Actions Regulatory Remediation Settlement Trends and Administration Best Practices Government enforcement actions are increasing. It’s important for attorneys to understand regulatory trends and best practices for remediation and administration, and how these actions differ from traditional class action settlements. Here are some of the questions our speakers will address in this CLE-eligible webinar:  Why are government enforcement actions increasing? What are the common types of government consumer enforcement actions and how do they proceed? How do government enforcement actions differ from class actions? What are the key considerations in settlement negotiations in government enforcement actions? What are the components of settlement agreements in a government enforcement action? What notice efforts are required to help satisfy expected participation rates? Plus, answers to your questions via live chat. Webinar On Demand Recorded January 2023 What you get:  PowerPoint and supplemental materials. Complete recording for later review. Answers to your questions via email. Invitation to contact speakers directly. 1 CLE credit*. CLE assistance. *Subject to state bar rules. For licensed attorneys.  Register Meet the Speakers Mark Rapazzini Senior Director | Kroll Mark has more than 25 years of legal experience in cases ranging from individual [...]

Responding to Time-Limited Demands for Policy Limits: Reasonableness, Safe Harbors; Obtaining Summary Judgment

November 16th, 2022|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

Responding to Time-Limited Demands for Policy Limits: Reasonableness, Safe Harbors; Obtaining Summary Judgment A time limited policy limits demand to a defendant's insurer is a frequent tool used by plaintiff's lawyers in an attempt to force crucial decisions on limited information. They have the capacity to force crucial decisions, sometimes with limited information and with very little time to decide. Bad faith liability can arise from the improper rejection or non-payment of a time-limited demand, often without showing intentional wrongdoing or motive.What constitutes a valid demand that triggers the obligation to respond and what constitutes a proper response has generated a broad body of case law. Statutory or judge-made "safe harbors" may allow a range of responses, but these rules can be narrowly construed and easily misinterpreted.If a bad faith claim is filed, the reasonableness standards that apply in a time-limited demand situation make summary judgment challenging but by no means impossible, as demonstrated by recent decisions in key jurisdictions.Listen as this experienced panel of insurance attorneys guides counsel through responding to time-limited demands and offers a roadmap to summary judgment if a bad faith case is filed. Outline Essential elements of a policy-limit, time-limit demand Standards for evaluation of time-limited demands Statutory Common law Covered vs. uncovered claims Safe harbors Roadmap to summary judgment if bad faith alleged [...]

Corporate Officer and Director Liability: Trend Toward Increased Exposure for Individual D&Os

November 16th, 2022|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

Corporate Officer and Director Liability: Trend Toward Increased Exposure for Individual D&Os D&Os owe statutory and common law duties to shareholders, including fiduciary duties of care and loyalty. As long as they take reasonable steps to inform themselves and discharge their duties, D&Os are supposed to be protected by the business judgment rule. But this protection is not absolute, and even allegations of violations or breaches of fiduciary duties can lead to an expensive, time-consuming lawsuit with potentially devastating personal liability for directors, officers, and LLC managers. Our panel of experienced litigators from Williams & Connolly LLP and Gilbert LLP will discuss lessons learned from recent actions by federal and state regulators to hold individual D&Os liable for corporate misconduct. In addition, the panel will address recent cases where courts have made it easier to sue directors or officers in their individual capacities. The CLE will provide practical guidance on how to mitigate personal liability and fund the defense of individuals, including indemnification provisions and D&O insurance, without waiving privilege. Outline Director and officer liability Fiduciary duties Business Judgment Rule: statute/common law Limitations at the MTD stage Exposures Damages Disgorgement Penalties Recent efforts to impose liability on individual D&Os Government enforcement action DOJ SEC Other regulators Individual shareholder actions Direct shareholder actions Derivative shareholder actions Mitigating personal liability Indemnification [...]

One Insured, Multiple Insurers, Multiple Lawsuits: Managing Liability, Settlement, and Coverage Issues

November 16th, 2022|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

One Insured, Multiple Insurers, Multiple Lawsuits: Managing Liability, Settlements, and Coverage Issues Seemingly intractable problems can arise when a single defendant has been sued multiple times and may have coverage for some or all matters from multiple insurers. Often there is considerable debate over the defendant's liability and insurers' duty to defend claims and in which courts. Subrogation and indemnity considerations often permeate negotiations.Efforts to resolve underlying matters, whether by settlement or otherwise, are complex and require advanced strategies to prevent misunderstanding and insurers from working at cross purposes. Insurers must often convince plaintiffs in the litigation and their fellow insurers about the reasonable value of various claims. Insurers must always be ready with strategies when an insurer refuses to fund a judgment or settlement. Listen as this esteemed panel of seasoned insurance counsel guides attendees in managing coverage, liability, and settlement issues that arise when a single policyholder is sued multiple times and has been insured by numerous insurers over time. Outline Overview Duty to defend and defense costs Duty to settle, mediation, and insurer consent Duty to indemnify: managing the unwilling insurer Subrogation issues Recorded on Wednesday, October 12th, 2022 $297* This Strafford production has been specially selected for HB audiences. Kim M. Jackson Partner Bovis Kyle Burch & Medlin Paul R. Koepff Partner [...]

