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Triggering Excess Insurer Duties Without Full Payments by Primary Insurers
During recent years, insureds have faced a wide range of claims with potential liability exceeding the limits of their primary insurance policies. In such a setting, excess insurers typically argue that their duties are not triggered unless and until the primary policy has paid its limits. Such arguments should not be readily accepted. Excess insurers owe duties even before primary policies have exhausted. And, when a primary insurer settles with its insured, excess insurers may be obligated to pay under their policies even if the settlement was for less than the primary policy's limits.
Courts have repeatedly rejected any notion that an excess insurer owes no duties to its insured until a primary policy is exhausted. For example, California courts have recognized the wide range of duties that an excess insurer owes its insured before a primary policy exhausts. See, e.g., Kelley v. British Commercial Ins. Co., Ltd., 221 Cal. App. 2d 554, 562, 34 Cal. Rptr. 564 (1963) (duty to participate in settlement discussions when potential settlement may invade limits of liability); Armstrong World Indus., Inc. v. Aetna Cas. & Sur. Co., 45 Cal. App. 4th 1, 85, 52 Cal. Rptr. 2d 690 (1996) (duty to accept reasonable settlement); Schwartz v. State Farm Fire & Cas. Co., 88 Cal. App. 4th 1329, 1338, 108 Cal. Rptr. 2d 523 (2001).
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.