Tendering Claims to Insurers and Addressing Coverage Disputes

In the litigation process, addressing and managing insurance coverage issues can be critical. In many cases, the complexity of litigation increases as a result of a side-contest over coverage. Insurers either deny coverage or agree that there is coverage subject to a reservation of rights. More issues emerge as the insurer seeks to control the costs and dictate the defense of the claim. In this episode, Dorsey Partners Kent Schmidt and Skip Durocher explore insurance coverage issues, from tendering a claim to insurers, dealing with an adverse coverage decision, and working with insurance adjusters in managing claims to a successful completion. 

This podcast is not legal advice and does not establish an attorney-client relationship or create any duty of Dorsey & Whitney LLP or those appearing in this podcast to anyone. Although we try to assure that the content of this podcast is accurate, comprehensive, and reflects current legal developments, we do not warrant or guarantee those things. The opinions expressed in this podcast are the opinions of those appearing in the podcast only and not those of Dorsey & Whitney. This podcast is considered attorney advertising under the applicable rules of certain states.

Transcript

Voiceover
Welcome to another episode of the SharkCast on litigation risks management where we explore why businesses are so frequently sued, and how to mitigate and navigate the dangers lurking in the risky waters. Join us now as we welcome our host Kent Schmidt, Litigation Partner at the law firm of Dorsey & Whitney. 

Schmidt
Thank you for joining us today for what I trust will be an informative discussion on the issues companies routinely face when evaluating insurance coverage for certain types of commercial litigation. And then if there is insurance coverage, working with the insurer to manage the litigation to a successful conclusion. As I encounter these issues with clients and in my practice over the last two plus decades, I’ve routinely reached out to my partner, longtime friend and mentor, Skip Durocher. So I thought it would be a great idea to have Skip join us on an episode of this podcast to talk about insurance coverage litigation. So welcome Skip. So great to have you as a guest on the podcast.

 Durocher
Hey, thank you Kent. I’m looking forward to talking with you today.

 Schmidt
As long as we’ve work together on various matters, including insurance, I don’t think I’ve ever heard you explain how you initially got into insurance coverage. Is there a story that some particular case or something that peaked your interest on insurance coverage and has resulted in this storied career and extensive expertise?

 Durocher
Sure, I actually started out doing reinsurance work. And for those whose haven’t heard of it, reinsurance is basically insurance for insurance companies. And on my very first day of practice, I started out with a large national firm in Chicago back in 1987, first day in the office I walked into my mentor’s office to get my first assignment and he asked me if I knew anything about reinsurance. And I said no. And he said have you ever heard of reinsurance? And I said, no. And he said, do you think you can spell it? And I gave it a good shot. I’m not sure if I got it spelled correctly or not, but in any event he said congratulations, you’re now a reinsurance lawyer. And so we had a lot of very interesting reinsurance issues for a client at the time, and that reinsurance work then sort of just evolved into insurance coverage work. Generally at that firm, and then when I joined Dorsey in 1990 there were just a few people here, couple of partners who were doing insurance coverage work, and really no associates. So, I jumped right in and started doing that work and now I’m one of the more senior guys here that handles coverage work.

 Schmidt
So I think to sort of frame our conversation, and be helpful to walk through in a somewhat chronological fashion how these insurance issues arise and the beginning issue that we face is examining the policy and tendering the claims. What are some of the issues that you need to work with clients on in grappling with those threshold matters of evaluating coverage and tendering the claim.

 Durocher
Well the very first thing is to remember that you have insurance. I’ve learned now in my practice over the years, the first two questions I ask as a litigator when I’m contacted by a client whose been sued is, one, have you notified your carriers, looked at your policy and notified your carriers? And two, have you issued a litigation hold? We won’t talk about litigation hold today, but that’s a another essential question, but the other question that you have to ask is, have you looked at your policy and tendered a claim or given notice? And so that’s the first thing you have to think about is do you have a possible coverage situation here? If you do, the next step is figuring out the right policy. There may be multiple policies that could possibly provide coverage.

