The document summarizes strategies for managing the property insurance appraisal process. It discusses when appraisal is appropriate, how to respond to premature demands, potential issues with unreasonable delays, and tips for selecting competent and impartial appraisers and umpires. The document also addresses managing the scope of appraisal to separate coverage issues from determining the amount of loss, and how appraisers can handle questions of causation and concurrent causes depending on the policy language and applicable law.
A reverse mortgage allows homeowners aged 62 and older to convert their home equity into cash by taking out a loan secured by their home. The loan proceeds can be received as a lump sum, line of credit, or monthly payments. Borrowers are still responsible for property taxes, insurance, and maintenance. The loan does not need to be repaid as long as the home remains the borrower's primary residence and their obligations are met, or the home is sold. Options exist if borrowers can no longer meet their obligations to avoid foreclosure.
This document provides an overview of tort law and flood insurance. It discusses key concepts in tort law including the different types of torts (negligence, intentional torts, strict liability), parties, burdens of proof, damages, and defenses. It then summarizes the National Flood Insurance Program which makes flood insurance more affordable through private insurers but limits their liability. Specifically, private insurers administering government flood policies cannot be sued for bad faith, punitive damages, or attorney fees as they could under most state insurance laws. The government also has broad immunity from flooding liability under the Flood Control Act.
The negative pledge clause is a standard covenant in international loan agreements where the borrower agrees not to grant security to other lenders that would have priority over the initial lender. There are two main types: a basic negative pledge and an affirmative/quasi-security negative pledge. While the basic pledge is generally ineffective if breached, the affirmative pledge aims to automatically grant equal security to the initial lender if a prohibited security is given to another. However, the affirmative pledge faces issues regarding consideration, registration requirements, and priority that challenge its enforceability. Nonetheless, the negative pledge still provides some protection for lenders through triggering other clauses if breached.
Lead managers in syndicated loans can be held liable for negligent misstatement under the tort of negligence. For a lender to succeed, they must prove that the lead bank provided influential information about the borrower that was later proven inaccurate or misleading. There are two main tests for establishing a duty of care: 1) whether the defendant voluntarily assumed responsibility for the information and 2) the threefold test of foreseeability of loss, proximity of relationship, and fairness of imposing liability. Disclaimers and contractual clauses seeking to prevent duties of care can limit liability, but specific inquiries that elicit a response may extend the scope of duty.
Bolender Presentation to Defense Research Institute: Key Construction Related...jeffbolender
Mr. Bolender presented this slide show in conjunction with his presentation of the Defense Research Institute\'s annual 2010 Construction Law Seminar, which was held at the Bellagio Hotel in Las Vegas, Nevada. The slideshow and article address key construction related insurance issues from 2009 to 2010.
1. Mediation provides parties with control over the outcome of their dispute, allowing them to decide their own futures, unlike litigation where a third party decides.
2. Mediation costs significantly less than litigation, which can involve five or six figure legal fees and lengthy delays before a final decision is reached.
3. Through a skilled neutral mediator, parties have the opportunity to fully explain their positions and explore alternatives for mutual benefit, unlike the constraints of litigation.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
A reverse mortgage allows homeowners aged 62 and older to convert their home equity into cash by taking out a loan secured by their home. The loan proceeds can be received as a lump sum, line of credit, or monthly payments. Borrowers are still responsible for property taxes, insurance, and maintenance. The loan does not need to be repaid as long as the home remains the borrower's primary residence and their obligations are met, or the home is sold. Options exist if borrowers can no longer meet their obligations to avoid foreclosure.
This document provides an overview of tort law and flood insurance. It discusses key concepts in tort law including the different types of torts (negligence, intentional torts, strict liability), parties, burdens of proof, damages, and defenses. It then summarizes the National Flood Insurance Program which makes flood insurance more affordable through private insurers but limits their liability. Specifically, private insurers administering government flood policies cannot be sued for bad faith, punitive damages, or attorney fees as they could under most state insurance laws. The government also has broad immunity from flooding liability under the Flood Control Act.
The negative pledge clause is a standard covenant in international loan agreements where the borrower agrees not to grant security to other lenders that would have priority over the initial lender. There are two main types: a basic negative pledge and an affirmative/quasi-security negative pledge. While the basic pledge is generally ineffective if breached, the affirmative pledge aims to automatically grant equal security to the initial lender if a prohibited security is given to another. However, the affirmative pledge faces issues regarding consideration, registration requirements, and priority that challenge its enforceability. Nonetheless, the negative pledge still provides some protection for lenders through triggering other clauses if breached.
Lead managers in syndicated loans can be held liable for negligent misstatement under the tort of negligence. For a lender to succeed, they must prove that the lead bank provided influential information about the borrower that was later proven inaccurate or misleading. There are two main tests for establishing a duty of care: 1) whether the defendant voluntarily assumed responsibility for the information and 2) the threefold test of foreseeability of loss, proximity of relationship, and fairness of imposing liability. Disclaimers and contractual clauses seeking to prevent duties of care can limit liability, but specific inquiries that elicit a response may extend the scope of duty.
Bolender Presentation to Defense Research Institute: Key Construction Related...jeffbolender
Mr. Bolender presented this slide show in conjunction with his presentation of the Defense Research Institute\'s annual 2010 Construction Law Seminar, which was held at the Bellagio Hotel in Las Vegas, Nevada. The slideshow and article address key construction related insurance issues from 2009 to 2010.
1. Mediation provides parties with control over the outcome of their dispute, allowing them to decide their own futures, unlike litigation where a third party decides.
2. Mediation costs significantly less than litigation, which can involve five or six figure legal fees and lengthy delays before a final decision is reached.
