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Third Circuit: Excess Insurer Need Not Prove Prejudice in Order to Enforce a Claims-Made and Reported Requirement
In a 2-1 opinion, the Third Circuit recently affirmed summary judgment in favor of an excess medical malpractice insurer in a case involving both policy construction and evidentiary issues. In Lexington Insurance Company v. Western Pennsylvania Hospital, et al., 2005 WL 2174003 (3d Cir. 9/9/05), West Penn Hospital had three layers of medical malpractice coverage. The first layer was a primary policy issued by PHICO. The PHICO policy provided both general liability, on an occurrence basis, and medical malpractice coverage on a claims-made and reported basis. The next layer was $1 million worth of excess coverage provided by the Pennsylvania Medical Professional Liability Catastrophe Fund (the “CAT Fund”). Lexington issued an excess policy over those first two layers. The CAT Fund coverage was also claims-made and reported.
The Lexington policy had a pre-printed umbrella form that was occurrence-based for general liability, and had two relevant endorsements. The first, Endorsement 007, provided follow-form claims-made medical malpractice coverage. The follow-form language was as follows:
Insofar as coverage is available to the Insured in the underlying insurance set forth in the Schedule of Underlying Insurance, this policy applies to liability arising out of medical incidents. All of the terms and conditions of said underlying insurance shall apply to this insuring agreement except as otherwise expressly stated herein.
The underlying insurance identified in the Schedule of Underlying Insurance was the PHICO policy.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.