Webinar: Independent Counsel – When Required & Strategies for Defense

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Independent Counsel:
When Required & Strategies for Defense

Keais

Claims with multiple insured defendants and coverage conflicts present difficult litigation management & resolution challenges. This session will discuss determining if there are coverage conflicts and how to address such issues. In addition, the session will discuss issues and strategies for litigation management of claims with coverage conflicts and conflicts between insured defendants including dealing with independent counsel and handling negotiations.

Date: Wednesday, March 11, 2015
Time: 12:00 PM – 1:00 PM EDT

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*The posting of this article is for informational purposes only, as a courtesy to our reading audience. Provencher & Company does not own, has in no way been compensated for the sharing of this information, and content of said article belongs to that of the originating author. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.

 

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Audit 101 – Do’s and Don’ts, Pet Peeves and Pitfalls

No cost to attend
Audit 101 – Do’s and Don’ts, Pet Peeves and Pitfalls
 
This webinar will examine the roles played by industry professionals, corporate counsel and law firms and how to collaboratively work through the audit process. Specifically, we will examine the “dos and don’ts” of audits, identify pet peeves of the various players, and provide practical tips on how to avoid audit pitfalls.
 
 
Date: Wednesday, October 22, 2014
Time: 12:00 PM – 12:30 PM EDT
*The posting of this article is for informational purposes only, as a courtesy to our reading audience. Provencher & Company does not own, has in no way been compensated for the sharing of this information, and content of said article belongs to that of the originating author. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.

Asbestos Suits Against Employers Present New Risk for Employer’s Liability Insurers

The authors of this article have spotlighted an emerging issue regarding employer’s liability coverage and asbestos cases in Pennsylvania and Illinois. Since plaintiffs can now bring suit against an employer outside of the exclusivity of Workers Compensation, the relatively low cost Employer’s Liability coverage may see a significant increase in claims and the amounts of those claims. It is certainly something that liability adjusters need to be aware of when investigating such losses.
 
 
 
 
 
 
Insurance Law Update
Asbestos Suits Against Employers Present New Risk for Employer’s Liability Insurers


Two asbestos hotbed jurisdictions, Pennsylvania and Illinois, have recently opened the door to long-tail occupational disease claims against employers in the tort system.  These decisions held that the exclusivity provisions of the applicable state workers’ compensation acts do not prohibit employees diagnosed with occupational diseases long after their retirement from suing their former employers in the tort system alongside the traditional panoply of asbestos defendants.  Employers and their employer’s liability insurers should be aware of this new risk and the issues it may present going forward.

In Pennsylvania – as in almost any other state – the Workers’ Compensation Act is and has been the exclusive means for an employee to recover from his or her employer for workplace-related injuries.  Certain enumerated “occupational diseases,” such as asbestosis, are included within the act’s ambit provided that they occur “within three hundred weeks after the last date of employment . . .” 77 P.S. § 411(2).  This 300-week provision had been interpreted as a statute of limitations and/or repose, closing the door on claimants’ recovery from employers when a latent disease manifests after 300 weeks.  Therefore, employees could not sue their employers in the tort system because of the workers’ compensation exclusivity provision, nor could they pursue workers’ compensation benefits because of the statute of repose. 

The Supreme Court of Pennsylvania abrogated this long-standing interpretation in Tooey v. AK Steel Corp., 81 A.3d 85 (Pa. 2013).  The court held that because the occupational disease claims manifesting outside the 300-week period are not covered by the act, the act’s exclusivity provision does not apply, and employees are free to sue their former employers in tort.  Similarly, in Illinois, the Workers’ Compensation Act and Workers’ Occupational Diseases Act contain exclusivity provisions that bar employees’ direct tort actions against employers for workplace injuries.  Under those statutes, an employee must file claims within three and 25 years, respectively. 

In Folta v. Ferro Engineering, (Ill. App. Ct. 1st Dist. June 27, 2014), an Illinois intermediate appellate court held that the Foltas could maintain a tort claim against James Folta’s former employer because he first discovered his asbestos-related injury outside of the acts’ statutes of repose.  Unlike Pennsylvania, where a legislative amendment to the workers’ compensation statute appears to be the only “fix,” there remains a possibility that Folta is reversed on appeal or that the Illinois Supreme Court overrules Folta in another case.  The defendant in Folta filed a petition for leave to appeal, which remains pending.

While the traditional asbestos products and premises defendants seek coverage from their historical general liability insurers, commercial general liability policies are unlikely to provide coverage to employer defendants because of the policies’ employer’s liability exclusions.  Instead, employers may look to their workers’ compensation/employer’s liability policies.  Employer’s liability coverage exists “to ‘fill the gaps’ between workers’ compensation coverage and an employers’ general liability policy… to protect the insure[d] from tort liability for injuries to employees who do not come under the exclusive remedy provisions of workers’ compensation.”  See Erie Ins. Prop. & Cas. Co. v. Stage Show Pizza, JTS, Inc., 210 W. Va. 63, 68, 553 S.E.2d 257, 262 (2001).  Tooeyand Folta have created a new “gap,” and that gap may widen into a chasm, as Philadelphia’s The Legal Intelligencerreported on June 3 that courts are “universally” accepting plaintiffs’ attempts to join employers in pending mesothelioma cases, and that virtually every new filing names employers as defendants.