3. Through a skilled neutral mediator, parties have the opportunity to fully explain their positions and explore alternatives for mutual benefit, unlike the constraints of litigation.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
This document provides information about foreclosure prevention services offered by MainStreet Capital Housing. It begins with a call to action to contact MainStreet for a free foreclosure prevention consultation. MainStreet employs certified counselors who will analyze the homeowner's situation and set up a plan to help avoid foreclosure. They have success in negotiating with lenders to stop foreclosures. The document then provides background on loss mitigation and various options it can involve like repayment plans, forbearance, loan modifications, and more to help homeowners avoid losing their homes to foreclosure. Contact information is provided to seek a free consultation.
Insider Tactics That Can Reduce or Eliminate ERISA LiensLarry Bodine
The 21st century trial attorney faces post settlement/award issues the likes of which could not have been foreseen even 20 years ago. Foremost among these post settlement issues is lien resolution. Today’s trial attorneys have clients who have their medical benefits provided by a wide variety of sources such as; Medicare, Medicaid, Medicare Advantage plans, ERISA, FEHBA, military or private health insurance plans.
ERISA liens are quickly becoming one of the biggest sources of frustration for personal injury attorneys. The Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq. governs most employee health plans. Many ERISA plans rely on preemption principles to assert that they are under no obligation to reduce their lien claims, and purport that they are entitled to their entire reimbursement claim regardless of the circumstances of the case. Clients may end up with very little out of their personal injury settlement, particularly if the third party has a limited policy.
Join ERISA expert, David Place, to get what you are owed! He will go over language that works when dealing with ERISA claims and show you how he was able to get more than $2 million in total savings in self-funded ERISA cases in 2014 alone.
Topics covered:
- When ERISA is subject to state law.
- How to Determine Funding Status
- Get What You Are Owed from the Plan Administrator
- Tracking Penalties
- SPD v. MPD: Cigna v. Amara, 131 S. Ct. 1866 (U.S. 2011)
- Language That Does Work, and What Doesn’t
- How to Attack the Language
Invoicing and Collecting for your Legal Serviceskhecker
Thoughts and musings on how to get paid for your legal services. THIS IS NOT LEGAL ADVICE. I AM NOT YOUR LAWYER. I WILL NOT BE YOUR LAWYER if you read this. Use at your own risk.
This document provides an overview of bankruptcy law concepts including eligibility for bankruptcy, how bankruptcy changes leverage for parties, why companies file for bankruptcy, and the automatic stay. It discusses a hypothetical scenario involving a distressed Manhattan office building and examines bankruptcy issues that may arise, such as filing eligibility for limited liability companies. The document also covers factors courts examine for bad faith filings and cases where independent directors or "friendly" involuntary bankruptcy petitions were used.
This document provides information and advice for homeowners considering a short sale to avoid foreclosure. It warns that rescue scams promising to save a home often cost money with no results. It outlines options lenders may offer like loan modifications or allowing the home to be sold for less than owed. It advises homeowners to obtain legal counsel, understand tax implications, beware of committing waste to the property, and know a short sale may still leave debt owed and impact credit. Homeowners should investigate documentation needed, eligibility, amounts owed, the property value, and available programs before deciding if a short sale is their best option.
Empty Spaces – How to Protect Yourself From a Defaulting TenantPolsinelli PC
Property owners, landlords, and developers all face similar concerns when a tenant defaults. In short, you want to make sure that you can keep collecting rent and maximize rental revenues. More broadly, you want to know your options for re-renting the premises, whether you can collect rent from the defaulting tenant while the premises is vacant, what options you have to remove and sell any property left behind, and how a tenant bankruptcy affects the whole process. Our panel will discuss your rights and remedies when dealing with these situations with an emphasis on making sure you recover all to which you are entitled.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
This document provides an overview and summary of New York law regarding bad faith claims against insurance companies. It discusses what constitutes a prima facie case of bad faith refusal to settle, including establishing gross disregard of the insured's interests and loss of an actual settlement opportunity. Factors courts consider in determining bad faith are outlined. The document also reviews key cases like Pavia v State Farm that changed the bad faith litigation landscape in New York.
An examination under oath (EUO) is a formal proceeding where an insured is questioned under oath by an insurance company's representative about the details of an insurance claim. The purpose is to allow the insurance company to obtain truthful information needed to evaluate the claim. During an EUO, the insured is questioned orally while under oath and their responses are recorded by a court reporter. An insured's failure to fully cooperate with an EUO request can result in the denial of their insurance claim. The EUO allows insurance companies to investigate fraud, clarify insurable interests and damages, and determine if any policy defenses apply.
This document summarizes issues that can arise when an insured faces litigation that may result in an excess judgment or claims that are both covered and not covered by their insurance policy. It discusses the inherent conflict of interest between the insurer and insured in these situations. It also outlines procedures for reasonableness hearings on settlement agreements between plaintiffs and insureds to determine if the settlement amount is reasonable. Key court cases are discussed that establish standards for reasonableness hearings and the rights and responsibilities of insurers and insureds in settlement agreements. Recommendations are provided for structuring settlement agreements to avoid issues of collusion.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
The document discusses the role of underwriting in reinsurance disputes and how disputes have impacted the underwriting process. It provides examples from case law where underwriting evidence was considered in resolving contractual ambiguities. Disputes have led to more detailed documentation of negotiations and changes in contract wording to address common issues. The underwriting process has become more rigorous with greater pre-contract scrutiny and reinsurers more actively monitoring risks.
Underwriting is the process by which lenders assess risk and set appropriate borrowing rates. It involves checking an applicant's credit history, income verification, property appraisal, and title search. The underwriter evaluates the applicant's credit score, credit report, and intended property. Underwriting ensures fair pricing of risk and helps determine if a loan is approved, rejected, or conditionally approved. The full process from application to funding typically takes 40-50 days.
