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Table of Contents |
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Chapter 1: |
Emerging Areas of Claims Litigation |
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- Q 1.1 : Who are the potential targets of litigation?2
- Q 1.2 : What types of claims and litigation are likely?3
- Q 1.3 : What types of claims pose the greatest risk of liability for directors and officers?4
- Q 1.3.1 : What are “derivative actions”?4
- Q 1.3.2 : What is a “shareholder class action”?5
- Q 1.3.3 : What are some common types of securities law claims?5
- Q 1.3.4 : What is “ERISA”?6
- Q 1.3.5 : What is the “SEC”?6
- Q 1.3.6 : What is the “DOJ”?6
- Q 1.3.7 : What is the “Foreign Corrupt Practices Act of 1977”?6
- Q 1.4 : Who is covered under the FCPA?6
- Q 1.5 : What does the FCPA cover?6
- Q 1.6 : What are the criminal and regulatory ramifications of the FCPA?7
- Q 1.7 : Can FCPA violations result in civil suits?7
- Q 1.8 : How concerned should directors and officers be about SEC and DOJ investigations?8
- Q 1.9 : What claims are likely to arise out of ERISA plans?9
- Q 1.10 : Who are the targets of ERISA class actions?9
- Q 1.11 : Why are ERISA class actions advantageous to plaintiffs’ lawyers?9
- Q 1.12 : Are there new trends in ERISA claims?10
- Q 1.13 : What claims are likely to arise against accountants/auditors?10
- Q 1.14 : What claims are likely to arise against attorneys?11
- Q 1.15 : What claims are likely to arise against lenders and mortgage originators?11
- Q 1.16 : What claims are likely against mortgage brokers and real estate agents?12
- Q 1.17 : What types of claims are likely to be filed against underwriters or investment banks?13
- Q 1.18 : What types of employment claims are likely?14
- Q 1.19 : How will the proliferation of litigation against officers and directors affect insurance coverage under D&O liability insurance policies?16
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Chapter 2: |
Insurance Concepts and Definitions |
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- Q 2.1 : What is an “additional insured”?23
- Q 2.2 : What does “adjudication” or “adjudicated” mean?24
- Q 2.3 : What is “advancement”?24
- Q 2.4 : What is an “aggregate limit”?24
- Q 2.5 : What is “allocation”?24
- Q 2.6 : What is an “application”?24
- Q 2.7 : What is “arbitration”?24
- Q 2.8 : What is a “binder”?25
- Q 2.9 : What is “breach of duty”?25
- Q 2.10 : What is a “broad form policy”?25
- Q 2.11 : What is a “broker”?25
- Q 2.12 : What is “business liability insurance”?25
- Q 2.13 : What is a “captive insurance company”?25
- Q 2.14 : What is a “claimant”?26
- Q 2.15 : What is a “claims-made” policy?26
- Q 2.16 : What is a “commercial general liability” policy?26
- Q 2.17 : What are “conditions”?26
- Q 2.18 : What is “contractual liability coverage”?27
- Q 2.19 : What does “declarations” mean?27
- Q 2.20 : What is a “deductible”?27
- Q 2.21 : What are the “definitions”?27
- Q 2.22 : What is a “derivative claim”?28
- Q 2.23 : What is “difference in conditions” coverage?28
- Q 2.24 : What is “directors’ and officers’ liability insurance”?28
- Q 2.25 : What is the “duty to defend”?28
- Q 2.26 : What is the “duty to pay”?29
- Q 2.27 : What is the “effective date” of a policy?29
- Q 2.28 : What is “employee benefits plan liability coverage”?29
- Q 2.29 : What is “employer’s liability insurance”?29
- Q 2.30 : What is “employment practices liability insurance” coverage?29
- Q 2.31 : What is an “endorsement”?30
- Q 2.32 : What is “enterprise risk management”?30
- Q 2.33 : What is “environmental damage”?30
- Q 2.34 : What is “errors and omissions” insurance?30
- Q 2.35 : What is an “excess policy”?30
- Q 2.36 : What are “exclusions”?31
- Q 2.37 : What is an “extended reporting period”?31
- Q 2.38 : What is “fidelity insurance”?31
- Q 2.39 : What is a “fiduciary”?32
- Q 2.40 : What is “fiduciary liability coverage”?32
- Q 2.41 : What is a “follow form policy”?32
- Q 2.42 : What is “fraud”?32
- Q 2.43 : What is a “fronting arrangement”?32
- Q 2.44 : What is “full prior acts coverage”?33
- Q 2.45 : What is a “hammer clause”?33
- Q 2.46 : What is the “inception date”?33
- Q 2.47 : What is “indemnification”?33
- Q 2.48 : What is an “indemnity policy”?33
- Q 2.49 : What is the “insuring agreement”?34
- Q 2.50 : What is an “interim funding agreement”?34
- Q 2.51 : What is the “known loss doctrine”?34
- Q 2.52 : What is “liability insurance”?34
- Q 2.53 : What is a “manuscript policy”?35
- Q 2.54 : What is “material information”?35
- Q 2.55 : What is “negligence”?35
- Q 2.56 : What is a “notice of circumstances”?35
- Q 2.57 : What is an “occurrence”?36
- Q 2.58 : What is an “occurrence-based” policy?36
- Q 2.59 : What is a “per-occurrence” limit of liability?36
- Q 2.60 : What is a “plaintiff”?36
- Q 2.61 : What is a “primary policy”?36
- Q 2.62 : What is “professional liability insurance”?36
- Q 2.63 : What are “punitive damages”?37
- Q 2.64 : What is “recklessness”?37
- Q 2.65 : What is “rescission”?37
- Q 2.66 : What is a “reservation of rights letter”?37
- Q 2.67 : What is a “retroactive date”?37
- Q 2.68 : What is a “risk retention group” (RRG)?37
- Q 2.69 : What is “severability”?38
- Q 2.70 : What is “side A coverage”?38
- Q 2.71 : What is “side A only coverage”?38
- Q 2.72 : What is “side B coverage”?38
- Q 2.73 : What is “side C coverage”?38
- Q 2.74 : What is “subrogation”?38
- Q 2.75 : What is “tail coverage”?39
- Q 2.76 : What is a “tort”?39
- Q 2.77 : What is a “wrongful act”?40
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Chapter 3: |
Practical Liability Insurance Solutions |
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- Q 3.1 : Should I consult an attorney?48
- Q 3.2 : What can an attorney do for me?48
- Q 3.3 : How will my broker and my attorney work together?49
- Q 3.4 : What is the typical business coverage we might want to include in our company’s liability insurance portfolio?49
- Q 3.5 : What are some common coverage needs?50
- Q 3.6 : What type of claims might a CGL policy cover?50
- Q 3.7 : What might a typical umbrella policy cover?51
- Q 3.8 : What should a typical E&O policy cover?51
- Q 3.9 : What should a typical employment practices liability insurance (EPLI) policy cover?51
- Q 3.10 : What should a fiduciary liability policy cover?52
- Q 3.11 : What should a typical internet liability policy cover?52
- Q 3.12 : What should a typical private company D&O policy cover?52
- Q 3.13 : What might a typical public company D&O policy cover?52
- Q 3.14 : How do I make the most of my premium dollars?53
- Q 3.15 : How do I make sense of a policy form?54
- Q 3.15.1 : What is the “declarations page”?54
- Q 3.15.2 : What is the “insuring agreement”?54
- Q 3.15.3 : What are the “definitions”?54
- Q 3.15.4 : What are the “exclusions”?54
- Q 3.15.5 : What are the “endorsements”?55
- Q 3.16 : What duties do I have in applying for insurance?55
- Q 3.17 : What does it mean when the application refers to other information incorporated into the application by reference like public filings?56
- Q 3.18 : What is a “best rating” and what does it mean to me?56
