Schedule/Sessions

Breakfast

Keynote Speaker

Session 1 - Session 1 - Presentation A: Institutional Bad Faith: Trends, Discovery, and Defeating the Establishment of a General Business Practice

• Speakers:

• Laurie Adams, Kubicki Draper

• Jacquelyn Beatty, Karr Tuttle Campbell

• Ted Colquett, Colquett Law, LLC

• Deanna Johnston, Fireman's Fund Insurance Company (FFIC)

• Matt Morrison, American Family Insurance

Session 1 - Session 1 - Presentation B: SIR's Settlement in Excess Verdicts: When the Finger Pointing Starts

• Speakers:

• Edward Carlton, Quilling, Selander, Lownds, Winslett, & Moser, P.C.

• William Kobokovich, Travelers

• Jonathan M. Kuller, Self Employed

Liability policies often provide for an insured’s large self-insured retention.  Confronting a potentially significant liability, an insured may be motivated to gamble on trial with a primary and excess carrier’s money, or to simply delay payment as long as possible.  What happens when the insured has demanded that the primary not settle, and the verdict reaches one or more excess layers? 

As the market place demand for large self-insured retentions, large deductibles and “fronting” arrangements continues, these issues will persist.  The stakes are often high, as both valid differences of opinion as to claim value and gamesmanship may be at play.

Session 1 - Session 1 - Presentation C: Introduction to Event Data Recorders and SIU Case Studies

• Speakers:

• Brian Henry, Rolfes Henry Co., LPA

• Erik Sikorski, Builders Insurance Group

• Donna Willis, State Farm

Thanks to the increased use of technology in vehicle design, technology has increased in importance. Most vehicles use technology to record various types of data about the performance of the driver and the vehicle. These computers or vehicle “black boxes” are known generally as event data recorders (EDRs).

An event data recorder records certain information from a vehicle immediately before and/or during most serious impacts. Criminal authorities and civil investigators can download EDR data to help determine what happened to the vehicle and, in some cases, to help establish fault or liability. EDRs are not yet mandatory; however, most automobile manufacturers include them. The National Highway Traffic Safety Administration (NHTSA) plans to propose a rule requiring the devices in all new vehicles.

EDRs and the data they store belong to vehicle owners. Automobile manufacturers, criminal authorities, insurers, researchers, and others may gain access to the data with owner consent. Without consent, access may be obtained through a civil court order, subpoena or warrant. For accidents that do not involve litigation, insurers may be able to access the EDRs based on provisions in the insurance contract requiring policyholders to cooperate with their insurers.

This presentation examines how EDRs work; what kind of data is stored in EDRs; the role of federal and state agencies; significant legal issues such as admissibility, privilege, reliability, and spoliation; and offers practical tips for using data from EDRs in SIU cases. The presentation uses both information on background and the investigation of two automobile accidents to illustrate EDR data use.

Session 1 - Session 1 - Presentation D: A Look at the Latest Workers' Compensation Fraud Schemes in Florida - Examining the Cost to Industry and Consumers

• Speakers:

• Maria Elena Abate, Colodny Fass, PLLC

• Rosanne Crowley, AXA XL

• Robin Westcott, Florida Department of Financial Services

Florida is a hot bed in the area of worker’s compensation fraud.  The cost to consumers and the industry are staggering. For example, Check-cashing schemes are diverting up to $1 billion a year from the state's economy. In July of 2012, the Florida Workers' Compensation Fraud Task Force arrested eight people in a check-cashing ring that included $70 million in unreported payroll from construction contractors. This presentation will review how these schemes work and the measures taken to combat them.

The effects of physician dispensing are also taking their toll on the worker’s compensation system. Sixty-two percent of all prescription spending in Florida for injured workers was paid to physicians for drugs dispensed at their offices—not to pharmacies. We will review the July 2012 Workers Compensation Research Institute study regarding the rapid growth of physician-dispensed pharmaceuticals and discuss what measures can be taken to address the problem.

