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Surveying and Surviving the Wreckage Below: All About Excess.

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Presentation on theme: "Surveying and Surviving the Wreckage Below: All About Excess."— Presentation transcript:

1 Surveying and Surviving the Wreckage Below: All About Excess

2 Singin’ The PL Blues MODERATOR: Anjali Das, Esq., MBA, Partner, Wilson Elser Moskowitz Edelman & Dicker LLP PANELISTS: Andrea D. Lieberman, Esq., Managing Director, Marsh, Inc. Scott Meyer, Executive Vice President, Management Liability, ACE USA Howard S. Suskin, Esq., Partner, Jenner & Block LLP Marjorie Thompson, JD, Vice President, Professional Lines Claims, Allied World Assurance Company Ltd.


4 Agenda Part I: The Changing Claims Landscape Today’s claims headlines and headaches Challenges in defending claims How bankruptcy impacts claims Settling large claims

5 Agenda Part II: The View from Mount Everest Duties of Primary Carriers Unique rights and defenses of Excess Carriers Changes in the insurance industry Damage Control Managing relationships

6 The Changing Landscape Overview Examples of claims spawned by the credit crisis and Ponzi schemes Which coverages are hardest hit? Implications of bankruptcies on coverage and indemnification of D&Os Potential severity in terms of liability & damages Increasing defense costs New areas of potential claims

7 The Changing Landscape Today’s “Headache” Claims Genesis of these claims The targets New theories of liability Changes in the law impacting liability or the defenses available

8 The Changing Landscape Challenges in Defending Claims Skyrocketing defense costs Impact of E-Discovery Multiple defendants and counsel Joint defense agreements and confidentiality Parallel proceedings and investigations Litigation budgets Multi-jurisdictional and global litigation

9 The Changing Landscape Impact of Bankruptcies on Claims and Defense Growing number of insolvent insureds Aggressive bankruptcy trustees Implications for indemnification due to Bankruptcies

10 The Changing Landscape Settling Claims Complexities of “global” resolutions Who are the real decision-makers? Multiple party mediations Trend towards larger settlements Impact of insurance on settlements Insured’s contribution

11 The View from Mt. Everest Historical Duties of Primary Insurers Consent to defense arrangements Claim investigation and coverage evaluation Vetting defense invoices Communicating with both the insured and any excess insurers “Secret settlements”

12 The View from Mt. Everest Exhaustion of Underlying Limits ─ Policy wording ─ Interpretive case law

13 The View from Mt. Everest Changes in the Insurance Industry Large primary carriers assuming less risk Traditional excess carriers moving “downstream” Reduced limits on a “per carrier” basis Larger insurance towers involving more carriers Horizontal, versus vertical, layers of insurance

14 The View from Mt. Everest Excess Carriers Should Be Actively Involved Ignorance is not bliss Rapid erosion of underlying limits Limited or untimely information Left out of preliminary settlement discussions Potential waiver of coverage defenses Differing views from underlying insurers

15 The View from Mt. Everest Managing Relationships With Insureds and Insurers Alike All for one and one for all? Or, is everyone out for themselves? Is the broker a help or hindrance?

16 All About Excess Conclusion and Takeaways

17 Questions & Answers

18 Many thanks to … Anjali Das Andrea Lieberman Scott Meyer Howard Suskin Marjorie Thompson

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