Professional Documents
Culture Documents
Section of Litigation
American Bar Association
Laura A. Foggan and Mary Craig Calkins, Committee Cochairs
Editor in Chief: Erik A. Christiansen
Published by LexisNexis Volume 20, Number 1, January/February 2010
Articles
An Insurer’s Duty to Settle when There
3 Are Potential Joint Tortfeasors Unsettled Law, or What Happens
by William T. Barker when Some Carriers Settle and
The duty to settle can pose challenging issues to an insurer in
responding to settlement opportunities. Those issues grow
Others Don’t
dramatically more complicated when there is a potential joint
tortfeasor in the picture. In such situations, an insurer should by Gerald V. Weigle, Jr.
take account of the guidelines offered by this article.
Trigger of Insurance Coverage for
21 Wrongful Conviction Lawsuits Over the last three decades courts have faced an array of
by Benjamin C. Eggert and Amanda Schwoerke complex, multi-party disputes with respect to insurance
In the last decade alone, hundreds of people have established in coverage for different mass tort claims. These cases have
court that they were wrongfully convicted of crimes that they raised a panoply of issues that did not arise in a simpler
did not commit. Exonerees increasingly pursue civil claims for day, because of the large number of insurers often
wrongful conviction against government officials and others.
These lawsuits generate substantial demands against policy- involved in the cases. Such insurers typically issued poli-
holders and their liability insurers. Courts uniformly have cies over many different years, with different provisions,
ruled that the trigger of coverage for such claims is, at the possibly in different states, and at different primary or
latest, the date of conviction and that a continuous trigger
does not apply in the wrongful conviction context. excess levels. The courts have often fashioned new and
broad contractual remedies in these cases, leading to hold-
Insurance 101-Insights for Young
ings that numerous insurers must pay for claims that are
28 Lawyers: What Counts?
alleged to arise cumulatively over a period of years.
by Michael F. Huber Asbestos cases are the archetype of such claims, with
Determining the ‘‘number of occurrences’’ under a liability policy environmental cases and some drug cases coming
can be a nettlesome task for courts and coverage counsel. An
analysis of recent cases, however, provides a roadmap: Courts closely behind. One bewildering issue that such cases
find multiple occurrences when (1) separate acts or events attribu- present is what happens when one or more, but not all,
table to the insured are the immediate, as opposed to remote, causes of the insured’s carriers reach a settlement with the
of harm and/or (2) the acts or events are separated by time or space.
Conversely, there is a single occurrence when (1) a single act or insured, while the coverage litigation goes on against
event can be isolated as the immediate cause of the damage, when other carriers.
viewed from the insured’s perspective, and/or (2) the acts or events The first of the broad ‘‘continuous trigger’’ cases,
are continuous in time or space.
Keene v. INA1, was handed down in the context of
A Closer Look at the Rights of an asbestos bodily injury claims. The court held that all of
35 Indemnified Party as Compared to the
Rights of an Additional Insured from an
the insurers which wrote policies in effect throughout the
time period from a claimant’s first exposure through
Insurance Coverage Perspective
manifestation of disease were jointly and severally
by Justin L. Weisberg and Louis J. Gale liable for such claims. The court added, though, that,
Commercial contracts often require one or both contracting
parties to indemnify the other. In many instances the contract (Continued on page 11)
will also require one party to provide insurance specifically
designating the other party as an additional insured under a
commercial general liability policy. While the purpose of Gerald V. Weigle, Jr. is a member of Dinsmore & Shohl
both provisions may be to provide defense and indemnification LLP’s Litigation and Insurance Practice Groups, and often repre-
in the event of a third party claim relating to bodily injury or sents insurers in insurance coverage disputes. The views expressed
property damage, the rights of an indemnified party to insur- herein are those of the author and not necessarily those of his Firm or
ance coverage can be significantly different than the rights of
an additional insured. its clients.
air s
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Tucson 2010! By the time you read this edition of Coverage, you should have registered online for our Insurance Coverage Litigation Committee
Annual CLE Meeting, held each year at the Westin La Paloma resort on the first weekend in March. If you have not yet registered or reserved a
room, visit our ICLC Website at www.abanet.org/litigation/committees/insurance and follow the links to the brochure, on-line registration forms
and hotel reservation materials before the early bird discounts expire. Our Meeting Cochairs Ernest Martin and Maria Enriquez and Vice Chairs
Tracy Saxe and Ted Howard are coordinating a series of superb programs to start on Thursday afternoon, March 4, 2010. Plenary sessions will
address insurance issues arising out of the deepening financial crisis and investment scandals, hot coverage issues in construction defect litigation,
business interruption traps, the keys to unlocking excess coverage, and other cutting-edge issues. Our 16 break-out sessions will focus on new
coverage decisions and practical concerns on a variety of insurance-related topics, and our 15 roundtable luncheons on Friday offer a unique
opportunity to get to know other practitioners while discussing current topics of interest.
