Insurance Consent to Settle Hammer Clauses: Dangers for Insureds and Exposure for Insurers

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


Conducted on Wednesday, April 29, 2020

Recorded event now available

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Program Materials

This CLE webinar will prepare both insured's and insurer's counsel for the legal quagmire of consent to settle clauses, including those paired with hammer clauses. Though an insured might desire the ability to prevent settling a perceived as groundless claim, under these clauses, an insurer may be able to later use that refusal as a defense to a failure to settle claim. Recent decisions, however, are eroding that protection.

Description

Some view consent to settle clauses as a wolf in sheep's clothing. Insureds--especially in the realm of professional malpractice -- may think they have negotiated a key concession from the carrier. The carrier may have secured a powerful defense tool in a possible future bad faith action, a power, though, that courts are eroding. This webinar examines consent to settle clauses from both an insured and insurer perspective.

When an insured, under a consent to settle clause, instructs the insurer to reject a settlement offer, the insurer may acquire certain rights under the language of the insurance contract. Namely, the insurer may be able to cease payments under the policy and may become effectively immune to claims of bad faith failure to settle.

Some courts have taken a dim view of such clauses. Under a more insured-friendly view of consent to settle, these courts focus on the conduct of the insured and inquire whether the insured acted reasonably in refusing a consent to settle clause. Also relevant in these contexts is whether the defense is under a reservation of rights.

Listen as this panel, experienced in dealing with insureds and insurers alike, provides essential perspectives on the emerging legal principles concerning consent to settle clauses.

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Outline

  1. Parameters of consent to settle clauses
  2. Technical requirements of documentation of settlement and rejection
  3. Factors which favor insurers
  4. Factors which favor insureds

Benefits

The panel will review these and other significant matters:

  • Identifying and interpreting consent to settle clauses
  • The role of reservation of rights
  • Why courts may be more insurer (or more insured) favorable in outcomes

Faculty

Blumberg, Robert
Robert (Beau) Blumberg

Attorney
Deutsch Blumberg & Caballero

Mr. Blumberg is a Partner with Deutsch, Blumberg, & Caballero P.A., where he practices personal injury, medical...  |  Read More

Jones, Sara
Sara Perkins Jones

Attorney
Anderson & Kreiger

Ms. Jones' practice includes insurance coverage issues, complex commercial disputes, and appeals. She has litigated...  |  Read More

Wright, Steven
Steven P. Wright

Partner
K&L Gates

Mr. Wright is a partner in the Boston office of K&L Gates and has a broad-based commercial litigation practice. He...  |  Read More

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