 So you got to sort through them perhaps with the help of your broker, if you have a sophisticated broker, or outside counsel. Or maybe you have a risk manager inside that can assist with that. And then another thing you got to keep in mind is identifying the right policies to notify. And I don’t mean just different types of coverage, but which policy for a particular kind of coverage because you can have, there’s two basic kinds of coverage. Claims-made coverage and occurrence coverage or occurrence policies. And claims-made is just what it sounds like. The policy that is triggered that you’d put notice on is the policy that’s in place, that’s in effect at the time the claim is made. But there’s also occurrence policies. In an occurrence policy, if a claim comes in and it triggers an occurrence policy, it would be covered by an occurrence policy. What you would do is you’d be putting notice on the policy that was in place at the time the occurrence took place that gives rise to a claim that could be years later. For example, like a pollution or environmental claim, so you got to figure out not just what coverages you might have but then which policies might be triggered.

 Schmidt
And then in those instances where you have layers of policies, that can, we probably don’t have time to get into this, but the insurers end up having indemnity claims against one another often over who goes first in terms of stepping up to the plate and providing coverage.

 Durocher
Absolutely. There’s a, most policies will have something called another insurance clause which says, in certain instances somebody else’s policy may take precedence over my policy. So if you have two or three different policies all that could potentially provide coverage. There may be a fight amongst the insurance companies as to who has to go first, and who has got to provide the defense. So, yeah that would be something that we could spend a whole podcast on. I know we’re just going to touch the surface on some of these issues, but the key is identifying all of those possible coverages and then putting out a notice to the various carriers. There’s different schools of thought on who should provide that notice.

 Schmidt
That was going to be my next question.

 Durocher
Oh, there you go. Yes, so my own personal view is if you got a decent broker, I prefer to let the broker send out the notice. They are the most familiar with your schedule of insurance and the types of coverage, and there can be consultation amongst the insured. In particular if that insured has a risk manager or somebody in the finance group who’s knowledgeable about insurance, they may have their own ideas as of which policies are triggered. But there should definitely be a conversation with the broker who set up the program, and then in addition if you have trusted outside counsel that does insurance work you can bring them into the equation too. Anyone of those entities or persons can be the one to provide the notice. Could be the insured itself can send out the notice, the broker can, or the outside counsel could.

 Typically you would look to the policy itself as to what information is needed. It will usually spell out what kind of information you’re supposed to provide when you provide notice of a claim or of a possible claim. My own personal preference is let’s have the broker send it out, and send out that notice. Again, because they probably are the most knowledgeable, part of their job often times is to provide claims assistance. And just on a little bit of a selfish note, I would rather the broker do it because they have coverage for exactly the kind of mistake they might make if they didn’t provide notice to all the right entities. So, they will be very careful and hopefully they’ll get everybody right, and if they get the right folks to contact. But if there is a failing then you can always look to the broker to make that right.

 Schmidt
So I think it’s implied in our conversation about the importance of tendering a claim early.

 Durocher
Yeah.

 Schmidt
But can you just touch on the consequences if, we’ll go ahead and blame the broker since you opened the door there. If the broker tendered one, a claim to one insurer but forgot that there’s another policy that was in place that may provide coverage and just failed to deliver the claim or to tender the claim to that insurer. Then the insurer were a year into the litigation, the insurer gets the claim, what’s typical response of the insurer in that situation on insurance policy number two?

 Durocher
Yeah, they usually have an argument that they should not have, provide any defense costs for anything that’s incurred prior to notice, and that’s pretty much across the board. Insurance law is generally covered by each different state. Each state has its own bulk statutory and common law that applies to the insurance issues that come up within that state. And different states deal with late notice differently, but one thing that’s pretty consistent is that insurers will not compensate you or reimburse you for defense costs or other costs that you incur prior to the time you send notice.

 Durocher
Now if you get a notice in and then you start, you have to go out and defend yourself while you’re waiting to hear from the insurance company, you should be okay. If it takes them a month to get back to you, two months to get back to you, you got to take steps to protect yourself in the meantime. But until you send out that notice, carriers will end policies, usually state that they will not be obligated to pay any defense costs or certainly any settlement that you’d enter into without their prior knowledge and consent. 

 So, and then some states will also have some laws that will say in the event that you provide too late of notice, it causes prejudice to the insurance company, that that may end up being a breach of the policy and give the insurance company an opportunity to not have any, to provide any coverage under the policy. So that’s really more state by state as to how that’ll happen, but it’s certainly a risk that you could, by failing to timely notify the insurance company, that they may have a basis for denying coverage all together.

