Insurance is a contract, and when Jean mediates an insurance dispute, she wants to look at the insurance policy, or at least the forms and the “dec page”. Commercial + insurance mediator and arbitrator, Jean Lawler, shares her thoughts for how advocates on both sides of an insurance case can help their clients in mediation. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com.
To read the full episode transcript, please see the Podcast Website.
Insurance is a contract, and when Jean mediates an insurance dispute, she wants to look at the insurance policy, or at least the forms and the “dec page”. Commercial + insurance mediator and arbitrator, Jean Lawler, shares her thoughts for how advocates on both sides of an insurance case can help their clients in mediation. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com.
To read the full episode transcript, please see the Podcast Website.
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JEAN LAWLER:
Hello, I'm Jean Lawler, welcome to the ROADS TO Resolution ~Closure and ~Certainty Podcast. As a mediator, I am honored to be invited into other people's lives for a few hours, like all of our lives, shaped by the many roads that have brought us to our “today”, and roads leading to the unexpected, and roads holding the promise of “tomorrow”. Thank you for joining me today as we talk about mediation advocacy in insurance mediations, for insurance disputes.
You know, insurance is a contract. Insurance is guided then and is subject to the terms and conditions of the contract. Insurance language is different. Terms have meanings. Many terms in insurance contracts--which are insurance policies--many of those terms are defined, many are not. Then hence, then, you get into litigation, maybe over whether or not something is covered under the insurance policy, and therein lies the term of art, too. Is it covered? That could be a lot of things. Is there an indemnity obligation under the insurance policy for a particular loss or claim?
And if I'm talking about general liability policies--which probably would be the easiest for the example--there's the “duty to indemnify” and the “duty to defend”. So litigation involving a loss--which involves a general liability policy--could involve either one of those. Maybe coverage has been denied outright, so the insurance company is not defending the insured in a third party lawsuit, or maybe the insurance company is defending but has reserved its rights to deny indemnity in the third party lawsuit. If the insurance company has not just outright accepted the defense then there are, of course, all sorts of issues that can arise because the insurance company will have either reserved their rights to adjudicate coverage or a duty at some point, or they've just outright denied.
So that said, when you do end up in litigation over an insurance dispute, for the advocate who is attending that mediation, first and foremost, keep in mind that it is a contract, and the insurance policy is not--the word “policy”--is not just a word. You do need the contract--the insurance policy--and you do need to be very familiar with it, and the terms. It's like diagraming a sentence when you read an insurance policy, in some ways, you might say. So to be prepared, you, of course, need to be very familiar with the policy. Rest assured that the defense counsel, in other words, the insurance company's lawyer, will be very familiar with the policy.
So first and foremost, to be a successful advocate for an insured in an insurance litigation mediation, know the policy well enough to be able to argue terms, if need be. Legal questions, of course, could be decided on summary judgment or at trial. The questions may not be decided yet. They generally would not be. You would generally go to mediation before there's been a determination on the legal issues. And those are issues that probably the two sides will never agree on. They would need a judge to be able to tell them who's right or who's wrong, but those are perfect opportunities to settle the case, because there are, of course, many uncertainties in litigation and many uncertainties especially with insurance litigation. So the first step is the breach of contract, and that's where then, I get back to the contract.
The second level is extra-contractual exposure. Only if the insurance contract has been breached would you then get to the extra-contractual exposure, meaning the, if a denial was wrongful then what damages flowed from that besides the policy limits that may have been owed. So to go along those steps, I really think that in a mediation session the parties, the insured, you definitely need to be focused first and foremost on the first layer--the insurance contract.
It's so important to have the decision-maker available. Insurance litigation and insurance mediations can become very emotional, depending on the type of insurance involved, depending on what the claim is, and who's involved. Even if it's a business it can become emotional, but having the decision-makers there at the mediation is crucial. And that's on both sides--on the insurer’s side as well as on the insured's side. And the reason for that is that they need to be able to hear and listen to what is being said. Oftentimes many things will come out in mediation that maybe hasn't been stated in the same way. Maybe new facts, even, will come out, and so being able to let the decision-makers hear those things is important so that they can then make informed decisions. And it may be that new information will come out, and so then the insurance company will have to go back and look into it. Maybe the mediation needs to be suspended and reconvened again a week later, two weeks later, something after people have had a chance to look at information. All of these things, there are just so many ways to approach insurance litigation, but there is no substitute for preparation and that preparation really begins with the insurance policy, itself.
Find out if your mediator wants to read the insurance policy. Do they want the copies of those particular forms that are in dispute, or where the dispute arises out of? Or just, is it enough to be quoting it? I, personally, I've looked at insurance policies for years. I understand how to read them. I would like to see, if not the entire policy, at least the particular forms and the "dec page" and some of those things so that I can see it for myself and read it, the definitions, for example. So it is just as easy to share the policy. There will be mediators who don't want the policy and that's fine too, but ask your mediator, "Do you want the policy?"
And then have your documents that you would want to share, ready to share, to screen share, if you're on a Zoom, if you're in person. Even if they've been produced in discovery, have them available, because sometimes those documents are looked at a little differently when you're in mediation. And ultimately, what is the issue, what are the exposures, what are the risks, that's what you're doing, is a risk evaluation. Then making the informed decision to settle the case, or not, and the timing on whether and how and when to settle the case--before or after summary adjudication, which usually insurance claims will involve, not always, of course, but oftentimes.
So anyway, those are some thoughts I had today on how advocates in mediation for insurance disputes may be able to help themselves, help their clients. Thank you so much for joining me today for my podcast, here on ROADS TO Resolution ~Closure and ~Certainty. It's been a pleasure. Please feel free to follow me on my channel on YouTube and for more information you can find me on LinkedIn and LawlerADR.com. Thanks so much. Goodbye.
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