Policyholder's Duty to Cooperate: Advocating or Defending Against Loss of Coverage for Breach Navigating Scope of the Duty, Privilege Issues, Settlement, and Consequences of Insured's Failure to Cooperate Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. WEDNESDAY, APRIL 23, 2014 Presenting a live 90-minute webinar with interactive Q&A R. Brent Cooper, Shareholder, Cooper & Scully, Dallas Michael W. McCoy, Partner, Fowler Rodriguez, Houston
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Policyholder's Duty to Cooperate: Advocating
or Defending Against Loss of Coverage for Breach Navigating Scope of the Duty, Privilege Issues, Settlement,
and Consequences of Insured's Failure to Cooperate
Conducting Depositions; Houston Association of Independent Insurance Agents; 1994 and 2000.
Lecturer: Disputes Among Insurance Carriers; University of Houston Law Center and Advanced
Personal Injury Seminar or Advanced Insurance Seminar: Summer, 1996; Summer, 1997; Summer,
1998; Summer, 1999; Summer, 2000 and Spring, 2001. Lecturer and Author: Appraisal and
Arbitration; Texas Insurance Law Symposium at South Texas Law School; Fall, 1997. Lecturer and
Author: Overview of Agents' and Brokers' Errors and Omissions Liability; Houston Association of
Independent Insurance Agents; Summer, 1998 and Fall, 1998; Texas Insurance Law Symposium;
Summer, 1998 and 1999. Lecturer: Recent Trends in Employment Law; Association of Hospital
Human Resource Managers, 1998. Director and Participant. Mock Trials: Houston Association of
Independent Insurance Agents, 1994 and 1997; Tarrant County Association of Independent Insurance
Agents, 1994; Houston Claims Association, 1994; Association of Human Resource Managers, 1996
and 1998. AV Rated by Martindale-Hubbell Law Directory. Texas Super Lawyer in 2006, 2007, as
named by Texas Monthly Magazine in insurance coverage area; Top Lawyer as named by H
Magazine, 2008, 2009. 8
Practices:
•Insurance Law
•Litigation
Awards:
•AV Rated by Martindale- Hubbell Law Directory
•Texas Super Lawyer in insurance coverage area, 2006-2007
Bars & Courts:
•Texas Bar, 1979
•U.S. Court of Appeals, Fifth Circuit, Eleventh Circuit
•U.S. District Court Northern, Eastern, Southern and Western Districts of Texas
Education:
•B.A., with high honors, University of Texas, 1976
•J.D., Baylor University, 1979, Baylor Law Review
Professional Associations:
•American Bar Association
•Houston Bar Association
•TexasAssociationofDefenseCounsel
•Defense Research Institute
•Texas Bar Foundation
9
POLICYHOLDER’ S DUTY TO COOPERATE: DOES IT HAVE LIMITS AND WHAT IS THE EFFECT?
I. DUTY OF THE INSURE R TO DEFEND AN D RIGHT TO CONTROL THE DEFENSE
A. General Provisions
1. Duty to defend of the insurer is built in to the boilerplate insuring agreement in
most policies.
2. Question arises with respect to right to control the defense.
3. Most policies do provide insurer the rig ht to control the defense.
4. Exceptions:
a. Conflict between the insurer and the insured;
b. Nature of conflict and requirements with respect to same;
c. Different interpretation in different states. 5. T ermination of the Defense
a. Policy dri ven; 10
b. Coverage driven ;
c. Court driven .
B. Policy Defenses 1. Voluntary Payments.
a. Is there a prejudice requirement?
b. Consent to settle clause; c. Policy differences (i.e., UM coverages);
d. Policy provision: part of insuring agreement or exclusion?
e. Definitions of “voluntary.”
2. Fail ure to Cooperate: Can it Bar Coverage?
a. Duty to cooperate with the insurer with respect to the investigation of the claim;
b. Limitations on cooperation and whether it will provide a valid defense to
coverage; 11
c. Alleged lack of cooperation with respect to th e defense; d. Alleged lack of cooperation with respect to settlement: Is the insured in
favor of settlement or opposed to settlement?
1. Does it matter? 2. If so, what are the pressure points for both the insurer and
policyholder?
3. Likely relates to consent to settle clause, regardless of how framed in the policy.
4. Case law varies.
3. Failure to Provide Notice: Will it Bar Coverage?
a. Is prejudice required?
b. Does the type of policy matter?
c. If prejudice is required, what level of prejudice?
d. The test for prejudic e. 12
e. Can prejudice be waived?
f. Case law varies.
g. Can notice be waived by insurer?
4. Can the policyholder be considered uncooperative if there is an alleged misrepresentation in the application which also constitutes a breach of warranty in the insuring agree ment?
a. Some states look with disfavor on forfeiture because of breach of
warranty.
b. Some states will define the policy differently if the alleged misrepresentation constitutes a breach of warranty as opposed to just a misrepresentation in the application.
c. May also give rise to an exclusion.
1. The “new or could have reasonably foreseen” offense: essentially same as to whether policy - holder had knowledge of an alleged wrongful act or could reasonably anticipate a claim would be made. (a) What is the test?
