2017 CLM Management & Professional Liability Conference
Opening Session / Keynote 5:00 PM -6:00 PM
Cocktail Reception 6:00 PM -6:45 PM
Dinner 7:00 PM -9:30 PM
Fogo De Chao (offsite- walking distance).
Breakfast 7:45 AM -8:45 AM
Premier Session I 9:00 AM -10:15 AM
Will Someone Please Pay the Bathroom Bill? Perspectives, Implications, and the Impact of "Grimm" 9:00 AM -10:15 AM
This panel will discuss the implications of the Gavin Grimm case, a case focused on whether or not transgender students should have access to the bathroom that corresponds with their gender identity, now pending before the U.S. Fourth Circuit Court of Appeals. The U.S. Supreme Court has sent the Grimm case back to the Fourth Circuit to be reconsidered in light of the Department of Justice and Department of Education rescinding a Title IX guidance clarifying protections for transgender students. The panel will address the civil and human rights implications of these laws.
Break 10:15 AM -10:45 AM
Session 1 10:45 AM -11:45 AM
Defending Foreign Born Doctors in Today's United States (Medical/HealthCare) 10:45 AM -11:45 AM
Back Bay C.
One in four Americans believe that immigrants from other countries mainly weaken American society. Even if this bias has existed to some degree in the past, research and anecdotal evidence shows that jurors are now more likely to publicly express these beliefs and use them to attempt to persuade others. Therefore, the risk of large verdicts against foreign-born defendants, simply due to their birthplace, is now greater than ever. As an increasing number of medical pofessionals are foreign born, failing to address this issue can be fatal to a defense. Claims professionals and their outside counsel now must determine the best methods to combat this intensifying phenomenon to prevent large verdicts against foreign-born defendants based primarily on their status as immigrants. This presentation will focus on identifying jurors that may have difficulty finding in favor of foreign-born defendants and trial techniques to make these potentially hostile jurors more empathetic and accepting. This presentation will also focus on best practices for claims professionals when evaluating cases with foreign defendants or key witnesses to reduce unexpected results.
1. American’s current opinions of immigrants according to recent statistics.
2. Techniques for identifying and screening out jurors who are likely to be adverse to foreign born defendant physicians.
3. How to help foreign born defendants cope with litigation and strategies to help them win at trial.
E&O Liability and Cyber Coverage - Must an Agent/Broker Be an Expert to Market Cyber? (Cyber/Tech) 10:45 AM -11:45 AM
Back Bay A.
The emerging risk of cyber liability exposes many businesses to uninsured losses due to data breaches, ransomware, or other hacking scams. The immense spectrum of cyber insurance policies provides no uniformity in coverage options, overlapping coverages among different policy platforms (D&O, CGL, etc.), non-uniform endorsements and exclusions, and varying interpretations of the same forms. Is an agent obligated to talk to all of its insureds about this exposure regardless of the level of relationship, simply because cyber risk is so pervasive? In those states that place a burden upon agents to recommend coverage such as cyber, how does the agent meet its obligation to recommend and advise the insured of its cyber exposure and the coverage to be provided without misrepresenting the coverages or failing to address unique cyber exposures? Are there ways an agent can protect itself from the exposure of failing to properly recommend or advise as to cyber coverage without having to be a cyber expert? This session will explore these and other questions.
1. Cyber coverage continues to evolve, is less likely found within CGL coverage, is non-standard, non-uniform, and specialized – it is not “one size fits all.”
2. Insurance agents will be depended upon to help educate their insureds as to the cyber risk the insured faces, the various policy platforms that may provide coverage, and how the insured can utilize policy coverage as one aspect of its cyber risk defense.
3. Agents must point the focus on the insured’s obligation to adequately assess their unique cyber risk to ensure the coverage provided is best suited.
Hacking Law Firms - Much Ado About Nothing or the New Frontier in Legal Malpractice? (Lawyers) 10:45 AM -11:45 AM
Back Bay D.
Ripped from the headlines about a new class action lawsuit against a law firm, this presentation will explore the alarming legal malpractice exposure faced by law firms and lawyers as a result of their computer systems and data software. Lawyers have duties to maintain client confidentiality. Can they be sued for legal malpractice if their computer systems are capable of being hacked? This panel of claims experts and counsel will discuss this explosive new trend and its resulting challenges.
1. The question of whether attorneys are using up-to-date and appropriately secure computer and internet-based systems is one of great urgency as failing to meet a perceived standard of care in this area may subject an attorney to legal malpractice exposure.
