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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Insurance

Date & Time
  • event Date

    Wednesday, May 5, 2021

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will provide insurance counsel with the latest developments in liability allocation for claims involving multi-year losses under occurrence-based policies, how allocation is impacted by gaps in coverage, whether the reason for coverage affects allocation, the impact of policy wording on allocation, and what arguments should be made by those seeking to maximize coverage.

Faculty

Michael F. Aylward
Partner
Morrison Mahoney, LLP

Mr. Aylward chairs the firm's complex insurance claims resolution group. For the past four decades, he has represented insurers and reinsurers in disputes around the country concerning the application of liability insurance policies to commercial claims involving intellectual property disputes, environmental and mass tort claims and construction defect litigation as well as bad faith claims arising out of such disputes. Mr. Aylward has also served as an AAA-certified arbitrator in numerous insurance coverage matters and has testified as an expert in matters involving coverage and reinsurance issues arising out of such claims. He has taken a leading role in the major defense bar associations, including DRI, FDCC and IADC and is a founding member and Immediate Past-President of the American College of Coverage Counsel, a peer-reviewed group of the pre-eminent insurance lawyers in the United States and Canada.

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Lorelie S. Masters
Partner
Hunton Andrews Kurth LLP

Ms. Masters handles all aspects of complex, commercial litigation and arbitration. She has advised clients on a wide range of liability coverages, including insurance for environmental, employment, directors and officers, fiduciary, property damage, cyber, and other liabilities. Ms. Masters also handles various types of first-party property insurance claims, including claims under boiler and machinery, business-interruption, contingent business-interruption, extra expense, disability and other related coverages.

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Description

Allocating indemnity presents challenges for both policyholders and insurers in continuous, indivisible damage claims straddling more than one policy period with multiple insurers and coverage gaps. Under the pro-rata allocation method, each insurer is responsible for losses during its "time on risk," subject to noncumulation, stacking, and other issues. The policyholder is responsible for the losses incurred during any period it was uninsured.

Some states recognize an "unavailability of insurance" exception to pro-rata allocation so that losses are not allocated to the policyholder for any period where insurance was "unavailable" in the market. What "unavailable" means and who must prove it are open questions, and the exception's application has not been uniform.

The validity of the "unavailability exception" continues to vex courts, insurers, and insureds under commercial general liability policies. The issue arises in both coverage and reinsurance litigation. Those seeking to maximize coverage favor the exception. Insurers argue that the exception is inconsistent with policy language limiting liability "during the policy period."

Listen as our authoritative panel of insurance attorneys examines the latest developments in liability allocation and the unavailability exception as well as best practices to advocate and resolve priority of coverage disputes involving allocation of liability.

Outline

  1. Contract language bearing on allocation issues
  2. Allocation methods
  3. The "unavailability" exception
    1. Dealing with deductibles and punitive damage claims
  4. Policyholder perspective
  5. Insurer perspective

Benefits

The panel will review these and other key issues:

  • What does it mean for coverage to be unavailable?
  • Who has the burden of proving unavailability decades after the fact?
  • Does a policy's inclusion or incorporation of noncumulation language mandate all sums allocation of defense costs?
  • Are losses prorated by time, policy limits, maximum loss, or some other method?