(b) Matte r of law or fact issue? 13
II. EXAMPLES OF POLICY PROVISIONS A. Insuring Agreement.
1. Obligations placed on policyholder to cooperate.
a. Investigation. b. Providing notice with respect to the claim or suit.
c. Selection of defense counsel.
d. Possible settlement.
e. Questi ons of reasonableness on the part of policyholder.
f. Questions of reasonableness on the part of the insurer.
B. Exclusions.
1. Prior knowledge of the incident and failure to disclose. 2. Claim or incident of which the policyholder had knowledge or could have
reas onably foreseen. 14
3. Conditions precedent: does it matter?
4. Alleged breach of contract by policyholder: materiality? C. Consent to Settle: which party has the consent and does it matter?
1. Possible reimbursement if policyholder settles without insurer’s consen t.
2. Waiver agreement v s . reservations of rights: does it matter ?
15
III. EXAMPLES OF PREJUDICE A. Requirements of S ubstantial P rejudice.
1. Adopted by most states today. 2. Can vary depending upon whether notice provision or consent to settle
provision.
3. Can vary de pending upon whether part of the insuring agreement or exclusion or condition precedent.
4. Can vary depending upon the type of policy.
5. Can vary depending upon public policy exceptions.
B. How F ar will the Court G o?
C. Principles of E stoppel and W aiver. D. Unique Provisions as Outlined in S ome C ase L aw.
16
IV. CONCLUSION A. Groundswell, E merging T rends, or B usiness as U sual?
B. Will P olicy F orms C hange? C. Will M ajor Events D rive the D iscussion?
17
SAMPLE PROVISIONS IN POLICIES
18
Sample Provisions in Policies
SECTION V-PROFESSIONAL LIABILITY CONDITIONS . . .
2. Duties In The Event Of A “Wrongful Act,” “Claim” Or “Suit”
a. You must see to it that we are notified as soon as practicable of a
“wrongful act” that may result in a “claim”. To the extent possible, notice must
include:
(1) How, when and where the “wrongful act” took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the
“wrongful act.”
19
Notice to us of a “wrongful act” is notice of “claim”.
b. If a “claim” is received by any insured, you must:
(1) Immediately record the specifics of the “claim” and the date received;
and
(2) Notify us in writing as soon as practicable, but within the “policy period”
or any applicable Extended Reporting Period.
c. You and any other involved insured must:
(1) Immediately send us copies of any demands, notices, summonses or
legal papers received in connection with a “claim” or “suit”;
(2) Authorize us to obtain records and other information;
(3) Cooperate with us in the investigation, settlement or defense of the
“claim” or “suit”; and 20
(4) Assist us, upon our request, in the enforcement of any right against any
person or organization that may be liable to the insured because of injury or
damage to which this insurance may also apply.
d. No insureds will, except at their own cost, voluntarily make a payment,
assume any obligation, or incur any expense without our consent.
. . .
arises from a series of a related Professional Health Care Services, such
Professional Liability Incident will be deemed to have happened at the time of the
first act, error or omission in respect of which the Insured may be legally
obligated to pay Damages.
25. Professional Health Care Services means services in the treatment or
care of any person by an Insured in the practice of the Named Insured’s
profession as stated in the Declarations, including but not limited to:
A. the furnishing of medical, surgical, dental, nursing or other health care
services; therapy services; furnishing or dispensing of drugs, blood products, or
medical, surgical, dental or psychiatric supplies, equipment or appliances in
connection with such services; the providing of counseling or other social
services in connection with such care; 21
i. Immediately record the specifics of the “claim” and the date received;
and
ii. Notify us in writing of the “claim” as soon as practicable.
c. You and any other involved insured must:
i. Immediately send us copies of any demands, notices, summonses, or
legal papers received in connection with the “claim” or suit;
…
iii. Cooperate with us in the investigation, settlement, or defense of the
“claim” or suit; and
…
d. No insured will, except at that insured’s own cost, voluntarily make a
payment, assume any obligation, or incur any expense without our consent. 22
SECTION II. EXCLUSIONS
A. Exclusions Applicable to BOTH Insuring Agreements A. and B.
We will not defend any “Claim” or pay any “Damages” based upon, arising out of,
directly or indirectly relating to or in any way involving:
1. Any “Medical Incident”, “Event” or offense committed prior to the
effective date of this Policy if:
(i) Such “Medical Incident”, “Event” or offense was the subject of a notice
under any prior insurance policy or any prior or pending litigation; or
(ii) At the effective date of this Policy you knew or could have reasonably
foreseen that such “Medical Incident”, “Event” or offense might reasonably be
expected to be the basis of a “Claim”.
. . .
23
B. CLAIMS MADE PROVISION
This insurance applies to a wrongful act only if all of the following
conditions are satisfied:
1. the wrongful act took place on or after the Retroactive Date;
2. prior to the inception date of this policy period no Insured had
knowledge of such wrongful act and had no basis to reasonably anticipate a
claim that would be made. For purposes of this provision, prior knowledge
of a wrongful act includes, but is not limited to, any prior claim or possible
claim or circumstance referenced in your application;
3. the claim arising out of the wrongful act is first made against any
Insured during the policy period; and
4. the claim is reported in writing to us no later than 60 days after
the end of the policy period or,
24
insurance in the payment of judgments or settlements.