 Schmidt
Alright. Well that’s a very timely and important recommendation on promptly entering the policy to the insurers. Now let’s step forward and the next phase of the process, which is getting a response from the insurer, and the response is going to fall either in good news, there’s coverage, or bad news, we’re denying coverage, but perhaps some in-between as well. So what are the typical issues that arise in getting that initial response from the insurer?

 Durocher
Sure. So notice goes about you’re waiting for the insurance company to get back to you. Like I said, you should protect yourself in the meantime if you have to retain counsel, file an answer to a complaint, take other steps to protect yourself, issue that litigation hold. But at some point you hopefully will hear back from the insurance company, and as you said it’s probably going to be one of three things. Rarely, but once in a while you’ll get a confirmation that they are going to provide coverage with no reservation, they're going to, and maybe if they have a duty to defend they’ll appoint counsel themselves, and counsel will defend the claim, and if there’s a judgment against you or if there’s going to be a settlement, the insurance company just steps up and pays. That’s fantastic.

 In those instances I usually don’t have to get involved. On the other end of the spectrum an insurance company can, it would just deny coverage outright, and if that happens they’ll typically do that in writing. Sometimes they’ll hire counsel to write that letter, sometimes they’ll write it in-house, and they will typically lay out the facts as they understand the claim. They’ll, a lot of times the way they do these letters is they’ll list the various parts of the policy that justifies, in their mind, the denial, and then at the end of the letter say after all the foregoing reasons we don’t believe there’s any coverage and therefore we must deny coverage.

Durocher
And then the middle ground, as you say, the in-between is there’s a letter with a reservation of rights. And typically those types of letters will say we’ve reviewed the coverage, the facts and the coverage, and while there may not be coverage at the end of the day either for defense and/or indemnity, based upon what we know right now we’re not going to say no. We are going to go ahead and defend you, but we are reserving our rights to either withdraw that defense or to not indemnify you in the event there’s a judgment or a settlement down the road.

 Schmidt
How often, I’ve had it happen in my practice where an insurer would just sort of change their mind about halfway through the litigation. It’s not some bad fact that came out that re-characterized the claim that moved it over into an excluding category. Maybe it’s just a change of personnel. In fact I think that was the situation in that case where they just stepped in and said you know, so-and-so’s taken over the file, we looked at it and we’re not providing coverage anymore.

 Durocher
Right.

Schmidt
How often does that happen?

 Durocher
Not terribly often. I would say, either way it doesn’t happen terribly often that either they start out by saying we are going to cover and then change their mind halfway through, or vice versa, where they start out saying we’re not going to cover and then at some point you perhaps provide them with additional information and you get them to change their mind and provide coverage, either defense or indemnity coverage. But it doesn’t mean it never happens, and I’ve had both situations happen. And that’s, it can be a welcome surprise or an awful disappointment for the client depending on which way they change their mind.

 And then you’re forced with, to make some hard decisions if they kind of pull out their defense on you in the middle of the case and leave you hanging. That’s a dangerous way to handle that from the insurance company’s standpoint because they are leaving you hanging oftentimes and perhaps you’re even, are in a situation where you can’t afford to continue the defense yourself. A lot of times, if they are going to take that step, to deny either right off the blocks or sometime during the litigation. A lot of times that’ll be accompanied with a declaratory judgment action that they’ll file a DJ asking a court to confirm that they no longer have a duty to defend and/or indemnify.

 Durocher
If they don’t bring that action then you, and they change their mind midway through like they did with you and say they’re no longer going to provide coverage for whatever reason, and they don’t file a DJ action that gives you the option to file a DJ action right away, in a breach of contract action actually, to try to get coverage established again. Or if you’re in the position to do so I supposed you could also just continue to defend the case yourself, wait to see how it all plays out, and then sue them after the fact.

 You got to keep in mind of course the statute of limitations which typically will start running when they tell you they no longer have a duty to defend or indemnify ‘cause that would be the breach that would cause the statute to start running.

 Schmidt
So as we follow this flow chart of possible scenarios, if there’s a denial of coverage and we believe there’s strong evidence and very good argument that there is coverage, denial is improper, then there’s a coverage lawsuit and, or we think they’re actually right and we think we don’t have a good argument, in which case we just say no surprise, nothing gained, nothing lost.