The Reverse Reptile: Rethinking Traditional Defense Strategies and Antidotes

November 16th, 2022|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

The Reverse Reptile: Rethinking Traditional Defense Strategies and Antidotes Photo by Jeremy McGilvrey on Unsplash "Reptile theory" is a challenging and often-discussed plaintiff's trial strategy. It subtly encourages jurors to envision themselves in the same situation as a plaintiff but with the power to "save" the plaintiff, themselves, and the community from future harm by awarding a large verdict. Much has been written and discussed about oral defenses against reptile strategy, such as during depositions and witness examinations, as well as during opening and closing. But there are also powerful tools and strategies that can be wielded in defense of this strategy: counter anchoring numbers on damages, humanizing the corporate defendant, motions in limine, trial briefs, and motions for new trial/judgment notwithstanding the verdict, among others. Knowing these strategies and how to present them, including drafting these motions and briefs carefully and precisely allows defense counsel to neutralize common arguments from plaintiffs. By establishing that specific questions and evidence are part of the reptile strategy, defense counsel can counter the plaintiff counsel’s moves at every turn and prevent the reptiles bite. Listen as this panel of experienced trial attorneys explains how effectively written papers can augment other anti-reptile defenses and how counsel can draft winning papers. This Strafford production has been specially selected for HB audiences. Regular Price: $197* [...]

PFAS Contamination: Current Regulatory Landscape and Science

November 16th, 2022|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

PFAS Contamination: Current Regulatory Landscape and Science Over the past 18 months, U.S. EPA and the Biden Administration have issued numerous new regulations of PFAS under CERCLA, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, and other environmental statutes.In recent months, the U.S. EPA has issued significant new toxicity assessments and drinking water regulations for PFAS, including PFOA, PFOS, GenX, and PFBS. U.S. EPA also has taken steps to regulate PFOS and PFOA as hazardous substances under CERCLA. State regulators are also imposing new drinking water limits, cleanup standards, and testing requirements for PFAS. The U.S. EPA and a number of states are planning to issue numerous additional regulations of PFAS over the next few years.Listen as our authoritative panel examines the evolving federal and state regulatory landscape for PFAS. The group will discuss current scientific data on PFAS, including a review of the basis on which regulatory standards are developed, opportunities and challenges to determining the source of PFAS contamination (forensic analysis), business sectors, and regions where PFAS is or may soon be a regulatory focus, and new regulations and ongoing litigation.The panel will offer insight into the legal risks facing companies using and discharging PFAS in manufacturing, companies distributing or selling products containing PFAS, and companies and municipalities responding to PFAS contamination in groundwater, drinking water, [...]

Rule 23(c)(4) Issue Certification: Reconciling the Conflict With the Predominance Requirement

November 16th, 2022|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

Rule 23(c)(4) Issue Certification: Reconciling the Conflict with the 23(b)(3) Predominance Requirement  Proposed class actions seeking monetary damages are often difficult to certify because common issues do not predominate over individualized issues as required by Rule 23(b)(3). Rule 23(c)(4) provides that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues."Although Rule 23(c)(4) has been part of the rule since the landmark 1966 amendments, it was often overlooked until the Supreme Court's decision in Wal-Mart v. Dukes. Plaintiffs now routinely seek limited issue certification for purported common issues, such as liability, arguing that questions of injury, reliance, or causation should be left for individual cases. When approved, this approach increases defendants' exposure by permitting certification in some cases that would otherwise fail the Rule 23(b)(3) standards.The federal circuits are now in a three-way split on how issue certification should be treated under Rule 23(b)(3)'s predominance requirement. While the Fifth Circuit has taken the textual view in Castano v. American Tobacco Co. that permits issue certification only if the class first qualifies under Rule 23(b)(3), the Ninth, Sixth, Second, and Seventh Circuits have adopted the opposite view that Rule 23(c)(4) certification does not require predominance. The Third Circuit has clarified and heightened the test in Russell v. Educ. Comm’n for Foreign Med. Graduates, 20-2128 (3d Cir. Sept. 24, 2021), but offers both sides [...]

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