No other obligation or liability to pay sums or perform acts or services is
covered unless explicitly provided for under SECTION II-“Claims” Expenses
and Defense Costs.
2. Exclusions
This insurance does not apply to:
. . .
s. Any “claim”, “suit” or “wrongful act” that might
result in a “claim” or “suit”, of which any insured had knowledge or could
have reasonably foreseen, at the signing date of the application for this
insurance.
25
TEXAS LAW ON NOTICE/CONSENT TO SETTLE - CASES
26
In the context of an underinsured motorist claim, there may be instances when an insured's settlement
without the insurer's consent prevents the insurer from receiving the anticipated benefit from the insurance
contract; specifically, the settlement may extinguish a valuable subrogation right. Cf. Liberty Mut. Ins. Co.
v. Cruz, 1994 Tex. LEXIS 61 (Tex. 1994)(insured's failure to provide notice of suit prejudiced insurer as a
matter of law). 3 In other instances, however, the insurer may not be deprived of the contract's expected
benefit, because any extinguished subrogation right has no value. In the latter situation--where the insurer is
not prejudiced by the settlement--the insured's breach is not material. We conclude, therefore, that an
insurer who is not prejudiced by an insured's settlement may not deny coverage under an
uninsured/underinsured motorist policy that contains a settlement-without-consent clause. 4
3 Cruz involved an insurance policy provision that required the insured to provide notice of suit. In spite of this provision, the insurer in Cruz did not receive notice of suit
until 41 days after the entry of a $ 3.2 million default judgment. The insured's failure to comply with the notice provision prejudiced the insurer by denying its opportunity to
answer for the insured and litigate the merits of the suit or to appeal any adverse judgment.
4 Most other jurisdictions presented with this issue have likewise imposed a prejudice requirement, primarily on public policy grounds. See Thompson v. American States
Ins. Co., 687 F. Supp. 559, 564 (M.D. Ala. 1988); Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637, 640 (Ark. 1992); Rafferty v. Progressive American Ins. Co.,
558 So. 2d 432, 433 (Fla. App. 1990); Marsh v. Prestige Ins. Group, 58 Ill. App. 3d 894, 374 N.E.2d 1268, 1270, 16 Ill. Dec. 390 (Ill. App. 1978); Kapadia v. Preferred Risk
Mut. Ins. Co., 418 N.W.2d 848, 852 (Iowa 1988); MacInnis v. Aetna Life & Casualty Co., 403 Mass. 220, 526 N.E.2d 1255, 1257-58 (Mass. 1988); Silvers v. Horace Mann
Ins. Co., 324 N.C. 289, 378 S.E.2d 21, 27 (N.C. 1989); Wheeler v. Nationwide Mut. Ins. Co., 749 F. Supp. 660, 663 (E.D. Penn. 1990). But see Stevens v. Merchants Mut.
Ins. Co., 135 N.H. 26, 599 A.2d 490 (N.H. 1991)(enforcement of settlement-without-consent term did not depend upon showing of prejudice to insurer). Cf. Newark Ins. Co.
v. Ezell, 520 S.W.2d 318 (Ky. Ct. App. 1975)(showing of prejudice required in order for insurer to invoke a "consent to sue" clause as a basis for denying uninsured
motorist benefits); Bazinet v. Concord Gen. Mut. Ins. Co., 513 A.2d 279 (Me. 1986)(stating that when an insurer's subrogation rights are unaffected by a settlement, courts
may not permit settlement-without-consent clauses to defeat the claims of the insured); Tegtmeyer v. Snellen, 791 S.W.2d 737, 740 (Mo. App. 1990)(insurer who refused to
consent to a settlement for the full limits of a tortfeasor's liability policy was not prejudiced and therefore could not escape liability under a settlement-without-consent
exclusion); Thiringer v. American Motors Ins. Co., 91 Wash. 2d 215, 588 P.2d 191, 193 (Wash. 1978)(showing of prejudice required in order for insurer to deny personal
injury protection coverage on the basis that an insured's settlement failed to comply with a subrogation provision).
Because the stipulated facts establish as a matter of law that Gulf was not prejudiced by the
Hernandezes’ settlement with McCullough, Gulf may not escape liability by invoking the settlement-
without-consent exclusion.
Hernandez v. Gulf Group Lloyds
875 S.W.2d 691
27
Attempts by insurer coverage counsel to distinguish the Hernandez decision requiring
prejudice on the consent to settle provision if such constituted an actual policy
requirement, as opposed to timely notice of a claim, was soundly rejected by Texas
Supreme Court in Lennar Corp. v. Markel American Ins. Co., 413 S.W.3d 750 (Tex. 2013)
[referred to as Lennar II].
