Contents
Insurance Primer
Anatomy of a Liability Insurance Policy
Part 2: The Primary Promise to Indemnify
Part 3: The Primary Promise to Defend
Part 4: The Remainder of the Policy
Attorneys’ Fees May Be Covered as Costs
Blue Ridge Settlement Costs Reimbursement
Buss Defense Costs Reimbursement
Various Policy Defense Language
Litigation Primer
Assignable Rights Under a Liability Insurance Policy
Attorney Client Privilege Waiver
Binding Effect of a Liability Judgment on Insurance Coverage
Lawyer Duties
Attorney’s Authority to Bind Client
Client’s Right to Fire Counsel
Dependent Counsel’s Duty to Initiate an Adequate Conflict of Interest Analysis
How Dependent Counsel Conflicts of Interest Arise
Rule of Professional Conduct, Rule 1.7 And The Cumis Rule
Insurance Company Duties
Duty of Good Faith and Fair Dealing
QUESTIONNAIRES
Annotated Coverage Questionnaire
Ethical Compliance Questionnaire
Annotated Ethical Compliance Questionnaire
Yes – Ethical Compliance Questionnaire
ACTION GUIDES
“Yes” – Insurer Concedes Full Coverage
“Maybe” – Insurer Reserves Rights to Later Deny Coverage
“No” – Insurer Denies All Coverage
Blue Ridge Settlement Cost Reimbursement
Buss Defense Cost Reimbursement
MEMORANDA OF LAW
A 40 Day Deadline to Regulatory Deadline to Deny Liability Insurance Coverage Is Poorly Enforced
Compendium of Cases – Collusion
Compendium of Cases – Cooperation
Compendium of Cases – Failure of Proof of Conflicts of Interest
Compendium of Conflicts of Interest
Control of the Defense – Basic Principles
Control of the Defense – Yes, No, Maybe
Cumis Rule Is Based on Attorney Ethics
Cumis Test – When Does the Right to Independent Counsel Vest?
Defaulting Insurer Forfeits Control of the Defense
Dependent Counsel Always Represents the Insurer
Dependent Counsel Is Beholden to the Insurer
Difference Between Dependent Counsel and Independent Counsel
Disqualifying Conflicts of Interest
Duty of Competent Representation
Duty to Advise of Right to Independent Counsel
Duty to Defend – Trigger – Step by Step Analysis
Dynamic Concepts Line of Cases
Elusive Definition of Collusion
Estoppel, Waiver, and Forfeiture
Good Faith Reliance on Advise of Counsel
How Much Must an Insurer Pay Independent Counsel?
How Often Must an Insurer Pay Independent Counsel?
Insurer-Policyholder Fiduciary-Like Relationship
Insurer Silence Usually Concedes Full Coverage
Limited Scope of Representation
Measure of Damages – Failure to Defend
“No” – Insurer Denies All Coverage
Policyholder’s Duty to Cooperate
Settlement – Favorable Evidentiary Presumptions
Testify Into Coverage Truthfully
Tripartite Relationship: When Harmony Turns to Dissonance
LEGAL RESEARCH TOOLS
MODEL CONTRACTS
Confidential Recovery Distribution Agreement
Contingent Hourly and Percentage Retainer Agreement
Privilege Non-Waiver Agreement
Cumis Counsel Retainer Agreement
MODEL DISCOVERY
Demand for Production of Documents
Deposition Outlines
– Good Faith Reliance on Advise of Counsel
MODEL LETTERS
Concede Duty to Defend and Disqualifying Conflict
Conflict of interest Waiver Request
MODEL PLEADINGS
Motion to Disqualify Dependent Counsel
Motion to Enjoin Dependent Counsel
Response to Motion to Withdraw
Trial Brief: Overview of Duty to Defend
Verified Complaint – Declaratory Relief
Verified Complaint – Pay Cumis Counsel
PRACTICE POINTERS
Antiquated Distinction Between Potential and Actual Conflicts of Interest
Cooperation: A Strategic Choice
Cumis Counsel’s Ethical Payment by the Insurer
Dilution: Plaintiff’s Monetary Curse
How to Make a Policy Limit Settlement Offer Properly
Incentives to Confess Covered Liability
Line Dividing Cooperation from Collusion
“Maybe” – Insurer Reserves Rights to Later Deny Coverage
“No” – Insurer Denies All Coverage
Pitches and Fallacies of Dependent Counsel
TOP TEN LISTS
Top Ten Insurer Coverage Decisions
Top Ten Policyholder Coverage Responses
Top Ten Policyholder Strategies
Top Ten Procedural Options to Resolve Conflicts of Interest
Top Ten Surprising Liability Insurance Laws
Top Ten Surprising Truths When Coverage Is Denied
OTHER
CASE STUDIES
Blue Ridge – Multi-Party Coordinated Response
CODES & REGULATIONS
Code of Regs § 2695 et. seq. Summary
EDITORIALS
Dynamic Concepts: Right on the Fact; Wrong on the Law!