Sue or Settle? Strategic Thinking for Insurance Coverage Disputes (CLM018)

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1 Speakers: Sue or Settle? Strategic Thinking for Insurance Coverage Disputes (CLM018) Ash Kilada, PepsiCo, Inc. David F. Klein, Pillsbury Winthrop Shaw Pittman LLP

2 Learning Objectives At the end of this session, you will: Know the legal and commercial considerations that drive the decision whether to litigate or compromise major insurance claims Understand the key strategic considerations driving settlement, the variables shaping negotiations, the potential formal or informal negotiating forums, and the tools at your disposal to get a settlement done Know how to manage litigation or settlement negotiations to minimize cost and maximize recovery

3 Section I The Major Coverage Dispute

4 The Best Disputes are the Ones Avoided Improve contract certainty know your policy Involve coverage counsel when reviewing policy terms and conditions Ask for clarification, wording enhancements up front Stress test loss scenarios through your policy language Choose your insurance partners carefully (brokers and insurers) Understand dispute provisions in your policy (arbitration, choice of law, etc.) Identify and head off potential disputes before they occur: If a claim appears likely to be controversial, try to involve your broker early Get the underwriter involved Set reasonable expectations early with your internal management

5 The Day of Reckoning You have been waiting for weeks to hear from insurers about that major claim The loss is large enough to be reported on the company s 10(k) Your boss has been asking about insurance proceeds almost daily Operational people have been assuming the cash will come in the door A thin envelope comes in the mail.... What do you do?

6 When Bad News Comes, Inhale... Review the insurer s denial letter in light of the policy language Review any applicable legal decisions with inside or outside counsel Discuss objectively with the insurer s claims staff Understand their basis for denial Do they understand the facts and your argument for coverage? Understand all the intangible factors Is the problem an overly aggressive claims person or insurer s coverage counsel? Is the insurer making a statement to your broker? Is the insurer having a bad year? Or trying to avoid setting a precedent? Is there a chance of getting a better result talking to your account manager/underwriter, or higher level management?

7 Features of a Major Coverage Dispute Underlying loss very substantial Ongoing/future exposure Financial Institutional Legal uncertainty Factual disputes Impasse Denial of claim Insurer inaction Collateral disputes (indemnifiable loss, defense costs/rates)

8 Example #1: A D&O Claim D&O insurer denies legal costs of responding to a U.S. Attorney subpoena are covered defense costs under its policy Underlying loss is uncertain: Subpoena imposes some legal costs, but no immediate damages Ongoing/future exposure: Future risk is very substantial includes securities investigation, potential class action lawsuits, liability of directors, officers and company Insurer may have institutional commitment to policy interpretation Legal uncertainty/factual issues: Is an investigative subpoena a claim within the meaning of the policy? Impasse: Insurer declines coverage Note that a second claim for coverage may be possible as SEC investigation or third-party claims develop

9 Example #1: D&O Claim Options Consideration Do Nothing Sue Settle Loss Absorb loss Win/lose on lineitem basis Future Exposure Can pursue later claim as investigation unfolds May or may not resolve if you win/lose Legal Uncertainty No resolution Resolution if litigated to conclusion Impasse Interim insurer win Interim win or interim/total loss Partial recovery Possible accord as to future coverage Skip resolution of legal claims Narrower range of outcomes (partial recovery)

10 Example #2: An Environmental Claim Insurers have denied coverage or reserved rights under historic CGL policies on a major environmental claim spanning sites in many jurisdictions Underlying loss is very substantial: Company has 10 environmental sites in 4 states Ongoing/future exposure: Overall remediation costs may reach $100M Insurers have institutional commitment to legal positions Legal uncertainty/factual issues: Insurers cite qualified pollution exclusions, assert that administrative actions do not constitute suits seeking damages, and contend that common-law allocation principles require the insured to bear 2/3 of the liability Impasse: All have denied claims or reserved rights with no indication that they will proceed to adjust the losses or pay your attorney fees to deal with regulator agencies

11 Example #2: Environmental Claim Options Consideration Do Nothing Sue Settle Loss Absorb loss All or nothing outcome (or settle) Future Exposure Absorb future risk Resolve ripe claims only (possibly set precedent) Legal Uncertainty No resolution Resolution if litigated to conclusion Impasse Insurer win Wide range of outcomes (from 0% to 100%) Partial recovery Resolve past and future claims Skip resolution of legal claims Narrower range of outcomes (partial recovery)

12 Example #3: A First Party Loss with Business Interruption Property insurer asserts flood sublimit caps coverage for massive property and business interruption loss Underlying loss is very substantial: Property damage is $40M Ongoing/future exposure: Business interruption may reach $200M Insurer may have institutional commitment to policy interpretation Legal uncertainty/factual issues: Flood sublimit Expect line-item disputes over property damage loss Expect disputes over quantum of covered business interruption loss Impasse: Insurer is willing to pay $5M of $240M loss