2. If a client’s confidential information is accessed by a third party through a lawyer’s computer or internet system, that lawyer may have both violated a rule of professional conduct and been guilty of legal malpractice.
3. Every attorney needs to understand his or her insurance coverage with respect to the risks emanating out of the hacking of his or her firm’s technology as gaps in coverage may expose that attorney to unanticipated personal liability.
AIRBNB - B-Ware and B-Legal (Real Estate Professionals) 10:45 AM -11:45 AM
Back Bay B.
Services like Airbnb allow you to list properties for rent and to book listed properties uploaded by users on a short-term basis. Although Airbnb provides an effortless and creative way to become a short-term rental manager, it has brought up many legal concerns. Many major cities and housing authorities are struggling with how to handle the boom of short term rentals and most cities have enacted or are considering regulations impacting services like Airbnb. The panel will discuss current issues facing the short term rental markets including issues relating to “hotel” tax compliance, discrimination/racism, landlord evictions and related suits as well as coverage issues attendant to these issues.
1. Learn of current legal issues and concerns regarding the short term rental markets.
2. Learn of recent and anticipated claim issues arising out of the short term rental markets.
3. Learn of underwriting concerns and issues that carriers should be on the look-out for.
Lunch 11:45 AM -1:00 PM
Session 2 1:00 PM -2:00 PM
Rise of the Machines - Can and Should Your Fitness Tracker Be Used Against You in a Court of Law? (Medical/HealthCare) 1:00 PM -2:00 PM
Back Bay B.
This panel will discuss the use of wearable fitness technologies, such as Fitbit and Garmin, and fitness platforms, such as Strava, in litigation with a focus on employment and workers' compensation claims, particularly the impact such technology may have on employment-related damage claims. The panel will explore the impact of the emergence of evidence from personal fitness devices on claims handling and litigation strategy as well as the pros and cons of using data and information from wearable fitness technology and some of its problems, including lack of uniformity, privacy issues, and how this information can be collected and from whom. The session will also address the impact of international privacy law on wearable technology and how this may shape the universal admissibility of this new form of critical and potentially case alternating evidence.
1. The use of wearable technology, once confined to the world of the sports enthusiast, has expanded to the modern workplace. The devices offer employers new ways to measure productivity and promote health, safety and wellness.
2. The use of information collected by wearable technology in the employment environment may be protected by traditional employment laws such as the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, etc. In the context of litigation, there are currently few laws that protect a consumer against having his or her wearable technology accessed and used for purposes of trial.
3. There is currently no standard measure for comparing information collected by different brands of wearables making it difficult if not impossible to correlate measurements from one brand to another. Wearables may also be highly susceptible to user manipulation, limiting their use as a form of evidence at trial and to limit damages.
The Intersection of Technology Related Claims with E&O/MPL and EPL Policies (Cyber/Tech) 1:00 PM -2:00 PM
Back Bay C.
This session will use real-life claims scenarios to illustrate how technology claims are being presented for coverage to E&O/MPL and EPL policies and how that affects the defense of a claim as well as the damages calculation.
1. Technology Claims are here to stay and the sooner you embrace technology, the better.
2. Technology is a rabbit hole that was never imagined. The more you learn about technology and the claims that arise from it the more questions you will have.
3. Use it or lose it. Technology is dynamic and creative which forces us to continue learning every day which is a good thing!
I Thought that Was Settled? Legal Malpractice and Bad Faith Claims Arising from Mediation (Lawyers) 1:00 PM -2:00 PM
Back Bay A.
As mediation has become a routine method for the resolution of claims, litigation arising out of the mediation process has become more frequent. Unlike other claim scenarios, the defense of claims arising from mediation are affected by issues of mediation confidentiality. This panel will address claims of legal malpractice and insurer bad faith arising in the context of mediation. The panel will address the challenges presented in defending these claims and it will also discuss the current case law addressing how mediation confidentiality impacts these types of claims.
1. As Mediation becomes common place in the resolution of claims, there has been an increase in the number of settle and sue claims against lawyers and bad faith claims against insurers arising from confidential mediations.
2. Mediation’s confidentiality rules complicate the defense of legal malpractice and bad faith claims that arise from mediation.
3. Legal malpractice and bad faith claims may be avoided by careful pre-mediation planning and communication.
Alternative Energy Under Trump - What Does It Entail and What are the Emerging Risks for Professionals? (A&E) 1:00 PM -2:00 PM
Back Bay D.
