2018 CLM New York Conference & Holiday Party
- Schedule/Sessions
- Speaker Bios
- Travel/Hotel Accommodations
- Attendees
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Handouts
CLAIMS & LITIGATION - SESSION 1 - A Best Practice Approach for Protecting PII & Mitigating Security Risks in 2019 Download CLAIMS & LITIGATION - SESSION 2 - Bridging The Gap – A Litigation Management Proposal Download CLAIMS & LITIGATION - SESSION 4 - Peace, Joy & Happiness: The Zen of Mediating Difficult Positions and Issues with Emotional Parties Download CLAIMS & LITIGATION - SESSION 5 - Your Bias is Showing! Tips for Identifying and Overcoming Unconscious Biases in Settlement Negotiations Download EXTRA-CONTRACTUAL - SESSION 1 - Preparing and Finding “The Right Stuff” Download EXTRA-CONTRACTUAL - SESSION 2 - Tick. . .Tick. . .Tick. . .KABOOM: Is Your Next Eroding Limits Policy Case the One That Explodes? Download INSURANCE COVERAGE - SESSION 1 - Considerations for Mediating Liability Claims with Insurance Coverage Issues Download INSURANCE COVERAGE - SESSION 2 - Emerging Claim and Adjusting Issues in Property Insurance Markets Download INSURANCE COVERAGE - SESSION 3 - How to Mediate A Cyber Dispute Download INSURANCE COVERAGE - SESSION 4 - Occurrence - Where We Have Been - Where We Are Now - Where We Are Heading Download INSURANCE COVERAGE - SESSION 5 - When Little White Lies Lead to Big Gray Areas Download - Sponsors
- Event Policies
Schedule/Sessions
Extra-Contractual - Session 1 - Preparing and Finding “The Right Stuff”
- Speakers:
Edward Carlton, Quilling, Selander, Lownds, Winslett, & Moser, P.C.
Cherilyn Rama, QBE FIRST
Patricia Trombetta, Bonezzi Switzer Polito & Hupp
Meg Weist, Employers Mutual Casualty Company
The panel will discuss how to choose the right individual as the corporate representative for an extra contractual deposition and the preparation of that witness. Points will be made using video clips and deposition testimony of a real claims adjuster at a bad faith deposition and of a corporate representative in the same case with discussions on how each demonstrates the right and wrong way to answer deposition questions in extra contractual claims. The panel will also address how to prepare for the Reptile Theory types of questions during the extra contractual deposition. This session will assist all levels of claims personnel related to the preparation of claims representatives for depositions.
Back to topExtra-Contractual - Session 2 - Tick. . .Tick. . .Tick. . .KABOOM: Is Your Next Eroding Limits Policy Case the One That Explodes?
- Speakers:
Laura Frankel, JAMS - Frankel
Jeffrey Hill, Hill & Lamb LLP
Mitchell Orpett, Tribler Orpett & Meyer, P.C.
Carol Threlkeld, Berkley Select
Courtney Young, Medmarc Ins. Group
The tripartite relationship remains an ethical and practical minefield. Conflicts of interest and extra-contractual damages threaten everyone. Verdicts in excess of policy limits surprise as attorneys and claims professionals work their way through high-stakes litigation. This presentation takes on the unexplored world of eroding policy limits and focuses on the difficult questions that are unique to defending claims arising from those policies. The panel will also address the perceived advantage of declining limits policies and whether they are worth the potential cost.
Eroding limits policies are fraught with peril and raise difficult issues – a time bomb we know is there and waiting to explode. This panel will help defuse the worry and offer practical suggestions and strategies for dealing with the suspense and avoiding the carnage.
Extra-Contractual - Session 3 - Avoiding the Cross-Hairs: An Update on Attempts by Policyholder Attorneys to Sue for Bad Faith and What Adjusters Can Do
- Speakers:
Collin Hite, Markel Service, Incorporated
Robert Laurie, Gfeller Laurie LLP
Shanks Leonhardt, Sanders & Parks, P.C.
Scott Tenenbaum, AXIS Specialty US Services, Inc.