13 Example #3: First Party Loss Options Consideration Do Nothing Sue Settle Loss Absorb loss Win/lose on lineitem basis (or settle) Future Exposure Absorb future risk Win/lose (or settle) Legal Uncertainty No resolution Resolution if litigated to conclusion Impasse Insurer win Wide range of outcomes (from $5M - $240M) Partial recovery Partial recovery Skip resolution of legal claims Narrower range of outcomes (partial recovery)

14 Section II How to Decide What to Do

15 Sue or Settle? Deciding how to respond to an insurance dispute requires a balancing of commercial and legal considerations Importance to the company Importance to the insurer Financial cost of litigation versus settlement Cost of litigation versus settlement in corporate time and resources Securing venue The risks and rewards of upping the ante The risk of making bad law Timing to resolution Likelihood of success (uncertainty of the merits) Publicity How to you balance your thinking about these factors?

16 Recovery Pathways Negotiation Pathway Rights to Coverage Claims Tolling Agreement Prepare & Document Claim Principalto-Principal Bargaining Settle Impasse Sum Certain $$ in return for release Return to original status quo Litigation Pathway Tender Claim Reservation or Denial of Claim Insurer Investigation/ Cooperation Lawsuit Insurer Defenses Win Lose Costs + Declaratory Judgment

17 Litigation Pathway Pros May be necessary to vindicate importance to company Holds open chance of winning top dollar Increases pressure on insurers In multi-jurisdiction case, may secure most favorable forum Allows discovery of insurer data that may support coverage May leader to higher $ settlement In multi-insurer cases, a strategic goal is to peal off early settlers to increase pressure on remaining insurers Cons Institutional importance to insurer may prolong litigation May lead to no recovery Expensive may lead to net loss In cases involving large future cost component, victory may be only partial: $ + declaratory judgment Potential corporate disruption discovery, litigation holds, depositions Once begun, often difficult to settle In multi-insurer cases, insurers enjoy advantage of sharing litigation costs

18 Litigation Pathway: When May It Make Sense? When forum-selection may be case-dispositive When upside potential greatly exceeds litigation cost When upside potential exceeds coverage risk When upside potential is worth a significant investment of corporate time and resources When claim facts are manageable (discrete facts, few corporate witnesses) When only one or two insurers are involved to bear costs When early disposition of one or two issues may increase claim value When court disposition of legal question is a pressure point When insurer will not compromise

19 Negotiation Pathway Pros Allows company to monetize uncertain claims at fair value avoiding risk of no recovery Shorter cycle time to resolution Less demand on corporate resources In some complex cases, allows liquidation of both past a future losses without multiple litigation Conducted on an orderly, confidential basis with set meetings at agreed times Lower cost, more adaptable to alternative fee structures In multi-insurer cases, reverses insurers economic advantages in litigation Cons Cannot achieve top dollar Insurer may abuse process to delay resolution Less pressure on insurer May require surrender of future coverage rights Lack of access to the insurer s black box Imposes less pain on insurer, too In multi-jurisdiction case, fails to secure choice of forum

20 Negotiation Pathway: When May It Make Sense? When risk of no recovery is unacceptable When litigation cost may be disproportionate to upside potential When coverage risk is high applicable law is uncertain When management of corporate resources dictates When claim facts are very complex or uncertain (multiple claims and witnesses, unknown or old facts) When multiple insurers are involved When adverse publicity is a concern When time to recovery is important

21 A Decision-Analytic Matrix Factor Litigation Settlement Importance to company Likelihood of success May dictate litigation for cultural reasons Favored if likelihood of success is high Cost Very costly Less costly May dictate settlement if all/nothing risk unacceptable Favored if legal or factual risk is high Resources More resources required Less required but not none! Time Usually takes longer Favored if time to resolution is important Pressure on insurer Places more immediate pressure on insurer Less pressure but can sue later Securing a forum Requires litigation Standstill & Tolling Preserves both parties opportunities Economic pressure More on policyholder More on insurers (in multiinsurer cases)

22 Using Decision Analysis: $10M D&O Case LITIGATE NEGOTIATE Issues Forum? Subpoena Covered? Branch Outcomes Likelihood Value 75% Win: Yes 60% 6,000,000 70% Chance of 80% Win: Recovery Illinois 25% Lose: No 20% zero 30% Chance of No Recovery 50% Win: Yes 10% 1,000,000 20% Lose: 3 Years to New York 50% Lose: No 10% zero Recovery 100% 7,000,000 2% Interest Rate Expenses (2,000,000) Final Outcomes Nominal Net Value 5,000,000 PV 4,711,612 90% Succeed: Negotiated 90% Chance of 90% 4,500,000 Recovery Settlement at 50% of Incurred Costs Chance of No Recovery 10% 10% zero Fail: Move to Litigation 1 Years to 100% 4,500,000 Recovery 10% Expenses (500,000) 2% Interest Rate Nominal Net Value 4,000,000 PV 3,921,569