- Q 3.19 : Why do we want excess layers of liability coverage— why can’t we just buy a primary policy with higher limits?56
- Q 3.20 : What alternatives are there to traditional insurance carriers?57
- Q 3.21 : What is a captive insurance company?57
- Q 3.22 : What are the advantages to captive insurance?57
- Q 3.23 : What is a risk retention group?57
- Q 3.24 : What type of coverage is provided by an RRG?58
- Q 3.25 : What are the advantages and potential risks of insuring with an RRG?58
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Chapter 4: |
Commercial General Liability Coverage |
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- Q 4.1 : What kind of liability risks does a business face?62
- Q 4.2 : What is CGL insurance?63
- Q 4.3 : Does CGL insurance cover damage to the insured’s property?64
- Q 4.4 : What is a manuscript policy?64
- Q 4.5 : How does a CGL policy protect a company?65
- Q 4.6 : What is the duty to defend benefit?65
- Q 4.6.1 : When is the duty to defend triggered?65
- Q 4.7 : What is the duty to indemnify benefit?66
- Q 4.8 : What is the loss control benefit?66
- Q 4.9 : What is the investigation benefit?66
- Q 4.10 : What is the loss mitigation benefit?66
- Q 4.11 : What categories of risks are covered by a CGL policy?67
- Q 4.12 : When does coverage under a CGL policy come into play?67
- Q 4.13 : When will coverage under a CGL policy be triggered?68
- Q 4.13.1 : What is an “occurrence-based” policy?68
- Q 4.13.2 : What is a “claims-made” policy?68
- Q 4.13.3 : What types of manuscript policy triggers are available?68
- Q 4.14 : What are the parts of the standard CGL policy?69
- Q 4.15 : What are “definitions”?69
- Q 4.16 : What are the “declarations”?69
- Q 4.17 : What are “limits of insurance”?69
- Q 4.17.1 : What is an “aggregate limit”?69
- Q 4.17.2 : What is a “per-occurence limit”?70
- Q 4.18 : What is included in Section I of the CGL policy?70
- Q 4.18.1 : What is an “insuring agreement”?70
- Q 4.18.2 : What are the coverage parts of a CGL policy?70
- Q 4.18.3 : What are “exclusions”?70
- Q 4.19 : What is included in Section II of the CGL policy form?70
- Q 4.19.1 : Who is an insured?70
- Q 4.19.2 : Who else is an insured?71
- Q 4.19.3 : When is a volunteer worker an insured?71
- Q 4.19.4 : When is an employee an insured?72
- Q 4.19.5 : Are there any other limitations that govern whether an employee will be insured?72
- Q 4.19.6 : What are the qualifications with respect to a newly acquired or newly formed organization being insured?73
- Q 4.19.7 : Who should be insured under a CGL policy?73
- Q 4.20 : What are “conditions”?74
- Q 4.20.1 : What are our duties in regard to notifying the insurance carrier about a potential claim?74
- Q 4.20.2 : What if we didn’t give notice of an accident and six months later we receive a summons and complaint?75
- Q 4.20.3 : What are the consequences of failing to give prompt notice of claims, accidents or potential claims?75
- Q 4.20.4 : If we settle a claim on our own, is the carrier responsible for paying it?76
- Q 4.20.5 : Who gets to select defense counsel if we get sued?76
- Q 4.20.6 : What is the “duty to cooperate”?76
- Q 4.21 : What are “endorsements”?77
- Q 4.22 : What is Coverage A?77
- Q 4.23 : What is insured under Coverage A?77
- Q 4.24 : What is “bodily injury”?78
- Q 4.24.1 : Does bodily injury include emotional injury?78
- Q 4.24.2 : What is an “occurrence”?78
- Q 4.24.3 : What is typically not deemed an “occurrence”?78
- Q 4.25 : What is “property damage”?78
- Q 4.25.1 : Are lost profits considered property damage?79
- Q 4.25.2 : What is “premises/operations hazard”?79
- Q 4.25.3 : What is the “products-completed operations hazard” coverage?79
- Q 4.26 : What are the exclusions under Coverage A?79
- Q 4.27 : What is the “intentional or expected injury exclusion”?80
- Q 4.28 : What is the “contractual liability exclusion”?81
- Q 4.29 : What is the “liquor liability exclusion”?81
- Q 4.30 : What is the “workers’ compensation exclusion”?81
- Q 4.31 : What is the “employment liability exclusion”?81
- Q 4.32 : What is the “pollution exclusion”?82
- Q 4.32.1 : What are “pollutants”?82
- Q 4.32.2 : Are there any exceptions to the pollution exclusion?82
- Q 4.32.3 : Is the cost of cleanup on behalf of a governmental authority excluded?82
- Q 4.33 : What is the “aircraft/auto/watercraft exclusion”?82
- Q 4.34 : What is the “mobile equipment exclusion”?82
- Q 4.35 : What is the “war exclusion”?83
- Q 4.35.1 : Does the war exclusion apply to terrorism?83
- Q 4.36 : What is the “damage to property exclusion”?83
- Q 4.37 : What is the “damage to your work exclusion”?83
- Q 4.38 : What is the “recall of products, work or impaired property exclusion”?84
- Q 4.39 : What is the “damage to impaired property or property not physically injured exclusion”?84
- Q 4.39.1 : What is “impaired property”?84
- Q 4.39.2 : What kind of loss of use claims are excluded?84
- Q 4.39.3 : Are there exceptions to the damage to impaired property exclusion?84
- Q 4.40 : What is the “personal and advertising injury exclusion”?85
- Q 4.41 : What is the “electronic data exclusion”?85
- Q 4.42 : What is the “distribution of material in violation of statutes exclusion”?85
- Q 4.43 : What is the “fungus/mold exclusion”?85
- Q 4.44 : What is the “employment-related practices exclusion”?85
- Q 4.45 : What is the “asbestos exclusion”?86
- Q 4.46 : What is the “lead exclusion”?86
- Q 4.47 : What is the “nuclear exclusion”?86
- Q 4.48 : What is the “securities and financial interest exclusion”?86
- Q 4.49 : What is the “silica exclusion”?86
- Q 4.50 : What is the “known injury or damage exclusion”?86
- Q 4.51 : What is Coverage B?87
- Q 4.52 : Who needs Coverage B?87
- Q 4.53 : What kinds of claims are covered under Coverage B?87
- Q 4.54 : What claims are excluded under Coverage B?88
- Q 4.55 : What is the “knowing violation of rights of another exclusion”?89
- Q 4.56 : What is the “material published with knowledge of falsity exclusion”?89
- Q 4.57 : What is the “material published prior to policy period exclusion”?89
- Q 4.58 : What is the “criminal acts exclusion”?90
- Q 4.59 : What is the “contractual liability exclusion”?90
- Q 4.60 : What is the “breach of contract exclusion”?90
- Q 4.61 : What is the “quality or performance of goods— failure to conform to statements exclusion”?90
- Q 4.62 : What is the “wrong description of prices exclusion”?90
- Q 4.63 : What is the “infringement of copyright, patent, trademark or trade secret exclusion”?91
- Q 4.64 : What is the “insured’s in media and Internet-type businesses exclusion”?91
- Q 4.65 : What is the “electronic chatroom or bulletin boards exclusion”?91
- Q 4.66 : What is the “unauthorized use of another’s name or product exclusion”?92
- Q 4.67 : What is the “pollution exclusion”?92
- Q 4.68 : What is the “pollution-related exclusion”?92
- Q 4.69 : What is the “war exclusion”?92
- Q 4.70 : What are the other exclusions that apply to Coverage B?92
- Q 4.71 : What is Coverage C?93
- Q 4.72 : When does Coverage C apply?93
- Q 4.73 : What are covered medical expenses under Coverage C?93