This session will discuss the potential exposure of individual adjusters to bad faith claims in light of the recent decision in Keodalah v. Allstate Ins. Co., 3 Wash.App.2d 31 (March 2018) and other initiatives by policyholder counsel. The panel will identify jurisdictions where direct claims are currently permitted or could be asserted based on the status of the law. And, it will then discuss measures that adjusters can take to mitigate or prevent direct claims from being asserted.
Back to topExtra-Contractual - Session 4 - Bad Faith: From Common Law to Statute
- Speakers:
Harry Baumgartner, Plymouth Rock Assurance
Patrick Cusack, Arch Insurance Group Inc.
Sallyanne Donovan, PMA Companies
Dawn Krigstin, Envoy Specialty LLC
Kevin Wolff, Kinney Lisovicz Reilly & Wolff PC
In 1990, Pennsylvania enacted a bad faith statute. In 2018, New Jersey is attempting to enact such a statute. New York’s bad faith bill is introduced each legislative session for a number of years. This seminar will address the changes seen in the industry by insurance professionals and coverage counsel and the evolution of bad faith litigation based on common law and statue. Does it matter if a state has a statute versus the common law? What are the differences and similarities? Should claims handling change if NJ or NY passes their current version? Do the statutes expand bad faith claims, for example, in the absence of coverage, or do they place liability on a claims professional for bad faith? In addition, what is the interaction, if any, between new bad faith statutes and other consumer protection statutes? This panel of experienced insurance professionals and coverage counsel will discuss trends and whether a statute will be coming to your state soon.
Takeaways:
-Learn about changes in the industry by insurance professionals and coverage counsel concerning the evolution of bad faith litigation based on common law and statue.
-Learn about changes in case law regarding bad faith in the absence of coverage and whether the evolution of bad faith claims includes targeting claims professionals personally.
-Learn about the interplay between bad faith and other consumer protection statutes.
Extra-Contractual - Session 5 - Restatement of Law Liability Insurance: Controversial Provisions and Coverage Implications
- Speakers:
L. Kathleen Chaney, Lambdin & Chaney
Wade Loud, Lamarche Associates
David M. O'Connor, O'Connor & Associates, LLC
Amar Sumaria, Everest Re Group, Ltd.
This session will discuss the drafting and iterations of key provisions included in the recently passed Restatement of Law Liability Insurance (RLLI), including the defense and settlement of potentially covered claims; insureds’ remedies for breach of those duties; and limitations on carrier recoupment of defense and/or settlement expenses. Other topics covered will include jurisdictions that frequently rely on Restatements as persuasive authority; initial commentary by courts to the RLLI; reactions of governors, state legislatures, and the insurance industry; and, the projected effect on coverage interpretations, defense obligations and extra-contractual exposure.
Takeaways:
-Understanding those aspects of the RLLI that are aspirational or reformulate common law insurance principles, rather than restating existing precedent and majority positions.
-Identifying the most problematic RLLI provisions and those jurisdictions that may besusceptible toadopting them given the absence ofcontrary statutes or precedent.
-Navigating and adapting to the consequences the RLLI would impose on carriers (e.g., expansion of the defense obligation, vicarious liability for defense counsel, long-tail triggers, fee shifting , policy interpretation).
Claims & Litigation Management - Session 1 - A Best Practice Approach for Protecting PII & Mitigating Security Risks in 2019
- Speakers:
Venessa Bragg, Elardo, Bragg & Rossi & Palumbo, P.C.
Melanie Pita, Ontellus
David Vanalek, Richmond National
In today’s information economy, companies across every industry are faced with the challenge of securing information assets. In fact, with cyber security threats on the rise, insurance claims departments, in-house counsels, law firms and their third-party partners who frequently exchange documents containing Personally Identifiable Information (PII), all are becoming more vulnerable. This session will explore the security threats facing our industry and provide best practices for protecting PHI and mitigating risk in 2019.
Back to topClaims & Litigation Management - Session 2 - Bridging the Gap: A Litigation Management Proposal
- Speakers:
Preveen Sathananthan, Great American Custom Insurance Services, Inc.
