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To Settle or Not
Many policyholders have large deductibles or retentions in their liability policies. Insurers that agree to defend policyholders against a claim falling within the coverage of a liability policy typically also want to control the litigation strategy and/or settlement discussions. What happens when the insurer wants to settle a claim within the deductible or retention amount, making the policyholder liable for the entire settlement, but the policyholder does not want to settle? Does the insurer have to obtain consent of the policyholder before settling the claim? While the scenario seems to present an academic question, the reality is that given the large amount of retentions and deductibles that are common today, policyholders and insurers often disagree about whether a case should be settled. As described below, the answer to the question of who decides whether to settle a case within a policy retention or deductible will depend upon the specific policy language at issue and the applicable state law.
The Effect of a Reservation of Rights
In analyzing the issue of whether an insurer may settle a claim without the policyholder's consent, the first question to ask is whether the insurer is defending under a reservation of rights. If the insurer has agreed to defend the claim against the policyholder under a reservation of rights, in some states the control of the defense and the control of the decision of whether to settle rest solely with the policyholder. See, e.g., Cay Divers, Inc. v. Raven, 812 F.2d 866, 810 (3d Cir. 1987). On the other hand, in other states, an insurer's reservation of rights does not vest the policyholder with control of the defense and settlement. If the applicable law does not vest the policyholder with control of the decision-making, the next step is to analyze the policy language.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?