The panel will include the basic standards relevant to sustainable design and how an increased number of states model building codes and associated acts and statutes to incorporate new green building requirements. The panel will also discuss the risks that design professionals must tackle whether they are involved in design only or in design and construction.
1. A better understanding of the standard of care for design professionals on Green building projects.
2. Knowledge of the challenges during actual Green building construction.
3. Knowledge of insurance coverage challenges when Green building claims are submitted.
Break 2:00 PM -2:30 PM
Session 3 2:30 PM -3:30 PM
When Technology Fails - A Discussion of the Liability Risks and Coverage Issues (Cyber/Tech) 2:30 PM -3:30 PM
Back Bay C.
Technology is integrated into our lives in many profound ways. Accordingly, technology professionals are exposed to a significant risk of liability. To mitigate the risk, they turn to the growing Technology Errors & Omissions insurance market. This panel will explore liability risks, including hardware and software failures, as well as claims for the negligent performance of services, contractual issues, and data breach/cyber. The panel will address common Tech E&O coverage issues, including definitions of products and services, claims made reporting and extended reporting periods, choice of counsel, prior acts, and exclusions such as general insurance exclusions, product related exclusions, service related exclusions and cyber-related exclusions.
1. Learn of standard of care facing technology professionals.
2. Examine theories of liability against technology consultants and product developers.
3. Consider other risk exposures facing technologists.
4. Analyze insurance coverage issues when insurers offer technology errors and omissions coverage.
Dramatic Shifts in the Legal and Regulatory EPL Landscape Under the New Administration and the Pathway Forward (EPL) 2:30 PM -3:30 PM
Back Bay B.
As the new administration begins and new priorities take shape, dramatic shifts in legal and regulatory focus are sure to have a profound effect on the EPL landscape. This session will explore developing issues facing management in 2017, including how changes to the Supreme Court, the NLRB and the various federal agencies are likely to impact emerging issues such as marijuana in the workplace, transgender employees and website and technology accessibility for the disabled. The panel will provide their insights into best practices for claims investigation, litigation strategy and discuss recent developments in the law. The session will provide audience members with a path forward for efficiently resolving claims and avoiding costly litigation.
1. The Trump Administration is expected to interpret the federal employment discrimination statutes more narrowly than the Obama Administration and with the stated goal of private sector job growth in mind. The Trump Administration is not expected to expand the interpretation of which employees are covered by these laws to new groups, such as transgender employees.
2. In response to a potentially less strict interpretation of employment discrimination statutes at the federal level, liberal states may strengthen their existing statutes and pass new laws to protect employees who are not covered by federal statutes.
3. For now, employers should proceed as usual in regards to the ACA and its requirements for employers, but should stay aware of actions by Congress to repeal the ACA or pass a replacement law. If the employer mandate is eliminated and employers change benefit eligibility, they must ensure that there is no disparate impact on any particular group.
Whose Design is It Anyway? The New Reality of Commercial Construction Risk in a 3-D World (A&E) 2:30 PM -3:30 PM
Back Bay A.
Risk management involving today's commercial design professional is faced with new challenges in our ever advancing world of technology. Traditional project delivery methods are steadily changing. Building Information Modeling and other technologies are forever altering the landscape of design implementation and coordination. This session will explore issues such as how these developments are affecting the risk manager's evaluation of the design professional's standard of care, how claims will be handled in light of technological advances, are there causes of action that may be asserted beyond negligence and breach of contract and, if so, the effects on coverage and underwriting.
1. Traditional project development ordinarily maintained a clear demarcation between the various disciplines involved in the construction process. Builders build. Designers design. Managers manage.
2. However, due to ever-increasing advances in technology and project delivery systems, those clear lines have become blurred as our increasing demands for productivity, efficiency - and even convenience – have resulted in thoughtful, creative and different approaches to the project development process.
3. The indoctrination of those advances into the development process influence our understanding of the design professional’s standard of care, and thus could impact the way that design professional claims are evaluated, managed and resolved.
Expanded Scope of Privileges & Liabilities - Insuring and Defending the Physician Extender (Medical/HealthCare) 2:30 PM -3:30 PM
Back Bay D.
Around the country, states are increasing the scope of privileges and reducing the oversight requirements for physician extenders, such as nurse practitioners, physicians’ assistants, and certified nurse midwives, and these advance practice nursing professionals are being subjected to a higher standard of care resulting in lawsuits following adverse outcomes. This presentation will focus on the challenges of such lawsuits and effective strategies for the defense of the physician extender.
