2021 Insurance Bad Faith and Extra-Contractual Liability Agenda

Insurance Bad Faith Extra-Contractual Liability July 22-24, 2021

*Schedule and Speakers subject to change

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Thursday, July 22, 2021

Time (Central) Program
1:00 p.m. Registration
3:00 p.m. Welcome and Introduction

Jennifer A. Ehman, Merchants Mutual Insurance Group, Buffalo, NY
Laurie C. Barbe, Steptoe & Johnson PLLC, Morgantown, WV
*Sessions will be held jointly with Insurance Coverage and Claims Institute
3:10 p.m. Proactive Approaches to Avoiding Unnecessary Litigation*

Litigation can often be protracted and expensive. This presentation will discuss efforts carriers can take to be proactive with the goal of resolving matters pre-litigation or setting up the claim prior to litigation commencing. This includes effective issuance of tender letters, retention of experts, early settlement negotiations, and the use of early mediation.

Lisa N. Brennan, Markel, Chicago, IL
Alastar S. McGrath, Kozacky Weitzel McGrath PC, Chicago, IL
4:10 p.m. Primary and Umbrella/Excess Carriers – Tension and Triumphs*

When primary and excess carriers work together, they can often achieve better claim outcomes. This program will explore how carriers can work together, what duties they owe to each other, and when or if those duties may shift. It will also address when limits should be tendered, the effect of tendering limits, how different jurisdictions treat tenders in the context of the duty to defend, pre/post judgment interest issues, and dealing with disputes over coverage positions.

John M. Foley, Markel, Deerfield, IL
F. Lane Finch, Jr., Swift, Currie, McGhee & Hiers, LLP, Birmingham, AL
5:30 p.m. Women's Networking Reception
6:00 p.m. Registration and Networking Reception

Friday, July 23, 2021

Time (Central) Program
7:00 a.m. Registration and Continental Breakfast
8:00 a.m. Welcome, Announcements, and Introductions

Roman Lifson, Christian & Barton LLP, Richmond, VA
Laurie C. Barbe, Steptoe & Johnson PLLC, Morgantown, WV
8:15 a.m. Avoiding Institutional Bad Faith

As more states enact bad faith statutes, hear what steps insurers can take to avoid potential claims for institutional bad faith and defend against arguments of systemic wrongdoing. Will also include discussions about the use by insurers of artificial intelligence, algorithms, predictive models, bots, etc. in the claim handling process and how that could lead to claims of disparate impact and institutional bad faith.

Byron Hansbro, State Farm, Chicago, IL
9:15 a.m. The Bad Faith Setup

This presentation will focus on identifying and protecting carriers against bad faith setups and how to handle common setups, such as time-limited demands and consent judgments.

Krista Horn-Watkins, Travelers, Lake Tahoe, CA
Kathy J. Maus, Butler Weihmuller Katz Craig LLP, Tallahassee, FL
10:15 a.m. Refreshment Break
10:45 a.m. Extra-Contractual Considerations for Eroding Limits Policies

What special bad faith considerations exist with ‘Defense Within Limits’ liability policies? How can insurers limit their potential bad faith exposure for claims arising out of these kinds of policies? What are some of the ethical issues or concerns these kinds of policies may raise for plaintiff’s and defense counsel?

William J. Kobokovich, Jr., Travelers, Hunt Valley, MD
11:45 a.m. Lunch (On your own)
11:45 a.m. Community Service Activity: Boys & Girls Clubs of Chicago

Let’s help the Boys & Girls Clubs of Chicago start the school year right by providing them with school supplies! Why School Supplies? The Boys & Girls Clubs of Chicago strive to enable all young people, especially those in need, to reach their full potential as productive, caring, and responsible citizens. School supplies ensure that all kids have the same opportunities to start the school year right. School supplies also have a profound impact on youth and their learning experience. With the current public health crisis, more and more families are experiencing financial insecurity. As a result, many children don’t have access to essential learning tools.
With your help, we can ensure that each Club member has the supplies they need to be prepared and successful in the school year ahead. During our Friday afternoon lunch and activity break, we will gather at the hotel to stuff backpacks with school supplies for Club members ages 5-18.
2:00 p.m. View from the Policyholder Side

Where does the line lie between proper aggressive advocacy and bad faith conduct? There is no simple answer. In this presentation, two prominent policyholder lawyers will sketch out several scenarios in the context of first and third-party claims adjustment and coverage litigation, and in each will ask the question: "Was the elusive line crossed?" The object is to present a framework for thinking through the propriety of conduct both to advise clients and to govern our own conduct as insurance coverage lawyers.