- Q 4.74 : What are exclusions under Coverage C?94
- Q 4.75 : What is the purpose of the “other insurance” provision?94
- Q 4.76 : How does the “other insurance” provision work when there are excess policies?95
- Q 4.77 : When is the CGL policy deemed excess?95
- Q 4.78 : What happens when the CGL policy is primary, but there are other primary policies that also apply?95
- Q 4.78.1 : What is “contribution by equal shares”?96
- Q 4.78.2 : What is “contribution by limits”?96
- Q 4.79 : What is the “representations” clause?96
- Q 4.80 : What kind of misstatement in the application will justify the carrier avoiding coverage?96
- Q 4.81 : What is the “separation of insured” clause?96
- Q 4.82 : Can we tailor a CGL policy to meet the specific or unique business needs of our business?97
- Q 4.83 : What are some kinds of liability that should be addressed through purchasing special or separate coverage through another policy or endorsement?97
- Q 4.84 : What types of endorsements are available?98
- Q 4.85 : What is the additional insured endorsement?98
- Q 4.85.1 : Practically speaking, what does the additional insured endorsement actually insure?99
- Q 4.85.2 : Can the additional insured be covered for its own negligence under the additional insured endorsement?100
- Q 4.85.3 : Is there coverage for an injury sustained by an additional insured or the employee of an additional insured where such injury is the result of a workplace accident?101
- Q 4.86 : Are the endorsements discussed in this chapter the only ones available?101
- Q 4.87 : Can you purchase coverage for “advertising injury” even though the standard policy form excludes such coverage?102
- Q 4.88 : How will a CGL policy operate in a construction setting?102
- Q 4.89 : What type of property damage is covered under a CGL policy issued to a contractor?102
- Q 4.89.1 : What is the difference between coverage under a CGL policy and a surety policy?103
- Q 4.89.2 : When will coverage be triggered under a contractor’s general liability policy?103
- Q 4.89.3 : What is the “subcontractor exception” to the “your work” exclusion?104
- Q 4.90 : Does the “completed operations hazards” clause have any effect on a contractor’s liability insurance policy?104
- Q 4.91 : Who needs product liability insurance?105
- Q 4.92 : What is product liability insurance?105
- Q 4.93 : What kinds of claims arise out of the manufacture, distribution or sale of goods or products?105
- Q 4.94 : Who might be sued for products liability?106
- Q 4.95 : What is the legal basis for products liability?106
- Q 4.96 : What type of claims are covered under a CGL endorsement relating to products liability?106
- Q 4.96.1 : Do the “products hazard” and “completed operations hazards” clauses affect coverage under a CGL policy for products liability–related claims?106
- Q 4.96.2 : What is the “sistership exclusion” included in CGL policies insuring products liability claims?107
- Q 4.97 : Can we purchase liability insurance to cover environmental or pollution claims?107
- Q 4.98 : What is an “absolute pollution exclusion”?108
- Q 4.98.1 : What is a “qualified pollution exclusion”?108
- Q 4.99 : Can any business purchase an endorsement that will provide coverage for liability resulting from environmental pollution?109
- Q 4.100 : Are there endorsements that relate specifically to real property?109
- Q 4.101 : What does a landlord’s policy cover?110
- Q 4.102 : Is there any need for a lender to obtain CGL coverage, or seek coverage under some type of endorsement?110
- Q 4.103 : What about claims based on the entry on/eviction from property or otherwise relate to the right of private occupancy to property?110
- Q 4.104 : Is there coverage for motor carrier liability?110
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Chapter 5: |
Professional Liability Insurance |
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- Q 5.1 : What is the difference between errors and omissions (E&O) insurance and professional liability insurance?120
- Q 5.2 : What are the significant features of professional liability insurance?121
- Q 5.3 : What is a “professional”?121
- Q 5.4 : Who are professionals?121
- Q 5.5 : What do “professional services” include?121
- Q 5.6 : What is professional liability insurance designed to cover?121
- Q 5.7 : What is the difference between a commercial general liability policy and an E&O policy?122
- Q 5.8 : Who is typically insured under a professional liability insurance policy?123
- Q 5.9 : Does the insurance carrier have a “duty to defend” me under my professional liability policy?123
- Q 5.10 : What is the advantage of a duty to defend policy?123
- Q 5.11 : Does the duty to defend apply even if the allegations are false?124
- Q 5.12 : Do I have to reimburse the insurer for costs of defense if the claims turn out to not be covered?124
- Q 5.13 : Are defense costs in addition to the limits of liability?124
- Q 5.14 : Is my professional liability policy a “claims-made” or an “occurrence-based” policy?124
- Q 5.14.1 : What is an “occurrence-based” policy?125
- Q 5.14.2 : What is a “claims-made” policy?125
- Q 5.14.3 : What is a “claims-made and reported” policy?125
- Q 5.15 : What are some claims that might trigger professional liability coverage?125
- Q 5.16 : What are “declarations”?126
- Q 5.17 : What is the “insuring agreement”?126
- Q 5.18 : What are “exclusions”?126
- Q 5.19 : What are “definitions”?126
- Q 5.20 : What are “conditions”?126
- Q 5.21 : What are “endorsements”?126
- Q 5.22 : What are definitional problems that might be encountered with professional liability claims?127
- Q 5.23 : Who is “insured”?127
- Q 5.24 : What is a “wrongful act”?127
- Q 5.25 : What is “insured capacity”?127
- Q 5.26 : Why is the definition of “claim” important?128
- Q 5.27 : What is “aggregate limit”?128
- Q 5.28 : What is the significance of “interrelated claims”?129
- Q 5.29 : What determines whether there is one claim or multiple claims?129
- Q 5.30 : Does an investigative demand or governmental subpoena constitute a “claim”?130
- Q 5.31 : Is a complaint seeking injunctive relief a “claim”?130
- Q 5.32 : What is covered “loss” or covered “damages”?130
- Q 5.33 : What is “restitution”?131
- Q 5.34 : What are “punitive damages”?131
- Q 5.35 : Are fines, penalties or sanctions covered “loss”?132
- Q 5.36 : What exclusions might apply to a professional liability policy?132
- Q 5.37 : What is the “dishonesty, fraudulent or criminal acts exclusion”?133
- Q 5.37.1 : If my law partner does something dishonest and I get sued, does the dishonesty exclusion bar coverage for me too?133
- Q 5.37.2 : At what point can the insurer deny coverage based on the dishonesty exclusion?134
- Q 5.37.3 : What if one of the insureds under our professional liability policy signs a confession admitting that he is guilty of criminal conduct?135
- Q 5.37.4 : If a court enters judgment against an insured under our professional liability policy that establishes dishonesty or fraud, do we have to repay the costs of defense?135
