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 remaining liability of the insured.

Listen as our panel discusses these issues and reviews the best strategies for resolving the claims while avoiding bad faith litigation.

Outline

Multiple claimants and insufficient policy limits
1. First come, first served
2. Settle as many as possible
3. Settle based on the severity of the injury
4. Prorate proceeds based on some formula
Multiple insureds and insufficient funds to release all
1. “Majority” view
2. “Minority” view
Interpleader
Impact on the excess carrier

On Demand CLE Webinar

A Strafford production specially selected for HB audiences.

Speakers

Chet Kronenberg
Partner
Simpson Thacher & Bartlett

Jerold Oshinsky
Attorney
Law Office of Jerry Oshinsky

Benefits

The panel will review critical issues, such as:

Should the insurer settle with multiple claimants on a “first come, first serve” basis, settle the most severe claims first, or attempt to “pro-rate” settlements with all claimants?
What can be done if fewer than all potential claimants assert claims or file suit?
Does exhaustion of the policy limits through settlements terminate the duty to defend the insured?
Should the interpleader of the policy proceeds be considered?