Retained by policyholder counsel as an insurance expert witness to review insurance industry standards of care for claims reporting under Claims-Made policy form relative to Agents Errors and Omissions. Despite clear indications of a pending claim from a flawed acid wash facial treatment, the agent neglected to notify the carrier and further had the insured falsify renewal application information. Attorneys Brady Rife and Paul Belcher, Stephenson Rife, LLP (317) 593-4648. Krambeck v. All Insurance Services, LLC, Cause No. 49D01-2007-PL024354 Indiana Commercial Court In The Marion County Superior Court.
Claims Made Liability Insurance Expert Witness
Claims-made policy forms prevail among insurers underwriting Professional, Directors and Officers, Employment Practices and Pollution liability insurance. For certain industries (i.e. pharmaceuticals) claims-made forms are widely used to write Products liability.
Call (817) 980-4897 to discuss your case with Insurance Expert Burl Daniel.
Occurrence vs. Claims Made Policies
Occurrence policies cover claims from “occurrences” during the policy period, regardless of when the claim first becomes known or is reported to the carrier. While claims filed years after an occurrence may be covered, policyholders and insurers are left with uncertainty as to adequate liability limits and/or proper loss reserves.
Typical claims-made policies cover only those “claims made” and reported to the carrier during the policy period (or during an extended reporting period). Liability insurance written on an occurrence policy form and later renewed as a claims-made policy presents potentially serious gaps in coverage. Claim disputes between insureds and carriers arise from a number of sources, including Coverage Triggers, Retroactive Dates, and Tail Coverage.
Coverage Triggers
Claims-made liability insurance is designed to cover “wrongful acts” (actual or alleged) stemming from an error, omission or negligence of the named insured. The definition of “wrongful act” varies by type of professional liability policy purchased. For example, one common definition of “wrongful act” in Employment Practices Liability policies includes “sexual harassment, discrimination or wrongful termination.” Conversely, the definition of “wrongful act” in a D&O policy can be “any actual or alleged breach of duty, misstatements or misleading statements committed by the insured.” The definition of “Wrongful Act” is critical in serving as the “claim trigger” under a given claims-made policy.
Retroactive Date
Coverage for (unknown) acts which occurred during a “prior” policy period (“prior acts coverage”) begins on the “retro date” and continues to the current policy period. “Prior acts coverage” is usually available only if the expiring coverage was also a claims-made policy. “Full prior acts coverage” responds to claims from acts occurring at any time prior to the current policy period.
Tail Coverage
While the policy’s “retro date” establishes the earliest date of coverage, the “extended reporting period” determines the final date of coverage (typically 30-60 days after policy expiration). “Tail coverage” is provides coverage for exposure to unknown liability claims when the insured person (or entity) retires, is acquired, ceases operations or decides not to renew insurance.
Claims Made Expert Witness Cases
Retained by counsel defending against a third-party landlord’s allegations of Agents Errors & Omissions and Insurance Bad Faith for ‘failure to procure’ additional insured status. Policyholder’s landlord alleged reliance on being a Certificate Holder on ACORD Certificates of Liability Insurance as grounds for being an additional insured under policyholder’s Commercial General Liability and Environmental Liability policies. Engagement required analysis of insurance requirements in the lease, scope of coverage for additional insureds and/or whether landlord ever requested being added as an additional insured. Landlord’s allegations also included Business Income Loss of Rents during site cleanup. HLT v. AssuredPartners, Case No. 1:18-cv-00045-RP, In The United States District Court For The Western District of Texas, Austin Division. Attorney Lisa Yerger, Macdonald Devin P.C. (214) 499-5116
Retained by defense counsel to provide analysis and opinions regarding Agent Errors & Omissions and Insurance Bad Faith relative to a Professional Liability policy renewal. Case included allegations of failure to procure alongside issues of questionable policyholder Medical Malpractice claims reporting. Surplus Lines carrier renewed a Claims Made policy with a material reduction of coverage; subsequent claim denial resulted in litigation involving multiple parties. Attorneys Paul Gerding and Echo Reynolds, Kutak Rock LLP (480) 429-5000. Infini v. Wells Fargo Insurance Services USA, Inc., et al; Case No. 2:16-cv-03874-PHX-GMS In The United States District Court, District Of Arizona
Engaged by policyholder counsel to analyze coverage grants and claim denial under a Directors & Officers Liability policy. Engagement required analysis of Professional Liability exposure from litigation resulting from a client’s telemarketing services subcontracted to a third party as well as potential late reporting under Claims Made coverage forms. Attorney Scott Mager, Mager Paruas, LLC (954) 763-2800. Desai, et al v. ADT Security Services, Inc. v. The Elephant Group, Inc., et al v. Direct Savings USA, LLC; Case No. 1:11-cv-1925, United States District Court Northern District of Illinois Eastern Division.