Understanding and Calculating Lost Profits DamagesDecosimoCPAs
This document summarizes a presentation on understanding and calculating lost profits damages. It begins with an introduction of the speaker and his qualifications in business appraisal and calculating lost profits damages. It then outlines the presentation topics which include the basics of the legal framework for lost profits, definitions of profits and lost profits, and methods for calculating lost profits such as before and after, sales projection, accounting for profits, yardstick, and economic modeling. The presentation discusses challenges with various calculation methods and concepts like mitigation, causation, foreseeability, reasonable certainty, and discounting future damages to present value. It provides examples of ex ante and ex post calculations of damages and discusses the "book of wisdom" concept of incorporating knowledge gained after the breach
This document discusses the appraisal process for resolving property insurance claims disputes in Canada. It provides context on the legal framework for appraisal and highlights some key differences between provincial insurance acts. The main points are:
1) Appraisal is a mandatory dispute resolution process outlined in property insurance policies across Canada that determines property values and loss amounts.
2) Provincial insurance acts govern the process, though some have recently renamed it "dispute resolution" and imposed requirements for impartiality.
3) The selection process for each side's appraiser is described, noting jurisdictions with stronger rules around qualifications and impartiality.
Fortune v. first protective ins. co. 2020 fla. app. leBolinLawGroup
The court reversed a summary judgment in favor of an insurer, First Protective Insurance Company, in a bad faith lawsuit brought by policyholders, Patti Fortune and Jeremy Domin. The policyholders filed a claim for hurricane damage that the insurer initially estimated at $3,013.20, but the policyholders' public adjuster estimated much higher damages. The insurer then invoked the policy's appraisal process before the policyholders filed a Civil Remedy Notice of Insurer's Violations (CRN) alleging bad faith. The appraisal process determined damages were $121,516.55, which the insurer paid after the 60-day cure period in the CRN. The trial court found the insurer cured the CRN by
This document outlines the typical stages of a car accident lawsuit:
1) The first step is determining if you have a valid claim and filing a complaint within the 2-year statute of limitations.
2) The defendant will respond by admitting fault, denying allegations, or filing counterclaims. Preliminary motions may also be filed.
3) Discovery and investigation of evidence takes place through examining documents and witness depositions.
4) Settlement negotiations often occur through mediation or if evidence strongly supports the claim. If not resolved, the case proceeds to trial.
This document provides information about foreclosure prevention services offered by MainStreet Capital Housing. It begins with a call to action to contact MainStreet for a free foreclosure prevention consultation. MainStreet employs certified counselors who will analyze the homeowner's situation and set up a plan to help avoid foreclosure. They have success in negotiating with lenders to stop foreclosures. The document then provides background on loss mitigation and various options it can involve like repayment plans, forbearance, loan modifications, and more to help homeowners avoid losing their homes to foreclosure. Contact information is provided to seek a free consultation.
Insider Tactics That Can Reduce or Eliminate ERISA LiensLarry Bodine
The 21st century trial attorney faces post settlement/award issues the likes of which could not have been foreseen even 20 years ago. Foremost among these post settlement issues is lien resolution. Today’s trial attorneys have clients who have their medical benefits provided by a wide variety of sources such as; Medicare, Medicaid, Medicare Advantage plans, ERISA, FEHBA, military or private health insurance plans.
ERISA liens are quickly becoming one of the biggest sources of frustration for personal injury attorneys. The Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq. governs most employee health plans. Many ERISA plans rely on preemption principles to assert that they are under no obligation to reduce their lien claims, and purport that they are entitled to their entire reimbursement claim regardless of the circumstances of the case. Clients may end up with very little out of their personal injury settlement, particularly if the third party has a limited policy.
Join ERISA expert, David Place, to get what you are owed! He will go over language that works when dealing with ERISA claims and show you how he was able to get more than $2 million in total savings in self-funded ERISA cases in 2014 alone.
Topics covered:
- When ERISA is subject to state law.
- How to Determine Funding Status
- Get What You Are Owed from the Plan Administrator
- Tracking Penalties
- SPD v. MPD: Cigna v. Amara, 131 S. Ct. 1866 (U.S. 2011)
- Language That Does Work, and What Doesn’t
- How to Attack the Language
Invoicing and Collecting for your Legal Serviceskhecker
Thoughts and musings on how to get paid for your legal services. THIS IS NOT LEGAL ADVICE. I AM NOT YOUR LAWYER. I WILL NOT BE YOUR LAWYER if you read this. Use at your own risk.
This document provides an overview of bankruptcy law concepts including eligibility for bankruptcy, how bankruptcy changes leverage for parties, why companies file for bankruptcy, and the automatic stay. It discusses a hypothetical scenario involving a distressed Manhattan office building and examines bankruptcy issues that may arise, such as filing eligibility for limited liability companies. The document also covers factors courts examine for bad faith filings and cases where independent directors or "friendly" involuntary bankruptcy petitions were used.
This document provides information and advice for homeowners considering a short sale to avoid foreclosure. It warns that rescue scams promising to save a home often cost money with no results. It outlines options lenders may offer like loan modifications or allowing the home to be sold for less than owed. It advises homeowners to obtain legal counsel, understand tax implications, beware of committing waste to the property, and know a short sale may still leave debt owed and impact credit. Homeowners should investigate documentation needed, eligibility, amounts owed, the property value, and available programs before deciding if a short sale is their best option.
Empty Spaces – How to Protect Yourself From a Defaulting TenantPolsinelli PC
Property owners, landlords, and developers all face similar concerns when a tenant defaults. In short, you want to make sure that you can keep collecting rent and maximize rental revenues. More broadly, you want to know your options for re-renting the premises, whether you can collect rent from the defaulting tenant while the premises is vacant, what options you have to remove and sell any property left behind, and how a tenant bankruptcy affects the whole process. Our panel will discuss your rights and remedies when dealing with these situations with an emphasis on making sure you recover all to which you are entitled.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
This document provides an overview and summary of New York law regarding bad faith claims against insurance companies. It discusses what constitutes a prima facie case of bad faith refusal to settle, including establishing gross disregard of the insured's interests and loss of an actual settlement opportunity. Factors courts consider in determining bad faith are outlined. The document also reviews key cases like Pavia v State Farm that changed the bad faith litigation landscape in New York.