1. As the scope of practice has expanded in some states at the same time physician oversight has declined, nurse practitioners are entering an era of unprecedented autonomy with corresponding increased exposure to risk. Careful attention to boundaries will allow these professionals to fully enjoy the opportunities their licenses allow in the nation’s current climate.
2. Careful consideration should be given to the wording in the contract between the overseeing physician and the PA, as well as, the contract between the hospital/PA/overseeing physician. Rules and regulations are very specific per state as to what the PA can do within a hospital setting, so careful focus should be paid to these to ensure the PA is not over-reaching on her or his authorized activities in the management of patients.
3. Expert witnesses in the defense of the physician extender must be carefully selected and vetted on opinions as that witness must be able to condone the care both of the physician extender and the overseeing or collaborating physician, even though the client on whose behalf the expert is called is the advanced practice professional.
Break 3:30 PM -4:00 PM
Session 4 4:00 PM -5:00 PM
Exercising Cybersecurity Due Diligence in Mergers and Acquisitions (Cyber/Tech) 4:00 PM -5:00 PM
Back Bay D.
Many mergers and acquisition transactions involve a dependence on technology, connectivity, and networks. As a result, assessing an acquired company’s cyber risk must be high on an acquiring company’s counsel’s due diligence list. This program will focus on the Yahoo and Verizon debacle and what attorneys handling M&A transaction need to know about cybersecurity due diligence when advising their client during a deal.
1. Many of these M&A transactions involve a dependence on technology, connectivity, and networks. When you buy a company, you are also buying their data, and you could be buying their data security program. As a result, cyber risks must be evaluated right along with financial and legal due diligence considerations.
2. Both counsel and their clients must be cognizant of the fact that strategic issues with data protection at their core may creep up at various stages of the acquisition deal, including during the development of an acquisition or approach strategy at the genesis of a deal, and through integration and transition strategy post-completion.
3. Data protection issues do not vanish once the transaction is closed. Thus, counsel must advise their clients to continue to assess and review its own data protection compliance requirements with audits following the signing of the deal, or be prepared to face scrutiny.
Not Everyone Hates Lawyers - How to Successfully Defend and Try a Professional Liability Claim (All Professional Lines) 4:00 PM -5:00 PM
Back Bay B.
With professional liability cases on the rise, malpractice litigation presents some of the most high stakes, high visibility scenarios a law firm can face. When professionals are accused of wrongdoing, reputations are on the line. This session will discuss strategies for successfully defending a professional liability claim. The panel will also discuss key issues encountered when a professional liability claim goes to trial, including focus groups and mock trials, voir dire, the juror de-selection process, trial themes, protecting and maintaining the professional’s integrity and brand throughout the trial, cross-examining hostile witnesses and preparing witnesses for trial testimony.
1. Because defendants are forced to recognize jurors’ predisposition to believe that lawyers are without any limitations in terms of what they are able to provide in the scope of their work with clients, a defendant must educate jurors on what they should reasonably expect in terms of a lawyer’s responsibility for exigencies of force outside their influence and control.
2. It is imperative to recognize that jurors are likely to bring their past experiences working with lawyers to the trial – as such, you must provide them with enough background information in your particular case to differentiate their personal experiences from those in the case.
3. Lawyers handling professional liability and malpractice litigation, need to mirror for the jury a persona that exudes professionalism, reasonableness, methodical and logical thinking … which is how their client approached and handled the matter.
Pitfalls of Political Talk - Risk Management Strategies (EPL) 4:00 PM -5:00 PM
Back Bay A.
This session will address employer misconceptions of free speech protections in the workplace, strategies for risk management and development of internal policies and enforcement processes. The panelists will discuss emerging claim and liability trends regarding political, race and religious speech and conduct in the workplace, including risks for management and fiduciaries when engaging in such discussions and interacting on social media. The panelists will conclude with a review of recent developments in the law regulating the use of social media during the hiring and evaluation process.
1. Improved understanding of employer rights and liabilities regarding political discourse in the workplace.
2. Strategies for risk management and best practices for assessing political discourse in the workplace.
3. Review of legal trends regarding protections afforded to political discourse on social media.
Mental Healthcare Challenges in the Hospital Setting - A Risk Management Strategy (Medical/HealthCare) 4:00 PM -5:00 PM
Back Bay C.
