April 19, 2019

Dispatches from Last Week’s DRI “Bad Faith & Extracontractual Liability” Conference

A few days ago, I had the pleasure of attending the DRI conference on “Bad-Faith and Extra Contractual Liability” at the Waterfront Westin in downtown Boston. About 300 attendees heard a panel of excellent speakers from Wednesday afternoon until Friday afternoon.

DRI

Information overload is always the peril at conferences like this. I heartily recommend this conference to any claims person, although the attendance was heavily weighted toward defense attorneys and in-house counsel for insurance companies. I’m guessing that I was one of few non-lawyers attending the conference.

Despite the information overload, I will share ten quick impressions and “nuggets” from the conference, in no particular order of importance:

1. Bad faith hellholes. The toughest states for insurers in terms of bad faith are Florida, California and Washington State.

2. Roll the dice more! Houston lawyer Chris Martin (Martin Disier Jefferson & Wisdom) gave a riveting presentation on winning bad faith cases, imploring insurers to take more of these cases to trial, arguing that insurers were unduly cautious and afraid.

3. Trade secrets in Claim Manuals? Really? If you fight the production of Claim Manuals and the like based on trade secret arguments, prep your claims people to explain what secret and proprietary information is actually in such documents.

4. No “game-day” depo prep for adjusters! Prepping the adjuster for his or her deposition is NOT something that should be left to the morning of the event.

5. Small but growing storm clouds. A “growing minority” of courts are finding bad faith even in the absence of coverage .

6. Eroding policies = eroding good faith? Defense-within-limits policies pose interesting (and volatile) bad faith potential. Takeaway: keep the insured informed of defense cost erosion and manage the legal fees sensibly!)

7. No easy wins for policyholder attorneys. Policyholder lawyer David White of Boston said, “good” bad faith cases are relatively rare and hard to win. Even of the plaintiff wins, two-thirds are reversed on appeal.

8. Watch the Claim Manager’s ears. “The odds of a punitive award correlate directly with the redness of the claim manager’s ears during deposition..” ~David White

9. Preparation pays off. Chicago lawyer Rick Hammond (Johnson & Bell) insists that “Most bad faith cases are usually won or lost long before trial starts.”

10. From Facebook to Bad Faithbook? Social media use in claims-handling will become a new wrinkle in bad faith cases in the future, according to Lancer Insurance Company’s Paul Berne.

As a final thought, if you want to guarantee that attorneys will stay until the bitter end of a conference, hold your Ethics presentation until the very last session. Many attorneys must have a certain minimum number of hours of annual ethics CE as part of their ongoing requirements.

I will be writing more on the DRI Conference for a forthcoming issue of CLAIM magazine, so stay tuned!

Comments

  1. Great list. Looking forward to learning more.

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