28
Lennar Corp. v. Markel Am. Ins. Co.,
413 S.W.3d 750
As noted above, Condition E of Markel's policy forbade Lennar, "except at [its] own
cost, [from] voluntarily mak[ing] any payment, assuming] any obligation, or
incurring] any expense. . . without [Markel's] consent". Though Markel did not
consent to Lennar's settlements with homeowners, it concedes, as Lennar I held,22
that this provision does not excuse its liability under the policy unless it was
prejudiced by the settlements. Lennar I relied on our decision in Hernandez v. Gulf
Group Lloyds.23
29
In this Court, Markel nevertheless asserts that it established prejudice as a matter
of law. It argues in its brief:
When an insurer is not asked to adjust a claim, provide a defense, or be involved
in negotiating [**15] a settlement, but is simply told it has to pay for a voluntary
payment, [*756] the insurer has suffered prejudice as a matter of law. That
prejudice is even more stark in this case, in which the insured actively solicited
claims which might otherwise never have been brought and made payments
which were not covered under the Policy.32Under Hernandez, an insurer
establishes prejudice from a settlement to which it did not agree by showing that
the insured's unilateral settlement was a material breach of the policy — that is,
that it significantly impaired the insurer's position. Markel's argument boils down
to this — had Lennar stonewalled the homeowners, fewer repairs would have
been made. On this record, that is a question of fact, not of law, which the jury
resolved in Lennar's favor.
But Condition E's consent-to-settlement requirement also finds expression in the
policy's Insuring Agreement, and Markel argues that it can insist on compliance
with this separate provision without proving prejudice. 30
Assuming Markel is right, that an insurer need not show prejudice from an insured’s
failure to comply with a policy requirement that is “considered essential to coverage” ,
the Loss Establishment Provision does not qualify, certainly not for the reasons Markel
argues. Its language is no clearer than Condition E’s, and the purpose of the two
provisions, precluding liability for the insured’s voluntary [**17] payments without the
insurer’s consent, is exactly the same. The Loss Establishment Provision is no more
central to the policy than Condition E, and the requirement that Markel show prejudice
from Lennar’s non-compliance with either operates identically. Markel failed to prove
that it was prejudiced in any way by Lennar cannot use those non-prejudicial
settlements
Settlements to establish the amount of its loss would plainly subvert the requirement
that Markel show that Lennar’s non-compliance was material. The jury’s failure to find
prejudice leaves but one conclusion: that Lennar’s loss as shown by the settlements is
the amount Markel is obligated to pay under the policy.
[*757] Absent prejudice to Markel, Lennar’s settlements with homeowners establish
both its legal liability for the property damages and the basis for determining the
amount of loss.
37
34
35
36
31
CONCURRENCE IN LENNAR II
Similarly, as in this case, we have repeatedly inserted into insurance contracts a
requirement that insurers must suffer harm or prejudice before they can deny coverage
based on certain provisions, even though the policies' unambiguous language would
have permitted the insurers to deny coverage without showing prejudice.
The Court essentially holds that it does not matter where in the policy a settlement-
without-consent provision is located, and it does not matter whether it is expressed as a
condition precedent, a covenant, an exclusion to coverage, or a definition of the scope of
coverage.
I would instead expressly hold that, as a matter of public policy, a prompt-notice,
prompt-service, or settlement-without-consent provision will negate coverage only if the
lack of prompt notice, prompt service, or consent causes harm or prejudice to the insurer.
32
East Texas Medical Center v. Lexington Ins. Co., 575 F.3d 520 At the end of the policy period, the loss run remained the only notice given to Lexington. In January 2004, very soon after the depositions but about seven months after both the lawsuit was filed and the policy period expired, the Medical Center first gave written notice of the Cornelius lawsuit to Lexington. It asserted that there was insufficient evidence to support the jury findings on any of the claims. The district court granted the motion, rendering judgment in favor of Lexington and against the Medical Center on all claims. The Medical Center's interpretation of the use of the word "or" is unreasonable. We cite Cutaia not for its discussion of prejudice, which has been superceded by subsequent developments in Texas insurance law. Rather, the case illustrates that requiring notice of the filing of suit even when an insurer has actual notice of the underlying incident is by no means an unprecedented or inexplicable requirement in an insurance contract.
33
EVOLUTION OF PRODIGY AND FINANCIAL INDUSTRIES/XL SPECIALTY
Prodigy Communications Corp. v. Agric. Excess; Surplus Ins. Co., 288 S.W.3d 374 (Tex. 2009), involved a claims made policy, where the insured was required to give written notice of the claim to the insurer as soon as practicable. There was a temporal provision as well, namely requiring claim notice no later than 90 days. Admission by the insurer that the claim was reported within 90 days, but contention not, “as soon as practicable.” Texas Supreme Court in Prodigy noted the distinction between “as soon as practicable” and “in no event later than 90 days” requirement as to its decision that the claim could not be denied under the facts.
“Today, we decide whether PAJ's notice-prejudice rule applies to a claims-made policy when the notice provision requires that the insured, "as a condition precedent" to its rights under the policy, give notice of a claim to its insurer "as soon as practicable . . ., but in no event later than ninety (90) days after the expiration of the Policy Period or Discovery Period." The parties dispute whether notice of the claim was given "as soon as practicable" [**3] but agree that the insured gave notice within the ninety-day cutoff period. The insurer also admits that it was not prejudiced by the delayed notice.
For the reasons explained below, we conclude that "notice as soon as practicable" was not an essential part of the bargained-for exchange under the claims-made policy at issue here. Following PAJ, we hold that, in the absence of prejudice to the insurer, the insured's alleged failure to comply with the provision does not defeat coverage.