Engaged by defense counsel to opine regarding Agent Errors & Omissions relative to placement of a Broker-Dealer/Registered Investment Advisor(s) Professional Liability policy. Case involved evaluation of coverage afforded a named insured vs. additional insured, Surplus Lines, and Claims Made issues. Claims stemming from a Registered Investment Advisor’s fraudulent investment activities and subsequent conviction were denied by carrier which resulted in an Insurance Bad Faith claim against the agent. Onyx v. Indian Harbor, CalSurance, et al; Civil Action No. 3:13-CV-03426-P In The United States District Court For The Northern District of Texas, Dallas Division. Attorney Blake Bailey, Phelps Dunbar LLP, (817) 488-3134.
Engaged by carrier as Claims Made and Reported Professional Liability Insurance expert. Case involved late notice of claim and required expertise with Agents Errors & Omissions, Commercial General Liability (including Pollution Liability) and Commercial Umbrella. Environmental Analytics, Inc. v. Chartis Claims, Inc., et al. Cause No. 2010-42050; In The 234th J.D. Court Harris County, Texas. Attorneys Tim Kilgore and Dan Lynn, Jackson & Campbell, PC (202) 457-1632.
Retained by counsel for physician seeking claim payment under his Professional Liability policy. Case required expertise in Claims Made medical malpractice Liability Insurance, Workers Compensation and Insurance Bad Faith. Lowe vs. TMLT, Cause No. 348-223452-07; 348th Judicial District Court of Tarrant County, Texas. Attorney Bill Kirkman – Bourland & Kirkman, LLP (817) 336-2800.
Retained as a Professional Liability Expert to analyze issues of Insurance Bad Faith and Claims Made policies for Real Estate Brokers & Agents professional liability. Haynes v. Griffin, et al Cause No. 08-13312-G, 134th State District Court of Dallas County, TX. Plaintiff counsel Nathan Ziegler, (806) 765-8801.
Retained as plaintiff counsel’s Insurance expert to provide analysis and opinions regarding Agent Errors & Omissions and Insurance Bad Faith. Case issues involved placement of Claims Made Medical Malpractice insurance and Agent Standard of Care to advise when advising clients of Professional Liability market conditions. during insurance placement. Attorney Michael Hance, Franklin & Hance, PSC (502) 637-6000. Leslie Hill, M.D. v. SCW Agency, et al. Case No. 04-CI-07409 in Jefferson Circuit Court, Division 10, Commonwealth of Kentucky.
Engaged by insurance carrier as Agent Errors & Omissions, Commercial General Liability and Professional Liability Insurance expert. Dispute arose from late notice of claim under both Occurrence form and Claims Made policies. Attorney Carol Keough – Coats Rose Yale Ryman Lee (713) 653-7372; REO vs. Zurich American Insurance Co., et al. Cause No. C-1739-01-CA (Severed cause); in The 139th J.D. Court, Hidalgo County, Texas.