Moderator
Michael F. Aylward, Morrison Mahoney LLP, Boston, MA 

Seth D. Lamden, Blank Rome LLP, Chicago, IL
John S. Vishneski, III, Reed Smith LLP, Chicago, IL
3:00 p.m. Non-Traditional Theories for Obtaining Extra-Contractual Damages

This presentation will explore emerging theories beyond bad faith being used by policyholder lawyers to obtain extra-contractual damages, and how to defend against those new theories.

Sarannah McMurtry, Acceptance Insurance, Nashville, TN
Matthew M. Haar, Saul Ewing Arnstein & Lehr LLP, Harrisburg, PA
4:00 p.m. Insurance Law Committee Meeting (Open to all)
5:00 p.m. Adjourn
6:00 p.m. Networking Reception
7:30 p.m. Dine-Arounds

Join colleagues and friends at selected restaurants for dinner (on your own).

Saturday, July 24, 2021

Time (Central) Program
7:00 a.m. Registration
7:00 a.m. DRI for Life Walk/Run

Join fellow seminar attendees in the lobby of the Swissotel Chicago around 6:45 AM as we embark on a 4.2 mile walk/run (PDF). The walk/run will start outside of the hotel, go down N. Columbus Drive, and out to Adler Planetarium. Enjoy the views of Lake Michigan and the surrounding coastline, then we'll turn around and head back.
8:00 a.m. Continental Breakfast
9:00 a.m. Welcome, Announcements, and Introductions

Laurie C. Barbe, Steptoe & Johnson PLLC, Morgantown, WV
R. Brandon McCullough, Houston Harbaugh PC, Pittsburgh, PA
9:10 a.m. Strategic Use of Experts in Bad Faith Cases

Two consulting and testifying experts in bad faith litigation will discuss key topics in using experts in bad faith cases, including helpful tips in finding experts, timing and procedures of retention, whether attorneys may be qualified as experts, Daubert motions, best practices in written reports, budgeting, documents for the expert to review, preparation for deposition and trial, and admissibility of scope of testimony.

Julia Molander, JAMolander Consulting LLC, San Francisco, CA
William Berglund, Claims Consultant and Expert Witness, Oakbrook, IL
10:10 a.m. Preparing a 30(b)(6) Witness

The 30(b)(6) deposition can be a powerful tool utilized by policyholders in actions against insurance carriers. This presentation will discuss defending a 30(b)(6) witness in a bad faith deposition and provide strategies for limiting areas of inquiry concerning extraneous issues, such as other claims or suits.

Susan Snowden, Jackson Kelly PLLC, Martinsburg, WV
11:10 a.m. Surprised and Befuddled: Attorney Ethics and Insurance Claims, Bad Faith, and the Privilege (Ethics Session)

The attorney–client privilege proves complicated even in the simplest corporate structures. But its complexity increases in the byzantine world of defending third-party claims and first-party bad-faith lawsuits. Plaintiffs are increasingly seeking claims files, investigation results, in-house lawyer’s coverage analysis, communications between adjusters and lawyers, and the carrier’s reserve determinations. This presentation discusses the privilege’s intricacies, its erosion in the insurance context, and how lawyers can better increase the chances of privilege protection and avoid ethical pitfalls.

Todd Presnell, Bradley Arant Boult Cummings LLP, Nashville, TN
12:10 p.m. Adjourn

On-Demand

Program
Protecting Against Overly Broad Discovery

Where discovery in bad faith claims is far-reaching, listen to a presentation addressing how to protect against discovery directed towards information that is not relevant or germane to the claim.

Samrah Mahmoud, Troutman Pepper Hamilton Sanders LLP, Orange County, CA 
What’s an Insurer to Do? Addressing Bad Faith and Underwriting Issues Raised in COVID-19 Business Interruption Litigation

Reflecting on and discussing the current status of bad faith claims arising from COVID-19 business interruption claims, Karen Karabinos will examine what insurers can be doing to avoid or limit bad faith claims and the nature of the underwriting issues that insurers should be considering as a result of COVID-19 claims.

Karen K. Karabinos, Drew Eckl & Farnham LLP, Atlanta, GA

DRI Cares

Boys & Girls Club

Community Service Activity Boys & Girls Clubs of Chicago

Let’s help the Boys & Girls Clubs of Chicago start the school year right by providing them with school supplies! Why School Supplies? The Boys & Girls Clubs of Chicago strive to enable all young people, especially those in need, to reach their full potential as productive, caring, and responsible citizens. School supplies ensure that all kids have the same opportunities to start the school year right. School supplies also have a profound impact on youth and their learning experience. With the current public health crisis, more and more families are experiencing financial insecurity. As a result, many children don’t have access to essential learning tools.

With your help, we can ensure that each Club member has the supplies they need to be prepared and successful in the school year ahead. During our Friday afternoon lunch and activity break, we will gather at the hotel to stuff backpacks with school supplies for Club members ages 5-18.