Page 1 Recording of this session via any media type is strictly prohibited. Why Won’t They Pay My Claim? (CLM 018) Tuesday, April 29, 2014, 1:45-3:45 David Goodwin Tracy Jurusik Barbara Miller

Page 2 Recording of this session via any media type is strictly prohibited. Introduction  Meet the panelists  What we’re going to discuss Identifying and presenting a claim What happens after the claim arrives at the insurance company What happens if the insurer disputes the claim  A case study

Page 3 Recording of this session via any media type is strictly prohibited. What is a claim?  Ordinary meaning – demand for money  Common definitions of “claim” Lawsuit Written demand for money Tolling agreement request? Investigation? Subpoena?

Page 4 Recording of this session via any media type is strictly prohibited. Page 4 A claim is made… now what?

Page 5 Recording of this session via any media type is strictly prohibited. Identifying and Presenting a Claim  Set up process with law department to receive threats/lawsuits (prior to claims being presented)  Review threat/lawsuit for potential coverage  Review reporting requirements for every potential policy  Report threat/lawsuit to broker(s)

Page 6 Recording of this session via any media type is strictly prohibited. Identifying and Presenting a Claim  Ensure broker follows reporting guidelines outlined in policy and timely reports claim  Form of reporting (letter; ; bordereaux)  Content of notice  Follow up for acknowledgments from insurers  Notify law department of potential involvement of insurers and consent provisions

Page 7 Recording of this session via any media type is strictly prohibited. Page 7 What Happens Once the Broker Gets the Claim/matter?

Page 8 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  Review the materials received from the Insured – from the perspective of a claim adjuster  Does the information appear to be related to anything that was previously reported?  Do we have a “Claim” as defined in the Policy?

Page 9 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  If we have a “Claim” what is the date the “Claim” was first made?  Which type of policy is triggered based on the alleged wrongful acts in the “Claim”?  Which policy period is implicated and do we have any late notice issues?  Do the allegations in the “Claim” trigger more than one Policy?

Page 10 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  If more than one Policy is implicated – how do the “other insurance” clauses in each Policy operate?  Are there any applicable exclusions in the Policy that may come into play?  Once we know which Policy and policy period, report the matter to the entire applicable tower

Page 11 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  What are the choice of counsel provisions in the Policy?  Does the insurer or the insured have the “duty to defend”?  Does the applicable Policy have a panel counsel requirement?  Does the Insured’s choice of counsel comply with the Policy’s counsel requirements?

Page 12 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  If we don’t have a “Claim” should we consider reporting a “notice of circumstances” if allowed under the Policy?  Factors to consider in a submitting a “notice of circumstances”  Once a “Claim” or “circumstances” reported, review acknowledgment and reservation of rights letters for accuracy and response

Page 13 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  Understand the Policy’s consent provisions and confirm compliance  Insurer responses to claim  Acknowledgement of coverage  Reservation of rights/request for information  Denial  Silence

Page 14 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  Broker response to reservation of rights  Broker response to silence  Broker response to coverage denial  Typical process following denial  What you can and cannot do  What your broker can and cannot do

Page 15 Recording of this session via any media type is strictly prohibited. What happens after the claim reaches the broker  Facilitate the flow of information between Insured’s counsel and the Insurers  How to communicate with insurers  Confidentiality issues/will agreements help?  Disclosing privileged information?  Avoiding waiver  Periodic calls and meetings  Identify and head off problems

Page 16 Recording of this session via any media type is strictly prohibited. Case Study Part 1

Page 17 Recording of this session via any media type is strictly prohibited. Page 17 What Happens If the Insurer Refuses to Pay?

Page 18 Recording of this session via any media type is strictly prohibited. What Happens If the Insurer Refuses to Pay?  Evaluate insurers’ reasons for refusing  Insurer definitely right?  Iffy?  Arguable?  Insurer wrong  Legal issues or factual questions?  How do you tell who is right?

Page 19 Recording of this session via any media type is strictly prohibited. What Happens If the Insurer Refuses to Pay?  Do you need outside assistance?  Broker  Consultant  In-house counsel  Outside counsel  Process of evaluating the claim  Legal uncertainties  Factual uncertainties

Page 20 Recording of this session via any media type is strictly prohibited. What Happens If the Insurer Refuses to Pay?  First steps  Gather policies  Learn facts  Process of evaluating the claim  Legal uncertainties  Factual uncertainties  Respond to insurer

Page 21 Recording of this session via any media type is strictly prohibited. What Happens If the Insurer Refuses to Pay?  Negotiate  Informal negotiation  Broker and insurer?  Client and insurer?  Counsel and counsel?  Effective negotiation strategies  What if negotiation doesn’t work?

Page 22 Recording of this session via any media type is strictly prohibited. What Happens If the Insurer Refuses to Pay?  Does policy have an “ADR” clause?  Mandatory choice of mediation or arbitration?  Mandatory arbitration?  What is mediation?  How a mediation works  What is arbitration?  How an arbitration works  Pitfalls of an insurance arbitration  What if you have a multi-policy program?

Page 23 Recording of this session via any media type is strictly prohibited. What Happens If the Insurer Refuses to Pay?  Litigation  Where do you file?  What do you allege?  Litigation – how it works  Litigation process  Discovery – documents; written discovery; depositions  Motion process  Settlement conference/mediation  Trial/appeal

Page 24 Recording of this session via any media type is strictly prohibited. Case Study Part 2

Page 25 Recording of this session via any media type is strictly prohibited. Questions, Final Comments and Contact Information David Goodwin Covington & Burling LLP Tracy Jurusik Willis Americas Barbara Miller Wells Fargo Corporate Finance Group