 Durocher
If you get that denial letter and you read it, then maybe you have outside counsel read it, or your broker. A lot of times people turn to their broke and the one caution I’d give there is don’t assume that your conversations with your broker are going to be privileged because they likely will not be. The broker is not your counsel. And so you just have to be careful about what you put in writing, getting their coverage analysis where they look at the denial letter and say yeah, there’s no coverage here. That can be discoverable down the road. So you got to keep that in mind.

 But in any event you can look at that denial letter and perhaps you decide yeah, they’re right. So at that point, you know, why throw good money after bad. You just figure out another way to defend the lawsuit or do what you need to do to protect yourself. But you can also look through that letter and perhaps push back. So even before you file a coverage action, typically the denial letter will say if we got any facts wrong or if you otherwise believe there’s a basis for coverage please let us know right away, and taken them up on that because I’ve done that on occasion and I’ve actually gotten insurance companies to change their mind from a denial to at least a reservation of rights. 

 So that’s another option. And then the third option is, as you say, is at some point you may have to file an action to affirm coverage and it’s a declaratory judgment but also an alleged breach of contract, then perhaps if the law allows for it, a bad faith claim that you’ve been treated by the insurance company in bad faith.

 Schmidt
Alright, great, great reminders. Well, let’s follow the other branch of the tree, which is there’s coverage, and let’s assume it’s the typical positive response which is a coverage but with a reservation of rights. What are some of the issues that we’re going to deal with right off the bat now that there’s coverage, the fine print so to speak is there’s coverage, but.

Durocher
Sure, yeah. And there’s a whole host of issues that can come up. One is does the insurance company have a duty to defend or is it a policy that only requires them to reimburse you for the expenditure of defense costs. So you need to look at the policy and figure out what kind of policy it is in that regard, because that may impact other things like who gets to select counsel. In a typical duty to defend policy the insurance company has the contractual right to select counsel, then of course to pay for that counsel, and that can be a great thing because there’s no dispute about you don’t have to get involved in the dispute about whether counsel’s rates are appropriate, whether they spend too much time on a matter, those sorts of things.

 But the downside is that oftentimes the lawyers who are select by the insurance company, you have no relationship with them, they may not be familiar with your company, you may not have the highest trust in that law firm. You may be worried that are their allegiances or loyalties more to the insurance company who may be hiring them for time and time again versus the loyalty and acting in your best interest now. You want to believe that all lawyers act in the best interest of their clients, and I think most do, but that is a concern that comes up.

 So but if it’s a duty to reimburse policy, and you have the right to select counsel, maybe it’s counsel, sometimes they have a panel counsel, they have a list of counsel from whom you can pick. Sometimes it’s, you can pick whoever you want, but it’s subject to their approval, and subject to approval on rates. You and I, I think have gotten into fights with insurance companies when our clients want to use Dorsey or some other firm but with whom they have a long relationship, and we go back to the insurance company and say okay, we have the right to select counsel, here’s our counsel of choice.

 And a lot of times the insurance company will come back and say hey, that’s fine, we’re happy to let you pick your own counsel. But the bad news is that we’re only willing to pay half of that hourly rate, or a third or, pick your number. We will not pay the full hourly rate because that’s more than what we typically pay. And therein, you know, is another problem that you have to deal with. I’ve been involved in lots of negotiations with insurance companies trying to get them to pay the full hourly rate of the lawyer of choice.

 Sometimes I’m successful, sometimes the insurance, sometimes the law firm of choice will agree to reduce their rate to the amount that’s paid by the insurance company. And sometimes it’s important enough for the insured to have that lawyer of choice that they will say okay, we’ll accept the amount that the insurance company is willing to pay for the hourly rate, and then we, the client, the insured will make up the difference between what the insurance company will pay and the hourly rate that the attorney charges.

 Durocher
So that’s something that is, becomes an issue and can be dealt with in ways I’ve just suggested. Other issues that come up, kind of right out of the blocks there, when you have outside counsel, regardless of who’s selected them, who controls the process, who controls the defense, who controls settlement. Again, you have to look at the policy. A lot of times they spell out some of these things, but many times the insurance company has the right to control the defense, they have the right to decide if and when to settle and for how much. So those are issues that you got to be familiar with, look at the policy, and figure out who’s in charge in each of these cases.