Finally, we will discuss how new technologies can make fraudulent billing even easier to get away with. With $19 billion in incentives provided by the feds through HITECH, the use of EMRs has become commonplace and by 2015 most providers will use EMRs exclusively.  This provides new ways for fraudsters to exploit the system.  Our presentation will demonstrate how templates and computer tools are utilized to up-code, submit bills for services never performed and create claimants that do not exist. 

Break

Session 2 - Session 2 - Presentation A: What We Have is a Failure to Communicate: Bad Faith in Adjuster to Insured Communication

• Speakers:

• Christopher Greene, North American Risk Services NARS

• Mary Anne Medina, Charles Taylor

• David M. O'Connor, O'Connor & Associates, LLC

• Kevin Quinley, Quinley Risk Associates, LLC

Session 2 - Session 2 - Presentation B: Flat Fee Agreements - Do They Pose a Risk of Bad Faith Exposure?

• Speakers:

• Timothy D. Crawley, Anderson Crawley & Burke, PLLC

• Franklin G. Lewis, Liberty Mutual

• Thomas Segalla, Goldberg Segalla LLP

Reprising and updating a round-table presentation from the CLM 2012 annual meeting, this panel will discuss the growing trend in the industry for buyers of legal services to demand ever greater flexibility from their selected counsel in the manner of payment for those services.

The question posed here is whether an insurer opens itself to a risk of "bad faith" exposure by insisting on flat fee arrangements in situations where they may in fact not be advisable.  In addition, does the Insured have to (a) be informed about, and even (b) consent to - a proposed flat fee arrangement?

A related question is whether the insurer can be held vicariously liable to the insured for the alleged inadequate representation by defense counsel, particularly where the retention agreement contemplated a flat fee arrangement for services. 

Session 2 - Session 2 - Presentation C: Metrics Driven SIU/Empowering Your SIU

• Speakers:

• Mariela Pennock, Assurant

• Jeffrey Rapattoni, Marshall Dennehey

Effective SIU should be exactly that- effective.  It should come as no surprise that traditional SIU tactics fail.  As the industry strives to fight fraud, our adversaries take notes, adjust their tactics and seek out new ways to avoid legal standards.  Carriers must evolve and capture fraud uniquely on a case by case basis.  Gone are the days where simply filing a declaratory judgment action will bring results and reduce exposure.  We, as a collective industry, must strive to make certain that our predictability is at an absolute minimum. 

This presentation seeks to focus on effective SIU strategies via Metrics.  As such, we will identify various tools available across multiple lines of business and develop better strategies to learn when to use each.  Cost effective protocol design will be explored in order to better  keep Plaintiffs in a defensive posture. Bad faith strategies are also highlighted so as to not subject your carrier to additional damages or state agency complaints. Finally, we will visit legal developments that speak to the protection afforded to SIU investigators and their file materials.

Session 2 - Session 2 - Presentation D: Late Notice and Voluntary Payments - When is There No Longer Coverage

• Speakers:

• Patricia Carbone, CNA Insurance

• Susan Kaufman, Claim Insights, Inc.

• Gretchen Ramos, Squire Pattton Boggs

Break

Session 3 - Session 3 - Presentation A: Appraisal: Should I Stay or Should I Go? New Considerations in the Era of Bad Faith

• Speakers:

• Janice C. Buchman, Retired

• Suzanne Ganier, Elevate

• Mike Gates, PLS Claims

• Rory Jurman, Hinshaw & Culbertson LLP

Session 3 - Session 3 - Presentation B: Getting the Rules You Want: Advanced Choice-of-Law Tactics for use in Insurance Coverage Disputes

• Speakers:

• Stephen Berry, Builders Insurance Group

• Lisa Manzer, Skyward Specialty Insurance

• Scott Patterson, Zurich North America

Session 3 - Session 3 - Presentation C: How To Evaluate and Litigate Fraud Claims from Katrina, Isaac and 2000 Era New Orleans/Gulf Coast Catastrophes

• Speakers:

• James Hailey, Lewis Brisbois Bisgaard & Smith, LLP

• Patrick Panagiotou, Pharos Claims Services

• Frank Smith, AXA XL

Session 3 - Session 3 - Presentation D: To Rescind or Not to Rescind - That is Sometimes the Question

• Speakers:

• Heather Clemmensen, Navigators, A Brand of The Hartford

• Ginny L. Peterson, Kightlinger & Gray LLP

• Merry Tucker, GuideOne Insurance Co.