Litigation related to abuse and assault continues to soar against mental health institutions and skilled nursing facilities and often becomes a game of “he said/she said." The health care provider is placed in a vulnerable position when faced with a violent, combative, or disruptive patient. The provider has a duty to protect the patients from injuring themselves and from injuring others, often requiring forceful or extreme measures, thereby subjecting the provider and the institution to criminal investigation and costly litigation. This session will focus on preventative measures, defensive tactics in dealing with an altercation, and post-incident strategy in anticipation of patient retaliation.
1. While incident-producing behavior is nearly impossible to avoid, there are preventative measures which will lower the risk.
2. Strict policies and procedures regarding interventions must be employed.
3. Immediate action for preservation of evidence is necessary to defend litigation.
Breakfast 7:45 AM -8:45 AM
Premier Session II 9:00 AM -10:15 AM
The Future is Here: The Impact of Cyber Related Claims Across Professional Lines 9:00 AM -10:15 AM
From lawyers to board members, medical professionals to real estate professionals, cyber activity is impacting virtually all facets of professional and management liability lines of business. Join us for an engaging session with top industry professionals as we dive into the present and future of management and resolution of cyber related claims. These top industry leaders will offer their candid thoughts on the state of claims management, trends in claims resolution, emerging insurance products, and strategies for improving claims and litigation handling management to obtain optimal results while dealing with cyber related claims.
Break 10:15 AM -10:45 AM
Session 5 10:45 AM -11:45 AM
The Impact of Medical Marijuana Legislation on the Professional Liability Insurance Industry (Medical/HealthCare) 10:45 AM -11:45 AM
Back Bay C.
This presentation will cover trends in the legalization of marijuana for medicinal and recreational use in the United States, how this legislation has and will impact the economy and how it will ultimately impact professionals, particularly in the health care arena. This session will also examine the insurance coverage issues and strategies for managing potential liability claims.
1. The medical marijuana industry is one of the fastest growing industries in the United States - the insurance and claims industry must be prepared for this growth.
2. Laws surrounding medical marijuana are constantly changing – familiarity with state and federal laws is crucial.
3. Heath care providers and organizations should have policies and procedures in place to protect themselves and consumers.
Lawyer Professional Liability - Emerging Objections in the Tripartite Relationship (Lawyers) 10:45 AM -11:45 AM
Back Bay D.
Lawyers are professionally trained to object. This skill works well in the courtroom, but creates difficulty in professional liability cases when lawyers become clients. Many objections arise on the scope and terms of insurance coverage, the carrier’s assignment of counsel, and the strategic decisions that are made in the course of defending against legal malpractice actions. In this session, insurance claims professionals, defense and coverage counsel will discuss the often strained tripartite relationship between these unusually sophisticated clients, their carriers and the attorneys assigned to their defense.
1. Gain important insights into managing this challenging attorney-client relationship.
2. Learn how to avoid objections and power struggles over LPL litigation management.
3. Pursue strategies for avoiding conflict in the tripartite relationship and presenting a united defense.
How Technology has Impacted the Duty to Defend and Duty to Indemnify in EPL Claims (EPL) 10:45 AM -11:45 AM
Back Bay B.
This session will focus on best practices when faced with challenging claims involving in the news topics such as Uber/ride sharing, Airbnb/house sharing, social media use, transgender issues in the workplace, cyberfraud attacks, discrimination, harassment and retaliation, supervisor liability in employment litigation and strategies and techniques to identify and resolve potential problems throughout the claims process. The session will cover pre- and post-lawsuit claims handling and evaluation, insurance coverage issues, available defenses, and recent developments in the law. The objective is to explore, through interactive dialogue over hypothetical scenarios, practical steps to address recent developments facing the risk manager, insurer and counsel, along with a discussion of strategies to ensure that these hot topic claims are resolved in the most efficient manner.
When Everyone Points the Finger at Everyone Else - Minimizing Exposure in Complex Construction Cases (A&E) 10:45 AM -11:45 AM
Back Bay A.
Complex construction cases will invariably involve many parties. Each party will, of course, be pointing the finger at each other. This session will explore key contractual provisions that should be considered when representing design professionals prior to and when in suit. The speakers will address pitfalls contained in standard agreements as well as ways to minimize exposure and shift risk. The panel will also discuss ADR provisions and how choosing the wrong one may be just as expensive as litigation.
1. Key provisions that should be included in contracts may not be included in form contracts that may reduce exposure.
2. Defenses and shifting of exposure when a claim is filed.
3. Strategies for resolution of complex cases with multiple parties.
No Learning Objectives Available