 And a couple of other things that come up: billing guidelines. For those listening who aren’t familiar with insurance company billing guidelines, you’ll be pleasantly surprised. I’m being facetious there. Billing guidelines can be very frustrating. Most insurance companies now when you select the counsel, your counsel, and they’re going to be defending you, the insurance company’s going to be paying some or all of their rate. They will say okay, but, and here’s our billing guidelines that your lawyer has to follow. And it’s usually a fairly thick document, and it talks about all the things the insurance companies will pay for and those things they won’t pay for.

 And they’ll set up other rules and guidelines along the way. And it’s important to review those right up front and, because there is some pushback in negotiation that can take place with respect to billing guidelines. I think the law is now pretty clear that insurance companies typically have the right to issue billing guidelines as long as they don’t interfere with the professional judgment of the lawyer defending you. They can’t say, the billing guidelines can’t say you only get to take three depositions in any case, because of a lawyer says wait a minute, I need to take 10 depositions here, courts would find that those billing guidelines and the insurance company are interfering with the proper defense.

 And so there have been court cases about this and courts have said that’s inappropriate. But there’s other instances where you can review those billing guidelines and perhaps they say we do not pay for any conferences among the lawyers within a firm. And maybe you can push back and say look, in a small dog-bite case maybe you don’t need to have conferences among lawyers. But in a very difficult, sophisticated, complex class action lawsuit where we’re going to have a team of lawyers, obviously there’s got to be conferences amongst those lawyers and insurance company, you should pay for that. 

 Durocher
So you should, identify the issues within the billing guidelines, see what you can negotiate with the insurance company, and then also make sure if you’re the client that your lawyers are familiar with the guidelines and comply with those that they have to comply with.

 Schmidt
Well very good. We often also deal with some conflicts when we’re trying to settle the case, where the insurer has one view of settlement and the insured has a different view. And then in some of those instances the coverage issues can sort of become part of the discussion on settlement if there’s a reservation of rights. Have you experienced that in your practice?

 Durocher
Yes. Actually various conflicts can come up, and the other one we should talk about briefly in a minute is the Cumis counsel issue that I know you and I have talked about in the past. But let me address your other question first. Yeah, I mean, I’ve seen it come at kind of both ways here where there’s conflicts that come up with respect to settlement. Perhaps it’s a case where the insured desperately wants to settle early on because maybe because of publicity, maybe because it’s, they have good relationship with whoever sued them, and it’s a vendor/owner relationship or something where you want to preserve the relationship, and so you want to make them whole with, using the insurance company’s money.

 And the insurance company may say no, we don’t care about publicity, bad publicity you might face here. We don’t care whether this may ruin the relationship with whoever’s suing you. We think we got a good defense, we’re going to fight this out, and regardless of the consequences. And so that’s a situation where you, you know, each one is unique, but you got to look to, again, one, the policy to see what the policy says about who controls settlement, and there can be all sorts of different terms within the policy that could affect that control.

 But you can also look at the law of the state that would be applying to this insurance relationship, and this might be a situation where you have a bad faith claim where you have an opportunity to settle and the insurance company says no, we’re going to fight this to the death. And even if, at the end of the day, if we lose your judgment could be, are higher than the limits of our policy. Well that may be a classic bad faith claim that you’d have against the insurance company, and what you can do there to try to get some leverage is to assert that bad faith, perhaps not in a lawsuit right out of the blocks, but in a demand letter or what we call a hammer letter to the insurance company that says look, we have the opportunity to settle. Defense counsel says we should settle, there’s liability here, and if we don’t settle we could get hit with a judgment above verdict.

 And so, and if that happens and you refuse to settle, we’re going to be looking to you to make us whole for that amount that would be above the policy limits. So just a, that’s not unusual for that kind of issue to come up Cumis counsel, Dorsey lawyers and clients all the time on how to deal with that, that conflict issue.

 Schmidt
Anytime you have triangulation you have interesting issues, whether it’s just a three-party case or it’s a two-party case with insure, you really have three parties that are participating and they each have their own economic interest and it creates some interesting dynamics, doesn’t it?