Adam Sheps, QBE Insurance
Elior Shiloh, Lewis Brisbois Bisgaard & Smith, LLP
The panel will explore building a relationship between claims adjuster and defense counsel that ensures successful litigation management. If each side were to have a better understanding of their expectations and perceived challenges, a mutually beneficial partnership would both develop and flourish. Often failures in communication, efficiency and goals lead to discontent on both sides. Additionally, each side is often unable to understand the hurdles faced by the other. By focusing the panel discussion on the viewpoints and frustrations through the eyes of each side, the goal is to help the participants break down the walls that prevent satisfaction and success. Ultimately, there will be discussion on a proposed litigation management framework to ensure that all sides are able to engage in a positive and productive working relationship.
Takeaways:
-Both Insurance Professionals and Attorneys must be clear in their expectations of what they are looking for when working on a claim together.
-Communication and following Litigation Guidelines is imperative for an ongoing successful working relationship.
-Litigation management is a two-way street.
Claims & Litigation Management - Session 3 - Diversity, Inclusion, and Elimination of Bias Meets Artificial Intelligence and Robots
- Speakers:
Dana Cuoco, Chubb
Kelly Geary, EPIC
Beth Goldberg, Starr Indemnity & Liability Company
Dianna McCarthy, Kaufman Borgeest & Ryan LLP
This session will explore how technology is being used in hiring and managing employees using artificial intelligence and robots. There will be discussion on the different types of diversity and how Artificial Intelligence is making the hiring process more humane. Learn about the EEOC’s Strategic Enforcement Plan for 2017-2021 and it’s focus on “data -driven devices used for hiring or firing.” Explore the use of wearable robotics and how they amplify human strength. Learn of the overriding privacy concerns when employers collect and use data concerning employees; and, discuss ethical action being taken both domestically and internationally.
Back to topClaims & Litigation Management - Session 4 - Peace, Joy and Happiness: The Zen of Mediating Difficult Positions and Issues with Emotional Parties
- Speakers:
Sheila Fix, Wood Smith Henning & Berman LLP
Melissa Hill, Sompo International Insurance
Stacy L. La Scala, JAMS - La Scala
Lisa Unger , Self Employed
This presentation will arm the attorney, claim professional and risk manager with key strategies in negotiating with difficult personalities and navigating corporate agendas. The panel will address the challenges posed by both individuals (including the emotional claimant, the hard-nosed negotiator, and the meddling personal counsel) and corporations (including portfolio strategies, nationwide agendas, and adverse publicity concerns) attempting to resolve complex and emotionally laced issues. Key concepts of pre-mediation of preparation, in session communication techniques, and post-mediation closure devices will frame the discussion. This session will have practical application to a diverse range of disputes and will be of critical import to those handling claims throughout the United States.
Takeaways:
-Pre-Mediation Communication: It is essential to not only understand the basis of the dispute, but also the way in which each party is communicating their position. Identification of the barriers to resolution need to be discovered at the earliest stage possible.
-Pay attention and listen: The fastest way to anger a party is to neglect them. Paying attention and employing active listening devices will help identify the concerns behind positions. By listening, you show the willingness to solve the problem.
-Be reasonable: Emotionally invested individuals may not have a logical basis for their positions. Objective, open ended questions can be effective tools in understanding the basis for the position and providing structure to the discussion.
-Express compassion and empathy: Negotiations can serve many different goals. Where the parties are in a continuing relationship or there is the potential future relationship, the parties need to understand the reasons for the dispute in order to foster a more productive relationship.
-Transferring the focus: Shifting attention away from the most contentious or difficult issue and reframing the discussion around the shared interests can provide a common theme around which consensus can be built.
Claims & Litigation Management - Session 5 - Your Bias is Showing! Tips for Identifying and Overcoming Unconscious Biases in Settlement Negotiations
- Speakers:
Alicia Kennon, Wood Smith Henning & Berman LLP
Adrienne Publicover, JAMS - Publicover
Wakako Uritani, Lorber, Greenfield & Polito, LLP
You’re preparing for an upcoming mediation. You've evaluated the facts, good and bad. You've considered the legal issues. You've vetted your strategies with your client, partners, and claims professional. And hopefully, you've considered your opposing party's point of view and likely strategy. But have you considered how unconscious bias might affect your outcomes?
