Timely Notice

Jennifer Hamilton, vice president of claims at NAMICO, discusses the deployment of the Reptile Theory in insurance coverage disputes. Jennifer details how policyholder and claimant counsel will use institutional bad faith tactics and case law and appeal to a jury’s primal fears and instincts about the insurance industry in order to obtain a favorable judgment. Jennifer offers insights for spotting the Reptile Theory early on in a case as well as common traps insurer counsel fall victim to. Jennifer concludes with strategies that insurer counsel can employ to defeat the Reptile Theory.

Tony Dolce, vice president and cyber lead for Chubb North America, shares the ins and outs of ransomware and cyber extortion coverage. Tony describes several high profile attacks including the infamous WannaCry and NotPetya attacks of 2017 as well as more recent attack vectors like BitPaymer and Ryuk. Tony also discusses the great importance for businesses of purchasing cyber insurance, the coverage and expertise provided by a carrier's available incident response team, and common traps for the unprotected. Tony concludes with a forecast of the future of ransomware and other cyber attacks and its impact on businesses. 

Tom Werlein, associate counsel for Sentry Insurance, joins Timely Notice for a discussion of Sections 3, 4, and 21 of the ALI Restatement of the Laws of Liability Insurance. Tom explains the implications of a modified plain-meaning rule, the newfound importance of custom practice and usage, and whether a subjective belief by an insured is appropriate for policy interpretation. Tom also shares his insights on whether an insurer should be able to recover defense costs and settlement payments attributable to uncovered claims. 

Stacy Moon, a shareholder with the F&B Law Firm and past chair of DRI’s Professionalism and Ethics Committee, joins the show to discuss conflicts of interest when representing multiple insureds. Stacy identifies common ethical pitfalls for an attorney in a multiple insured, single defense situation. She explains how defense counsel may proactively avoid certain conflicts through a written disclosure or a compromise between the insureds. Stacy also describes how defense counsel and the insurer should handle a conflict of interest that arises in the midst of litigation. She concludes by offering her three best rules of thumb for an attorney facing a potential conflict situation.

Michael Longo, a Global Insurance Services partner in Goldberg Segalla’s Manhattan office, looks back on Carlson v. American International Group and examines its effects one year later. Michael notes how the New York Court of Appeals significantly broadened the meaning of whether a policy was issued or delivered under New York Insurance Law Section 3420. He considers the dissent’s ominous prediction that the majority’s holding would wreak havoc. Michael concludes by noting several areas left unresolved by Carlson.

Barry Miller, a partner in Mazanec, Raskin, & Ryder’s Lexington, Kentucky office, shares his insights about quirks in Kentucky coverage laws. Barry explains how Kentucky’s particular bad faith jurisprudence affect coverage decisions. He also discusses how Kentucky courts have approached construction defect coverage and the consequences of a wrongful claim denial.

Martha Brown, a North Carolina partner in Goldberg Segalla’s Global Insurance Services Group, discusses the contours of malicious prosecution coverage. She begins by discussing the types of claims that satisfy the malicious prosecution offense. She then examines the Eighth Circuit’s recent decision in Sampson v. Kofoed, including the coverage issues surrounding an exception to a criminal, dishonest, fraudulent, or malicious acts exclusion. Martha concludes by identifying the key takeaways from the Eighth Circuit’s decision and how it squares with existing precedent nationwide.

Kelly Geary, managing principal at Integro USA, discusses the impact on the insurance industry of the European Union General Data Protection Regulation and the upcoming California Consumer Privacy Act. To start, Kelly discusses the similarities and differences between the two regulations, in particular with how they define personal data/information. In addition, she predicts whether similar laws are expected domestically and internationally. Kelly also offers insight into the insurance industry’s response to these regulations, including potential coverage offerings.

Albert Alikin, a Global Insurance Services partner in Goldberg Segalla’s Los Angeles office, joins the podcast to break down the state of bad faith jurisprudence in California. Albert begins by identifying a series of recent bad faith setups in California, including how these schemes take advantage of California’s nuanced bad faith law. Albert then offers suggestions for how insurers can navigate potentially treacherous demand letters.

Larry Daniel, practice leader in digital forensics at Envista, discusses the ways in which information contained on cellphones can be used to investigate and reconstruct auto accidents. To start, Larry clears up common misconceptions of what can and cannot be gleaned from cellphone data. He offers opinion on what the future holds for accident reconstruction, as technology allows deeper integration between cellphones and automobiles. Larry concludes by offering guidance to insurers when determining if a digital forensic expert should be retained post-accident.

Vasu Addanki, a director in Betts Patterson Mines’ Seattle office, discusses the trend of plaintiffs and policyholders naming insurance adjusters as defendants in bad faith lawsuits. Vasu begins by examining the Washington State Court of Appeals’ decision in Keodalah v. Allstate Insurance Co., where the court held that an insurance adjuster may be personally liable for bad faith and consumer protection violations. He explains the glaring flaws in the court’s reasoning and discusses how the decision is a disappointing shift in bad faith jurisprudence. Vasu also describes how allowing these types of claims affects bad faith litigation and the insurance industry as a whole.