23 Decision Analysis: $100M Environmental Claim LITIGATE Forum? Issues As Damages? Pollution Exclusion Allocation Branch Outcomes Likelihood Value Final Outcomes 100% Win 64.00% 64,000,000 80% Win 0% Chance of Lose 64.00% 100% Win Recovery 80% Win: 20% Lose Washington 0% 16.00% zero 36.00% Chance of Lose No Recovery 20% 0% Win 0.00% zero Lose: 5 Years to California 100% 20.00% zero Recovery Lose 100% 64,000,000 2% Interest Rate Expenses (5,000,000) Nominal Net Value 59,000,000 PV 53,438,118 NEGOTIATE Chance of 90% Succeed: Overall Discount for Discount for 90% Recovery discount of 55% = Pollution + General Coverage 90% 49,500,000 (1-0.4)*(1-0.25)=0.45 Exclusion: 40% Defense: 25% 10% Chance of No Recovery 10% 10% zero Fail: Move to Litigation 1.5 Years to 100% 49,500,000 Recovery Expenses (2,000,000) 2% Interest Rate Nominal Net Value 47,500,000 PV 46,109,812

24 Decision Analysis: $240M First-Party/BI Claim LITIGATE Issues Branch Outcomes Likelihood Value Final Outcomes All Line Forum? Sublimit? BI Issues Items 50% Win 32.00% 76,800,000 80% Win 50% Lose 25% 32.00% 57,600, % Chance of 100% Win 50% Win 8.00% 19,200,000 Recovery 80% 20% Win Lose 50% Lose 25% 8.00% 14,400,000 0% 20.00% Chance of Lose 0.00% zero No Recovery 20% Lose 0% Win 0.00% zero 5 Years to 100% 20.00% zero Recovery Lose 100% 168,000,000 2% Interest Rate Expenses (4,000,000) Nominal Net Value 164,000,000 PV 148,539,853 NEGOTIATE Chance of 90% Succeed: Overall Discount for Discount for Line Item 90% Recovery discount of 62% = Sublimit: + BI Issues: + Discounts: 90% 82,080,000 (1-0.5)*(1-0.2)*(1-0.05)= % 20% 5% 10% Chance of No Recovery 10% 10% zero Fail: Move to Litigation 1.5 Years to 100% 82,080,000 Recovery Expenses (2,000,000) 2% Interest Rate Nominal Net Value 80,080,000 PV 77,736,289

25 Section III Managing Litigation and/or Negotiations

26 Managing Litigation Open and maintain clear communications with counsel Understand their theory of the case ask questions! Understand case status, calendar, and how it affects you Set up regular updates Prepare your company for litigation Understand and implement litigation holds Depositions and discovery understand who must participate, the timing, and the resources required Understand that your counsel may influence, but cannot control, the calendar the court s calendar comes first Consider and have a plan to deal with public relations issues

27 Managing Litigation (cont d) Managing costs Have counsel prepare a budget showing expected and potential tasks, professionals providing services, rates and expected timeline Counsel should explain contingencies that may change the budget and what effect those contingencies could have In regular meetings with counsel, set aside time to track performance against budget, discuss developments that may increase costs, and consider approaches that may introduce efficiencies Your budget seldom includes the impact of stays, expansive discovery orders, and appeals, all of which can blow the budget Expect the unexpected build a contingency into your budget

28 Managing Negotiations Like litigation, negotiations have to be managed to minimize costs and maximize recovery The key is preparation Marshal available data thoroughly (leverage informational advantages over insurers) Analyze facts and law Come to a realistic internal assessment of strengths and weaknesses Set realistic financial goals before negotiations Create a space where negotiating is safe for both sides Standstill and tolling agreements Confidentiality Make your case credibly and diplomatically while acknowledging risk Understand insurer needs (information, reinsurance, avoiding adverse precedents)

29 Managing Negotiations (cont d) Negotiate with intermediaries, not through them Your participation represents corporate buy-in and authority don t just speak through counsel Insist on participating in strategic decisions with your counsel Rely on mediators for information about your case but remember who your counsel is Maintain litigation option The other side needs to see you have counsel capable of bringing suit The other side needs to know your counsel has done his homework just as if litigation were a step away But no need to threaten litigation explicitly (especially if you don t mean it) And the corollary: Don t sue unless you are prepared to see litigation through to the end

30 Managing Negotiations (cont d) Managing Costs Discuss at the outset with your counsel Set specific expectations, budgets and targets Take a phased approach and measure costs against pre-determined milestones Maintain communications with counsel at regular intervals Explore alternative fee options

31 Take-Aways Avoid disputes - understand your coverage and negotiate up front, also choose your counterparties carefully Identify potential disputes early and work with the broker and/or underwriter before formally tendering the claim Understand the tangibles and intangibles of the dispute and look for ways around a logjam Evaluate the potential outcomes and set reasonable internal expectations Don t assume litigation is the only answer explore the pros and cons of a negotiated alternative Consider decision analytic tools and professional advice in exploring the value of litigation and settlement alternatives

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