- Q 5.37.5 : If an insured agrees to settle a claim, does that mean the insurer can claim that bad conduct has been established?136
- Q 5.37.6 : Can the insurer sue an insured in a separate court action and get a judgment that the insured was guilty of dishonesty or fraud so as to avoid coverage?136
- Q 5.38 : What is the “personal profit or advantage exclusion”?136
- Q 5.38.1 : Is it important to have language in the policy requiring a final adjudication before the personal profit exclusion applies?137
- Q 5.38.2 : Can the personal profit exclusion bar coverage for an innocent insured where another insured is actually the one who received the benefit?137
- Q 5.39 : What is the “misappropriation of another’s intellectual property exclusion”?137
- Q 5.40 : What is the “sexual misconduct exclusion”?137
- Q 5.41 : What is the “willful violation of law or statute exclusion”?138
- Q 5.41.1 : Is it important to have language in the policy requiring a final adjudication before the “intentional acts” exclusion applies?138
- Q 5.42 : What is an “insured versus insured” exclusion?138
- Q 5.42.1 : How can we avoid problems with the “insured versus insured” exclusion?139
- Q 5.43 : What are “environmental exclusions”?139
- Q 5.44 : What are “securities laws exclusions”?140
- Q 5.45 : What are “fee dispute exclusions”?140
- Q 5.46 : What are “contract exclusions”?140
- Q 5.47 : What are “other insurance exclusions”?141
- Q 5.47.1 : What are “discrimination and harassment exclusions”?141
- Q 5.47.2 : What are “prior acts exclusions”?141
- Q 5.47.3 : What are “prior notice exclusions”?141
- Q 5.47.4 : What problems arise with prior notice exclusions?141
- Q 5.47.5 : What are “prior knowledge exclusions”?142
- Q 5.47.6 : What are “ERISA exclusions”?142
- Q 5.47.7 : What are “workers’ compensation exclusions”?143
- Q 5.47.8 : What are “bodily injury or loss of property exclusions”?143
- Q 5.47.9 : What are exclusions for libel, slander and defamation?143
- Q 5.47.10 : What is the “motor vehicle exclusion”?144
- Q 5.48 : What are the duties of the insured in the event of a claim?144
- Q 5.49 : What duty does the insured have with regard to providing notice of a claim?144
- Q 5.50 : What triggers the duty to notify the insurer of a potential claim?145
- Q 5.51 : What method of providing notice is required?146
- Q 5.52 : What are the consequences of failure to give timely notice?146
- Q 5.53 : What is the duty to assist or cooperate?147
- Q 5.54 : What is the duty to provide documents or submit to examination?147
- Q 5.55 : What are the most common issues encountered by insureds with regard to the duty of cooperation?148
- Q 5.56 : What are potential problems with disclosures on the insurance application?148
- Q 5.57 : What are the typical disclosure requirements for potential claims?149
- Q 5.58 : Do I have to provide information not requested on the application?150
- Q 5.59 : What happens if I do not answer a question?150
- Q 5.60 : What happens if I give an incomplete answer?150
- Q 5.61 : How precise do I have to be on those questions that ask what percentage of my time is spent on certain activities?151
- Q 5.62 : Who has the right to select counsel?151
- Q 5.62.1 : What is “panel counsel”?151
- Q 5.63 : Who does the insurer-appointed attorney represent?151
- Q 5.64 : Should I be worried that the defense attorney is more interested in what the insurer wants than in what is best for me?152
- Q 5.65 : What if I want to settle the claim and the insurer does not?152
- Q 5.66 : What if the insurance company wants me to agree to a settlement?152
- Q 5.66.1 : What is a “hammer clause”?153
- Q 5.66.2 : Is a “hammer clause” enforceable?154
- Q 5.66.3 : Can the insurance company settle a case without telling me?154
- Q 5.67 : Can I settle a claim without asking the insurer?154
- Q 5.68 : What types of professions have specialized professional liability coverage?154
- Q 5.69 : Who is insured under our accountant’s professional liability coverage?155
- Q 5.70 : What types of services are covered under our accountant professional liability coverage?155
- Q 5.71 : What types of claims are covered under our accountant professional liability policy?156
- Q 5.72 : What “loss” or “damages” are covered under our accountant professional liability coverage?156
- Q 5.73 : What “loss” or “damages” may not be covered under our accountant professional liability coverage?157
- Q 5.74 : What are some common exclusions under an accountant professional liability coverage?157
- Q 5.75 : Do we have a right to choose our own counsel?158
- Q 5.76 : Do we have a right to veto settlement?158
- Q 5.77 : What are incentive provisions?158
- Q 5.78 : What is a late notice savings clause?158
- Q 5.79 : Who is insured under our professional liability coverage?158
- Q 5.80 : What kinds of claims does our architect and engineer professional liability policy cover?159
- Q 5.80.1 : What are “professional services”?159
- Q 5.81 : What “loss” or “damages” are covered under our architect and engineer professional liability policy?159
- Q 5.82 : What “loss” or “damages” may not be covered under our architect and engineer professional liability policy?159
- Q 5.83 : What are some common exclusions under an architect and engineers professional liability coverage?160
- Q 5.84 : Do we have a right to choose our own counsel?160
- Q 5.85 : Do we have a right to veto settlement?160
- Q 5.86 : Are attorneys required to carry professional liability insurance as a condition for being licensed?161
- Q 5.87 : Are there any special considerations for attorneys with regard to applications for professional liability insurance?161
- Q 5.88 : Who is insured under our lawyers professional liability policy coverage?161
- Q 5.89 : What kinds of claims does our lawyer’s professional liability policy cover?162
- Q 5.90 : What professional services are covered under our lawyer’s policy professional liability coverage?163
- Q 5.91 : What “losses” or “damages” are covered under our lawyer’s professional liability policy?163
- Q 5.92 : What are some common exclusions under a lawyer’s professional liability policy?164
- Q 5.93 : Do we have a right to choose our own counsel?165
- Q 5.94 : Do we have a right to veto settlement?165
- Q 5.95 : What are special considerations for financial institutions?165
- Q 5.96 : Who is insured under our financial institution professional liability policy?165
- Q 5.97 : What kinds of claims does our financial institution professional liability policy cover?166
- Q 5.97.1 : What are “professional services”?166
- Q 5.98 : What “loss” or “damages” are covered under our financial institution professional liability policy?166
- Q 5.99 : What “loss” or “damages” may not be covered under our financial institution professional liability policy?166
- Q 5.100 : What are some common exclusions under a financial institution liability policy?167
- Q 5.101 : Do we have a right to choose our own counsel?167
- Q 5.102 : Do we have a right to veto settlement?167
- Q 5.103 : What are special considerations for health care professionals?167
- Q 5.104 : Who is insured under our health care organization professional liability coverage?168
