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Insurance Law

December Publication for Insurance Law’s Authoritative Source! New Appleman on Insurance Law Library Edition, Volume 12 – Litigation, Arbitration and Settlement

The New Appleman on Insurance Law Library Edition will launch its new Volume 12 in December. It is devoted to litigation, arbitration and settlement of insurance coverage disputes and is written by nationally known experts in insurance coverage litigation, including Laura A. Foggan, Lorelie S. Masters, Sherilyn Pastor, Nicholas M. Insua, Sara M. Thorpe, Helen K. Michael, David L. Cox, Erica J. Dominitz, Daniel H. Rylaarsdam, Seth D. Lamden, Walter J. Andrews, Christine Terrell, Marla H. Kanemitsu, Laura J. Hanson, Robert Kelly, Timothy W. Volpe, and Leslie A. Wickes.

The chapters provide fresh analysis of current and recurring issues that arise pursuant to:

•   The Initiation of Litigation or Use of Alternative Dispute Resolution;
•   Responding to Litigation;
•   Discovery;
•   Expert Witnesses;
•   Summary Judgment;
•   Trial Proceedings;
•   Post-Trial Issues; and
•   Settlement.

New Chapter 150, INITIATION OF LITIGATION, provides information, analyzes pertinent issues and includes a checklist for the measures that need to be taken for the initiation of lawsuits in insurance disputes.  The chapter provides the framework for the thought-process that should be part of filing a lawsuit. It addresses the parties to the lawsuit, timing of filing a lawsuit, jurisdiction / forum / venue, causes of action, some specific types of lawsuits (intervention, interpleader, class action), and service of the complaint, as well as alternative dispute resolution methods including appraisal, arbitration, mediation, and hybrid forms of arbitration and mediation.

New Chapter 151, RESPONDING TO LITIGATION, focuses on the procedural and strategic considerations of the party that has been sued as it responds to litigation. These considerations that are not necessarily driven by the procedural law of what a party can do in responding to litigation.  Rather, these considerations may be based on prudential, financial, or other strategic concerns. The chapter analyzes what can be the most important procedural battle in insurance coverage litigation – the battle over the forum where the litigation will occur. It addresses the procedural pleading rules for answers, including the consequences to the defendant of admitting the plaintiff's allegations.  More specific to insurance coverage litigation, this section also addresses how a defendant should address insurance policy language when drafting its answer.  It surveys the specific affirmative defenses that may be available to an insurance coverage litigant when drafting its answer, which leads to an analysis of certain substantive points of insurance law. The chapter considers the the various substantive and procedural motions available to the parties in the early stages of litigation. It further addresses the assertion of counterclaims and cross-claims by the defendant responding to litigation.  It covers issues surrounding both the permissive and necessary joinder of additional parties. The chapter further considers the crucial, yet often overlooked, steps a defendant must take to preserve its right to a jury trial. The remainder of the chapter covers other thorny issues that arise when there are concurrent underlying and coverage actions.

New Chapter 152, DISCOVERY, begins with an overview of the scope of discovery permitted in civil litigation.  Although this chapter focuses primarily on the Federal Rules of Civil Procedure, it notes that both the federal rules and corresponding state rules permit insurers and insureds to engage in broad pretrial discovery that extends to facts and information that are relevant to the claims and defenses of either party. It describes the various discovery mechanisms that are authorized by the federal rules. The chapter discusses the steps that litigants must take to protect their rights in discovery. It addresses the various contexts in which the attorney-client privilege, as well as the attorney work-product doctrine, may arise in coverage litigation. It also explores issues as to the discovery of extra-contractual information in coverage litigation. The chapter analyzes additional controversial areas of discovery in coverage litigation, including disputes that may arise in connection with efforts to discover insurance claim files, insurance reserves, claim files of insureds that are not parties to the coverage litigation, the personnel file and compensation records of a claims adjuster, communications between an insurer and a reinsurer, and internal insurer claim handling manuals. The chapter identifies disputes that may arise regarding the format in which electronic discovery must be produced and the approaches taken by the courts in balancing the burden and cost of electronic discovery against the parties’ rights to discover relevant information. Lastly, it explores the role that protective orders play in coverage litigation.

