ALI's 2018 Restatement on Liability Insurance: What Insurance Industry Professionals Need to Know

The Plain-Meaning Presumption Rule; Triggers of Coverage; Allocation of Long-Tail Claims; Consequences of Breach of Duty to Defend

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, March 6, 2019

Recorded event now available

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Program Materials

This CLE webinar will present an overview of the significant coverage issues in the recently adopted American Law Institute (ALI) Restatement on Liability Insurance, which took almost a decade to finalize. Given the breadth and scope of the Restatement, the panel will devote significant attention to the most critical and practical issues, including when it would provide for a duty to defend, how it treats reservations of rights, and its approach to relationships between insurer, insured and defense counsel.

Description

The significance of the new Restatement on the insurance industry is in dispute. Historically, Restatements published by the ALI have had an enormous influence on binding legal decisions. The U.S. Supreme Court cited ALI publications 71 times during the 2013 to 2015 terms of Court, and state and federal courts have cited ALI publications over 200,000 times. Several courts cited the Restatement of the Law of Liability Insurance even before the ALI formally voted to adopt it. Since adoption, the number of citations to, and courts' reliance on, the Restatement has accelerated.

And while the scope of the Restatement is broad, our panel will focus on those areas of concern to insurance coverage professionals, including the plain-meaning rule to policy interpretation, the duty to defend, claim settlement, bad faith, and allocation in "long-tail" or continuous injury claims.

For instance, the Restatement's position on including extrinsic evidence in insurance contract interpretation may lead to greater uncertainty and result in higher costs in resolving insurance coverage disputes because courts may be led to interpret insurance forms in light of external evidence rather than under the plain language of the agreements themselves.

Similarly, courts across the country have long been vexed with the problem of determining which policy or policies to trigger for long-tail claims--such as environmental losses or asbestos claims--where the damage continues or progresses over time or does not manifest itself for a lengthy period, as well as how to allocate such damage among multiple triggered policies. This issue is also addressed in the Restatement.

Listen as our panel of distinguished insurance practitioners outlines the Restatement's most important takeaways, discusses whether it is likely to influence courts addressing coverage issues, and provides insight into how the Restatement will most likely be used by counsel consistent with their clients' interests.

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Outline

  1. Overview of the new restatement
  2. High-priority areas
    1. Duty to defend
      1. Extrinsic evidence and the duty to defend
      2. Defense counsel's sharing of information with the insurer
      3. Supplementing the reservation of rights
      4. Liability of insurers for defense counsel's malpractice
      5. No reimbursement of defense costs
    2. Claim settlement
    3. Bad faith
    4. Allocation in "long-tail" or continuous injury claims
  3. Review of recent cases

Benefits

The panel will review these and other key issues:

  • How does the Restatement treat the plain-meaning presumption rule to policy interpretation?
  • What impact does the Restatement have on communications between insurers and defense counsel?
  • How does the Restatement treat bad faith and the duty to defend?
  • What are remedies for a breach of duties?
  • How does the Reinstatement address reimbursement of defense costs?
  • To what extent are insurance practitioners already using--and courts adopting--the new Restatement?

Faculty

Foggan, Laura
Laura A. Foggan

Partner
Crowell & Moring

Ms. Foggan has practiced for more than 25 years and has participated in more than 200 appeals nationwide and has made...  |  Read More

Mason, Lawrence
Larry D. Mason

Partner
Goldberg Segalla

Mr. Mason is a Goldberg Segalla LLP Partner where he dedicates his practice to first-party and third-party coverage,...  |  Read More

Oshinsky, Jerold
Jerold Oshinsky

Partner
Kasowitz Benson Torres

Mr. Oshinsky has more than 30 years of experience litigating insurance recovery cases in federal and state courts...  |  Read More

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48 hours after event

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