- Q 5.105 : Who is insured under my individual health care professional liability coverage?169
- Q 5.106 : What if a physician cannot find liability coverage?169
- Q 5.107 : How do JUAs or PCFs work?169
- Q 5.108 : What kinds of services does our health care organization professional liability policy cover?169
- Q 5.109 : What types of services are covered under my individual health care professional liability policy?170
- Q 5.110 : What types of claims are covered under our health care professional liability policy?170
- Q 5.111 : What “loss” or “damages” are covered under our health care professional liability policy?171
- Q 5.112 : What “loss” or “damages” may not be covered under our health care professional liability policy?171
- Q 5.113 : What are some common exclusions under a health care professional liability policy?171
- Q 5.114 : Do we have a right to choose our own counsel?172
- Q 5.115 : Do we have a right to veto settlement?172
- Q 5.116 : How are premiums set?172
- Q 5.117 : Who buys insurance professional liability coverage?172
- Q 5.118 : Are there special considerations for insurance professionals?173
- Q 5.119 : What kinds of claims does our insurance agents and brokers errors and omissions policy cover?174
- Q 5.120 : Who is insured under our insurance professional liability policy?175
- Q 5.121 : What “loss” or “damages” are covered under our insurance professional liability coverage?175
- Q 5.122 : What “loss” or “damages” may not be covered under our insurance professional liability coverage?175
- Q 5.123 : What are some common exclusions under an insurance professional liability coverage?176
- Q 5.124 : Do we have a right to choose our own counsel?177
- Q 5.125 : Do we have a right to veto settlement?177
- Q 5.126 : Who buys media liability coverage?177
- Q 5.127 : What protection does media liability insurance afford?178
- Q 5.128 : Who is insured under our media professional liability policy?178
- Q 5.129 : What kinds of activities of media professionals are included in the risks insured by media liability insurance?178
- Q 5.130 : Are there any limitations to the breadth of the covered activities under our media liability policy?179
- Q 5.131 : What “loss” or “damages” are covered under our media professional liability policy?179
- Q 5.132 : What if we are responsible for liability because of a contract?179
- Q 5.133 : What “loss” or “damages” may not be covered under our media professional liability policy?180
- Q 5.134 : What are some common exclusions under our media professional liability coverage?180
- Q 5.135 : Do we have a right to choose our own counsel?181
- Q 5.136 : Do we have a right to veto settlement?181
- Q 5.137 : What special considerations apply to Internet-related services?181
- Q 5.138 : What types of claims are asserted against Internet service professionals?181
- Q 5.139 : What are special considerations for technology companies?182
- Q 5.140 : What are some of the risks that technology companies face?182
- Q 5.141 : What services will be included under our technology professional liability policy?183
- Q 5.142 : Who is insured under our technology professional liability policy?183
- Q 5.143 : What types of claims does our technology professional liability policy cover?183
- Q 5.144 : What “loss” or “damages” may not be covered under our technology professional liability policy?184
- Q 5.145 : What are some common exclusions under a technology professional liability coverage?184
- Q 5.146 : Do we have a right to choose our own counsel?185
- Q 5.147 : Do we have a right to veto settlement?186
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Chapter 6: |
Directors’ and Officers’ Liability Insurance |
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- Q 6.1 : What are some of the claims that might trigger D&O coverage?194
- Q 6.2 : How can our broker help us define our D&O insurance needs?195
- Q 6.3 : Do we need to consult an attorney in evaluating D&O policies?195
- Q 6.4 : What is a manuscript policy?196
- Q 6.5 : What are the typical D&O insuring agreements?196
- Q 6.6 : What is “Side A coverage”?197
- Q 6.7 : How do indemnification and D&O coverage work together?197
- Q 6.8 : When does Side A coverage apply?198
- Q 6.9 : In what instances will the corporation not indemnify the officers or directors?198
- Q 6.10 : What is “Side A excess coverage”?199
- Q 6.11 : What is “Side B coverage”?200
- Q 6.12 : When is reimbursement made under Side B coverage?200
- Q 6.13 : What is “Side C coverage”?200
- Q 6.14 : What is “shareholder derivative demand coverage”?201
- Q 6.15 : What is a shareholder demand?201
- Q 6.16 : Why do we need shareholder derivative demand coverage?201
- Q 6.17 : Does our D&O policy cover the costs of investigations?202
- Q 6.17.1 : Are internal investigations by the corporation itself into potential wrongdoing covered?203
- Q 6.17.2 : How likely are we to utilize “investigative costs coverage”?203
- Q 6.18 : What is “outside entity insured person coverage”?203
- Q 6.19 : Does the insurance carrier have a “duty to defend” us under our D&O policy?204
- Q 6.20 : Do I have to reimburse the insurer for costs of defense if the claims turn out not to be covered?204
- Q 6.21 : Are defense costs in addition to the limits of liability?205
- Q 6.22 : Is our D&O policy a “claims-made” policy or an “occurrence-based” policy?205
- Q 6.22.1 : What is a “claims-made” policy?205
- Q 6.23 : What are the parts of a typical D&O policy?205
- Q 6.23.1 : What are “declarations”?205
- Q 6.23.2 : What is the “insuring agreement”?205
- Q 6.23.3 : What are “exclusions”?206
- Q 6.23.4 : What are “definitions”?206
- Q 6.23.5 : What are “conditions”?206
- Q 6.23.6 : What are “endorsements”?206
- Q 6.24 : What potential problems might we encounter with D&O claims?206
- Q 6.25 : What are potential problems with disclosures on the insurance application?206
- Q 6.25.1 : What is “rescission”?207
- Q 6.25.2 : Do we have to provide information not requested on an application?207
- Q 6.25.3 : What happens if we do not answer a question?207
- Q 6.25.4 : What happens if we give an incomplete answer?207
- Q 6.25.5 : Can the insurance carrier rely on things not listed in our specific answers on the application?208
- Q 6.25.6 : What is “severability” and why is it important to me?208
- Q 6.26 : What are “definitional problems”?208
- Q 6.26.1 : Who is insured?209
- Q 6.26.2 : What problems might arise with regard to who is insured?209
- Q 6.26.3 : What is “insured capacity”?209
- Q 6.26.4 : What qualifies as an insured “subsidiary”?210
- Q 6.26.5 : How can you protect yourselves against confusion as to what entities are to be insured under the policy?210
- Q 6.27 : What problems might we encounter with regard to who qualifies as an officer?211
- Q 6.27.1 : What is a “claim”?213
- Q 6.27.2 : Why is the definition of “claim” important?213
- Q 6.27.3 : Does an investigative demand or governmental subpoena constitute a “claim”?214
- Q 6.27.4 : Is a complaint seeking injunctive relief a “claim”?214
- Q 6.27.5 : What is a “wrongful act”?214