An examination under oath (EUO) is a formal proceeding where an insured is questioned under oath by an insurance company's representative about the details of an insurance claim. The purpose is to allow the insurance company to obtain truthful information needed to evaluate the claim. During an EUO, the insured is questioned orally while under oath and their responses are recorded by a court reporter. An insured's failure to fully cooperate with an EUO request can result in the denial of their insurance claim. The EUO allows insurance companies to investigate fraud, clarify insurable interests and damages, and determine if any policy defenses apply.
This document summarizes issues that can arise when an insured faces litigation that may result in an excess judgment or claims that are both covered and not covered by their insurance policy. It discusses the inherent conflict of interest between the insurer and insured in these situations. It also outlines procedures for reasonableness hearings on settlement agreements between plaintiffs and insureds to determine if the settlement amount is reasonable. Key court cases are discussed that establish standards for reasonableness hearings and the rights and responsibilities of insurers and insureds in settlement agreements. Recommendations are provided for structuring settlement agreements to avoid issues of collusion.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
The document discusses the role of underwriting in reinsurance disputes and how disputes have impacted the underwriting process. It provides examples from case law where underwriting evidence was considered in resolving contractual ambiguities. Disputes have led to more detailed documentation of negotiations and changes in contract wording to address common issues. The underwriting process has become more rigorous with greater pre-contract scrutiny and reinsurers more actively monitoring risks.
Underwriting is the process by which lenders assess risk and set appropriate borrowing rates. It involves checking an applicant's credit history, income verification, property appraisal, and title search. The underwriter evaluates the applicant's credit score, credit report, and intended property. Underwriting ensures fair pricing of risk and helps determine if a loan is approved, rejected, or conditionally approved. The full process from application to funding typically takes 40-50 days.
Understanding and Calculating Lost Profits DamagesDecosimoCPAs
This document summarizes a presentation on understanding and calculating lost profits damages. It begins with an introduction of the speaker and his qualifications in business appraisal and calculating lost profits damages. It then outlines the presentation topics which include the basics of the legal framework for lost profits, definitions of profits and lost profits, and methods for calculating lost profits such as before and after, sales projection, accounting for profits, yardstick, and economic modeling. The presentation discusses challenges with various calculation methods and concepts like mitigation, causation, foreseeability, reasonable certainty, and discounting future damages to present value. It provides examples of ex ante and ex post calculations of damages and discusses the "book of wisdom" concept of incorporating knowledge gained after the breach
This document discusses the appraisal process for resolving property insurance claims disputes in Canada. It provides context on the legal framework for appraisal and highlights some key differences between provincial insurance acts. The main points are:
1) Appraisal is a mandatory dispute resolution process outlined in property insurance policies across Canada that determines property values and loss amounts.
2) Provincial insurance acts govern the process, though some have recently renamed it "dispute resolution" and imposed requirements for impartiality.
3) The selection process for each side's appraiser is described, noting jurisdictions with stronger rules around qualifications and impartiality.
Fortune v. first protective ins. co. 2020 fla. app. leBolinLawGroup
The court reversed a summary judgment in favor of an insurer, First Protective Insurance Company, in a bad faith lawsuit brought by policyholders, Patti Fortune and Jeremy Domin. The policyholders filed a claim for hurricane damage that the insurer initially estimated at $3,013.20, but the policyholders' public adjuster estimated much higher damages. The insurer then invoked the policy's appraisal process before the policyholders filed a Civil Remedy Notice of Insurer's Violations (CRN) alleging bad faith. The appraisal process determined damages were $121,516.55, which the insurer paid after the 60-day cure period in the CRN. The trial court found the insurer cured the CRN by
This document outlines the typical stages of a car accident lawsuit:
1) The first step is determining if you have a valid claim and filing a complaint within the 2-year statute of limitations.
2) The defendant will respond by admitting fault, denying allegations, or filing counterclaims. Preliminary motions may also be filed.
3) Discovery and investigation of evidence takes place through examining documents and witness depositions.
4) Settlement negotiations often occur through mediation or if evidence strongly supports the claim. If not resolved, the case proceeds to trial.
This document provides an overview of remedies available in tort and contract law. It discusses both legal and equitable remedies.
For legal remedies, it covers compensatory damages, punitive damages, restitutionary remedies like money, replevin, and ejectment. For equitable remedies, it discusses constructive trusts, equitable liens, injunctions, and specific performance.
It provides rules and elements for analyzing each remedy, such as the requirements to obtain an injunction. It also compares analyzing remedies for tort versus contract claims. The document aims to equip the reader to properly approach a remedies question on an exam.
NEWBIE LITIGATOR SCHOOL- PART II 2022 - ADR & Settlement Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART II 2022
See more at https://www.financialpoise.com/webinars/
This document summarizes the services provided by Your Collection Solution, Inc., a company that specializes in collecting judgments, child support cases, probate matters, and settlements. They represent clients in every industry and utilize private investigators to identify hidden assets. Potential clients are asked a series of questions to determine if the company can help collect unpaid judgments, debts, or judgments that have gone undiscovered. Fees are contingent on amounts recovered. The company provides nationwide services and is accredited by various trade organizations.
One of the key challenges for many businesses is to ensure that their cash flow and credit management procedures are working effectively. From developing Terms of Trade and the protection of assets on the PPSA register, through to credit management and debt recovery, this presentation provides an overview of the key issues and how your business can address them.
The document discusses four primary jurisdictional issues affecting the insurer-insured relationship:
1) Venue, choice of law, and mandatory arbitration clauses that can modify parties' rights and obligations under an insurance policy.
2) How "four corners" vs. "all available facts" jurisdictions approach defense rights, obligations, and investigations.
3) How jurisdictions approach the legal concept of "breach" of the duty to defend and its ramifications.
4) How jurisdictions evaluate available damage rights and remedies.
The panel will explore these issues through moderator Gary Gassman and presentations from industry professionals.