Networking Lunch

Session 4 - Session 4 - Presentation A: Managing Claims to Avoid Bad Faith

When it comes to bad faith, success is often measured by how effectively an insurer “dodges the bullet” in the first instance.  Well thought out claim management strategies can help to avoid allegations of bad faith claim handling.  Every company needs to consider how they approach training of their adjusting staff.  A properly trained and proactive team of claim professionals forms the vanguard for good faith claim handling.  Adjusters need to fully understand their company’s established claim handling protocols.  They must be familiar with the insurance policy language that applies to the claim they are addressing.  They must also have a clear appreciation of the legal principles and standards governing both the claim and the claim professional’s conduct. Finally, adjusters should always have the reassurance of knowing that they are not alone in the claim decision making process. In addition to resources inside the company, seeking advice and assistance from outside counsel helps to assure that any “bad faith bullets” remain unused and the company lives to fight another day.

This program presents a roundtable discussion of important considerations for adjuster training and claim management designed to avoid allegations of bad faith claim handling.

Session 4 - Session 4 - Presentation B: It's Not Personal, It's Strictly Business: Professional Services Definitions, Business Pursuits Exclusions, and Gaps Between theTwo

• Speakers:

• Christopher Borders, Unknown

• Holly Harvey, Self Employed

• Tienneke Petit, BNP Paribas

Personal Lines insureds may be sued for claims that appear at least in part to be related to their business, profession or other money-making activities, and conversely Professional Lines insureds are often accused of personal torts that appear unrelated to any professional services or skills.  Underwriters have long wrestled with how to best segregate professional, business and personal coverages, but instances of conflict appear to be increasing.  This may be due to creative complaint drafting to pursue available insurance, court decisions, or the ever-increasing morphing of personal and professional lives.  But whatever the cause, it remains a challenge to apply different coverages consistently to complaints with broadly alleged claims which are not clearly personal or professional. 

The panel will address key policy terms, general legal principles, and specific fact situations to help insurance professionals and counsel analyze common policy terms and consistently apply them to different fact patterns.    

Session 4 - Session 4 - Presentation C: New Ways to Address and Combat PIP Fraud

• Speakers:

• Robert A. Luskin, Chartwell Law

• Matthew J. Smith, Coalition Against Insurance Fraud

• Louis (Ray) Wood, Rimkus

This program will analyze PIP fraud by attacking the problem through a combination of:

Session 4 - Session 4 - Presentation D: 2012 Greatest Hits: Last Year's Top Insurance Cases You Must Know About

• Speakers:

• Robert Binion, Squire Pattton Boggs

• Erin Finn, United Educators

• Jorge Gomez, LifeCare Assurance Company

The only thing truly “common” about the common law is that it is always changing.   What is reasonable one day could be argued to be unreasonable the next day due to intervening case law.  This panel will present a high-level overview of the “greatest hits” of 2012 in insurance coverage cases with a discussion covering the impact of recent decisions on claims, claim-handling and litigation.  While not purporting to be the final word on which cases will shape the future going forward, the discussion will address the most interesting developments in coverage, fraud, and bad faith; cases that touch upon hot issues or signal trends; and cases that may have a significant impact upon how insurers and policyholders interact and litigate.  The discussion will close with a dialogue regarding whether any trends are evident or any predictions can be extrapolated. 