We [**9] must decide whether, under a claims-made policy, an insurer can deny coverage based on its insured's alleged failure to comply with a policy provision requiring that notice of a claim be given "as soon as practicable," when (1) notice of the claim was provided before the reporting deadline specified in the policy; and (2) the insurer was not prejudiced by the delay.
First, unlike the PAJ policy, this one states unambiguously that the insured's duty to give "notice, in writing, as soon as practicable" is a "condition precedent" to coverage. Importantly however, our holding in PAJ did not rest on the distinction between conditions and covenants. 35
In PAJ, we recognized a "critical distinction" between the role of notice in claims-
made policies and the role of notice in occurrence policies and concluded that timely
notice was not an essential part of the bargained-for exchange in PAJ's occurrence-
based policy. 243 S.W.3d at 636. In reaching this conclusion, we were persuaded by
the Fifth Circuit's explanation that "'[i]n the case of an "occurrence" policy, any
notice requirement [**12] is subsidiary to the event that triggers coverage.'" Id.
(quoting Matador Petroleum Corp. v. St. Paul Surplus Lines Ins. Co., 174 F.3d 653,
658 (5th Cir. 1999)).
In a claims-made policy, the requirement that notice be given to the insurer "as soon
as practicable" serves to "maximiz[e] the insurer's opportunity to investigate, set
reserves, and control or participate in negotiations with the third party asserting the
claim against the insured." By contrast, the requirement that the claim be made
during the policy period "is directed to the temporal boundaries of the policy's basic
coverage terms . . . . [This type [**18] of notice] is not simply part of the insured's
duty to cooperate, but defines the limits of the insurer's obligation, and if there is no
timely notice, there is no coverage." Similarly, a notice provision requiring that a
claim be reported to the insurer during the policy period or within a specific number
of days thereafter "define[s] the scope of coverage by providing a certain date after
which an insurer knows it is no longer liable under the policy."
36
The role of notice in claims-made policies has been described as follows: Claims made or discovery policies are essentially reporting policies. If the [*381] claim is reported to the insurer during the policy period, then the carrier is legally obligated to pay; if the claim is not reported during the policy period, no liability attaches. Claims made policies require notification to the insurer to be within a reasonable time. Critically, however, claims made policies require that that notice be given during the policy period itself. In a claims-made policy, when an insured gives notice of a claim within the policy period or other specified reporting [**24] period, the insurer must show that the insured's noncompliance with the policy's "as soon as practicable" notice provision prejudiced the insurer before it may deny coverage. Accordingly, we conclude that Prodigy's obligation to provide AESIC with notice of [**25] a claim "as soon as practicable" was not a material part of the bargained-for exchange under this claims-made policy. See Hernandez, 875 S. W.2d at 693. In a claims-made policy, when an insured notifies its insurer of a claim within the policy term or other reporting period that the policy specifies, the insured's failure to provide notice "as soon as practicable" will not defeat coverage in the [*383] absence of prejudice to the insurer.”
37
Financial Indus. Corp. v. XL Specialty Ins. Co., 285 S.W.3d 877 (Tex. 2009) was a claims made policy that contained a condition precedent to coverage that the insured give the insurer written notice of any claim “as soon as practicable.” No temporal deadline. Was a claims made policy, but not a “claims made and reported policy.” Texas Supreme Court in XL Specialty required a showing of prejudice by the insurer to allow denial of coverage, regardless of the “claims made” nature of the policy, where notice was indeed given within the policy period. Fin. Indus. Corp. v. XL Specialty Ins. Co., 285 S.W.3d 877 “This case comes before us on a certified question from the United States Court of Appeals for the Fifth Circuit. XL's claims-made policy differs slightly from the Prodigy policy in that XL's policy requires only that notice of a claim be given "as soon as practicable" and does not contain a clear-cut reporting deadline. See id. at 379 n.7 (discussing difference between standard "claims-made" and "claims-made-and-reported" policies).
38
For the reasons stated above and explained more fully in Prodigy
Communications Corp. v. Agricultural Excess & Surplus Insurance Co., 288
S.W.3d 374, we answer the certified question in the affirmative and hold that an
insurer must show prejudice to deny payment on a claims-made policy, when
the denial is based upon the insured's breach of the policy's prompt-notice
provision, but the notice is given within the policy's coverage period.”
39
Claims Made and Reported Policies; Distinction? Argument can be made that even under PAJ, Prodigy, and XL Specialty,
prejudice is not required for “claims made and reported” policy if there is a temporal
requirement with respect to the giving of notice, and it has not been met.
40
However, see concurrence in Lennar II, essentially stating that
despite a “bright line” distinction between a condition precedent and insuring
agreement language requiring consent to settle, that all insurance policies
should be subject to a prejudice requirement as to notice provisions, consent
provisions, cooperation clauses, and any other portion of the policy, regardless
of the type of policy.
41
DUTY TO DEFEND/CONFLICT
-TEXAS CASES
42
NORTHERN COUNTY MUTUAL INSURANCE CO.
v.
