If you missed last week’s PLUS webinar, “When Good People Disagree: Divergent Interests Among D&O Insurers, Insureds and Defense Counsel,” fear not! The full broadcast is now available in the PLUS Multimedia Library.

During the webinar the audience submitted several questions that our panel did not have time to address – below are the panelists’ answers to four of those questions.

  1. Who pays the self-insured retention?  What if the corporation is in bankruptcy?

A self-insured retention should be borne by the insureds collectively.  If there is a bankruptcy, the insurer’s obligation to pay should not attach until the amount of the retention is exhausted.  Of course, a bankruptcy should shift the loss to Side A where there are typically no retention amounts.


  1. After a motion to dismiss is denied, what key depositions and production requests appropriate before mediation?

This would vary from case to case.  In many situations, the defense counsel and the insurers should know how bad (losing a motion to dismiss is not a good thing) the case is and extensive discovery will only add to the eroding of limits.  In other cases, there can be real value in pursuing discovery that might bolster the defense arguments on causation and liability.


  1. When I get a potential claim letter- usually very vague and I turn it in to the D & O and the GL and any excess- I usually get a response back that says “not ours, turn it in to blah blah blah.  So then further notifications should go to just the Carrier that sends the reservation of rights letter?

You should not just accept any insurer’s response as necessarily correct.  If you believe they should have coverage – even if it is excess over or contributory with another insurer – you should continue to pursue them.  If you agree with their response, then perhaps you can stop further communication but, in close call situations, you might want to seek advice of an insurance recovery counsel.


  1. I think I missed the answer to the question, Who is the client?

Assuming you were referring to Dr. Grace’s engagements, it would depend on who has retained him.  If it is defense counsel, then he is consulting or testifying for their clients, i.e., the insured defendants.  If only the insurers have retained him, then he is serving as an expert solely on behalf of those insurers, although his work product may still be invaluable to the defense efforts.

PLUS is planning many more webinars throughout 2015 – watch the PLUS website for details.