No matter how enlightened, neutral, and free thinking you believe you are, biases are always at work whether you realize it or not. These unconscious biases extend beyond the obvious stereotypes associated with gender, age, or race and can even extend to certain types of plaintiffs, defendants, and cases.
Your unconscious bias can unwittingly create barriers to successful resolution. Consequently, it is incumbent upon us as legal and claims professionals to evaluate those biases and take action to mitigate same. Following this presentation, attendees will have the specific tools necessary to accomplish just that.
Takeaways:
-Understand the meaning of unconscious bias.
-Understand the impact of "unconscious bias" on negotiation strategy.
-Learn to recognize your own unconscious bias and the unconscious bias of others so that you can develop ways to mitigate and neutralize the effects on your outcomes and interactions with counsel, clients, and neutrals
Insurance Coverage - Session 1 - Considerations for Mediating Liability Claims with Insurance Coverage Issues
- Speakers:
Steven Joseph, Validus Group/Western World
Andrew Nadolna, JAMS - Nadolna
Tracy Smith, Acuity Insurance
Michael L. Young, Reichardt Noce & Young LLC
Mediating and settling a liability claim with insurance coverage issues can be incredibly challenging for insurance companies and their defense and coverage counsel. The panel will share their insights on these mediations, including the timing of these mediations, considerations for selecting a mediator, discussion of coverage issues in mediation statements and briefs, how to raise coverage issues in mediations, the challenges between policyholders and insurers in these matters, the role of defense and coverage counsel at same, and settlement strategies that involve coverage considerations. Specific coverage issues that often appear in mediations will be discussed, including fact-based coverage defenses, policy limits settlement demands, the threat of consent judgments, and rescission.
Takeaways:
-Try to establish a good working relationship and “united front” with your insured as early as possible and well in advance of any mediation.
-Cases do not magically settle at mediation. A successful resolution at mediation is the often result of excellent pre-mediation work and preparation.
-The most effective “good faith” negotiations at mediations are the ones where the insurance company and insured remain united against the plaintiff.
Insurance Coverage - Session 2 - Emerging Claim and Adjusting Issues in Property Insurance Markets
- Speakers:
Patrick Milone, Claims Administration Corporation
David Peraza, Exponent
William Walsh, Community Association Underwriters of America, Inc.
Seth Weinstein, Lewis Brisbois Bisgaard & Smith, LLP
This presentation will address emerging claim issues pertaining to how aging infrastructure and development effects the scope and value of property claims, including code and utility requirements; the broadening of appraisal process in some jurisdictions and strategies; and, claim handling strategies with regard to wind and hail claims, including matching issues.
Takeaways:
-Emerging claim issues pertaining to the aging infrastructure and development can greatly impact the scope and value of a property claim and the extent of investigation following a loss.
-Courts and legislature across the country are expanding the issues to be resolved via the appraisal process and it is crucial to manage the process with a qualified appraiser.
-Investigating Hurricane Damage claims can be complex. Utilizing the appropriate experts is crucial and planning and managing the investigation is key to avoiding some of the problems encountered from Superstorm Sandy.
Insurance Coverage - Session 3 - How to Mediate A Cyber Dispute
- Speakers:
Anthony Dolce, The Hartford
Daniel Garrie, JAMS
Douglas Meal, Orrick Herrington & Sutcliffe LLP
Joshua Mooney, Kennedys
As more companies seek the protection of cyber insurance, claim disputes are becoming more and more common. Recently, courts have laid down harsh rulings on cyber coverage claims, which has unsettled many companies. Because of this, companies are beginning to look to mediation as an alternative to litigation to obtain equitable outcomes with respect to their cyber coverage claims.
This seminar provides valuable insight on the potential benefits of mediating cyber insurance coverage disputes and how to optimize your mediation. The panelists will also discuss the key features of a cyber insurance policy, common pitfalls that policies may contain, and using cyber insurance in the context of a wider risk management strategy.
