The key to maximizing a policyholder's insurance recovery often is understanding how the insurer will view the claim, including what defenses to coverage the insurer will assert, and which it thinks are the strongest. Patrick Murphy, an experienced policyholder advocate, will present strategies for developing such information early in the claims or litigation process and for using the information effectively to increase insurance recoveries.

1. Litigation Leaders Webinar Series:
Policyholder Advocacy: Strategies
for Maximizing Insurance Coverage
Patrick Murphy
Patrick.Murphy@quarles.com
(414) 277-5459
Joshua Maggard
joshua.maggard@quarles.com
(414) 277-5855

2. Overview
•Procuring Policies
•Tender Strategy
•Responding to Acknowledgment of Claim
•Responding to Information Requests
•Responding to Reservations of Rights
•Responding to Denial
•Coverage Litigation
•Settlement
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3. Procuring Policies
•Brokers v. Agents
•Important policy terms often overlooked
• Choice of Law
• Choice of counsel
• "Other insurance" provisions
• Limits and self-insured retentions
•Non-standard / manuscript policies (e.g., Cyber, Crime,
Reps and Warranties) require special attention
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4. Tender Strategy
•Timing – as soon as possible, including administrative
proceedings
•Scope – tender to all potentially applicable insurance,
even under policies that might not yet apply (e.g., excess).
• Review additional insured status
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5. Tender Strategy
•Process
• Broker generally can help.
• Tender in writing – keep record of receipt.
•Content
• Package your claim and supporting information to control the
narrative, preempt costly delays, and create a record of
acquiescence by the insurer.
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6. Responding to Acknowledgment
• The acknowledgment of claim letter is not an
acknowledgment of coverage.
• The absence of a Reservation of Rights letter is not an
acknowledgment of coverage.
• Insist on a written coverage position from all insurers.
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7. Responding to Requests for Information
• Review all policies in their entirety.
• Timely provide requested information to avoid costly delays.
• But consider why the insurer wants what it wants, and preemptively
respond to potential defenses.
• Honor the duty to cooperate – it is a real duty.
• But it does not require that you prejudice your defense or claim.
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8. Responding to Requests for Information
• Insist on insurer putting its coverage position in writing.
• Special traps in first-party coverage
• 1-year statutes of limitation
• Proof of claim deadlines
• Broker might be able to help, but often is less effective by this
stage.
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9. Responding to ROR
• Create record of disagreement to avoid acquiescence.
• Insist on independent counsel and control of defense.
• Insist on right to select counsel.
• Fight rate dispute.
• Reject purported right of recoupment.
• Consider how defense strategy can improve coverage claim.
• Motion for more definite statement
• Early motion for summary judgment on uncovered counts
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10. Responding to Denial
• Create record of disagreement to avoid acquiescence.
• Consider how defense strategy can improve coverage claim.
• Motion for more definite statement
• Early motion for summary judgment on uncovered counts
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11. Coverage Litigation
• Timing
• Race to the courthouse to secure venue.
• But do not assume first to file always wins.
• Also beware motions to intervene, bifurcate and stay underlying litigation.
• Advantages of working with insurer's coverage counsel.
• But filing often triggers substantial delays in discussions with insurer.
• And filing generally cuts off opportunity to make record of bad faith.
• Filing may also create headaches with underlying defense (e.g., the
"two-front war").
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12. Coverage Litigation
• Scope
• Consider pros and cons of including all excess insurers in coverage
litigation.
• Be prepared to litigate all issues/coverage defenses.
• But key to efficient resolution often is learning which issues/defenses
insurer cares about most.
• Seek all available relief
• Indemnification
• Payment of defense with no right to second-guess if insurer breaches
• Interest
• Fees (for breach and/or bad faith)
• Punitive damages (for bad faith)
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13. Settlement
• Timing
• Expect to have to participate in process.
• Process starts months before mediation.
• Process often involves coordination with underlying plaintiff and
defense counsel.
• Process might involve separate coverage mediation.
• Consider whether discovery will help, or if allegations are better
than evidence of true facts.
• Develop strategy for resolving disputes regarding allocation of mixed
covered/uncovered claims.
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14. Settlement
• Consider impact of settlement terms on future claims
• Comerica / Qualcomm conundrum
• Koppers protection
• Weyerhauser buy-backs
• Different settlement structures
• Cost share
• Claim / site release
• Buy back / policy release
• Beware indemnification
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15. © 2019 Quarles & Brady LLP -
This document provides
information of a general
nature. None of the
information contained herein
is intended as legal advice or
opinion relative to specific
matters, facts, situations or
issues. Additional facts and
information or future
developments may affect the
subjects addressed in this
document. You should consult
with a lawyer about your
particular circumstances
before acting on any of this
information because it may
not be applicable to you or
your situation.
Questions?
Patrick Murphy
Patrick.Murphy@quarles.com
(414) 277-5459
15
Joshua Maggard
joshua.maggard@quarles.com
(414) 277-5855