Presentation on theme: "Surveying and Surviving the Wreckage Below: All About Excess."— Presentation transcript:
Surveying and Surviving the Wreckage Below: All About Excess
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.
Agenda Part I: The Changing Claims Landscape Today’s claims headlines and headaches Challenges in defending claims How bankruptcy impacts claims Settling large claims
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
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
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
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
The Changing Landscape Impact of Bankruptcies on Claims and Defense Growing number of insolvent insureds Aggressive bankruptcy trustees Implications for indemnification due to Bankruptcies
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
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”
The View from Mt. Everest Exhaustion of Underlying Limits ─ Policy wording ─ Interpretive case law
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
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
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?