Home Inspector's Insurance & Risk Management - July 19, 2013Gerald Brunker
Home Inspector professional liability, general liability and other applicable insurances for home inspectors. Risk management tips and hints and home inspector claim information.
Two recent court cases had differing outcomes regarding fiduciary duty and excessive fees charged by financial services companies. A New Jersey judge dismissed claims against John Hancock, finding they were not acting as a fiduciary and fees were not excessive. However, a Connecticut judge ruled the plaintiffs against ING had a valid case regarding revenue sharing influencing investments and compensation not tied to work. Ultimately, the document argues plan sponsors have a fiduciary duty to act in participants' best interests by choosing low-cost providers and institutional share classes to avoid potential future litigation.
Similar to Appraisal Strategies for Property Claims (20)
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Safeguarding Against Financial Crime: AML Compliance Regulations DemystifiedPROF. PAUL ALLIEU KAMARA
To ensure the integrity of financial systems and combat illicit financial activities, understanding AML (Anti-Money Laundering) compliance regulations is crucial for financial institutions and businesses. AML compliance regulations are designed to prevent money laundering and the financing of terrorist activities by imposing specific requirements on financial institutions, including customer due diligence, monitoring, and reporting of suspicious activities (GitHub Docs).
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Corporate Governance : Scope and Legal Frameworkdevaki57
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4. Session Learning Objectives
• Analyze claim strategies to respond to appraisal
requests in a variety of first party losses.
• Separate issues to appraise and issues to resolve by
other means.
• Manage the appraisal process to achieve effective
outcomes.
• Identify options to respond to poor appraisal results.
5. WHY go to Appraisal?
Kevin Hromas, Kevin Hromas and Associates … A Division of US Insurance Information LLC
6. Overview of Appraisal Provisions
• The Standard Fire Insurance Policy of the State of New
York, commonly “the 165 lines,” has served as the
foundation.
• Commercial property insurance.
• Homeowner’s property insurance.
7. Overview of Appraisal Provisions
2. Appraisal
If we and you disagree on the values of the property or the amount of loss, either may make
written demand for an appraisal of the loss. In this event, each party will select a competent
and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either
may request that selection be made by a judge of a court having jurisdiction. The appraisers
will state separately the value of the property and amount of loss. If they fail to agree, they will
submit their differences to the umpire. A decision agreed to by any two will be binding. Each
party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.
If there is an appraisal, we will still retain our right to deny the claim.
ISO CP 00 99 06 07
8. Overview of Appraisal Provisions
F. Appraisal
If you and we fail to agree on the value or amount of any item or loss, either may demand an
appraisal of such item or loss. In this event, each party will choose a competent and
disinterested appraiser within 20 days after receiving a written request from the other. The two
appraisers will choose a competent and impartial umpire. If they cannot agree upon an umpire
within 15 days, you or we may request that a choice be made by a judge of a court of record in
the state where the "residence premises" is located. The appraisers will separately set the
amount of loss. If the appraisers submit a written report of an agreement to us, the amount
agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to
the umpire. A decision agreed to by any two will set the amount of loss. Each party will:
1. Pay its own appraiser; and
2. Bear the other expenses of the appraisal and umpire equally.
In no event will an appraisal be used for the purpose of interpreting any policy provision,
determining causation or determining whether any item or loss is covered under this policy.
If there is an appraisal, we still retain the right to deny the claim.
ISO HO-3 2011
10. Demanding/Responding to Appraisal
1. What claims are appropriate for appraisal?
– When there is a dispute between the insurer and the
policyholder over the amount of loss.
– Focus on damages!
– Not liability for the loss - that’s for the court.
– All claim types: hail, hurricane, fire, BI.
– Coverage issues? No (more later).
11. Demanding/Responding to Appraisal
2. When is a demand premature?
– If parties have not reached “impasse”.
– Impasse: when neither party is willing to compromise
any further on an issue.
12. TEXAS
In re Universal Underwriters of Texas
Ins. Co., 345 S.W.3d 404 (Tex. 2011)
• The apparent break-down of good faith negotiations.
• “An impasse is not the same as a disagreement about the amount of
loss. Ongoing negotiations, even when the parties disagree, do not
trigger a party’s obligation to demand appraisal.”
• “Both parties must be aware that further negotiations would be futile
or would be of no effect if performed.”
13. Demanding/Responding to Appraisal
3. Strategies for responding to a premature demand:
Can and should the insurer object?
– Yes! An insurer is entitled to object to an appraisal demand it considers
premature.
– Send the insured written notice of the objection.
– Endeavor to renew negotiations with the insured.
– Educate the insured on the potential cost of an appraisal.
14. Demanding/Responding to Appraisal
4. Unreasonable delay to appraisal and has the right
to the appraisal been waived?
– Delay normally measured from the point of “impasse.”
– Time limits for appraisal generally upheld.
– If silent, a “reasonable period of time.”
– What constitutes an “unreasonable” delay?
15. IOWA
Terra Indus., Inc. v. Comm. Ins. Co. of America,
981 F.Supp. 581 (N.D. Iowa 1997)
• Despite two and half years of negotiations and “evident dispute,” the
insurer had “no notice that an impasse had been reached because
only the filing of [the insured’s] suit demonstrated [the insured’s]
unilateral conclusion that the parties were at an impasse.”
• Appraisal demand made within reasonable time.
• No waiver.
16. ILLINOIS
Lyon v. Am. Family Mut. Ins. Co., 617 F. Supp.
2d 754, 758-59 (N.D. Ill.), vacated in part,
644 F. Supp. 2d 1071 (N.D. Ill. 2009), supp.,
2009 WL 2421576
• More than a year passed between the time of loss and insurer’s motion seeking to compel
appraisal.
• “For months [the insurer] attempted to move negotiations forward and engage [the
insured] and her counsel in productive discussions about the dispute, but [the insured’s]
counsel continually responded that they had not had time to review the case file
adequately.