New Chapter 153, EXPERT WITNESSES, analyzes legal standards and factual criteria considered by federal and state courts in the insurance context to determine what constitutes expertise, and standards that various courts apply to determine admissibility of expert testimony.  This chapter also explores purposes and roles – typical and novel – of testifying and non-testifying experts in insurance and reinsurance coverage disputes. It discusses the appropriate roles of expert testimony in assisting triers of fact render determinations with which they are tasked. It then analyzes the criteria courts use to determine what constitutes qualified expertise. Examples of strategic concerns are considered including, for example, publicly available information about the potential expert that may not be disclosed on or relevant to his or her resume.   The chapter also analyzes examples of topics about which insurance experts frequently testify, and the limitations on experts’ ability to testify about those topics.  For instance, it discusses the potential usefulness of expert testimony surrounding causation, as well as insurance industry custom and practice. It examines an exception to the general rule against allowing expert testimony regarding matters of law. of impermissible uses of expert testimony are also addressed. The chapter explores different tactics parties use to preclude expert testimony that is arguably impermissible for any reason.  The chapter further discusses expert discovery, an area of practice complicated by strategy and procedure. It concludes with consideration of the uses of expert testimony in arbitration proceedings.

New Chapter 154, SUMMARY JUDGMENT, analyzes procedural requirements for summary judgment motions including timing, the length of summary judgment motions and memoranda, as to the proposed judgment, and cross-motions for summary judgment. It also examines summary judgment for particular issues including the duty to defend, exclusions and other coverage limited provisions, and bad faith.

New Chapter 155, TRIAL PROCEEDINGS, analyzes the insurance coverage and bad faith trial. The chapter addresses the threshold issue of whether the case will be tried to a jury or to the court. It also addresses also addresses the theory of the case and the narrative each party wants to present at trial. It examines a range of pretrial motions. The chapter further explores the right to a jury trial and the process and issues surrounding jury selection in the insurance coverage and bad faith case. It considers evidentiary issues in the insurance coverage case. The chapter discusses the availability of attorney's fees in insurance coverage and bad faith trials. It addresses considerations for protecting the record for appeal and for putting offers of proof on the record for evidence that was proffered but excluded.

New Chapter 156, POST-TRIAL ISSUES, observes that post-trial proceedings take place at both the trial court and appellate levels. Although the first source of information that should always be consulted is the local rules of civil and appellate procedure, the chapter explores the substantial areas of conformity among the various state and federal jurisdictions. It surveys issues surrounding various categories of motions such as motions for directed verdicts made during trial, and motions for judgment notwithstanding the verdict made post-trial, as well as motions for a new trial. The chapter examines the doctrines of additur and remittitur. It analyzes issues surrounding motions for relief from a judgment, motions to alter or amend a judgment, motions to seek adjustments to jury verdicts, and motions for judgment interest and attorney's fees. The chapter considers timing requirements for post-trial motions and the time to appeal. It examines the various grounds for obtaining appellate jurisdiction, including for interlocutory appeals. The chapter also covers the requirements for filing a formal notice of appeal and the posting of a bond with the trial court. It further addresses issues arising in the context of the calculation and taxation of costs, awards of attorney's fees, and pre-judgment and post-judgment interest. It addresses issues arising out of a claim of preclusion – either preclusion of an entire matter through the doctrine of res judicata, or preclusion of an issue of fact through the doctrine of collateral estoppel. It lastly considers other important limitations on the scope of post-trial litigation and appeals including the doctrines of law-of-the-case, judicial estoppel, and “invited error.”

New Chapter 157, INSURANCE SETTLEMENT, first notes that most coverage disputes settle and explains why. It considers settlement before any litigation has occurred and those circumstances in which pre-litigation settlement may be preferable for one or more parties to the dispute.  The chapter discusses particular procedural issues arising after suit is filed.  It surveys the different forms of settlement agreements that can occur, including oral and written settlement agreements and settlement inferred from conduct like the negotiation of a check in payment of a disputed claim. It addresses settlement concerns for liability and property claims.  The complexities of environmental and mass tort claims are also explored where the more complex forms of agreement may be necessary, such as interim defense, pay-as-you-go, and site release agreements.  Also discussed are policy buybacks, percentage settlements and claim funds commonly used in settling complex claims.  The chapter considers the settlement of workers’ compensation claims and the issues created by the unique statutory framework for such coverage.  It walks through issues that arise where there is insufficient coverage for multiple claims or insureds.  The chapter further addresses claim aggregation issues that can arise in the settlement of coverage disputes and settlement with insurers providing different layers of coverage. The chapter concludes with a discussion of enforcement, including jurisdiction, evidence, and waiver and estoppel issues.

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