Takeaways:
-Cybersecurity risks emerge from external and internal sources and are unique to each organization. Mediating these matters pose a unique set of challenges.
-Multiple types of cyber claims and litigation can arise in the complex operating environment confronting large and small companies -- business email compromise, data breach, and subrogation. If you are going to mediate these matters, you need to be familiar with each of these types of matters.
-The cyber risks confronting the insurance industry today are changing quickly and the claims and risks are going to increase in complexity and size. In order to effectively mediate cyber matters you must keep current with the latest trends and case law that impact this area of the law.
Insurance Coverage - Session 4 - Occurrence - Where We Have Been - Where We Are Now - Where We Are Heading
- Speakers:
Robert Franco, Franco Moroney Buenik LLC
Jill Mercer, Nationwide Insurance Company
Tres Robertson, Liberty Mutual
Andrew Witik, Self Employed
This experienced panel of insurance coverage litigators and industry claims supervisors will explore the recent expansion of the interpretation of an "occurrence" in commercial liability policies. They will also cover the broad policy definition of "occurrence" that triggers insurer's duty to defend on newly constructed building. Ramifications in failing to defend and abandoning the insured in this new climate will also be explored and discussed from an in-house insurer perspective; as well as, any allocation issues that may arise due to the courts' expanded interpretation as to what constitutes an occurrence triggering multiple insurers' defense obligations.
Takeaways:
-The evolution of the defined term “occurrence” in a CGL policy has been dramatic with a clear majority of states now taking the position that construction defects can constitute occurrences and that contractors have coverage under CGL policies at least for unexpected property damage caused by the defective workmanship of their subcontractor.
-The required analysis in construction defect claims is state specific and fact intensive with four states having passed legislation to the effect construction defects constitute occurrences.
-It is absolutely essential for coverage counsel and the claims professional to understand what constitutes an occurrence within the applicable state of the claimed property damage to make a determination on the issue of the duty to defend.
Insurance Coverage - Session 5 - When Little White Lies Lead to Big Gray Areas
- Speakers:
Brian Bassett, Traub Lieberman Straus & Shrewsberry LLP
Alex Niederman, Liberty Mutual
Kim Petrina, Cozen O’Connor
Sarah Smith, Lewis Brisbois Bisgaard & Smith, LLP
Claim professionals, insurance agents, and coverage attorneys often overlook policy applications when analyzing coverage. But they should be reviewed in detail in any coverage analysis, as they reflect the intent of the parties and contain valuable information about how the policyholder described the risk to be insured. This is especially true where a professional applies for coverage. A policyholder that provides an incomplete description of its services or omits some aspect of its work should not be entitled to broad coverage. This session will address recent case law that illustrates how language in an application needs to be precise to avoid ambiguity, and we will discuss when policy rescission may be an option to the insurer. We will also cover how the Restatement of Liability Insurance treats misrepresentations in applications and the burden it attempts to place on insurers to rescind a policy.
Takeaways:
-A CARRIER DUTY TO REVIEW THE APPLICATION - First, an insurer and its underwriters must determine whether their application asks appropriate questions and seeks the right information. Next, upon receipt of a completed application, the insurer and its underwriters might consider whether to ask follow-up questions and pursue any issues raised by the information furnished in the application.
-AN ESSENTIAL PART OF THE CLAIM COVERAGE ANALYSIS: MATERIAL MISREPRESENTATION – The policy application is an essential part of any coverage analysis because it establishes the basis for the insurance relationship in many crucial respects. If an application is inaccurate, incomplete, or untruthful, it is imperative to consider whether such misrepresentations are so “material” as to warrant a declination of coverage and/or rescinding the policy
-LETTER OF THE POLICY vs. BUSINESS CONSIDERATIONS – When faced with an inaccurate, incomplete, or untruthful application an insurer and its underwriters must determine whether pursuing rescission of a policy is worth the cost of potential coverage litigation and/or affecting an existing business relationship. Alternatively, a carrier may wish to consider issuing a non-renewal for the following policy year.