Finally [the insured’s] counsel promised to respond to American Family's inquiries by
the end of 2008. [The insured] did respond all right—but she did so by filing suit on
December 23, fully eleven months after the loss event.”
• Insurer demanded appraisal within “reasonable time” and no waiver.
17. INDIANA
Monroe Guar. Ins. Co. v. Backstage, Inc.,
537 N.E.2d 528 (Ind. Ct. App. 3d Dist. 1989)
• A party waives the right to demand appraisal if (1) impasse and (2) prejudice from delay.
• “Impasse” shown by some evidence, including adjuster’s letter: “As you are aware, we are
currently somewhat at an impasse. On the one hand, your public adjuster is unwilling to
concede that the operation of the coinsurance clause would, in effect, provide that you are
self-insured for approximately 23.95% of this partial loss.”
• No evidence of prejudice from delay shown when insurer recognized loss and paid
undisputed portion with co-insurance deduction.
• No waiver.
18. Practice Tips
1. Before demanding appraisal, obtain all of the insured’s repair
estimates, documentation of loss, etc. so there are no
document production issues.
2. If negotiations over the amount of loss have broken down, the
insurer should undertake a prompt review of whether an
appraisal is warranted.
3. An insurer should promptly respond, in writing, to any demand
for appraisal setting forth its agreement to appraisal or the
bases for rejection of the appraisal demand.
4. The insurer may have an affirmative obligation to inform the
insured of the existence of any time limitations for demanding
appraisal.
19. Steps to Ensure a Successful Appraisal
Vinnstock, Istockphoto.com
20. Steps to Ensure a Successful Appraisal
• Selection of competent,
experienced, and impartial
appraisers.
• Preventing claims of bias.
• What does the applicable
law and appraisal clause
require?
Jake Hellbach,
DollarPhotoClub.com
21. Steps to Ensure a Successful Appraisal
How select appraiser? Ask around…
• Consultants
• Contractors
• Engineering firms
• Lawyers
• State appraisal groups
22. Steps to Ensure a Successful Appraisal
• Appraisals are creatures of contract.
• Subject or scope of appraisal depends on the contract
provisions.
• Parties can contract for the qualifications of the
appraisers and the preferred ADR.
• Most appraisal provisions require a “competent and
disinterested” appraiser.
– But what constitutes “disinterested” or “impartial”?
– Varies from jurisdiction to jurisdiction…
23. INDIANA
Shree Hari Hotels v. Society Ins. Co.,
2013 WL 4777212 (S.D. Ind. 2013)
• An appraiser paid on a contingency fee basis has
a financial interest in the outcome of the appraisal.
• (Like PA’s who are often paid on contingency).
• Thus, is not impartial.
24. IOWA
Central Life Ins. Co. v. Aetna Cas. & Sur. Co.,
466 N.W.2d 257 (Iowa 1991)
• A contingent fee arrangement for an appraiser is not proper.
• The appraisal agreement requires one of the appraisers and the umpire to jointly
arrive at a decision. This places the appraiser in the position of decision-maker;
thus, the function of the appraiser becomes quasi-judicial. An inherent
qualification for a quasi-judicial decision-maker is disinterest in the result.
• The omission of the word “disinterested” in describing “appraiser” in the
appraisal agreement does not eliminate the requirement.
• A disinterested person is defined as one without a pecuniary interest.
25. MISSOURI
Harris v. Am. Modern Home Ins. Co., 571 F.
Supp.2d 1066, 1078 (E.D. Mo. 2008)
• “While an appraiser may receive a flat or hourly fee, he may not
receive a contingent fee; the appraiser’s fee may not be based on
a percentage of the settled loss....”
• “When an appraiser is paid through a contingent fee arrangement,
the appraiser receives a direct financial interest in the dispute and
becomes an interested party”.
26. LOUISIANA
Prien Properties, LLC v. Allstate Ins. Co.,
2008 WL 1733591 (W.D.La. 2008)
• An appraiser may be disinterested, even if the appraiser
was also that party’s adjuster in the same matter…
• So long as there is no evidence in the record to indicate
improper motives.
27. MICHIGAN
White v. State Farm Fire & Cas. Co.,
809 N.W.2d 637 (Mich. App. 2011)
• Public adjuster with a contingency fee agreement was
“independent”.
• Could participate as an appraiser for the insured.
28. TEXAS
MLCSV10 v. Stateside Enterprises, Inc.,
866 F. Supp. 2d 691 (S.D. Tex. 2012)
Undisclosed business referral relationship between
companies that employed appraisal umpire and insurer’s
appraiser, without more, did not render umpire and insurer’s
appraiser partial or create an appearance of partiality, as
would provide sufficient basis for disregarding appraisal
award.
29. MINNESOTA
McQuaid Market House Co. v. Home Ins. Co.,
180 N.W. 97 (Minn. 1920)
“That appraisers chosen in such cases have frequently acted in other insurance
disputes is no disqualification, nor evidence of bias or prejudice. It is a matter of
common experience that both parties in controversies of the kind prefer and in fact
chose appraisers with known fitness for the particular class of service. Nor is it a
disqualification that the person chosen as umpire happens to be an attorney at law,
and had previously been employed by the adjuster representing the insured.
To disqualify either there must be shown some act or acts of misconduct prejudicial
to the interests of the party complaining.”
31. The “Competency” Requirement
American Union Ins. Co. v. Stull Bros. Co.¸ 7 A.2d 866 (N.J. 1939).
• Many courts equate “competent” with “disinterested.”
• “An appraiser need not rely solely on his own knowledge
of values, but may act upon information obtained from
others in an informal way.”
• “A competent appraiser is one who in this manner is able
to measure the loss with accuracy. He need not be an
expert, in the sense that his testimony on values would
be received in a court of law.”
32. The “Competency” Requirement
American Central Ins. Co. v. District Court, 147 N.W. 242 (Minn. 1914).
• Court rejected the insurer's contention that an expert on the type of property
damage was the primary consideration and affirmed the appointment of the
attorney to the panel.
