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, February 12, 2020

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. However, some state legislatures are pushing back.

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.

The Restatement's position on extrinsic evidence in insurance contract interpretation may lead to more significant uncertainty and result in higher costs to resolve insurance coverage disputes if courts rely on external evidence rather than the plain language of the agreements to interpret agreements.

Similarly, the problems of how to determine which policy or policies to trigger for long-tail claims--such as environmental losses or asbestos claims where the damages progress over time or do not manifest for a lengthy period--and how to allocate costs among multiple triggered policies continue to vex courts.

Listen as our panel of distinguished insurance practitioners outlines the Restatement's most important takeaways, discusses how it may influence courts addressing coverage claims, and provides insight into the potential uses of the Restatement by counsel to support 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 notable matters:

  • 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 the 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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