- Q 6.27.6 : What does “wrongful act” mean in the “insured person” context?214
- Q 6.27.7 : What does “wrongful act” mean in connection with a public company insured organization?215
- Q 6.27.8 : What is a “securities claim”?215
- Q 6.27.9 : What does “wrongful act” mean in connection with a private company insured organization?215
- Q 6.27.10 : What does “wrongful act” mean when used in connection with an “outside entity”?215
- Q 6.27.11 : What happens when the allegations include both covered and non-covered acts?216
- Q 6.27.12 : When must the wrongful acts have occurred to be covered?216
- Q 6.27.13 : What does “interrelated wrongful acts” mean?217
- Q 6.27.14 : What is “loss”?218
- Q 6.27.15 : What is included within the definition of “loss”?218
- Q 6.27.16 : What are “punitive damages”?219
- Q 6.27.17 : What is not included as “loss”?219
- Q 6.27.18 : What are some of the problems encountered with “loss”?219
- Q 6.27.19 : What is “restitution”?220
- Q 6.28 : What exclusions might apply?221
- Q 6.29 : What problems are encountered with introductory phrases and exclusions?222
- Q 6.30 : What are “conduct exclusions”?223
- Q 6.31 : What is the “personal profit or advantage exclusion”?223
- Q 6.31.1 : What is the effect of the “final adjudication” language?224
- Q 6.32 : What is the “dishonesty, fraudulent or criminal acts exclusion”?225
- Q 6.32.1 : What if one of the insureds under our D&O policy signs a confession admitting that he is guilty of criminal conduct?226
- Q 6.32.2 : Does the bad conduct of one insured bar coverage for other insureds under the conduct exclusions?226
- Q 6.32.3 : What is a “severability of exclusions” provision?227
- Q 6.32.4 : If a court enters judgment against an insured under our D&O liability policy that establishes dishonesty or fraud, do we have to repay the costs of defense?227
- Q 6.32.5 : If an insured agrees to settle a claim, does that mean that the insurer can claim that bad conduct has been established?228
- Q 6.32.6 : Can the insurer sue an insured in a separate court action and get a judgment that the insured was guilty of dishonesty or fraud so as to avoid coverage?228
- Q 6.33 : What are “specific exclusions”?228
- Q 6.33.1 : What is the “insured versus insured exclusion”?228
- Q 6.33.2 : Why do carriers want to limit coverage of “insured versus insured” claims?229
- Q 6.33.3 : How can we avoid problems with the “insured versus insured exclusion”?229
- Q 6.33.4 : What does a typical “insured versus insured exclusion” look like?229
- Q 6.33.5 : What are “regulatory exclusions”?230
- Q 6.33.6 : What is the “pollution exclusion”?231
- Q 6.33.7 : What is the “securities laws exclusion”?231
- Q 6.33.8 : What is the “contract exclusion”?232
- Q 6.33.9 : What are “other insurance exclusions”?232
- Q 6.33.10 : What is the “employment practices exclusion”?233
- Q 6.33.11 : What is the “prior acts exclusion”?233
- Q 6.33.12 : What is the “prior notice exclusion”?233
- Q 6.33.13 : What problems arise with a prior notice exclusion?233
- Q 6.33.14 : What is the “prior or pending litigation exclusions”?234
- Q 6.33.15 : What is the “ERISA exclusion”?234
- Q 6.33.16 : What is the “bodily injury or loss of property exclusion”?234
- Q 6.33.17 : What kinds of problems might we encounter with “other insurance exclusions”?235
- Q 6.34 : What other exclusions might be included in our D&O policy?235
- Q 6.35 : What are the duties of the insured in the event of a claim?236
- Q 6.36 : What duty does the insured have with regard to providing notice of a claim?236
- Q 6.37 : What triggers the duty to notify the insurer of a potential claim?237
- Q 6.38 : If we have notice of a potential claim, how do we make sure we are covered?238
- Q 6.39 : What is a “Notice of Circumstance”?238
- Q 6.40 : What method of providing notice is required?238
- Q 6.41 : What are the consequences of failure to give timely notice?239
- Q 6.42 : What is the duty to cooperate?239
- Q 6.42.1 : What are the most common issues encountered by insureds with regard to the duty of cooperation?239
- Q 6.43 : Who has the right to select counsel?240
- Q 6.44 : What is “panel counsel”?240
- Q 6.45 : Who does the insurer-appointed attorney represent?240
- Q 6.46 : Should I be worried that the defense attorney is more interested in what the insurer wants than in what is best for me?240
- Q 6.47 : Do outside directors ever have to contribute to settlements of securities class actions?241
- Q 6.48 : If there’s so much risk, why aren’t directors called upon to contribute to settlements more often?241
- Q 6.49 : Who controls the process of settlement?241
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Chapter 7: |
Fiduciary Liability Insurance |
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- Q 7.1 : What is ERISA?248
- Q 7.2 : What is an “ERISA plan”?248
- Q 7.2.1 : What is an “employee pension benefit plan”?248
- Q 7.2.2 : What is an “employee welfare benefit plan”?249
- Q 7.2.3 : What is an “employee organization”?249
- Q 7.2.4 : Who might create an ERISA plan?249
- Q 7.3 : Who is an ERISA fiduciary?249
- Q 7.3.1 : Must there be formal documents appointing a person or entity as a fiduciary?250
- Q 7.4 : What duties does an ERISA fiduciary have?250
- Q 7.5 : What is a fiduciary precluded from doing?250
- Q 7.6 : What are the consequences of breaching fiduciary duties?251
- Q 7.7 : I depend on third parties to administer most of my employee benefit plans, so why should I consider purchasing fiduciary liability insurance coverage?251
- Q 7.7.1 : Can an employer insulate itself from liability by providing employee benefits through a third party such as a disability or health insurance company?251
- Q 7.8 : Is an employer subject to claims for discrimination under ERISA?252
- Q 7.9 : Who needs to worry about claims potentially covered by a fiduciary liability insurance policy?252
- Q 7.10 : Who is at risk for fiduciary liability under ERISA?253
- Q 7.11 : Can a fiduciary face criminal penalties?253
- Q 7.12 : Who can pursue claims against employers and fiduciaries?253
- Q 7.13 : Where can an ERISA action be filed?253
- Q 7.14 : What other penalties might be imposed under ERISA?254
- Q 7.15 : What coverage language should we look for in a fiduciary liability insurance policy?254
- Q 7.16 : How can our broker help us define our fiduciary liability insurance needs?255
- Q 7.17 : Do we need to consult an attorney in evaluating fiduciary liability policies?255
- Q 7.18 : What is a “manuscript policy”?255
- Q 7.19 : Does the insurance carrier have a “duty to defend” us under our fiduciary liability policy?256
- Q 7.19.1 : Do I have to reimburse the insurer for the costs of defense if the claims turn out not to be covered?256
- Q 7.19.2 : Are defense costs in addition to the limits of liability?256
- Q 7.20 : What if we discover an error in plan administration before any claims are filed against me?257
- Q 7.21 : Is our fiduciary liability policy a “claims-made” policy or an “occurrence-based” policy?257
- Q 7.22 : What is a “claims-made” policy?257
- Q 7.22.1 : What is “tail coverage”?257
- Q 7.23 : What are the parts of a typical fiduciary liability policy?258
