Top 10 Immediate Considerations for Claims Handling

Thank you to Dana Gittleman for her article! If you are interested in submitting content to the PLUS Blog, reach out to Katie Campbell at kcampbell@plusweb.org

Gittleman_Dana_BIODana Gittleman is an associate in the Professional Liability Department at Marshall Dennehey Warner Coleman and Goggin. Resident in the firm’s Philadelphia office, she focuses her practice on the defense of claims and lawsuits brought against insurance agents and brokers, attorneys, financial entities, large product manufacturers, lenders and other professionals. Dana may be reached at dagittleman@mdwcg.com.

          Receipt of lawsuit papers is daunting, but early action and consideration for developing a defense framework can uncover important information and mitigate the risk of last minute, “eve of trial” revelations.  While not exhaustive, this list of immediate considerations for litigation provides a few tips for claims handing.

(1)       Memorialize Conversations.  The adage, “if it’s not written down, it didn’t happen” is all too prescient in litigation.  Memories fade, recollections vary and credibility typically is important to lawsuits.  Thus, it is important to memorialize conversations with the insured and timely request a copy of the insured’s client file relative to the insurance transactions giving rise to the litigation. Often, initial communications are critical in identifying and analyzing the material issues.

(2)       Cease Communications with Parties. It is also important at this early juncture to instruct the insured to cease communications with parties, represented or unrepresented, and parties’ counsel.  Seemingly innocent conversations could become harmful admissions at trial if insureds are cavalier with respect to information related to the litigation.

(3)       Attorney-Client Privilege.  Insureds should also be instructed not to disclose any conversations or information shared with counsel, which could breach the attorney-client privilege.

(4)       Establish Personal Contact.   Our culture rewards expediency, though the easiest or quickest path is not always the most advantageous.  Where appropriate and feasible, encourage in-person meetings to establish personal relationships, in contrast to email or telephone calls.  Listening, making eye contact,  engaging in a thoughtful exchange of ideas and information, and establishing a personal rapport builds trust and satisfaction.

(5)       Retain Liability Expert.  Expert retention is one of the most expensive, yet critical, aspects of defending a professional negligence action against an insurance agent or broker.  An expert can help frame the issues in the case, interpret complex insurance provisions, identify critical deponents and record custodians, and develop pointed questions for key depositions.  The defense strategy is not formulated in a vacuum, and consulting with and engaging a liability expert early can provide a knowledgeable ally throughout the litigation process.

(6)       Consider Underlying Litigation.  Insurance E&O claims often arise from underlying litigation.  It is critical to compile documents related to that litigation, including dockets, pleadings, discovery, deposition transcripts, and motions to ascertain relevant facts and establish potential defenses arising therefrom.  Continue to monitor the underlying proceedings if the case remains active and consider the pros/cons of staying the E&O action pending the outcome of the underlying action.  Key witnesses in an underlying litigation can be assets in the subsequent negligence action.  For example, a witness to an underlying personal injury can provide insight into the plaintiff event space’s policies and procedures respecting serving liquor and liquor liability insurance practices.

(7)       Consider Other Litigation.  A simple docket search can uncover information about other lawsuits involving the parties and impact potential damages exposure.  A prior personal injury or evidence of preexisting financial troubles can aid in establishing that the subject insurance transaction and subsequent loss was not the exclusive cause or source of damages.

(8)       Business and Personal Relationships.   The insured and their customer may have a longstanding business or personal relationship that they seek to preserve.  A preexisting relationship may impact the parties’ attitude toward the lawsuit, including testifying about unfavorable interactions and conversations; engaging in aggressive discovery; or favoring early resolution.  While this should not color the litigation strategy, it is important to consider any preexisting relationships between the parties which could impact their desired outcome.

(9)       Stay Organized.  An organized file is an invaluable asset in litigation.  Compiling key documents and creating a timeline of salient events facilitates convenient access to important records throughout the litigation.

(10)     Get Creative.  Every case is different, and a one size fits all approach will not suffice.  Depending on the nature of the allegations, it could be equally – if not more – important to issue record subpoenas to prior brokers and carriers, as to subsequent brokers and carriers. Suit-specific subpoenas based on the nature of the case can uncover important evidence for impeachment: financial records, computer hardware or software, medical records, surveillance footage, and social media exports should all be considered.

