The Road to Insurance Recovery
- Posts by Michael J. AbramsPartner
First and foremost, Mike Abrams is a trial attorney who does his best work in the courtroom – obtaining noteworthy court decisions on behalf of companies in a wide range of industries, taking a stand for businesses fighting to keep ...
Excess insurance, while great for mitigating risks of large losses to policyholders, does not always cooperate during litigation. This is particularly true during settlement negotiations, as excess insurers do not have an obligation to settle in good faith until it’s their turn to defend. This was the decision of the Seventh Circuit in Fox v. Am. Alt. Ins. Corp., 757 F.3d 680 (7th Cir. 2014). In Fox, the plaintiff twice made demands for settlement, both before and after a jury verdict came down, that was in excess of the primary policy. But, as the excess insurer had no duty to defend until the primary policy was “exhausted,” meaning actually paid out, the Seventh Circuit found that in neither demand had the excess insurer violated their duty to settle in good faith.
The attorney-client privilege is one of the oldest and most widely-known—if generally misunderstood—common law doctrines. In its broadest outline, it’s a rule that’s fairly easy to grasp and apply: a communication between a lawyer and a client for a legal purpose that is held in confidence is protected from disclosure by privilege. The rule ensures that clients can be candid with their lawyers without fear that their candor is discoverable (and ultimately harmful to their case). But don’t miss the important caveat: the communication must be held in confidence, meaning when there’s another, non-client party in on the conversation, there is no privilege.
This presents an obvious but often missed dilemma, as modern litigation often involves four critical parties sharing communications: the person or entity being sued, their attorney, their liability insurer(s), and their broker. This situation is so ubiquitous that it may be easy to forget that under the traditional rule, when you share information with your insurer or your broker, you’re breaking privilege.
In a recent webinar, Lathrop Gage Partner Mike Abrams and Hays Companies Vice President and Cyber Liability Practice Leader Dave Wasson covered several common pitfalls to avoid in buying cyber liability risk policies. In summary, the cyber insurance market is not a mature one, and policies differ significantly. It’s important to be working with a broker or lawyer who is familiar with potential issues and terms that can be negotiated.
About this Blog
Lathrop GPM is one of the largest law firms in the United States representing policyholders, providing policyholders with the necessary guidance and legal counsel to handle everything from negotiating coverage and managing risk to litigating insurance disputes and recovery. The Road to Insurance Recovery blog is dedicated to helping readers better understand and manage the complexities of the modern business insurance policy.