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Articles by Mark Plumer
You Paid for It. Are You Using It? Why Buyers Should Actively Manage Their Representations and Warranties Insurance Policies
Representations and Warranties Insurance (RWI) has become a standard deal tool. Buyers purchase it to obtain recourse independent of the seller. RWI can strengthen a Buyer’s bid for attractive targets while giving Sellers a clean exit: no indemnity, minimal escrow and little post-closing exposure (absent fraud).
[E]stopping Insurers from Taking Inconsistent Coverage Positions
Most insurance policies use standardized wording drafted by the insurance industry. Coverage disputes frequently center on these standardized wordings. Policyholders only sporadically face significant claims that escalate into disputes with their insurers and result in litigation. Insurers, on the other hand, litigate identical or similar claims on a regular basis. Continue Reading ›
[E]stopping Insurers from Taking Inconsistent Coverage Positions
Most insurance policies use standardized wording drafted by the insurance industry. Coverage disputes frequently center on these standardized wordings. Policyholders only sporadically face significant claims that escalate into disputes with their insurers and result in litigation. Insurers, on the other hand, litigate identical or similar claims on a regular basis. Some issues lend themselves to insurer inconsistency.
[E]stopping Insurers from Taking Inconsistent Coverage Positions
Most insurance policies use standardized wording drafted by the insurance industry. Coverage disputes frequently center on these standardized wordings. Policyholders only sporadically face significant claims that escalate into disputes with their...
Three-Dimensional Chess: Harmonizing Dispute Resolution Clauses in Commercial Insurance Programs - Dispute Resolution Journal
Three-Dimensional Chess: Harmonizing Dispute Resolution Clauses in Commercial Insurance Programs - Dispute Resolution Journal View Three-Dimensional Chess: Harmonizing Dispute Resolution Clauses in Commercial Insurance Programs by - Dispute Resolution Journal Three-Dimensional Chess: Harmonizing Dispute Resolution Clauses in Commercial Insurance Programs 79 2 In this article, the authors highlight critical arbitration-related issues that risk managers and in-house counsel should consider when...
Three-Dimensional Chess: Harmonizing Dispute Resolution Clauses in Commercial Insurance Programs | JD Supra
Considering the complex structure of commercial insurance programs—typically purchased in annual “towers” of insurance—risk managers and in-house counsel often do not pay sufficient attention to arbitration-related provisions, which the insurance industry is more frequently including in its policies. That’s like playing only one board in a game of three-dimensional chess. Discrepancies among such provisions can lead to obstacles policyholders later must surmount when coverage disputes arise.
Three-Dimensional Chess: Harmonizing Dispute Resolution Clauses in Commercial Insurance Programs
Considering the complex structure of commercial insurance programs—typically purchased in annual “towers” of insurance—risk managers and in-house counsel often do not pay sufficient attention to arbitration-related provisions, which the insurance industry is more frequently including in its policies. That’s like playing only one board in a game of three-dimensional chess. Discrepancies among such provisions can lead to obstacles policyholders later must surmount when coverage disputes arise.
A Shock to the System: Potential Ramifications of the Electric Energy Coal Ash Decision and Insurance Recovery | JD Supra
In what was likely a shock to coal-fired electric utilities, the U.S. Court of Appeals for the District of Columbia Circuit held on June 28, 2024, that proposed decisions by the U.S. Environmental Protection Agency in January 2022—prohibiting coal-fired power plants from closing coal ash impoundments where coal ash is in contact with groundwater—were a “straightforward application” of a previously promulgated agency rule. In Electric Energy, Inc. v.
Winner-Winner: Preserving Your Chicken Dinner with JPI | JD Supra
Judgment Preservation Insurance (JPI), also sometimes referred to as Judgment Protection Insurance, has become both more requested and available in recent years. As more plaintiffs seek ways to protect court judgments, more insurers are prepared to assume the risk of insuring such risks and so have entered the market and expanded capacity.
Winner-Winner: Preserving Your Chicken Dinner with JPI
Judgment Preservation Insurance (JPI), also sometimes referred to as Judgment Protection Insurance, has become both more requested and available in recent years. As more plaintiffs seek ways to protect court judgments, more insurers are prepared to assume the risk of insuring such risks and so have entered the market and expanded capacity.
Ebasco Choice Of Law: A Decision Half A Century In The Making
Following the breakup of large utility holding companies by trust busters in the 1930s, General Electric created Ebasco (Electric Bond and Share Company), a construction company and consultancy that, among other things, assisted newly independent utilities throughout the United States to obtain broad excess-level occurrence-based liability insurance policies.
Ebasco Choice of Law: A Decision Half a Century in the Making | JD Supra
Following the breakup of large utility holding companies by trust busters in the 1930s, General Electric created Ebasco (Electric Bond and Share Company), a construction company and consultancy that, among other things, assisted newly independent utilities throughout the United States to obtain broad excess-level occurrence-based liability insurance policies.