D&O Perspectives on Coronavirus: Part 3

Join Kevin LaCroix, Carl Metzger, and Rob Yellen for Part 3 of their discussion on D&O Perspectives on Coronavirus. These speakers continue to look at possible effects of COVID-19 from a variety of D&O perspectives. This recording is part of the ongoing PLUS series PL Perspectives on Coronavirus—past recordings are here on the PLUS Blog, and stay tuned for more discussions to be posted in the coming weeks.

Listen here to D&O Perspectives on Coronavirus, Part 3:

Speakers:

KevinLaCroix2019Kevin LaCroix, Executive Vice President at RT ProExec

Kevin LaCroix is an Executive Vice President at RT ProExec, Beachwood, Ohio, a division of R-T Specialty, LLC. RT ProExec is an insurance intermediary focused exclusively on management liability issues. Kevin is also the author of the Internet weblog, The D&O Diary, which the New York Times called “influential” and the Wall Street Journal described as “widely followed.” Kevin has been involved in directors’ and officers’ liability insurance issues for more than 35 years.

Metzger_E_CarlCarl Metzger, Partner and Chair of Risk Management & Insurance at Goodwin Proctor

Carl Metzger is a partner in Goodwin’s Financial Industry and Business Litigation practices and Chair of the firm’s Risk Management & Insurance practice and Chair of the firm’s Partnership Committee. His clients include both public and private companies, major insurance carriers and brokerages, private equity and venture capital firms and non-profit and educational institutions. 

Rob YellenRob Yellen, Executive Vice President, D&O and Fiduciary Liability Product Leader, FINEX at Willis Towers Watson

With over 28 years of Financial Lines industry experience, Rob Yellen is a respected leader in the management and professional liability space. He currently works with Willis Towers Watson, FINEX NA brokers and claims advocates to identify and track developments in risk, coverage and markets, and with our business partners to develop innovative, best-in-class strategies and solutions. Rob joined Willis Towers Watson in 2015 from AIG where, during his 14-year tenure, he served in several key leadership roles–including Chief Underwriting Officer, Financial Lines, U.S. and Canada and, most recently, Head of Product Development for Financial Lines–globally and for the Americas Region.

Cyber University and More: PLUS’s Virtual Education

Successful Turnout at PLUS 2020 Cyber University

Last week, over 100 PLUS members attended PLUS’s virtual Cyber University. While this event has been held in-person in previous years, this year’s Cyber University was part of PLUS’s 2020 plan to provide virtual education to broader audience. Attendance for Cyber U doubled this year, and the staff at PLUS is proud to provide quality education in virtual space, especially in light of current circumstances.

This is the third year of PLUS Cyber University and registrants attended six live sessions over three days.  “The program content is incredibly strong, so the focus was on how to take an in-person event and continue to make it meaningful as a virtual one,” said Megan Moore, Director of Education and Professional Development at PLUS. Topics included: legal foundations, evolution of cyber coverage, interplay among lines, underwriting, breach responses, 1st and 3rd party claims, risk management, and breach scenarios. Moore added, “As we transfer this program to virtual, we made sure to include opportunities for attendees to reflect on what they’ve learned and apply it to their own experience as well as connect with each other outside of the session.”

Continuing to Provide Remote Education

PLUS is continuing to expand its virtual education offerings for all members. In May alone there are three top-notch webinars on a variety of professional liability topics, from the Sciabacucchi court case decision, to resolving D&O disputes virtually, to social distancing and telehealth.  Additionally, on-demand presentations from the virtual Healthcare and Medical Professional Liability Symposium are available to view, as well as Online eLearning modules for the RPLU program available to purchase. You can work through module content at your own pace, and even complete the exam entirely online!

“Over the last few years, we have been ramping up our ability to provide online and virtual education,” said Robbie Thompson, CEO of PLUS. “While PLUS will always offer outstanding in-person networking and education events, we knew that focusing on other ways members can also get professional development was critical to PLUS continuing to serve the professional liability industry.” From webinars, to the RPLU online eLearning modules, to webinar, to in-person events moved to virtual like Cyber University, PLUS is working to make education accessible no matter the circumstances.

PLUS Membership for the Win

Membership is an important aspect of PLUS, and PLUS staff has been working tirelessly (and remotely!) to provide new ways to engage members virtually.  If you are a PLUS member, you can register for any or all of the May webinars for free! If you aren’t a member yet, become one now to register for webinars, gain access to an archive of PLUS virtual education, and more. Check out previous posts on this blog to listen to PLUS’s PL Perspectives on Coronavirus podcast, and stay tuned for even more distance education offerings in the future.