Professional Liability Insurance

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by Thomas A. Marrinson

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Professional Liability Insurance provides complete, in-depth coverage, from the basics of professional liability insurance policies to complex issues that arise once a claim is made. How far must an insurer go to meet its duty to defend? What types of misconduct by professionals may be outside the scope of coverage?

No matter which side you represent, this book will cut hours off your research and help you find the best solutions for your clients. This unique guide examines the variations on policy clauses in professional liability policies and how the courts interpret them. Topics include: types of professional liability insurance; defenses to coverage; claims submission and handling; insurer's duty to defend; considerations for particular professions; litigation strategy; and recurring issues, such as sexual misconduct and improper billing practices.

Whether you are purchasing a new policy or litigating a claim, Professional Liability Insurance makes even the most complex issues understandable and accessible. It's the first book to consult — and the only one you will need.

Book #00695; looseleaf, one volume, 568 pages, published in 2008, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-152-1.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 568
  • ISBN: 978-1-58852-152-1
  • Pub#/SKU#: 695
  • Volume(s): 1

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  • Thomas A. Marrinson
Mr. Marrinson is a partner in the Chicago office of Reed Smith LLP. He has experience in a wide variety of insurance coverage disputes, including those involving coverage for professional liability, D&O liability, environmental cleanup, lead poisoning, and asbestos-related property damage claims. Mr. Marrinson frequently writes and lectures on numerous insurance coverage issues throughout the country. He is a graduate of UCLA School of Law (1989) and Columbia College (1986).

Also by Thomas A. Marrinson:
Insurance Coverage Disputes

Introduction to Professional Liability Insurance

§ 1.01 Professionals and the Duty of Care
[1] Who Is a “Professional”
[2] Defining the Standard of Care
§ 1.02 Components of the Professional Liability Insurance Policy
[1] Declarations
[2] The Insuring Agreement
[3] Exclusions
[4] Definitions
[5] Conditions
[6] Endorsements
§ 1.03 Types of Professional Liability Risk Transfer
[1] Admitted Insurers and Surplus Lines Insurers
[2] Claims-Made vs. Occurrence Policies
[3] Primary vs. Excess Policies
[4] Fronting Insurance
[5] Retrospectively Rated Programs
[6] Pooling Programs, Joint Underwriting Associations, and Other Non-Traditional Forms of Risk Transfer

Basics of Professional Liability Insurance Coverage

§ 2.01 The Scope of Professional Liability Coverage
[1] Covered Professional Services
[2] The Required Nexus Between Professional Services and the Claim
[3] The Requirement of a “Claim”or “Suit”
[4] Who is an Insured
§ 2.02 Defenses to Coverage
[1] Rescission
[2] Exclusions
[3] Late Notice
[4] Public Policy Defenses to Coverage
§ 2.03 Cancellation of Policies
[1] Policy Provisions Regarding Cancellation
[2] Policyholder Right to Cancel vs. Insurer Right to Cancel
[3] Statutory Restrictions on Cancellation

Rules of Policy Interpretation

§ 3.01 General Rules of Policy Interpretation
§ 3.02 The Rule of Contra Proferentem
[1] General Application of the Rule
[2] Contra Proferentem and the Sophisticated Insured
§ 3.03 Ambiguity and the Parol Evidence Rule
[1] The Parol Evidence Rule
[2] Determining Ambiguity
§ 3.04 The Reasonable Expectations Doctrine
§ 3.05 The Roles of Judge and Jury in Insurance Policy Interpretation

Policyholder’s Duties with Respect to Claims Submission and Handling

§ 4.01 Introduction
§ 4.02 Notice of Claim, Occurrence or Circumstances—Reporting Provisions for Differing Types of Events
[1] Notice of Claims
[2] Reporting Occurrences and Circumstances
§ 4.03 Notice of Claims Made After Policy Expiration
§ 4.04 Timing of Notice
§ 4.05 Late Notice
[1] Consequences of Late Notice
[2] Prejudice and Late Notice
§ 4.06 Content and Method of Delivery of Notice
§ 4.07 To Whom and By Whom Notice Must Be Directed
§ 4.08 Assistance and Cooperation
§ 4.09 Consent to Settlement and Voluntary Payment Clauses
§ 4.10 Policyholder’s Duties to Excess Insurers

Duties of the Insurer in Connection with Defense and Settlement of Professional Liability Claims

§ 5.01 Introduction
§ 5.02 Initial Duties upon Receipt of Notice
§ 5.03 Determining Whether a Duty to Defend Exists
[1] General Principles
[2] Insurer Recoupment of Defense Costs for Non-Covered Claims
[3] Information Relevant to Determining Whether There Is a Duty to Defend
[4] Termination or Suspension of the Duty to Defend
[5] The Duty to Advance Defense Costs
§ 5.04 Conflicts of Interest and the Tripartite Relationship
[1] Introduction to the Issue
[2] Determining Whether a Conflict Exists
[3] Addressing Conflicts of Interest
[4] The Insurer’s and Insured’s Rights and Obligations in Litigation Conducted by Independent Counsel
[5] Insurance Company Cost Containment Measures and the Duty to Defend
§ 5.05 The Professional Liability Insurer’s Settlement-Related Duties
[1] When Insurer Resists Settlement Sought by Insured
[2] When Insured Resists Settlement Sought by Insurer
[3] When an Insurer’s Settlement Duties Ripen
[4]  Settlement on Behalf of Fewer Than All Insureds
[5] Insurer Recoupment of Non-Covered Settlements
[6] The Insurers Duty to Pay Reasonable Settlements