• “The duties imposed upon the appraisers do not necessarily require them to
be experts, and the contract contains no such requirement, unless it be
inferred from the term ‘competent.’ In the absence of anything indicating a
different intention, this term should be given the same meaning usually
given to it when applied to arbitrators.”
• “It is undoubtedly desirable that those making an appraisal be familiar with
the matters and things which they are called upon to appraise; but, unless
so stipulated in the contract, it has never been held, so far as we are aware,
that experts only are competent as such arbitrators or appraisers.”
33. The “Competency” Requirement
• Significant experience with adjusting losses can satisfy
the competency requirement.
• But, can I object on competency?
– Yes, but the objecting party generally bears burden.
– Any challenge to an appraiser or umpire should be made at
the time of designation or appointment. Equity Mut. Ins. Co. v.
Campbell, 886 S.W.2d 221 (Mo. App. 1994)
34. The “Competency” Requirement
• Selecting “neutral” umpire:
– Party-appointed appraisers generally are to agree on a
neutral umpire.
– If no agreement, a party may ask the court to appoint ... but
beware of race to courthouse!
• Umpires in some states are subject to strict, mandatory
disclosure requirements:
– Prior or pending cases served as a party or neutral arbitrator involving
any party or one of the lawyers.
– All matters that could cause a person to reasonably entertain doubt that
neutral would be impartial.
35. Practice Tips
1. Appraisers and umpires should be vetted to ensure they are
competent and disinterested, and, as necessary, have subject
matter expertise.
2. Lookout for substantial business relationships, and insist on
compliance with all applicable disclosure requirements at the
outset of the appraisal process. Most policies require the
selection of an umpire prior to a determination by the appraisers
that they are unable to agree on the amount of loss, so the
identity of the umpire should be known.
3. The time to attack the credentials of an umpire is at the time of
the appointment. Similarly, any challenge to an appraiser
should be made at the time of designation.
37. “Managing” the Appraisal Process
Scope of Appraisal:
• Amount of Loss
– Panel’s power is generally limited to determining
amount of loss.
• Bifurcating Coverage Issues From Damage Issues.
– What is a “coverage issue”?
– Pre-existing damage, uncovered causes of loss,
multiple events causing damage, etc.
38. Managing the Appraisal Process
Causation:
• Is an issue for the court when coverage is disputed, but an issue for the
appraisers when coverage has been admitted.
• In some jurisdictions, appraisers are permitted to segregate pre-existing
damage from damage caused by the harmful event.
• Causation is a matter for the courts, not an appraiser, when the Policy does
not allow for the appraiser to address causation. Spearman Industries Inc. v.
St. Paul Fire and Marine Ins. Co., 109 F.Supp.2d 905 (N.D. Ill. 2000).
• Court should not restrict the method by which the appraisers and umpire
value property and loss where the policy does not authorize and the parties
did not agree. Hull v. Motorists Ins. Grp., 2011-Ohio-2502.
39. Managing the Appraisal Process
Concurrent Causes:
• Court must decide causation when there is an indivisible injury with
several possible causes.
• However, when different types of damages occur to different items of
property, appraisers may decide the cost to repair each without deciding
who must pay for it. State Farm Lloyds v. Johnson, 290 S.W.3d 886,
894 (Tex. 2009).
• In Texas, the insured bears the burden of proving what portion of the
damages were caused by a covered cause of loss. See Farmers Group
Ins., Inc. v. Poteet, 434 S.W.3d 316 (Tex.App. 2014, rev. denied).
40. Managing the Appraisal Process
Timing Issues:
• Courts generally have some discretion.
• Stay of Litigation While Appraisal Proceeds
– Litigation does not need to be stayed while the appraisal
moves forward. In re Universal Underwriters of Tex. Ins. Co.,
345 S.W.3d 404, 413 (Tex. 2011).
– But courts often choose to stay litigation pending conclusion
of appraisal process.
41. Managing the Appraisal Process
Procedure:
• Basic rules of procedure usually established by policy
– But court can establish guidelines. Dufrene v. Certain
Interested Underwriters, 91 So.3d 397 (La.App. 5 Cir. 2012).
• Access to Property
– Policy provisions requiring access to property remain in force
during appraisal process.
– Denial of access can be used to refute later allegations of bad
faith or inadequate investigation.
42. Managing the Appraisal Process
Procedure:
• Hearing with Umpire
– Rarely required, but often held.
• Form of Award
– Insurer may request that the award be
issued on a specific form.
43. Managing the Appraisal Process
• Strategies for preventing a “split the estimates” award:
– Key is to appoint a competent, unbiased umpire.
– Insurers can consider changing policy wording to delay selection of umpire until the
appraisers are at an impasse.
• Insured’s Cooperation
– Insured’s failure to cooperate during appraisal may relieve insurer of liability. Employers Mut.
Cas. Co. v. Skoutaris, 453 F.3d 915 (7th Cir. 2006); Three Palms Pointe, Inc. v. State Farm
Fire & Cas. Co., 362 F.3d 1317, 1319 (11th Cir. 2004) (recognizing that failure to cooperate
can serve as basis for challenging appraisal award).
• Costs
– Each party generally bears costs of own appraiser and split umpire’s fees.
– Usually less than litigation.
44. Managing the Appraisal Process
Rights & Duties Upon Entry of Appraisal Award
• If coverage has been admitted, time is of the essence: some
policies contain deadlines for payment for covered damage as
soon as a few business days after entry of the award. See
Church on the Rock North v. Church Mut. Ins. Co., 2013 WL
497879, *8 (N.D. Tex. 2013).
• If coverage is disputed, the award will not affect insurer’s right to
deny the uncovered portions of the claim.
• Both parties retain the right to challenge the validity or seek
modification of the award in court. Franco v. Slavonic Mut. Fire
Ins. Ass’n, 154 S.W.3d 777, 785 (Tex.App.- Houston [14 Dist.]