Ebasco Choice of Law: A Decision Half a Century in the Making
Following the breakup of large utility holding companies by trust busters in the 1930s, General Electric created Ebasco (Electric Bond and Share Company), a construction company and consultancy that, among other things, assisted newly independent utilities throughout the United States to obtain broad excess-level occurrence-based liability insurance policies.
EPA Proposes Stringent Regulation of PFAS In Drinking Water | JD Supra
TAKEAWAYS As expected, as part of the implementation of its 2021 PFAS Strategic Roadmap, the United States Environmental Protection Agency (EPA) has proposed a new rule to establish Safe Drinking Water Act Maximum Contaminant Levels (MCLs) for six PFAS chemicals, including perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).
Effective January 1, 2023, Numerous States Begin to Impose Notification Requirements and Prohibitions on Products Containing “Intentionally Added” PFAS | Pillsbury Winthrop Shaw Pittman LLP - JDSupra
Regulated Entities and Scope of the Requirements Most of the laws passed to date regulate the activities of manufacturers and distributors, although some also impose obligations upon retailers. The common denominator is that all 11states will regulate food packaging containing “intentionally added PFAS” (more on this term below).
Proposed Rule to Designate Two PFAS Chemicals as Hazardous Substances Stands to Up the Ante for Site Remediation | JD Supra
The release of the pre-publication notice occurred two weeks after the White House Office of Management and Budget (OMB) completed its review of the proposed rule on August 12, 2022. The version of the proposed rule published in the Federal Register may differ from the version released last Friday, to account for the regulatory impact analysis that OMB required EPA to perform as a condition of clearing the proposed rule for publication.
“Stranger Danger”: The Perils of Loss Portfolio Transfers and Third-Party Administrator Claims Handling | JD Supra
The past several decades have muddied what once was a clear relationship between policyholders and their insurers. For pre-1987 occurrence-based policies in particular, policyholders face an increasingly familiar scenario: one day, they learn they are no longer dealing with the insurer that sold them insurance. A stranger has crept into the relationship. The stranger is generally a product of an insurer Loss Portfolio Transfer (LPT).
Ohio Appellate Court Ruling Is a Reminder that Cyber Coverage Can Be Found in Unexpected Places | JD Supra Original
As the number and severity of cyberattacks rise, the importance of insurance coverage to offset resultant loss becomes increasingly important. An opinion issued by the Ohio Court of Appeals is a happy reminder that there may be coverage for cyber-related loss even if you did not buy cyber-specific insurance and that policyholders should review their entire insurance portfolio when confronted by a cyber loss. In EMOI Services, LLC v. Owners Ins.
Ohio Appellate Court Ruling Is a Reminder that Cyber Coverage Can Be Found in Unexpected Places
As the number and severity of cyberattacks rise, the importance of insurance coverage to offset resultant loss becomes increasingly important. An opinion issued by the Ohio Court of Appeals is a happy reminder that there may be coverage for cyber-related loss even if you did not buy cyber-specific insurance and that policyholders should review their entire insurance portfolio when confronted by a cyber loss. Continue Reading ›
The Benefits of Mediating Complex Insurance Claims in a Post-Pandemic World | JD Supra
In my December 18, 2017, blog post, I wrote about “choosing the right path” to settle complex insurance claims and emphasized the benefits of private structured negotiation, a type of negotiation undertaken without the assistance of mediators.
Follow the Leader: How Ambiguities in Excess Follow-Form Policies Can Lead Policyholders Down a Crooked Path | JD Supra
A feature of most corporate liability insurance programs is the tower system of coverage: a primary policy with several overlying excess policies stacked atop one another collectively providing coverage up to a desired (or available) limit of liability. Depending on the size and liability exposures of a policyholder, a tower can consist of dozens of policies providing limits totaling hundreds of millions of dollars.
Claims-Writing Ghosts Come Back to Haunt Insurers | JD Supra
Insurers generally have a statutory duty to provide a legitimate factual and legal basis to deny a claim, and to discharge this duty sometimes engage in-house or outside counsel to assist in the investigation and handling of policyholders’ claims for coverage, including ghostwriting coverage correspondence and denials of coverage. The decision to outsource ordinary claims investigation and handling to legal counsel (putting aside that many claims handlers are lawyers) comes at a price.
Claims-Writing Ghosts Come Back to Haunt Insurers
Insurers generally have a statutory duty to provide a legitimate factual and legal basis to deny a claim, and to discharge this duty sometimes engage in-house or outside counsel to assist in the investigation and handling of policyholders’ claims for coverage, including ghostwriting coverage correspondence and denials of coverage. The decision to outsource ordinary claims investigation and handling to legal counsel (putting aside that many claims handlers are lawyers) comes at a price.
Buyer Beware: Search for Litigation Time Bombs in Your Policies | JD Supra
Insurance policies are legal documents. In the event of a dispute, their scope and meaning will be submitted to a court or arbitrator for interpretation. Most brokers are not attorneys. Most risk managers are not attorneys. And few companies seek counsel to review policies before a claim arises. But underwriters, assisted by their counsel, increasingly are including litigation-focused provisions in their policies.
Environmental Closure Costs Are Covered! (And Are Not Ordinary Costs of Doing Business) | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
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