Thanks to members of ICLC leadership, we are embarking on several new events including a "Bring a Friend" campaign and a Subcommittee
Expo on Thursday afternoon, with Subcommittee Cochairs focusing on ways to expand our contributions. Our 28 Subcommittees are listed on the
webpage at www.abanet.org/litigation/committees/insurance/subcommittees.html. Contact the Subcommittee Cochairs or Ruth Kochenderfer of
our Membership Subcommittee in advance of our Tucson meeting, or attend the Expo and sign up to become actively involved in one or more
substantive areas. You should also plan to attend our Annual Business Meeting during breakfast on Saturday morning, where we will summarize
ICLC activities and plans including those submitted to Section of Litigation Leadership in our Three Year Plan.
In addition to experiencing Tucson’s natural wonders and recreational activities, this year’s Annual Meeting will offer an opportunity to ‘‘give
back.’’ During the conference, we will provide information and opportunities to participate with Angel Charity, Inc., which works with 55 agencies
to address healthcare, education, childcare and other physical, mental and emotional needs to improve the lives of children in Pima County, Arizona.
Contact ICLC Vice Chair Sheri Pastor if you have time to help on the planning stages. We are reprising the Women’s Coffee Klatch and the ever-so-
successful Young Lawyers Cocktail Hour, in addition to new diversity initiatives spearheaded by Diversity Subcommittee Cochair Dana Lumsden.
Remarkably, Tucson 2009 boasted near-record participation with over 270 attendees, and Laura Foggan and I hope we will do even better in 2010.
As past attendees know, there is nothing like Tucson when it comes to substantive content, diverse educational materials, networking and fun.
Tucson 2010 is not the only activity ‘‘in the works.’’ We hope you will attend our luncheon meeting at the Section of Litigation Annual Meeting in
New York on April 21-23, 2010. In addition, our ADR Subcommittee Cochairs Rachel Kronowitz and Greg Schopf, Ethics & Professionalism
Subcommittee Cochair Kali Bracey, and ICLC Vice Chair Ray Wong will present our program, ‘‘Will Insurance Be In Place When You Need to
Settle? Top Ten Hints for Careful ADR Preparation’’ at the ABA Section of Dispute Resolution’s 12th Annual Spring Conference in San
Francisco on April 8-10, 2010. Our ICLC and Subcommittee membership drives also will be in full swing by Spring.
Finally, we repeat our regular call for articles for our award-winning Coverage magazine, now circulated in both hard copy and case-linked
electronic format thanks to our recent negotiations with our sponsor LexisNexis, and short articles for our ICLC Website Hot Topics. Becoming
involved is as easy as hitting a link or reaching out to others. Thanks to our many talented members, the Insurance Coverage Litigation Committee
offers a wealth of substantive information. We look forward to working with even more of you as 2010 unfolds.
Managing Editors:
Angela R. Elbert, Esq. Theodore A. Howard, Esq. Michael S. Levine Esq.
Neal Gerber Eisenberg LLP Wiley Rein LLP Hunton & Williams
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Chicago, IL 60602 Washington, DC 20006 McLean, VA 22102
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Editor in Chief aelbert@ngelaw.com thoward@wileyrein.com mlevine@hunton.com
Erik A. Christiansen, Esq.
Parsons Behle & Latimer
One Utah Center Céleste D. Elliott, Esq. Georgia Kazakis, Esq. Ellis I. Medoway, Esq.
201 S. Main Street Lugenbuhl, Wheaton, Peck, Covington & Burling Archer & Greiner
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echristiansen@parsonsbehle.com 504-310-9195 (fax) gkazakis@cov.com emedoway@archerlaw.com
celliott@lawla.com
http://www.abanet.org/litigation/committees/insurance/
If you would like to develop the Committee’s online resources further, please join
the Website Subcommittee through the website or contact the current
Subcommittee Chairs:
Website Managing Editors
Jon D. Kardassakis Katherine Mast (305) 577-3996
221 North Figueroa Street, Ste. 1200 Sedgwick, Detert, Moran & Arnold jmazer@vpl-law.com
Los Angeles, CA 90012 LLP
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Covington & Burling 1901 Avenue of the Stars, Ste. 450 jdavis@reedsmith.com
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P.O. Box 7566 (310) 203-4823 Jayson W. Sowers, Esq.
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Reed Smith LLP Seattle, WA 98154
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