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The Tort Claim Industry – Seminar on Allocation of Losses Among Insurers and Insureds for &#82

As noted before, substantive seminars are now a standard part of litigation industry and are indeed a driver of the industry. Today, for example, snail mail brought me brochures for seminars on drug and medical device litigation, automotive product liability litigation and food-borne illness litigation. The seminars usually are interesting because they bring the opposing sides together and force some dialog between the various constituencies. The participants of course do not put all of their cards on the table, but most seminars do produce some new insights and sometimes valuable data on a given substantive area if only because trial lawyers usually are competitive.

The tort litigation industry of course is driven by money. So, another significant part of the seminar industry is devoted to seminars and other educational forums in which the attendees focus on the distribution of financial responsibility for the underlying claims. Seminars of this sort run the gamut, including seminars regarding how to seek out insurance coverage, seminars on when insurers properly deny coverage, and issues between and among insureds, insurers and reinsurers. All of the issues of course must arise from some underlying set of facts, and then a variety of arguments regarding how the facts and attendant financial losses would or should be allocated between or among the various actors in the underlying facts, and their insurers and reinsurers. An example of this sort of seminar landed in my email in-box again this week and prompts this excursus. Specifically, Bates White and Environ will next week host a Chicago conference in which they will talk about the ways in which science and economics come together with respect to allocations of underlying losses from certain types of asbestos cases and “environmental cases.”

The link for seminar registration is here, and attendance is free. See below for key excerpts from the description. __________________________________________________________________

Qualifying & Estimating Environmental Damages:How and when are policies triggered?

Losses to businesses or insurers from asbestos, environmental, and health hazards are inherently uncertain due to the long-term nature of such potential exposures. However the uncertainty can be mitigated by better understanding the damages and by understanding when and how much insurance will be triggered. This is accomplished through site evaluations, identifying all potential damages, and estimating future damages. For example, ongoing screening is done during site evaluations to determine when environmental damage (both historic and potential future) meets the definition of recoverability. These actions will ensure that companies and insurers alike know what potential costs will be and how they will be allocated.

Our experts from Bates White and Environ will demonstrate that for the typical policyholder facing potential environmental damages, our process and experience allows the insurer or policy holder to manage their risk moving forward. Quantifying Nonproduct Losses: How and when were claimants exposed?Which claimants’ exposure to asbestos occurred during business operations and which claimants’ exposure occurred afterwards? The answer to this question may determine if the policyholder’s insurers owe tens of millions, hundreds of millions, or billions.

If a claim is determined to be a “products” claim, such that exposure did not occur during the policyholder’s contracting operations, then insurance recoveries will be subject to the explicit aggregate limit specified in each insurance policy’s products and completed exclusion clauses. In contrast, if a claimant claims exposure during the policyholder’s operations, then the claim may fall outside exclusion clauses (such as a “non-products” claim) and the amount of insurance recovery may not be subject to an aggregate limit.

Our experts from Bates White and Environ will demonstrate that for the typical policyholder with contracting activities, a minority of its claimants were exposed while contracting activities were ongoing; the majority of claimants were exposed long after the contracting activities were completed. They will provide concrete examples. CLE accreditation of this program is approved in Illinois.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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