Employer’s liability coverage is fundamentally different and much more limited than general liability coverage.  Because this coverage was offered to fill the narrow “gap” between general liability and workers’ compensation coverage, it was offered inexpensively.  As a result, employer’s liability coverage often includes high deductibles (or loss reimbursement provisions) and low aggregate limits.  Some employer’s liability coverage forms include time limitations, limiting coverage to claims filed against the employer within three or five years of the policy’s expiration date.  Further, most employer’s liability coverage contains specific trigger language, limiting coverage to those policies in effect only on the last date of the worker’s exposure to hazardous conditions at the workplace.  Therefore, the “continuous trigger” applicable to general liability policies is unlikely to apply to employer’s liability insurers.  Employers risk only being able to access a single policy year that is subject to a high deductible and low aggregate limit (with no excess coverage available). 

It remains to be seen whether the decisions in Pennsylvania and Illinois represent an emerging risk that may spread to other jurisdictions, or if the legislatures of both states will react swiftly to amend their respective states’ laws.  For now, however, employers and their employer’s liability insurers should be prepared to address these potential newfound liabilities.

 
Reprinted from:
Copyright © 2014 Gordon & Rees LLP
Our address is 275 Battery Street, Suite 2000, San Francisco, CA 94111, United States
*The posting of this article is for informational purposes only, as a courtesy to our reading audience. Provencher & Company does not own, has in no way been compensated for the sharing of this information, and content  of said article belongs to that of the originating author. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.
 

UCC Liens

The general rule is that a creditor of the insured not named in the policy cannot collect policy proceeds because property insurance is personal to the insured and does not run with the property (5 Couch on Ins. 3d 66:1). One important exception to this general rule is when a secured creditor is involved. 
 
Article 9 of the Uniform Commercial Code regulates security interests in personal property and fixtures (UCC 9-102, 9-101). A “security interest” is, generally, “an interest in personal property or fixtures which secures payment or performance of an obligation.” When a creditor has a “perfected” security interest, it has priority over other creditors’ claims involving the same collateral. With certain exceptions, a creditor that files financing statements with the appropriate public authority, usually the secretary of state, “perfects” its security interest in the collateral. These filings become public record and serve as constructive notice to third parties — such as an insurer of the creditor’s interest in the property. 
 
The insurer should be concerned about a third party’s security interest when it prepares to pay an insured because it may also be liable to that third party. There is controversy regarding whether the insurer can be held liable without actual knowledge, however UCC liens are usually easily checked on-line through the Secretary of State’s office. 
Contributed by:
Jerry Provencher
CEO/Executive General Adjuster


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Webinar Wednesday: Ten Things You Should Know About Social Media in Claims and Litigation

THIS WEEK WE RECOMMEND* THE FOLLOWING WEBINAR:
 
Ten Things You Should Know About 

Social Media in Claims and Litigation
The purpose of this webinar will be to introduce attendees to several things about the impact of social media on claims and litigation. We will cover where to look for social media information, how to look, ethical considerations, Federal Rules of Civil Procedure regarding social media, and spoliation. If you ever have concern that one of your claimants or plaintiffs is misrepresenting the nature and extent of their injuries, this webinar is for you.
Date: Wednesday, September 10, 2014
Time: 12:00 PM – 12:30 PM EDT

PRESENTED BY:

*This posting is for informational purposes only, as a courtesy to our reading audience. Provencher & Company has in no way been compensated for the sharing of this information. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.

Funeral Processions and the Right-of-Way

Have you ever been in a funeral procession and run through a red light? Better be careful where you do so or the police may surprise you with a ticket. This article highlights this issue and provides a State-by-State analysis of these laws.
A funeral procession is a convoy of friends, relatives, and family members following the hearse from the funeral home to the burial site. Through the ages it has varied from people walking and carrying the deceased, to the modern entourage of limousines and automobiles. Most states have enacted statutes governing the procedures and traffic laws governing a procession as well as the legal requirements for yielding to one. Quite often, all vehicles in the funeral will be marked with a purple funeral flag issued by the funeral home. All drivers will be told to turn their headlights on.
The hearse will be the first vehicle in the procession followed by the spouse, children, immediate family members, and friends. In most states the lead vehicle must observe all traffic lights, but when the lead car has proceeded through an intersection, the rest of the funeral train may proceed without stopping. The procession is often accompanied by law enforcement vehicles to ensure the safety of the procession when running a red light. Cars traveling in the opposite direction of a procession may yield out of respect, if they want, but in most states, they don’t have to yield, slow or stop at all. Clearly, this is a recipe for disaster.

 

Click here to see a complete listing of laws by state, and to read the rest of this article published by Claims Journal.