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Managing the Co-Insurer Relationship: Preserving Contribution Claims
Typically, when an insurer accepts an insured's tender of defense, the response letter to the insured includes a request for information regarding the insured's co-insurers, and in the context of a progressive bodily injury or property damage claim, successive insurers. The insured is obligated to provide this information pursuant to the policy's cooperation clause. The purpose for requesting this information is to determine what other insurers may potentially be responsible for sharing in the defense and indemnity of the claim.
What happens, however, if the responding insurer already has information regarding the identity or possible identity of the co-insurers, but the insured fails or refuses to place them on notice of the claim? An insured already receiving a full defense may have little incentive to chase down other insurers. The issue is important because late notice or no notice of the claim to the other insurers has the potential to vitiate the responding insurer's contribution claim against other responsible, but non-responding insurers. Based on the limited case law addressing this issue, notice by one insurer to another insurer is equivalent to notice from the insured. See Crum & Forster Org. v. Morgan, 596 N.Y.S. 2nd 472 (N.Y. App. Div. 1993); State of New York v. Blank, 27 F.3d 783 (2nd Cir. 1994); Truck Insurance Exchange v. Unigard Ins. Co., 94 Cal. Rptr. 2nd 516 (Cal. Ct. App. 2000); but see Casualty Indemnity Exchange Ins. Co. v. Liberty National Ins. Co., 902 F.Supp. 1235 (D. Mont. 1995) (holding that only notice from insured triggers insurer's duty to defend or provide contribution). Thus, the apparent solution to the situation where the insured fails to notify all co-insurers of a claim is for the responding insurer to promptly place all co-insurers on notice of the claim and advise them that it plans to seek contribution. The insured should be copied on those notice letters.
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.
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.
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.