Recurring Issues in Professional Liability Insurance Coverage

§ 6.01 The Nexus Between the Claim and the Professional Services
§ 6.02 Sexual Misconduct Claims
[1] Generally
[2] Innocent Insureds and Entities
[3] Exclusions, Sublimits and Public Policy Considerations
§ 6.03 Billing for Professional Services
§ 6.04 Determining the Number of Occurrences, Claims, Incidents, Acts or Omissions
[1] Introduction
[2] Relevant Policy Language
[3] Judicial Tests for Determining the Number of Occurrences
§ 6.05 What Constitutes a “Claim”
[1] General Considerations
[2] Subpoenas, Investigations, and Government Proceedings
§ 6.06 What Constitutes Recoverable “Damages”or “Loss”
[1] Restitution Claims
[2] Punitive Damages
[3] “Taxes,”“Fines”and “Penalties”
[4] Vague Pleadings
[5] Attorneys’ Fees as “Damages”or “Loss”
[6] Prejudgment Interest as “Damages”or “Loss”
[7] Equitable Remedies as Involving Damages or Loss
[8] Nonmonetary Consideration as Damages or Loss
[9] The Legal Obligation to Pay “Damages”or “Loss”
§ 6.07 Related Claims
§ 6.08 Exhaustion of Underlying Coverage
§ 6.09 Allocation of Loss Between Covered and Non-Covered Claims
§ 6.10 Creating Coverage Through Estoppel

Issues for Particular Professions and Professionals

§ 7.01 Attorney Professional Liability Insurance
[1] State Mandatory Disclosure Requirements
[2] Application-Related Issues
[3] Who Is Insured
[4] Covered Acts
[5] Covered Damages
[6] Exclusions
[7] Defense and Settlement-Related Issues
§ 7.02 Healthcare Professional Liability Insurance
[1] State Mandatory Insurance Requirements
[2] Who Is Insured
[3] Covered Acts
[4] Covered Claims and Damages
[5] Exclusions
[6] Defense and Settlement-Related Issues
§ 7.03 Architect and Engineer Professional Liability Insurance
[1] Who Is Insured
[2] Covered Acts
[3] Covered Damages
[4] Exclusions
[5] Defense and Settlement-Related Issues
§ 7.04 Media Professional Liability Insurance
[1] Who Is Insured
[2] Covered Acts
[3] Covered Claims and Damages
[4] Exclusions
[5] Defense and Settlement-Related Issues
[6] Internet-Related Issues
§ 7.05 Financial Institution Professional Liability Insurance
[1] Who Is Insured
[2] Covered Acts
[3] Covered Damages
[4] Exclusions
[5] Defense and Settlement-Related Issues
§ 7.06 Accountant Professional Liability Insurance
[1] Who Is Insured
[2] Covered Acts
[3] Covered Damages
[4] Exclusions
[5] Defense and Settlement-Related Issues
[6] Other Provisions

Litigating The Coverage Claim—Initial Considerations

§ 8.01 Introduction
§ 8.02 Arbitration Provisions
[1] Generally
[2] As Applied to Non-Parties to the Arbitration Agreement
[3] Legislation Affecting Insurance Arbitration Provisions
§ 8.03 Venue and Forum Non Conveniens
[1] Venue Generally
[2] Transfer of Venue and Forum Non Conveniens
[3] Competing Actions and the First Filed Rule
[4] Forum Selection Clauses
§ 8.04 Choice of Law
[1] Introduction to Choice of Law in Insurance Coverage Disputes
[2] The Traditional Approach
[3] The Most Significant Relationship Approach
[4] Other Approaches
[5] Enforceability of Choice of Law Provisions
§ 8.05 The Effect of Service of Suit Clauses on Venue and Choice of Law
[1] The Service of Suit Clause as Mandatory Forum Selection Provision
[2] The Effect of the Service of Suit Clause on an Insurer’s Right of Removal
[3] The Service of Suit Clause and Arbitration
[4] The Service of Suit Clause as Choice of Law Provision
§ 8.06 Proper Parties
[1] Other Insurers as Proper Parties
[2] Underlying Claimants as Proper Parties
[3] Other Insureds as Proper Parties
§ 8.07 Justiciability

Bad Faith and Other Extracontractual Claims

§ 9.01 Bad Faith
[1] Introduction
[2] Bad Faith Breach of the Duty to Settle
[3] Other Forms of Bad Faith
§ 9.02 Damages Available in Bad Faith Actions
[1] Introduction
[2] Excess Judgments
[3] Insured’s Deductible
[4] Punitive or Exemplary Damages
[5] Emotional Distress Damages
[6] Attorneys’ Fees
[7] Interest
[8] Consequential Damages
§ 9.03 Statutory Claims
[1] Unfair Claims Settlement Practices Acts
[2] Deceptive Trade Practices Acts
§ 9.04 Use of Experts in Litigating Claims of Bad Faith
§ 9.05 Defenses to Claims of Bad Faith
[1] Advice of Counsel
[2] Fair Debatability of Coverage
[3] Comparative Bad Faith
§ 9.06 Policyholder Recovery of Attorneys' Fees Incurred in Cover-age Litigation