TIMOTEO DAVALOS
SUPREME COURT OF TEXAS
140 S.W.3d 685
The automobile liability policy in this case obligated the insurer to provide a defense for
covered claims and granted the insurer the right to conduct that defense. The insured, however,
refused the insurer’s tendered defense because of a disagreement about where the case should be
defended. The issue we must decide is whether a disagreement over venue is a sufficient reason
for the insurer to lose its right to conduct the defense, while still remaining obligated to pay for it.
We conclude that this venue impasse was not a sufficient reason to take the contractual right to
conduct the defense away from the insurer.
Every disagreement about how the defense should be conducted cannot amount to a conflict of
interest within Traver’s meaning. If it did, the insured, not the insurer, could control the defense
by merely disagreeing with the insurer’s proposed actions. This is not at all what we
contemplated in Traver.
43
Who Picks Counsel: Firm or Insurer?by BRENDA SAPINO JEFFREYS
O'Donnell, Ferebee, Medley & Frazer of Houston wants to select the lawyer who will defend the firm from some malpractice counterclaims instead of using a defense attorney picked by its liability insurer.
In a petition filed April 3 in the 269th District Court in Harris County, O'Donnell Ferebee seeks a declaratory judgment that it has a conflict of interest with Travelers Casualty and Surety Co. of America that would prevent Travelers from selecting the defense counsel.
"Therefore, defendant has the duty
to defend O'Donnell Ferebee and the law firm can choose the counsel to rep-resent it and that defense will be paid for by defendant," O'Donnell Ferebee alleges in O'Donnell, Ferebee, Medley & Frazer PC v. Travelers Casualty and Surety Co. of America.
John Schutza, the Travelers claim counsel handling the O'Donnell Ferebee claim, did not return a telephone mes-sage left at his office in Richardson or respond to an emailed request for comment.
O'Donnell Ferebee alleges in the petition that it filed a lawsuit in 2012 against former clients for attorney fees "owing from the trial of a case." The defendants in that fee collection suit
filed counterclaims alleging malpractice "under a variety of theories."
In the underlying case, O'Donnell Ferebee filed a motion seeking a no-evi-dence summary judgment in response to the counterclaims.
O'Donnell Ferebee alleges that Travelers notified it by letter on Feb. 7 that it would provide the firm with a defense but reserved the right to limit coverage and stated there may be no coverage for "damages for civil or crimi-nal fines; sanctions; liquidated damages; payroll or other taxes; penalties; the multiplied portion of any multiplied damages award; equitable or injunction relief; any return, withdrawal, restitu-tion or reduction of professional fees, profits or other charges; or damages or types of relief deemed uninsurable under applicable law."
"The letter then sought to control the defense of the claim by assigning the defense to a law firm chosen by defendant," O'Donnell Ferebee alleges in the petition.
O'Donnell Ferebee alleges that a conflict of interest prevents Travelers from "conducting the defense" in the
underlying litigation because it selected defense counsel and because the facts to be adjudicated in the underlying liti-gation are the same as the facts upon which the defendant will determine coverage.
O'Donnell Ferebee requests that the court declare that Travelers has a con-flict of interest in the underlying case, and the firm can employ its own inde-pendent counsel for the counterclaim, and Travelers should pay reasonable attorney fees for the defense.
The firm also seeks up to $75,000 for costs and attorney fees for the declara-tory judgment action.
John Venzke, who represents O'Donnell Ferebee in the declaratory judgment suit, said O'Donnell Ferebee would like to use the lawyer repre-senting it in the underlying litiga-tion to defend it from the malpractice counterclaims.
Venzke, of the Venzke Law Firm of Houston, said O'Donnell Ferebee filed the declaratory judgment action to get attention from Travelers.
"We are trying to force the issue and to get the lawyer we've got," Venzke said.
O'Donnell Ferebee seeks a declaratory judgment that it has a conflict of interest with Travelers Casualty and Surety Co. of America that would prevent Travelers from selecting the defense counsel.
Texas Lawyer April 14, 2014
44
CALIFORNIA RULE
– CUMIS COUNSEL
45
SAN DIEGO FEDERAL CREDIT UNIION
v.
CUMIS INS. SOCIETY, INC.
162 Cal. App. 3D 358, 208
Cal. Rptr. 494 (Cal. 1984)
Where the insurer defends under a reservation of rights which creates an actual conflict of
interest between the insurer and insured, the insurer is obligated to furnish independent counsel to
represent its insured.
46
CAL. CIV. CODE
§ 2860. Conflict of interest; duty to provide independent counsel; waiver;
qualifications of independent counsel; fees; disclosure of information
(a) If the provisions of a policy of insurance impose a duty to defend upon an
insurer and a conflict of interest arises which creates a duty on the part of the
insurer to provide independent counsel to the insured, the insurer shall provide
independent counsel to represent the insured unless, at the time the insured is
informed that a possible conflict may arise or does exist, the insured expressly
waives, in writing, the right to independent counsel. An insurance contract may
contain a provision which sets forth the method of selecting that counsel
consistent with this section.
(b) For purposes of this section, a conflict of interest does not exist as to allegations
or facts in the litigation for which the insurer denies coverage; however, when an
insurer reserves its rights on a given issue and the outcome of that coverage
issue can be controlled by counsel first retained by the insurer for the defense of
the claim, a conflict of interest may exist. No conflict of interest shall be deemed
to exist as to allegations of punitive damages or be deemed to exist solely
because an insured is sued for an amount in excess of the insurance policy limits.