Break

Session 5 - Session 5 - Presentation A: Excess Verdicts: How To Keep the Liability Cap On and How to Limit Your Exposure When It's Off

• Speakers:

• Lewis F. Collins, Self Employed

• Paul Garrison, Infinity Insurance Company

• Peter Klee, Dentons US LLP

• R. Wade Vandiver, Vandiver Law & Mediation, PLLC

In cases involving damages that exceed or may exceed the available insurance limits, plaintiff lawyers routinely try to orchestrate scenarios and sequences of events that will allow them to assert and argue that the cap is off the policy because the insurer failed to settle the claim within the contractual policy limits when it had an opportunity to do so.  From time to time, virtually every insurer ends up paying an amount that is well in excess of its policy limits because it has been successfully set-up in this fashion.  This panel and PowerPoint discussion will illuminate different types of bad faith set ups and will provide attendees with tried and proven prophylactic measures and tactics that can be employed to thwart such set-up efforts.  This panel of experienced outside and in house counsel, who focus their practices on the defense of bad faith claims, will provide methods to recognize the attempt to “open the policy limits” and techniques that can help the experienced claims professional and outside counsel protect the insurer from liability beyond its policy limits.

Session 5 - Session 5 - Presentation B: Here One Day, Gone the Next: Insolvencies and How they Impact Insurance Coverage

• Speakers:

• David Conway, Summit

• Ryan Gavin, Kamykowski & Taylor, P.C.

• Michele Wojcik, McAngus Goudelock & Courie, LLC (MGC)

Insurance company insolvencies are not a new phenomenon.  In fact, in the late 1960s the National Association of Insurance Commissioners (NAIC) drafted a model act providing for the creation of insurance guaranty funds to protect insureds and claimants when an insurance company becomes insolvent.  All fifty states presently have legislatively created insurance guarantee associations (IGA).

Since not all claims are covered by the IGA, and even when the claim is covered, issues arise relative to excess coverage.  This includes an excess insurer obligation to “drop down” as a result of the primary insurer’s insolvency, and how to resolve these issues.

Session 5 - Session 5 - Presentation C: Civil and Criminal Insurance Fraud Investigations: Promoting Cooperation and Coordination, Avoiding Conflicts and Bad Faith

• Speakers:

• Lincoln LeVarge, Tower Hill Insurance Group, LLC

• Jeffrey Schneider, North American Risk Services NARS

• Gina Smith, Florida Department of Financial Services

Parallel investigations into suspected fraudulent insurance claims by insurance companies and law enforcement agencies occur with great frequency.  These investigations present an opportunity to detect and deter insurance fraud on two fronts, both from the standpoint of the insurer’s enforcement of anti-fraud provisions in its policy to avoid paying fraudulent claims, and law enforcement’s apprehension and prosecution of those who commit insurance fraud, which victimizes not only insurers but the public in the form of increased premiums and other costs.  Additionally, the public and private sector each have different tools and resources available to conduct their investigations, which can often compliment each other.

However, there are also pitfalls and conflicts which can arise during parallel civil and criminal investigations, not the least of which is the appearance of “collusion” between insurers and law enforcement which can undermine arrests made by the public sector, and lead to bad faith and extra-contractual suits against an insurer.  The purpose of this presentation will be to assist insurers in avoiding such problems, comply with state fraud reporting statutes – with an emphasis on Florida’s fraud reporting act – and achieve a level of cooperation and coordination with the public sector which will benefit insurers, their policyholders and the public.

Session 5 - Session 5 - Presentation D: Ethical Claims and File Handling of Potentially Fraudulent Claims

• Speakers:

• Barbara Massarella, Self Employed

• Miranda Soto, Buchanan Ingersoll & Rooney

• Desiree Tolbert-Render, Sedgwick

In the era where Bad Faith looms in every potentially fraudulent claim, there is an even greater necessity for diligent and ethical claims handling on cases where the carrier suspects foul play.  Most likely as a result of the downturn in the economy, insurance carriers are recognizing a surge of suspicious claims or potentially fraudulent claims.  Specifically, this panel discussion will address the best approach to ethically deal with the insured and their potential questions throughout the investigative process, evaluating the “evidence” collected during the investigation with an objective eye and how to ethically and professionally deal with an insured while the claim is being investigated for suspected fraud. 

The long term ramifications of fraudulent claims are immeasurable since fraud is often times overlooked, undetected or more commonly involves a difficult insured.  This panel discussion will also provide real life examples involved with insureds suspected to have committed fraud with a focus on how to ethically handle the most challenging issues presented by the insureds.