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Coverage Analysis
Tom
often functions as a legal analyst and counselor,
rather than as an advocate. He provides analysis and advice
concerning unusual, unprecedented, complex, or amorphous coverage problems;
helps his clients take appropriate positions that best serve their legal and
business needs; and, if necessary, provides formal coverage opinions and
representation in litigation, arbitration, or other ADR.
Key Benefits
- Reduce "bad faith" exposure
- Preserve policy defenses
- Resist unreasonable demands of over-aggressive insureds
- Avoid paying non-covered claims
- Avoid taking unreasonable or unsustainable positions
- Avoid unnecessary coverage litigation
- Enhance consistency
Drafting
Tom has written or revised literally hundreds of filed and non-filed policy
forms and endorsements for a national P&C group, including forms for general
liability, professional liability, numerous highly-specialized niche programs,
and exclusions for Y2K, terrorism, and mold. He has also helped clients write or
revise internal underwriting and claim-handling guidelines to deal with
sensitive or developing coverage issues. He also developed and wrote a unique,
“cutting edge,” three-party reinsurance arbitration agreement, which was then
used very successfully in a $64 million reinsurance arbitration.
Key Benefits
- State your actual intent more clearly and unambiguously
- Coordinate terminology and intent among multiple coverage parts
- Make exclusions and conditions less vulnerable to legal attack
- Have contract language that anticipates contingencies
- Enhance consistency
Examples:
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Home Ins. Co. v. Air
Trans Associates (N.Y. Law
Journal, 4/23/90, p. 26, col. 3):
Tom represented the aircraft liability insurer of a private airplane that
crashed, killing four. His client denied a duty to defend or indemnify the
resulting wrongful death claims, because of misrepresentations in the
application for insurance. Tom's client obtained summary judgment in its
favor.
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Arbitration: Reinsurer v.
Cedent (1990): Tom represented a reinsurer in an
arbitration against a ceding Architects and Engineers Errors & Omissions
insurer. The dispute involved the number of occurrences arising from
repeated failures of a large metropolitan water supply project. He won a
unanimous arbitral award in his client’s favor, saving it $1 million.
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Arbitration: Cedent v.
Reinsurer (1993-96): Tom successfully represented
a commercial property reinsurer in a dispute over the number of
"occurrences" involved in a winter storm catastrophe that damaged a large
factory, followed by a fire at the same location three weeks later. The
cedent claimed the two losses constituted a single occurrence and the fire
ought to be included in the winter storm catastrophe. A three-year
arbitration ended in a unanimous award in favor of Tom's client, with an
estimated value in excess of $25 million.
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Excess Insurer vs.
Policyholder (1996-99):
Tom advised and represented an excess insurer in a complex, unique dispute
involving coverage, allocation, attachment point, mid-term cancellation, and
aggregate exhaustion issues in a multi-year following-form excess
claims-made program, covering a medical device manufacturer involved in mass
product liability litigation. As a result of his efforts, his client
received a complete policy release by paying only 50% of its aggregate
limit, although insurers on upper excess layers of coverage were forced to
exhaust their entire aggregate limits.
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9/11 Property Reinsurance (2002-04):
Tom analyzed, designed, and wrote-up a commercial property insurer’s presentation
of multiple World Trade Center-9/11 losses to its catastrophe and per-risk
reinsurers. His client collected over $147 million in reinsurance, on
time and with no disputes, no arbitration, and no litigation.
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