47
(c) When the insured has selected independent counsel to represent him or her, the
insurer may exercise its right to require that the counsel selected by the insured
possess certain minimum qualifications which may include that the selected
counsel have (1) at least five years of civil litigation practice which includes
substantial defense experience in the subject at issue in the litigation, and (2) errors
and omissions coverage. The insurer's obligation to pay fees to the independent
counsel selected by the insured is limited to the rates which are actually paid by the
insurer to attorneys retained by it in the ordinary course of business in the defense
of similar actions in the community where the claim arose or is being defended.
This subdivision does not invalidate other different or additional policy provisions
pertaining to attorney's fees or providing for methods of settlement of disputes
concerning those fees. Any dispute concerning attorney's fees not resolved by these
methods shall be resolved by final and binding arbitration by a single neutral
arbitrator selected by the parties to the dispute.
(d) When independent counsel has been selected by the insured, it shall be the duty of
that counsel and the insured to disclose to the insurer all information concerning
the action except privileged materials relevant to coverage disputes, and timely to
inform and consult with the insurer on all matters relating to the action. Any claim
of privilege asserted is subject to in camera review in the appropriate law and
motion department of the superior court. Any information disclosed by the insured
or by independent counsel is not a waiver of the privilege as to any other party. 48
(e) The insured may waive its right to select independent counsel by signing the
following statement: "I have been advised and informed of my right to select
independent counsel to represent me in this lawsuit. I have considered this matter
fully and freely waive my right to select independent counsel at this time. I
authorize my insurer to select a defense attorney to represent me in this lawsuit."
(f) Where the insured selects independent counsel pursuant to the provisions of this
section, both the counsel provided by the insurer and independent counsel
selected by the insured shall be allowed to participate in all aspects of the
litigation. Counsel shall cooperate fully in the exchange of information that is
consistent with each counsel's ethical and legal obligation to the insured. Nothing
in this section shall relieve the insured of his or her duty to cooperate with the
insurer under the terms of the insurance contract. Cal. Civ. Code § 2860
49
INSURED CONSENTING TO SETTLEMENT/
NO REIMBURSEMENT RIGHT
FOR INSURER
50
EXCESS UNDERWRITERS AT LLOYD’S, LONDON AND CERTAIN COMAPANIES
SUBSCRIBING SEVERALLY BUT NOT JOINTLY TO POLICY NO. 548/TA4011F01
v.
FRANK’S CASING CREW & RENTAL TOOLS, INC.
SUPREME COURT OF TEXAS
246 S.W.3d 42; 2008
In this case, which involves excess coverage, the insured consented to the settlement but not to
the excess insurer’s asserted reimbursement right. We must decide whether to recognize an
exception to the rule in Matagorda County and imply a reimbursement obligation when the policy
involves excess coverage, the insurer has no duty to defend under the policy, and the insured
acknowledges that the claimant’s settlement offer is reasonable and demands that the insurer
accept it. Because none of these distinctions alleviates the concerns that drove the Court’s
analysis in Matagorda County, we decline to recognize such and exception.
51
TEXAS CASE EXCERPTS
52
American Physicians Ins. Exchange v. Garcia, 876 S.W.2d 842
To decide this case we need not determine how many policies provided Garcia indemnity coverage. The consecutive
policies, covering distinct policy periods, could not be "stacked" to multiply coverage for a single claim involving
indivisible injury. Even assuming that Garcia was covered under all three "occurrence" policies, APIE's Stowers duty to
settle was never triggered.
Simply because a "Claim Occurrence" 21 extends throughout several policy [*854] periods does not raise the per-
occurrence indemnity cap established in every policy. 22 Even the jurisdiction embracing the broadest coverage trigger rule
has held that multiple coverage does not permit an insured to "stack" the limits of multiple policies that do not overlap:
21. "Each Claim Occurrence," a term of art defined in the APIE policy, appears to be an adaptation of "occurrence,"
a term of art from standard-form commercial liability policies, to the unique characteristics of medical malpractice
risks and to other language in the APIE policy. "Occurrence" is typically defined in the following manner:
An accident, including continuous or repeated exposure to substantially the same general conditions,
which results in bodily injury or property damage that is neither expected nor intended from the
standpoint of the insured. Continuous or repeated exposure to substantially the same general conditions
shall be considered as arising out of one occurrence.
In contrast, "Each Claim Occurrence" means "each act or occurrence or series of acts or occurrences arising out
of one event." APIE POLICY § II.C. The APIE policy language that defines the scope of "Each Claim Occurrence"
to include "[a] series of acts or occurrences," is apparently intended to have a coverage effect similar to the
"continuous or repeated exposure" unifying directive in commercial liability policies -- but in a manner that is
meaningful in the medical context. For example, medical malpractice frequently involves an operation or an
extended course of treatment. A malpractice event may involve numerous independent grounds of negligence that
cannot be unified as "repeated exposure to substantially the same conditions," but that nevertheless constitute "a
series of acts or occurrences" that are related and form a single malpractice claim.