- Q 7.23.1 : What are “declarations”?258
- Q 7.23.2 : What is the “insuring agreement”?258
- Q 7.23.3 : What are “exclusions”?258
- Q 7.23.4 : What are “definitions”?258
- Q 7.23.5 : What are “conditions”?258
- Q 7.23.6 : What are “endorsements”?258
- Q 7.24 : What potential problems might we encounter with fiduciary liability claims?258
- Q 7.25 : What are potential problems with disclosures on the insurance application?259
- Q 7.25.1 : What is “rescission”?259
- Q 7.25.2 : Do I have to provide information not requested on application?259
- Q 7.25.3 : What happens if I do not answer a question?259
- Q 7.25.4 : What happens if I give an incomplete answer?259
- Q 7.25.5 : Can the insurance carrier rely on things not listed in our specific answers to the application?260
- Q 7.25.6 : What is “severability” and why is it important to me?260
- Q 7.26 : Who is “insured”?261
- Q 7.26.1 : What problems might arise with regard to who is insured?261
- Q 7.27 : What is “insured capacity”?261
- Q 7.27.1 : What qualifies as an insured “subsidiary”?262
- Q 7.27.2 : How can we protect ourselves against confusion as to what entities are to be insured under the policy?262
- Q 7.28 : What is a “claim”?263
- Q 7.28.1 : Why is the definition of “claim” important?263
- Q 7.28.2 : Does an investigative demand or governmental subpoena constitute a “claim”?263
- Q 7.28.3 : Is a complaint seeking injunctive relief a claim?263
- Q 7.29 : What is a “wrongful act”?264
- Q 7.30 : What does “wrongful act” mean in the “insured person” context?264
- Q 7.31 : What happens when the allegations include both covered and non-covered acts?264
- Q 7.32 : When must the wrongful acts have occurred to be covered?265
- Q 7.32.1 : What does “interrelated wrongful acts” mean?265
- Q 7.33 : What is “loss”?266
- Q 7.33.1 : What is not included as “loss”?266
- Q 7.34 : What are “significant exclusions”?266
- Q 7.35 : What does severability mean to us?267
- Q 7.36 : What exclusions might apply?267
- Q 7.37 : What are problems encountered with introductory phrases and exclusions?269
- Q 7.38 : What are “conduct exclusions”?269
- Q 7.38.1 : What is the “personal profit or advantage exclusion”?269
- Q 7.38.2 : What is the “dishonesty exclusion”?270
- Q 7.38.3 : What is the effect of the “final adjudication” language?270
- Q 7.38.4 : What if one of the insureds under our fiduciary liability policy signs a confession admitting that he is guilty of criminal conduct?271
- Q 7.39 : Does the bad conduct of one insured bar coverage for other insureds under the conduct exclusions?271
- Q 7.39.1 : What is a severability of exclusions provision?271
- Q 7.39.2 : If a court enters judgment against an insured under our fiduciary liability policy that establishes dishonesty or fraud, do we have to repay the costs of defense?272
- Q 7.39.3 : If an insured agrees to settle a claim, does that mean that the insurer can claim that bad conduct has been established?272
- Q 7.39.4 : Can the insurer sue an insured in a separate court action and get a judgment that the insured was guilty of dishonesty or fraud so as to avoid coverage?272
- Q 7.40 : What is the “insured versus insured exclusion”?272
- Q 7.41 : What is the “pollution exclusion”?273
- Q 7.42 : What are other insurance exclusions?273
- Q 7.42.1 : What is the “employment practices exclusion”?274
- Q 7.43 : What is the “prior acts exclusion”?274
- Q 7.43.1 : What is the “prior notice exclusion”?274
- Q 7.43.2 : What problems arise with the “prior notice exclusion”?274
- Q 7.43.3 : What is the “prior or pending litigation exclusions”?275
- Q 7.43.4 : What is the “bodily injury or loss of property exclusion”?275
- Q 7.43.5 : What kinds of problems might we encounter with other insurance exclusions?275
- Q 7.44 : What issues arise with claims?275
- Q 7.45 : What are the duties of the insured in the event of a claim?276
- Q 7.46 : What duty does the insured have with regard to providing notice of a claim?276
- Q 7.47 : What triggers the duty to notify the insurer of a potential claim?277
- Q 7.48 : If we have notice of a potential claim, how do we make sure we are covered?278
- Q 7.49 : What is a “notice of circumstance”?278
- Q 7.50 : What method of providing notice is required?278
- Q 7.51 : What are the consequences of failure to give timely notice?279
- Q 7.52 : What is the duty to cooperate?279
- Q 7.53 : What are the most common issues encountered by insureds with regard to the duty of cooperation?279
- Q 7.54 : Who has the right to select counsel?280
- Q 7.55 : What is panel counsel?280
- Q 7.56 : Who does the insurer-appointed attorney represent?280
- Q 7.57 : Should I be worried that the defense attorney is more interested in what the insurer wants than in what is best for me?280
- Q 7.58 : Who controls the process of settlement?280
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Chapter 8: |
Employment Practices Liability Insurance |
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- Q 8.1 : What types of employment practices are covered under an “Employment Practices Liability Insurance” policy?284
- Q 8.2 : Who is covered?285
- Q 8.3 : Does an Employment Practices Liability Insurance policy cover punitive damages?285
- Q 8.4 : Is there a standard form Employment Practices Liability Insurance policy?286
- Q 8.5 : Is the Employment Practices Liability Insurance policy a claims-made policy?286
- Q 8.6 : Is the Employment Practices Liability Insurance policy a duty to defend policy?286
- Q 8.6.1 : What is “panel counsel”?286
- Q 8.6.2 : Do we have to use “panel counsel” if we already have employment law counsel?287
- Q 8.7 : Who does the insurer-appointed attorney represent?288
- Q 8.8 : Should we be worried the defense attorney is more interested in what the insurer wants than in what is best for us?288
- Q 8.9 : What determines coverage under an Employment Practices Liability Insurance policy?288
- Q 8.10 : What are the typical exclusions in an Employment Practices Liability Insurance policy?289
- Q 8.11 : What is severability?291
- Q 8.12 : Does the Employment Practices Liability Insurance policy have severability of exclusions?291
- Q 8.13 : Does the Employment Practices Liability Insurance policy provide for severability of representations?291
- Q 8.14 : What is a “claim” under an Employment Practices Liability Insurance policy?292
- Q 8.15 : What kind of claims trigger coverage under an Employment Practices Liability Insurance policy?292
- Q 8.16 : What are the discrimination claims that are covered by an Employment Practices Liability Insurance policy?293
- Q 8.17 : What is the ADA?293
- Q 8.17.1 : Do Employment Practices Liability Insurance policies cover ADA claims?294
- Q 8.18 : What is the Family and Medical Leave Act?294
- Q 8.18.1 : Do Employment Practices Liability Insurance policies cover FMLA claims?294
- Q 8.19 : What is the ADEA?294
- Q 8.19.1 : Does an Employment Practices Liability Insurance policy cover ADEA claims?295
- Q 8.20 : What is “sexual harassment”?295
- Q 8.20.1 : Are harassment claims covered under an Employment Practices Liability Insurance policy?295