 Durocher
Exactly, yep. And in fact that sort of leads me to the Cumis counsel issues I mentioned a minute ago because that’s also created, the issue there is created by what they call the tri-part type relationship amongst the insured, the insurance company, and the lawyer or law firm that’s being asked to defend the insured. And so as I mentioned on occasion, in many occasions the insurance policy allows the insurance company to, gives them the duty to defend, and they have the right and duty to select counsel and to defend the case.

And so they may do that under a reservation of rights, and that reservation of rights may outline all sorts of different scenarios where the insurance company, if certain facts or certain legal things happen the insurance company’s no longer going to have a duty to defend or to indemnify. But they, at the same time, say we’re going to pick the lawyer who’s going to defend you. And the concern, as I mentioned earlier, is that the insured says geez, is this law firm going to be really looking out for my interest, or will they perhaps guide the case in a way that could result in the insurance company getting out of coverage here?

 So as I mentioned this is a, this tri-part type relationship, different states treat it differently again. So you got to look at the law of your state for some guidance. But certain states will say where there is a conflict of interest between the insurance company and the insured on a third-party claim that the insured gets to select its own counsel, regardless of what the insurance policy says about selection of counsel. In those instances the insured gets to select counsel and the insurance company has to pay.

 Schmidt
That’s a nice win for the insured.

 Durocher
That’s a nice win for the insured. It’s, there’s always issues that come up, even when you have this situation. I think when it, this first, this issue was first sort of fleshed out was in California and the case was called Cumis, part of the name of the case. And so a lot of times people shorthand this situation when you have to, when the insured gets to hire its own counsel on the insurance company’s nickel, they shorthand it and call it Cumis counsel. But other states have adopted a similar approach now. But you do have to look to each state to determine what does it mean to have a conflict of interest? 

 Durocher
That might get you to the point where the insured can retain its own counsel. Some states say hey, if the insurance company, if it issues a reservation of rights letter, unless it just agrees completely that it’s going to cover no matter what, if it issues a reservation of rights letter then that’s enough of a conflict to give you the right to go out and select your own counsel on the insurance company’s nickel.

 Other states, such as Minnesota where I do some of my practice, say that it’s, a reservation of rights letter alone is not enough, and what you have to demonstrate is an actual conflict between the insurance company and the insured, and only when you can demonstrate an actual conflict do you have the right to go out and select your own counsel. So you got to, do that analysis, what’s the state law say, and then what does an actual conflict mean, and then, even then you’re really not out of the woods because I think, as you and I know, you still may come back to that rate negotiation issue.

 Schmidt
Right.

Durocher
Because, you know, this whole idea about the tri-part type relationship and the ability to go out and select independent counsel, the insurance company still can come back and say well yeah, but you can’t pick whoever you want and we have to pay whatever hourly rate they claim. It’s got to be a reasonable rate. And so then again starts this fight about what’s a reasonable rate, and that whole negotiation dance.

 Schmidt
Well, as you can tell from this conversation, listeners, I could chat with Skip for a long time about insurance coverage issue and we could continue to talk shop about commercial litigation and the type of work we do. But at this point in our podcast we like to turn to a segment we call The Deeper Dive and learn a little bit more about Skip, your background, your, what makes you tick, so to speak, and I have a couple questions for you. I guess maybe the first that our listeners might like to hear is what’s a good way over the years that you’ve learned to strike a good work/life balance?

 Durocher
Yeah, yeah, that’s a good question, and I’m not sure I’ve ever mastered that yet, and I’ve been practicing for however many years, it’s been maybe close to 40, 35. But one thing that’s helped me a lot in the last, since 2014, my wife and I used to live in a suburb here in the Minneapolis area, and I have a drive, about half hour drive to work each day. And then in 2014 we moved much closer to the city of Minneapolis, so I’m not two miles, I’m within the city, and I’ve taken to walking to work each day.

 And that is a complete de-stressor for me because no matter what kind of day I’ve got, I’ve got that 30-minute walk over the Mississippi River, to downtown Minneapolis. And then at the end of the day the walk back. Even in the middle of winter I really enjoy that. I try not to think about work, I try to enjoy the scenery and the city sites and think about things that aren’t work-related, and that has been a tremendous benefit for me to have that exercise and that mind clearing.