53
Although the triggering of multiple policies would provide multiple funding sources and thereby have a considerable
effect on any contribution claims between ICA and APIE, it cannot lead to the conclusion that Garcia's total coverage for
a "continuing" Claim Occurrence somehow exceeds the "Per Claim Occurrence" limit stated in every policy he
purchased.
If a single occurrence triggers more than one policy, covering different policy periods, then different limits may have
applied at different times. In such a case, the insured's indemnity limit should be whatever limit applied at the single
point in time during the coverage periods of the triggered policies when the insured's limit was highest. The insured is
generally in the best position to identify the policy or policies 24 that would maximize coverage. Once the applicable limit
is identified, all insurers whose policies are triggered must allocate funding of the indemnity limit among themselves
according to their subrogation rights.
Downhole Navigator, LLC v. Nautilus Ins. Co., 686 F.3d 325
The insured argued a reservation of rights created a conflict of interest, that the facts to be adjudicated in the operator's
suit were the same facts upon which coverage depended. But the operator's suit concerned whether the insured
negligently performed its work. Although the policy excluded coverage for testing or consulting services, the operator's
suit would not decide if the insured was testing or consulting. Other issues — whether "professional" or "data processing"
services were provided, or whether damage from the work should have been expected — could have been critical
coverage issues, but were irrelevant to whether the insured acted negligently. The Texas Supreme Court had never held
that a conflict arose any time an attorney offered by an insurer could be tempted — in violation of his duty of loyalty to
the insured — to develop facts in the underlying lawsuit that could be used to exclude coverage. Because the facts to be
adjudicated in the operator's suit were not the same facts upon which coverage depended, the potential conflict did not
disqualify the attorney offered by the insurer. The insured was not entitled to reimbursement for the cost of independent
counsel.
It is also well-settled that an insurer's "right to conduct the defense includes the authority to select the attorney who will
defend the claim and to make other decisions that would normally be vested in the insured as the named party in the
case." N. Cnty. Mut. Ins. Co. v. Davalos, 140 S.W.3d 685, 688 (Tex. 2004). "Under
• RIGHT TO CONTROL THE DEFENSE (THIRD PARTY POLICIES)
• INDEMNITY OBLIGATION (FIRST AND THIRD PARTY POLICIES)
73
• DIFFERENT ASPECTS OF DUTY
• THIRD PARTY POLICIES
74
• NOTICE OF OCCURRENCE • a. You must see to it that we are
notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence"
or offense took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the “occurrence” or offense.
75
• NOTICE OF CLAIM OR SUIT
• b. If a claim is made or "suit" is brought against any insured, you must:
(1) Immediately record the specifics of the claim or "suit" and the date received; and
(2) Notify us as soon as practicable.
You must see to it that we receive written notice of the claim or "suit" as soon as practicable.
76
• SUMMONS OR NOTICES
• You and any other involved insured must:
(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit";
77
• AUTHORIZATIONS
• (2) Authorize us to obtain records and other information;
78
• INVESTIGATION, SETTLEMENT, DEFENSE
(3) Cooperate with us in the investigation or settlement of the claim or defense against the “suit”; and
79
• ENFORCEMENT OF RIGHTS
• (4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply.
80
• VOLUNTARY PAYMENT
• d. No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.
81
• SUBROGATION
• 8. Transfer of Rights of Recovery Against Others to us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring “suit” or transfer those rights to us and help us enforce them.
82
• FIRST PARTY POLICIES
• NOTICE OF LOSS
• (2) Give us prompt notice of the loss or damage. Include a description of the property involved.
• (3) As soon as possible, give us a description of how, when and where the loss or damage occurred.
83
• PROTECT PROPERTY • (4) Take all reasonable steps to protect the
Covered Property from further damage, and keep a record of your expenses necessary to protect the Covered Property, for consideration in the settlement of the claim. This will not increase the Limit of Insurance. However, we will not pay for any subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss. Also, if feasible, set the damaged property aside and in the best possible order for examination.
84
• PROVIDE INVENTORY
• (5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed.
85
• INSPECTION • (6) As often as may be reasonably
required, permit us to inspect the property proving the loss or damage and examine your books and records.
• Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records.
86
• SWORN PROOF OF LOSS
• (7) Send us a signed, sworn proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.
87
• INVESTIGATION AND SETTLEMENT
• (8) Cooperate with us in the investigation or settlement of the claim.
88
• EXAMINATION UNDER OATH
• b. We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured's books and records. In the event of an examination, an insured's answers must be signed.
89
• BURDEN OF PLEADING
90
• BURDEN OF PROOF
91
• PREJUDICE ELEMENT
• IS IT REQUIRED?
• HOW IS IT REQUIRED?
92
• BURDEN OF SECURING FACT FINDING
93
• STRATEGIES FOR THE INSURED TO NEGATE PREJUDICE-THIRD PARTY POLICIES
94
• NOTICE OF OCCURRENCE
• NOTICE OF CLAIM OR SUI-SUMMONS OR NOTICES
• AUTHORIZATIONS
• INVESTIGATION, SETTLEMENT, OR DEFENSE
95
• VOLUNTARY PAYMENT
• SUBROGATION
96
• STRATEGIES FOR THE INSURED TO NEGATE PREJUDICE-FIRST PARTY POLICIES