Small Widget Spot

August 8, 2017

Best Practice: When to Stay in an Insurance Coverage Action

Nicholas J. Peterson, KCEH Law
Nicholas J. Peterson, KCEH Law

Nicholas J. Peterson

Best Practice: When to Stay in an Insurance Coverage Action

I recently came across this helpful article by fellow insurance attorney for policyholders, Erica Villanueva at the fine firm of Farella Braun + Martel LLP here in San Francisco.  Her summary of recent appellate court decisions includes pointers for attorneys in seeking a Motion to Stay an insurance coverage action:

“When a liability insurer wishes to avoid all coverage obligations with respect to a claim against its insured, it may seek an adjudication that it has no duty to defend or indemnify the policyholder.  If the insurer files for such declaratory relief while the underlying litigation is still pending, California insureds will frequently move to stay the coverage action, pursuant to Montrose Chemical Corp. v. Superior Court, 6 Cal. 4th 287 (1993) (“Montrose I”).  The purpose of such a Montrose stay is to avoid the risk of prejudice to the insured in the underlying action, if it is simultaneously forced to litigate an insurance coverage dispute.

In these situations, the insured faces a dilemma:  Should it immediately move to stay the coverage litigation, or wait until it has filed an answer and cross-complaint?  The more principled position might be to minimize any public filings which could force the insured to take positions on factual matters at issue in the underlying litigation.  However, a recent California Court of Appeal decision, Great American Insurance Company v. Superior Court, 178 Cal. App. 4th 221 (2009), suggests that the better practice may be to answer and cross-complain before moving to stay … Read the entire article

August 3, 2017

Using Expert Witnesses in Bad Faith Litigation

Guy O. Kornblum, Kornblum, Cochran, Erickson & Harbison LLP
Guy O. Kornblum, Kornblum, Cochran, Erickson & Harbison LLPI am pleased to announce that I will present in an upcoming Strafford live webinar, “Using Expert Witnesses in Bad Faith and Coverage Litigation: Evidentiary Rules, Expert Opinions, and Objections to Testimony” scheduled for Wednesday, August 30, 1:00 pm-2:30 pm EDT.
Expert witnesses play a critical role in coverage and bad faith litigation, both for policyholders and insurers. Insurance experts typically are underwriters, claims handlers, brokers, regulators and attorneys with knowledge of insurance industry customs.
Claims adjusters are typically used in bad faith litigation to opine as to the reasonableness of another claims adjuster’s conduct. Underwriters are typically experts in coverage litigation providing an opinion on underwriting specific risks and the interpretation and intent of specific policy provisions.
Litigators must be careful to avoid the pitfalls of using expert witnesses whose credibility might be attacked based on previous testimony or due to his or her relationship with a particular insurance company, or selecting a witness whose experience is very limited within the insurance industry.
Our panel will provide counsel in insurance cases with a general overview of the evidentiary rules governing the admissibility of expert opinion testimony. The panel will discuss the use of expert testimony in coverage and bad faith suits, as well as the obstacles that a party may face in presenting expert testimony.
We will review these and other key issues:
  • Which types of industry experts are best suited for bad faith claims and what are common challenges or objections to their testimony?
  • Which types of industry experts are best suited for insurance coverage claims and what are common challenges or objections to their testimony?
  • Under what circumstances would attorneys play a role in presenting expert witness opinions?

After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.

Click here for more information or to register, or call 1-800-926-7926 ext. 10. Ask for “Using Expert Witnesses in Bad Faith Litigation” on 8/30/2017 and mention code: IL3F22-79OCZY
I hope you’ll join us.
Guy O. Kornblum, KCEH Law
Guy O. Kornblum
Click here to learn more about my experience as an expert witness.
July 20, 2017

My Passion for Dispute Resolution

Guy O. Kornblum, Kornblum, Cochran, Erickson & Harbison LLP

I have a passion for dispute resolution.  It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 90’s.  He was a master negotiator but at the same time a supreme diplomat.  His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they thought they received the Congressional Medal of Honor.

I spent a number of years as a traditional “defense” lawyer in the civil litigation arena.  As part of that, I became involved in the early Insurance “bad faith” cases. I tried – as a defense lawyer – the first two first party bad faith cases to go to verdict in California (before Egan was tried in November 1974).  There was no bifurcated trial with the financial worth of the insurer not being known by the jury until a “second phase.”  That was the first thing the plaintiff’s lawyer wanted the jury to hear before the 1988 legislation allowing cases to be bifurcated to keep financial worth out of the case until a jury decided in phase one that punitives were warranted.

Now as a plaintiff’s (primarily) lawyer I hope I have a keen sense of “worth”.  That is, what is the value of the case, and how much is it going to cost to get there?  That is a critical assessment from Day One for any plaintiff’s lawyer.  Not all cases are “bell ringers” with high 6 or 7 figure potential – real potential, that is.

I hope I carry a bit of Dad’s approach in my practice. I fervently insist on early evaluation, negotiation and even mediation of disputes. There are many reasons why.  A primary one is that in my experience an early resolution means a larger net recovery for a client at a time when the money means more and can do more for the client at that point.  Indeed, clients often ask me early in our discussions, “Do you think you can settle my case?”  They are not enthusiastic about going through a trial, possibly an appeal, and waiting years to – hopefully – get a monetary recovery.

Key to any lawyer representing clients in civil litigation is the skill and insight to look down the line and see if it is worth all the hard work that a case requires.  It is imperative that both sides work up the figures so they can focus on where the point of a “best” result lands.  Maybe an early discussion about resolution is worth a try to see if the financial risk and emotional turmoil for a client can be avoided by a resolution using the diplomacy my Dad used to get a “just” result.

Just Resolve Network Arbiter, Guy O. KornblumGuy O. Kornblum has been a civil trial and appellate lawyer for over four decades. He is the author of “Negotiating and Settling Tort Cases:  Reaching the Settlement”, published by Thomson West and the American Association for Justice (rev. 2017).

Mr. Kornblum is a Neutral Arbiter in the Just Resolve Network specializing in resolving disputes in a neutral-driven process in the areas of insurance issues, claims, procedures, investigation of claims, general claims handling, and standard of care in legal malpractice cases.