 Schmidt

Do you listen to music while you walk, or is the sound of the cities you like to take that in?

 Durocher
Yep. The sound of the cities. For many years I used to stop and pick up a cup of coffee, but the coffee shop closed and I haven’t found another one that’s open as early as I usually like to come in. So nope, it’s just walk in and got to have the time to clear your mind.

 Schmidt
Now is there a temperature tolerance that if it drops below a certain degree you’re out on the walk, or no matter what?

Durocher
Pretty much no matter what. It just, mostly in the winter the question is whether I put on long underwear first.

Schmidt
Excellent. Well, and also great health, great investment in your longevity and health. Well, one of the things I also wanted to ask you about in the time that remains, as long as I’ve known you, you and your wife, Ann, have taken some of the most interesting vacations. Not the typical vacations to the standard places that most of us go. First of all, do you have any vacations on the horizon to one of those exotic locations? And if I could as a compound question, which I’m sure lawyers aren’t supposed to ask at the same time, what’s one of the more interesting experiences you’ve had in these very unusual vacations you take?

 Durocher
Sure. I’ll pick your, the question about upcoming trips. The one that I’m waiting to finalize is one that we were supposed to take a couple of years go. I’m on the board of Twin City’s Habitat for Humanity, and I’ve done international build. My wife and I went to Guatemala a few years ago and build houses there with a group from Minneapolis. Then the next trip we were supposed to take for Habitat was to Nepal to build houses there. And then COVID came and interrupted that plan. So we’re now, Habitat’s just getting back to international builds, and I’m hoping that we can reignite interest in the Nepal trip because that’s the one that I really, I’d love to do because I’d like to maybe do a little trekking while I’m in Nepal. 

 So that’s the, what I’m hoping will be a good up-coming trip. And you’re right, we’ve had some great trips in the past, Russia, Morocco, China. And I would say amongst, the one that I’ll say is probably my fondest memory is our trip to Africa where we started in Uganda/Rwanda and did a gorilla trek up into the mountains and got to see gorillas in, within 50 yards away. And then from there we went down to South Africa and did a walking and driving safari in Kruger National Park. The memories of that trip are just phenomenal, and my wife, It was very meaningful for my wife who grew up in a small farm in southern Wisconsin ready National Geographic magazines and always sort of thinking that someday she’d get to see some of those things she saw pictures of in the magazines. I think she, when we left South Africa, there were tears in her eyes.

 Schmidt
Amazing.

 Durocher
Yeah.

 Schmidt
What an amazing experience that must be. Well, it looks like our time is about up, and I just wanted to return once more to our topic of insurance coverage and give you the last word, Skip. What’s the one takeaway that you’d like to leave our listeners with on the issue of managing insurance coverage issues in commercial litigation?

 Durocher
Sure. I think that the, what I would want to impress upon people is the notion that insurance is an asset of your company, and you should treat it like that. Just like your, your computers, your people, your bank account, this is an asset that you own and you want to use it to its fullest. And so even before a claim comes in be aware of what coverages you have, look for holes, have someone look for holes for you, gaps. Educate your people because even going beyond just your risk management and finance people, education the people who will be the ones who may be able to be on the front lines when a claim comes in.

 Make sure they understand what kinds of coverages are out there that could respond to one of those claims. Make sure they understand what the reporting duties are, who they need to talk to. We’ve done, as I mentioned earlier, policy analysis for clients, and then gone out and actually done, sort of like insurance 101 to anybody who’s on the front lines and I think it’s really important to educate the employees of clients on those issues so that you can use your asset to the fullest.

 Schmidt
Well, that’s a great word to leave our listeners with. Well, Skip, thank you for your friendship and your partnership over these many years, and thank you for taking the time to be a guest on our podcast, and really appreciate you stopping by.

 Durocher
My absolute pleasure, Kent. Good talking to you.

 Schmidt
That’s all the time we have for today. Thank you for listening. I’m indebted to the extraordinary team at Dorsey for making this podcast and episode possible. For resources on this and other litigation risk, go to litigationrisk.com where more information can be found, including a book on managing litigation risk, written by yours truly. Until next time my friends, this is yet another reminder that there are a lot of sharks swimming out there in the murky waters. So swim safely.

 Voiceover
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