justice scale justice scale justice scale

McKenna Minutes

“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Insurance Litigation Defense



Who Are Necessary And Indispensable Parties In Insurance Coverage Litigation

Who Are Necessary And Indispensable Parties In Insurance Coverage Litigation

-

When it comes to insurance coverage litigation, a key tool used in coverage disputes is the declaratory judgment action.  Once an insurance company determines that a declaratory judgment action must be filed to determine insurance coverage under its policy, there are certain parties that must be named as defendants for the complaint to survive dismissal.


Categories Insurance Litigation Defense


HOW TO INVESTIGATE  A CLAIMANT’S MEDICAL HISTORY

HOW TO INVESTIGATE A CLAIMANT’S MEDICAL HISTORY

-

Every personal injury lawsuit has two areas of investigation: liability and damages.  The majority of a claimant’s damages consist of medical treatment.  Before insurance defense counsel can completely prepare for a claimant’s deposition, he or she must obtain an accurate picture of claimant’s medical history for the alleged injury.


Categories Insurance Litigation Defense


Insurance Companies:  Avoid Big Headaches and Take Control Over Your Small-Insurance Claims Management

Insurance Companies: Avoid Big Headaches and Take Control Over Your Small-Insurance Claims Management

-

Insurance adjusters are swamped with claims of all sizes, but not every claim is a major injury or a wrongful death. Some claims could be small, soft tissue claims with $3,000 in medical bills or a $2,000 rear-end subrogation action. These claims are usually filed in the small claims division of the courts. In Cook County and the collar counties, these small claims divisions have different names, but Illinois Rules of Civil Procedure and Illinois Supreme Court Rules still apply.


Categories Insurance Litigation Defense


Distinction Between the Duty to Defend and the Duty to Indemnify in Insurance Coverage Law

Distinction Between the Duty to Defend and the Duty to Indemnify in Insurance Coverage Law

-

In determining insurance coverage, an insurer’s duty to defend its insured is much broader than its duty to indemnify. In order to determine whether the insurer’s duty to defend has arisen, the court must compare the allegations of the underlying complaint to the policy language. Those allegations must be liberally construed in favor of the insured. If the court determines the allegations fall within, or potentially within, the policy’s coverage, the insurer has a duty to defend the insured against the underlying complaint. Outboard Marine Corporation v. Liberty Mutual Insurance Company, 154 Ill.2d 90, 125, (Ill. 1992) (citations omitted). If the underlying complaint alleges several theories of recovery against the insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 74 (Ill. 1991).


Categories Insurance Litigation Defense


Is There Insurance Coverage for a Loss Known By the Insured Before Purchasing Insurance?

Is There Insurance Coverage for a Loss Known By the Insured Before Purchasing Insurance?

-

Whether there is insurance coverage for a loss known by the insured prior to purchasing an insurance policy depends on several factual issues. By its very nature, insurance is fundamentally based on contingent risks which may or may not occur. One dictionary defines “insurance” as “a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future.” The risk ceases to be contingent and becomes a probable or known loss when the insured knows or has reason to know when purchasing a commercial general liability policy that there is a substantial probability that it will suffer or has already suffered a loss. Under such circumstances, the loss is uninsurable under that policy unless the insurer otherwise agrees because the “risk of liability is no longer unknown.” Therefore, the insurer has no duty to defend or indemnify the insured with respect to the known loss unless the parties intended the known loss to be covered. Outboard Marine Corporation v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 103-104 (Ill. 1992) (citations omitted).


Categories Insurance Litigation Defense


How Insurers Can Avoid Estoppel in Insurance Coverage Cases

How Insurers Can Avoid Estoppel in Insurance Coverage Cases

-

In Illinois insurance coverage actions, an insurer can be estopped from asserting any policy defenses to coverage if the insurance company fails to take proper action. The general rule of estoppel provides that an insurer taking the position that a complaint potentially alleging coverage under a policy that includes a duty to defend may not simply refuse to defend the insured by declaring it not to be covered under the policy. Rather, the insurer has two options: (1) defend the suit under a reservation of rights or (2) seek a declaratory judgment that coverage does not exist. If the insurer fails to take either of these steps and is later found to have wrongfully denied coverage, the insurer is estopped from raising policy defenses to coverage. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill.2d 127, 150 (1999).


Categories Insurance Litigation Defense


Client Reporting by a Insurance Defense Attorney: When to Report, Not If

Client Reporting by a Insurance Defense Attorney: When to Report, Not If

-

Insurance defense counsel must always keep the lines of communication open with their carriers and be diligent in responding to client inquires. Client reporting is a mandatory task every defense attorney must perform. The various stages of litigation call for different reporting periods. Also, new material information or events could call for extra client reporting.


Categories Insurance Litigation Defense


Insurance Defense and Bad Faith Actions:  Requirements to Plead the Reasonable Probability Standard

Insurance Defense and Bad Faith Actions: Requirements to Plead the Reasonable Probability Standard

-

Those working in insurance defense litigation are familiar with bad faith claims which can arise when insurers breach the duty to act in good faith when responding to settlement offers. According to the Illinois Supreme Court: “The ‘duty to settle’ arises because the policyholder has relinquished defense of the suit to the insurer. The policyholder depends upon the insurer to conduct the defense properly. In these cases, the policyholder has no contractual remedy because the policy does not specifically define the liability insurer’s duty when responding to settlement offers. The duty was imposed to deal with the specific problems of claim settlement abuses by liability insurers where the policy holder has no contractual remedy.” Cramer v. Insurance Exchange Agency, 174 Ill.2d 513, 526, 675 N.E.2d 897 (Ill. 1996).


Categories Insurance Litigation Defense


Potential Trap For Litigation Defense: Taking Care of Lienholders in Settlements

Potential Trap For Litigation Defense: Taking Care of Lienholders in Settlements

-

Settling a personal injury lawsuit is the usually the objective for litigation defense attorneys.  When the case gets settled, the defense attorney must review the entire file for all liens whether they are medical or otherwise.  Protecting a medical provider’s lien is a duty, not only of the plaintiff’s attorney, but also of the defense attorney when the defense has notice of the lien..


Categories Insurance Litigation Defense


Why An Excess Insurer Cannot Seek Equitable Contribution From A Primary Insurer

Why An Excess Insurer Cannot Seek Equitable Contribution From A Primary Insurer

-

There are many situations where one insurance coverage company will seek contribution from another insurance company for defense costs and indemnity payments. However, this does not give insurers a carte blanche to file lawsuits against each other seeking reimbursement.


Categories Insurance Litigation Defense


Here to help with whatever your legal issues may be, schedule your no-obligation consultation or Simply Call us at.
Chicago: (312) 558-3900 or Woodstock: (815) 334-9694

  • Hidden
  • Hidden

Please do not send confidential information via email. The sending of information by you, and the receipt of it by McKenna Storer, is not intended to, and does not create a lawyer-client relationship.

Privacy Policy | Sitemap © 2021 McKenna Storer
Show Buttons
Hide Buttons