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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

    Thursday, March 7, 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 webinar will discuss the increasing phenomenon of having allegations of bad faith against an insurer based on conduct, strategies, and statements made during litigation. The panel will then recommend strategies to minimize the risk of bad faith.

Faculty

Michael Young
Partner
Reichardt Noce & Young, LLC

Mr. Young is a litigation partner at Reichardt Noce & Young, LLC in St. Louis, Missouri, with a primary emphasis in the practice of insurance law and bad faith. For over twenty years, he has represented insurers in complex insurance coverage and extra-contractual matters at all stages of the claims process. Mr. Young has advised insurers in drafting policy language and claims forms, advocating legislative changes and developing claims best practices. He is a frequent speaker on insurance law and extra-contractual topics, including serving as faculty for educational workshops and other industry training, and has written numerous articles in this field. Mr. Young represents insurer clients throughout Missouri and Illinois.

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Nicholas P. Arnold
Partner
Blue Williams, LLC

Mr. Arnold joined Blue Williams in 2020 as a partner in the Metairie office. He graduated from Louisiana State University with a Bachelor of Science in Business Administration. Mr. Arnold obtained a Juris Doctor from Loyola University New Orleans College of Law, where he served as Chairman of the Moot Court Board and was named a member of The Order of the Barristers. He has been in practice since 2008, focusing on general civil defense litigation, including insurance defense, property and casualty litigation, business disputes and advisory work. Mr. Arnold serves on the Board of Directors for the New Orleans Association of Defense Counsel and the New Orleans Claims Association. He is licensed to practice in Louisiana and Texas state courts. Mr. Arnold is also admitted to the United States District Court for the Eastern, Middle, and Western Districts of Louisiana; the Southern District of Texas, and the United States Court of Appeals for the Fifth Circuit.

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Description

Though not unlimited, and subject to jurisdictional variations, the litigation "privilege" or "immunity" prevents parties and their lawyers from being sued by the opposing parties for what they said or did as part of a judicial or quasi-judicial proceeding. Some courts, however, have not applied these rules with equal force in insurance litigation.

Some courts have required insurers to defend bad faith allegations based on litigation strategies or conduct routinely employed by insurers. For example, bad faith has been alleged based on assertions of overzealous advocacy, that claims or defenses were pleaded or maintained without sufficient evidentiary basis, purported misrepresentation of facts or policy terms, claims of failure to produce all relevant requested documents, alleged overly aggressive assertion of privilege or work product, so-called questionable appeals, and for allegedly filing too many declaratory judgment actions.

The logic of these courts varies but might be that any act that could theoretically support the contention that an insurer failed to uphold its express or implied duties to the insured may be the basis of a bad faith claim. Stated differently, these courts may suppose that no privilege or immunity can apply to any act or statement that could possibly state a claim for bad faith.

Listen as this panel discusses how allegations of bad faith against an insurer are sometimes generated from conduct, strategies, and statements made during litigation, and then recommend strategies to minimize the risk of bad faith.

Outline

  1. Origins and history of the litigation privilege
  2. Nexus between communication and proceedings
  3. Qualified vs. absolute privileges
  4. Exceptions, malice, and cross-jurisdictional issues
  5. Applying privilege outside of litigation
    1. Pre-suit
    2. Post-suit
    3. Non-litigation situations
  6. Strategies for avoiding possible denial of privilege or immunity in common scenarios
    1. Zealous and aggressive prosecution or defense of an insurance company's position
    2. Claims or defenses pleaded or maintained without sufficient evidentiary basis
    3. Malpresentation of facts or policy terms
    4. Failure to produce all relevant requested documents
    5. Overly aggressive assertion of privilege or work product
    6. Questionable appeals
    7. Filing declaratory judgment actions
    8. Post-suit settlement offers

Benefits

The panel will review these and other key issues:

  • What strategies should insurance counsel modify or avoid in order to reduce the risk of having litigation conduct support a claim for bad faith?
  • How can an insurer balance having a uniform approach to filing declaratory judgment actions and avoiding being accused of disparate treatment of similar claims?