2004, no pet.).
45. Managing the Appraisal Process
Effect of Appraisal On Bad Faith Claims:
It depends…
– The timely payment of a valid appraisal award will eliminate
claims for breach of contract and bad faith. See United
Neurology, P.A. v. Hartford Lloyd’s Ins. Co., 2015 WL
1470296 (S.D. Tex. 2015).
– No bad faith without evidence of malice or fraud. Jenkins v.
State Farm Mut. Auto. Ins. Co., 2013-Ohio-1142, ¶ 47.
– Submission of the claim to appraisal and the subsequent
payment, without more, are insufficient to defeat a claim
under section 155. McGee v. State Farm Fire & Cas. Co., 315
Ill. App. 3d 673, 686 (2000).
46. What Can You Do With A Poor
Appraisal Award?
Oakhozan, Thinkstock.com
47. What Can You Do With a Poor Appraisal
Award?
• Presumptively valid.
• Reasons for vacating an appraisal award:
– An award will be sustained unless: (1) it was made by the
appraisers and/or the umpire without authority; (2) it was the
result of fraud, accident, or mistake; or (3) the award did not
comply with the terms of the contract, which are “in the
nature of affirmative defenses.”
– The burden of proof is on the party challenging the award.
48. What Can You Do With a Poor Appraisal
Award?
• No authority for award.
– Wells v. American States Preferred Ins. Co.,
919 S.W.2d 679 (Tex.App.—Dallas 1996, writ denied).
• Award did not comply with terms of policy.
– American Storage Centers v. Safeco Ins. Co. of Am.,
651 F. Supp. 2d 718 (N.D. Ohio 2009).
• Fraud, accident or mistake.
– Dufrene v. Certain Underwriters at Lloyd's,
91 So. 3d 397, 403 (La. Ct. App. 2012).
49. Practice Tips
1. Consider wording changes to address.
2. Unilateral appointments.
3. Itemization of how the panel reaches its decision.
4. Disclosure of all business relationships.
Momius, DollarPhotoClub.com
Ask audience re: how many have received demand for appraisal?
How many have initiated appraisal on the insured?
The case involved a dispute over coverage for alleged hail damages to buildings on the property of the insured, a car dealership. After the claim was originally adjusted and paid, the insured asked Universal to reinspect, contending that the payment was inadequate. Universal sent an engineer to re-inspect, and issued a supplemental payment. The insured made no further inquiries or demands for payment but, four months later, sued Universal alleging breach of contract and extra-contractual claims. In response, Universal invoked the policy’s appraisal clause. Universal sought to compel appraisal and to abate other proceedings in the interim. The insured alleged that Universal had waived its right to appraisal by not invoking it sooner.
Because the insurer had not denied liability and had left open the possibility of further discussions, there was no impasse and could be no waiver.
Court cited to Scottish Union & Nat’l Ins. Co. v. Clancy, 8 S.W. 630 (Tex. 1888). 1888 case!!!
Discuss cases and examples
On January 22, 2008[2] a "severe water loss" was said to have so damaged Lyon's South Barrington, Illinois home that it became uninhabitable, at the same time damaging and destroying a large amount of Lyon's personal property. On April 18 Lyon submitted an estimate of $580,823.83 to American Family, her homeowner's insurance carrier, to cover the repair and replacement of her personal property. On April 25 Lyon's general contractor estimated the cost of restoring the dwelling at $2,763,572.10, and Lyon delivered a copy of that estimate to American Family.
In sharp contrast to Lyon's estimates, American Family estimated the cost to repair the dwelling at $334,242.72. Soon thereafter, after first subtracting Lyon's deductible and withholding an amount for depreciation, American Family issued Lyon an "actual cash value" payment of $255,398.04 as to the residence
Some policies use the words “impartial” rather than disinterested, but there is no real difference between the terms. “Disinterested” is defined as “[f]ree from bias, prejudice, or partiality; not having a pecuniary interest,” Black’s Law Dictionary 536 (9th ed. 2009), and “not having the mind or feelings engaged: not interested ... free from selfish motive or interest: unbiased,” Miriam–Webster’s Collegiate Dictionary 333 (10th ed. 2000). The latter also defines “disinterestedness” as “the quality of being objective or impartial.” Id.; see also Tiger Fibers, LLC v. Aspen Specialty Ins. Co., 571 F.Supp.2d 712, 716 (E.D.Va.2008) (defining “disinterested” as “lacking or revealing lack of interest,” “not influenced by regard to personal advantage,” “free from selfish motive,” or “not biased or prejudiced.”
Some policies use the words “impartial” rather than disinterested, but there is no real difference between the terms. “Disinterested” is defined as “[f]ree from bias, prejudice, or partiality; not having a pecuniary interest,” Black’s Law Dictionary 536 (9th ed. 2009), and “not having the mind or feelings engaged: not interested ... free from selfish motive or interest: unbiased,” Miriam–Webster’s Collegiate Dictionary 333 (10th ed. 2000). The latter also defines “disinterestedness” as “the quality of being objective or impartial.” Id.; see also Tiger Fibers, LLC v. Aspen Specialty Ins. Co., 571 F.Supp.2d 712, 716 (E.D.Va.2008) (defining “disinterested” as “lacking or revealing lack of interest,” “not influenced by regard to personal advantage,” “free from selfish motive,” or “not biased or prejudiced.”
Comment n Hull case and facts. Insured requested appraisal order of umpire and that no ruling on causation be made. Insurer appealed, arguing the trial order stating that
Courts generally have discretion with regard to the timing of the appraisal. Dike v. Valley Forge Ins. Co., 797 F.Supp.2d 777, 786 (S.D. Tex. 2011) (“While a trial court has no discretion to deny the appraisal, the court does have some discretion as to the timing of the appraisal.”)
Total costs vary by claim, but generally less costly than litigation. See Johnson, 290 S.W.3d at 894 (noting that appraisal is designed to be a less expensive alternative to litigation)