Leann Gerlach, a North Carolina partner in Goldberg Segalla’s Workers’ Compensation Group, discusses North Carolina’s response to the opioid epidemic. Leann describes how the opioid epidemic has impacted the workers’ compensation system. She highlights the most significant aspects of North Carolina’s Opioid Task Force’s utilization rules which seek to reduce addiction and overdose rates among injured workers. Leann also illustrates the rules’ application to various treatment scenarios. Leann closes by discussing what insurers and workers’ compensation attorneys can do to maximize the rules’ benefits.

Richard Garner, of Collins, Roche, Utley & Garner LLC, sits down with the podcast to discuss a recent decision from the Ohio Supreme Court. In Ohio Northern University v. Charles Construction Services, Inc., the Ohio Supreme Court determined faulty workmanship, in and of itself, does not constitute an “occurrence.” Rich, who represented the prevailing insurer, discusses the specifics of the case and the attempts by the opposing parties to depart from existing Ohio precedent. Rich opines on whether this is a clear win for stare decisis. Rich concludes by explaining the wider importance of the decision and how it may affect construction coverage law in other jurisdictions.

Philip Unwin, a Medicare Set-Aside Certified Consultant and Rochester partner in Goldberg Segalla’s Workers’ Compensation Group, discusses Medicare Set-Asides (MSA). He explains why MSAs are a vital part of settlement agreements in workers’ compensation and personal injury cases. While doing so, he identifies key differences between MSAs in workers’ compensation claims and personal injury lawsuits. Phillip also highlights the penalties the Centers for Medicare and Medicaid Services can impose for MSA noncompliance and why this should be of great concern to the insurance industry. Finally, he describes what carriers’ outside counsel and workers’ compensation attorneys can do to assist with MSA compliance and facilitation.

Tom Garvey, a manager at RGL Forensics, offers insight into the world of forensic accountants and the useful role they play in evaluating business interruption losses. Tom begins by describing scenarios where forensic accountants are underutilized. Tom also provides a framework for the insurance industry in determining what types of challenging claims necessitate retaining a forensic accountant. He concludes by highlighting the ways in which technology has improved the effectiveness of forensic accountants in communicating their findings. 

In a two-part series, Kevin Willging, of Travelers’ Extra-Contractual Litigation Unit, examines the Florida Supreme Court’s recent decision in Harvey v. GEICO. In part one, Kevin summarized the key facts of the claim giving rise to the bad faith case and described how the claimant’s attorney manufactured a bad faith setup. Kevin discussed the Florida Supreme Court’s rationale for reversing the appellate court’s favorable ruling in the subsequent bad faith action. Kevin delves into the Florida Supreme Court’s rejection of a “checklist” to avoid bad faith liability and endorsement of a standard somewhat akin to negligence. In part two, Kevin will discuss how this decision will affect Florida’s bad faith landscape in the future. He also will identify what insurers can do during the claims process to avoid or defuse similar bad faith setups.

In a two-part series, Kevin Willging, of Travelers’ Extra-Contractual Litigation Unit, examines the Florida Supreme Court’s recent decision in Harvey v. GEICO. In part one, Kevin summarizes the key facts of the claim giving rise to the bad faith case and describes how the claimant’s attorney manufactured a bad faith setup. Kevin discusses the Florida Supreme Court’s rationale for reversing the appellate court’s favorable ruling in the subsequent bad faith action. Kevin delves into the Florida Supreme Court’s rejection of a “checklist” to avoid bad faith liability and endorsement of a standard somewhat akin to negligence. In part two, Kevin will discuss how this decision will affect Florida’s bad faith landscape in the future. He also will identify what insurers can do during the claims process to avoid or defuse similar bad faith setups.

Mark LoGalbo, Coverage Counsel for the Property & Liability Research Bureau (PLRB), delves into the “ongoing operations” limitation found in the ISO additional insured IO form.  Specifically, Mark discusses the dueling interpretations courts employ when interpreting the “ongoing operations” requirement in the context of a loss after the named insured has finished its work. Mark concludes by describing the insurance industry’s response to instances where the “ongoing operations” requirement is found to be ambiguous.

Joanne Romero, a New York attorney in Goldberg Segalla’s Employment and Labor practice group, discusses the legal protections for people who rely on service and emotional support animals. She identifies the different levels of legal protection available depending on the classification of the animal. She also discusses the “do’s and dont's” for businesses accommodating people with service animals. In doing so, she explains the types of questions an organization can ask someone who claims to have a service animal. Joanne also describes how a business can handle competing interests, such as a person with allergies or conflicting health code regulations. In addition, Joanne identifies the types of insurance coverage that may be available for organizations accused of violating regulations applicable to service and emotional support animals. 

Sarah Delaney, a Buffalo partner in Goldberg Segalla’s Global Insurance Services practice group, joins the show to discuss the MCS-90 endorsement. Sarah provides background on the endorsement and  dispels common misconceptions about the form, including whether the form itself provides insurance coverage, if exemptions exist for certain motor carriers, and whether cancellation of the underlying policy terminates MCS-90 obligations. Sarah also talks about practical duty to defend considerations under the MCS-90 endorsement.  Finally, Sarah discusses how the form affects intrastate transportation regulations.