Vince Vitkowsky on Insurance Coverage for Civil Unrest
Civil unrest. Peaceful protests. Massive marches. Riots. Looting. Which of these things are not like the other? Recent social outrage over police shootings of Black people — these events in particular — have sent people to the streets by hundreds of thousands. In some cases these constitutionally protected activities are followed by property damage, injury and death. Observers continue to debate who is responsible for the violence. Whatever the answer, as a very practical matter, someone has to pay for the property damage.
Join me for my conversation with Vince Vitkowsky of Gfeller Laurie LLP. Vince possesses deep knowledge of insurance coverage matters, representing carriers in a variety of areas, e.g. cyber risk, data privacy, general liability, directors and officers liability, health, and more. He combines his experience as a veteran insurance and reinsurance lawyer with a strong background in terrorism and national security law.
This podcast is the audio companion to the Journal on Emerging Issues in Litigation, a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, Docket Alarm and, most recently, Judicata. If you have comments or wish to participate in one our projects, or want to tell me how insightful and informative Vince is , please drop me a note at Editor@LitigationConferences.com.
I hope you enjoy the interview, and how deftly we obscured the fact that Vince lives in New York City.
Resolving Insurers’ and Insureds’ Settlement Dilemmas When Policy Limits Are Insufficient: Multiple Insured and Multiple Claims
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 First come, first served Settle as many as possible Settle based on the severity of the injury Prorate proceeds based on some formula Multiple insureds and insufficient funds to release all "Majority" view "Minority" view Interpleader Impact on the excess carrier A Strafford production specially selected for HB audiences. Chet Kronenberg Partner Simpson Thacher & Bartlett Jerold Oshinsky Attorney Law Office of Jerry Oshinsky The panel will review critical issues, such as: Should the insurer settle with multiple claimants [...]
Litigation Privilege, Attorney Immunity and Ethics: Defending Retaliatory Suits and Ethics Complaints
Litigation Privilege, Attorney Immunity and Ethics: Defending Retaliatory Suits and Ethics Complaints When attorneys seek to gain an advantage by disclosing or threatening to disclose embarrassing secrets, illegal activity, deny facts known to be true, or otherwise cause fear to the opposing party, they are more frequently being sued for defamation, bad faith, intentional interference with contractual or beneficial relations, intentional infliction of emotional distress, fraud, or the like.Sometimes these types of activities are absolutely privileged and sometimes they are only entitled to partial immunity. Much depends on when and where the statements are made and how state courts define “litigation.”Regardless of civil liability, such conduct can lead to ethics complaints. Model Ruel 4.1 attempts to set some boundaries, but it offers no bright line rule. Landry’s Inc., et al. v. Animal Legal Defense Fund, et al (Tex., No. 19-0036, June 15, 2021), and Dorfman v. Smith, 342 Conn 582 (2022), are just two illustrations of the risks lawyers face if they utilize these tactics.Listen as our experienced panel of litigators assists counsel in understanding the judicial proceedings privilege and attorney immunity and the limits of MR 4.1. Outline Statutory authority and procedural requirements Strategies for plaintiffs Avoiding federal question Avoiding diversity, pre- and post-filing Federal question issues as counterclaims; Home Depot v. Jackson Amending the complaint Strategies for defendants Contractual forum selection Snap removal Finding federal question jurisdiction Preemption Federal officer removal Federally chartered defendants Consequences of removal Avoiding remand Effect of removal on pleadings and motion practice A Strafford production specially selected for HB audiences. Jeffrey Lieser Co-Founder Lieser Skaff Alexander Nicole Reid, Esq. Managing Attorney Reid Legal Solutions Timothy Simeone Partner HWG James Smith Shareholder Crain Caton & James The panel will discuss these and other key issues: Does Model Rule 4.1 apply when an attorney is a party to litigation? To what degree are intentionality and good faith factors when considering questions of litigation privilege or attorney immunity? Do the privilege and immunity apply to transactions or only to judicial proceedings? What law applies? [...]
Construction Builders Risk and CGL Insurance: Scope of Coverage, Covered Losses, Exclusions, AI Endorsements
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 Scope of coverage Exclusions and exceptions to exclusions Costs recoverable Wrap policies Additional insured endorsements A Strafford production specially selected for HB audiences. Michael V. Pepe Partner Saxe Doernberger & Vita Patrick Wielinski Principal Cokinos| Young Christopher Yetka Shareholder Larkin Hoffman Daly & Lindgren The panel will review these and other key issues: What are the critical challenges for claims under builders risk vs. CGL policies? What does a typical builders risk policy cover? What are the standard exclusions and exceptions in builders risk policies? What occurrences do most CGL policies cover? What are the standard exclusions and exceptions in CGL policies? Can a general contractor or developer rely upon additional insured coverage to [...]
Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution
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 under CERCLA Statutory language What the BNSF decision means for divisibility Section 113 equitable contribution Lessons learned from recent decisions Best practices Circumstances lending themselves to a divisibility defense Presenting a divisibility defense A Strafford production specially selected for HB audiences. Jane B. Story Partner Jones Day Rachel K. Roberts Attorney Beveridge & Diamond The panel will review these and other key issues: How are different jurisdictions applying the Burlington Northern decision in divisibility cases? What circumstances lend themselves to a divisibility defense? What steps can counsel take to overcome the challenging issues involved in proving divisibility?
Drafting Joint Defense Agreements: Protecting Privilege, Sharing Work Product, Avoiding Disqualification
Drafting Joint Defense Agreements: Protecting the Privilege, Sharing Work Product, Avoiding Disqualification Joint defense agreements can be a valuable tool for counsel representing co-defendants facing a variety of types of litigation, including intellectual property, securities, energy/environment, commercial litigation, antitrust, product liability, and mass torts. Joint defense agreements allow defendants to reduce costs and coordinate strategies, discovery, and filings.Joint defense agreements are not without risks, however.Sharing work product and confidential information among defendants--who are frequently also competitors--may expose and lead to future litigation among the co-defendants. Counsel considering entering into joint defense agreements must carefully scrutinize the pros and cons and establish preemptive safeguards to protect their client's interests and confidential information.Listen as our authoritative panel of experienced litigators examines the critical factors that parties contemplating a joiit defense argument must evaluate, the essential provisions of the deal itself, and strategies for meeting the legal ethics requirements related to joint defense agreements. Outline Considerations before entering a joint defense agreement Advantages and disadvantages Cost Participants What information to share Settlement issues Joint defense agreement Key provisions Provisions concerning disclosure Ethical considerations Conflicts of interest and potential disqualification Protecting privileged information Ethics opinions addressing joint defense A Strafford production specially selected for HB audiences. Caroline Covington Attorney Steptoe & Johnson The panel will review these and other key issues: What critical safeguards must defendants put in place to protect the joint defense privilege? What are the main steps that defendants working jointly can take to avoid or cope with potential conflicts? What preventative clauses should be incorporated into the joint defense agreement to minimize potential risks?
Environmental Audits: Privilege, Voluntary Disclosure, and Other Legal Issues
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 offer strategies for responding to enforcement actions. Outline Environmental compliance auditing Privileges available to protect audit-derived information Voluntary audit disclosure EPA program State programs Audit opportunities for new owners Complications for auditing and disclosure arising from recent enforcement trends A Strafford production specially selected for HB audiences. Joel D. Eagle Partner Thompson Hine Lawrence Schnapf Principal Schnapf LLC The panel will review these and other key issues: How can companies and their counsel use environmental audits to improve compliance and soften the impact of a government enforcement action? What are the best practices for counsel to advise clients that are considering utilizing environmental compliance audits? What are the expected costs and [...]