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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Insurance

Date & Time
  • event Date

    Monday, March 25, 2024

  • 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 analyze and explain critical estoppel and waiver issues for insurers and policyholders, including insurer conduct that supports claims, its impact on coverage claims, and conflicting court rulings on using the doctrine to allow, extend, or even create coverage.

Faculty

Jason Kosek
Shareholder
Anderson Kill

Mr. Kosek is a shareholder in Anderson Kill's New York office. He assists clients in a broad array of issues, including insurance coverage, regulatory, FCPA, labor law, negligence, nuisance, trespass, products liability and breach of contract, with a focus on construction and regulatory matters.

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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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Seán McCabe
Attorney
Anderson Kill

Mr. McCabe is an attorney in the New York office of Anderson Kill and a member of the firm’s White Collar Defense and Insurance Recovery groups. He has had a key role in trial preparation and legal research on federal criminal cases arising out of the Southern District of New York, including major white collar criminal cases, conspiracy, and RICO cases. Mr. McCabe also represents policyholders in insurance coverage disputes. Before entering private practice, he worked at the Philadelphia District Attorney’s Office as part of an LLM Program of Temple University.  Mr. McCabe also interned with the Hon. Charles J. Cunningham III in Philadelphia, who presided over state criminal and civil matters.  In Ireland, Mr. McCabe worked with a large, multidisciplinary firm where he served as a summer associate for a partner, focusing on commercial, criminal, and malpractice litigation.  He is admitted to practice in New York State Court and Federal District Courts for the Southern and Eastern Districts of New York.

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Description

Estoppel and waiver are defenses that policyholder often raises in insurance coverage cases that, when successful, can prevent insurers from raising otherwise viable exclusions and other coverage limitations. While related and similar, estoppel and waiver differ in their prima facie elements, burden of proof, and impact on coverage.

Estoppel and waiver arise most commonly in three different types of cases: (1) where the insurer or its agent acts in such a manner that the policyholder reasonably believed that a loss was covered; (2) where the insurer takes control of the insured’s defense without adequately reserving its rights and (3) where the insurer is tardy in its response to the insured’s claim. For the most part, these defenses rely on common law elements, although a few states, notably New York, provide statutory remedies. A key issue in all of these cases is whether the insurer’s inaction or misconduct may create coverage for claims that would otherwise never had been covered or whether a court may merely preclude an insurer from arguing that coverage was forfeited, as by untimely notice or policy exclusions.

Listen as our panel of experienced insurance practitioners provides their insight and analysis of this area of the law and explains the difference between these two doctrines and what steps both the insurer and insured can take to avoid changing or jeopardizing coverage.

Outline

  1. Estoppel and waiver in general
    1. Estoppel: elements and burden of proof
    2. Waiver: elements and burden of proof
    3. Prejudice to the insured
  2. What acts by the insurer constitute estoppel and waiver
  3. Effect of estoppel and waiver and creation of coverage
  4. Duties imposed on the insured and the doctrine of reasonable expectations: states that have and have not adopted

Benefits

The panel will review these and other key issues:

  • Acts by the insurer that can support a claim of estoppel and/or waiver
  • Effect of estoppel and waiver on a claim for coverage
  • Whether and when coverage can be created under the doctrines of estoppel and waiver
  • Duties imposed on an insured and the applicability of the doctrine of reasonable expectations