- Q 8.21 : What are wrongful termination claims?296
- Q 8.22 : What are immigration claims?296
- Q 8.22.1 : Are immigration claims covered under an Employment Practices Liability Insurance policy?297
- Q 8.23 : What are Fair Labor Standards Act claims?297
- Q 8.23.1 : Are FSLA claims covered under Employment Practices Liability Insurance policies?298
- Q 8.23.2 : Are whistleblower claims related to FLSA covered?298
- Q 8.24 : What are WARN Act claims?298
- Q 8.24.1 : Are WARN Act claims covered?299
- Q 8.25 : What is “Sarbanes-Oxley” or “SOX”?299
- Q 8.25.1 : Are SOX claims covered?299
- Q 8.26 : What are defamation claims and are they covered under an Employment Practices Liability Insurance policy?300
- Q 8.27 : What is invasion of privacy?300
- Q 8.27.1 : Is invasion of privacy covered under Employment Practices Liability Insurance policies?301
- Q 8.28 : Is intentional infliction of emotional distress covered under an Employment Practices Liability Insurance policy?301
- Q 8.29 : Who is insured under an Employment Practices Liability Insurance policy?302
- Q 8.30 : What is the typical insuring agreement in an Employment Practices Liability Insurance policy?302
- Q 8.31 : Who is an employee under the terms of an Employment Practices Liability Insurance policy?302
- Q 8.32 : What is “loss”?303
- Q 8.33 : What are the duties of the insured in the event of a claim?304
- Q 8.34 : What is a “discovery period”?304
- Q 8.35 : What is a “notice of circumstance”?304
- Q 8.36 : What are the duties of the insured with regard to settlement?305
- Q 8.37 : What is a “hammer clause”?305
- Q 8.37.1 : Is a “hammer clause” enforceable?305
- Q 8.37.2 : What does a typical hammer clause look like?305
- Q 8.38 : Should we buy excess Employment Practices Liability Insurance coverage?305
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Chapter 9: |
Excess Insurance |
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- Q 9.1 : What is a “primary insurance policy”?312
- Q 9.2 : What is the difference between an “excess” policy and an umbrella policy?312
- Q 9.2.1 : Do umbrella policies contain a duty to defend?312
- Q 9.3 : What is “differences in conditions” coverage?312
- Q 9.4 : Does it make a difference if an insured elects to purchase numerous excess layers of coverage?312
- Q 9.5 : Why purchase separate excess insurance instead of simply opting for higher policy limits?313
- Q 9.6 : How does excess coverage work when there are several layers of insurance?313
- Q 9.7 : What is a “following form” excess policy?313
- Q 9.8 : What is a “stand-alone” excess policy?314
- Q 9.9 : Does an excess policy contain a duty to defend?314
- Q 9.10 : What is a “quota share program”?314
- Q 9.11 : When must I notify my excess carrier of a potential claim?314
- Q 9.12 : How might a coverage dispute with my primary carrier impact my excess coverage?315
- Q 9.13 : How might settlement with an underlying insurer impact my excess coverage?315
- Q 9.14 : If my primary carrier becomes insolvent can I then turn to my excess carrier?316
- Q 9.15 : What is a “shaving of limits” endorsement?316
- Q 9.16 : What is a “most favored nation” clause?316
- Q 9.17 : If our settlement is less than the total primary insurance limits do we have to have the consent of the excess insurer?316
- Q 9.18 : Does the primary insurance company have a duty to the excess insurance company in connection with settlement?317
- Q 9.19 : What duty does the excess insurance company have to cooperate in the settlement or defense of a lawsuit against its insured?317
- Q 9.20 : What is “horizontal exhaustion”?317
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Chapter 10: |
Fidelity/Crime Insurance |
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- Q 10.1 : What are typical fidelity coverages?321
- Q 10.1.1 : What is the Financial Institution Bond?322
- Q 10.1.2 : What does the Financial Institution Bond cover?322
- Q 10.2 : Why do we need to buy fidelity/crime insurance?322
- Q 10.3 : Whose dishonest and fraudulent acts are covered by fidelity insurance policies?322
- Q 10.4 : Who is typically insured under a fidelity policy?323
- Q 10.5 : What is generally covered under fidelity/crime policies?323
- Q 10.5.1 : What is employee theft coverage?323
- Q 10.5.2 : What is premises coverage?323
- Q 10.5.3 : What is in-transit coverage?324
- Q 10.5.4 : What is forgery coverage?324
- Q 10.5.5 : What is computer fraud coverage?324
- Q 10.5.6 : What is funds transfer fraud coverage?324
- Q 10.5.7 : What is money orders and counterfeit currency fraud coverage?324
- Q 10.5.8 : What is credit card fraud coverage?325
- Q 10.5.9 : What is client coverage?325
- Q 10.5.10 : What is expense coverage?325
- Q 10.6 : What are the typical exclusions to coverage under a fidelity policy?325
- Q 10.7 : What are our duties if we discover a loss has occurred?326
- Q 10.8 : What are some common issues that arise with fidelity/crime insurance?327
- Q 10.8.1 : What issues arise with regard to discovery?327
- Q 10.8.2 : What issues arise with regard to what constitutes dishonesty?327
- Q 10.8.3 : What problems arise with whether losses are direct or indirect?328
- Q 10.8.4 : What kind of issues come up with on premises coverage?328
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Chapter 11: |
Claims |
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- Q 11.1 : What happens if we fail to give timely notice?332
- Q 11.2 : What types of events should put me on claim-alert?332
- Q 11.3 : Whom do we notify?333
- Q 11.4 : Is there any required method of notice?333
- Q 11.5 : How can our broker help us?333
- Q 11.6 : Are we supposed to hire an attorney?334
- Q 11.7 : Who controls the process of responding to and handling a claim?335
- Q 11.8 : Are there any special controls we should implement when the claim comes in?335
- Q 11.9 : What is the duty of cooperation?336
- Q 11.10 : Can we make an offer to settle the claim without notifying the insurer?336
- Q 11.11 : What is the difference between the duty to defend and the duty to indemnify?337
- Q 11.12 : What is a “coverage dispute”?337
- Q 11.12.1 : How does a coverage dispute affect the duty to defend?337
- Q 11.12.2 : What is a “reservation of rights letter”?338
- Q 11.12.3 : What is a “non-waiver agreement”?338
- Q 11.12.4 : What is an interim funding agreement, and do I have to sign it?339
- Q 11.12.5 : What is “rescission”?339
- Q 11.12.6 : What is a “declaratory judgment”?339
- Q 11.13 : If the insurance company sues me for declaratory judgment, who bears the costs of defending against that action?340
- Q 11.14 : What is “bad faith”?341
- Q 11.15 : What is “allocation”?341
- Q 11.16 : How do we work with the insurance carrier in connection with potentially settling the claim against us?342
- Q 11.17 : If my policy is an indemnity policy rather than a duty to defend policy, can I settle the claim without the insurance company’s agreement?343
- Q 11.18 : What problems arise when there are multiple insurance policies that may cover a given loss?343
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