When dealing with 'captive' reinsureds, some reinsurers seek to restrict their obligations under applicable reinsurance agreements, in an effort to obtain rights held by 'direct' insurers, but rarely extended to reinsurers. A captive reinsured is one whose '[i]nsurance provides coverage for the group or business that established it.' Black's Law Dictionary 803 (7th ed. 1999). Indeed, while reinsurers have similar 'duties' as direct insurers, such as the duty to act in good faith, their 'rights' are much more limited. Most importantly, and based upon well-established custom and practice, case law, and applicable contractual language, a reinsurer has no right to conduct its own investigation into coverage decisions made by its reinsured and in only very limited circumstances may it second-guess those decisions. In fact, unless a reinsurer can prove bad faith conduct by its reinsured in handling claims made by underlying insureds, a reinsurer generally has no choice but to reimburse its reinsured for amounts paid pursuant to underlying policies.

Most insurance policies are silent as to which state's substantive law governs their terms. As a result, insurance-coverage lawyers often find ourselves wading deep into the world of choice of law and conflict of laws. Conflicts issues are (largely) untethered from the merits of a case, yet can be outcome determinative; so it is crucial to understand and focus on choice-of-law principles in com-plex insurance disputes, as they can yield the application of different state laws within a single case to issues of contract formation, performance, and bad faith.

Under the terms of a standard Commercial General Liability ('CGL') policy, an insurance company must defend and indemnify its insured for claims of property damage (or bodily injury) resulting from an 'occurrence' subject to certain enumerated policy exclusions. An 'occurrence' is typically defined as 'an accident, including continuous or repeated exposure to substantially the same general harmful conditions.' CGL policies do not define the term 'accident' and, consequently, the term has prompted substantial litigation. <i>See State Farm Fire &amp; Cas. Co. v. CTC Dev. Corp.</i>, 720 So. 2d 1072, 1075 (Fla. 1998) (stating that 'few insurance policy terms have provoked more controversy in litigation than the word 'accident''). At the heart of the litigation is the parties' disagreement over what constitutes accidental damage.

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In <i>Agfa Corp. v. Creo Prods. Inc.</i>, 451 F.3d 1366 (Fed. Cir. 2006), a non-unanimous panel of the Court of Appeals for the Federal Circuit ('CAFC') issued an opinion affirming a district court's decision to conduct a bench trial on the defense of inequitable conduct, in spite of the patentee's request for a jury trial, prior to holding a jury trial on patent infringement, patent invalidity, and all other issues in the case. The dissenting member of the panel disagreed with the majority's decision that the patentee in this case did not have a right to a jury trial on the issue of inequitable conduct and suggested that the CAFC majority opinion in <i>Agfa</i> changed precedent established in a prior decision. In deciding <i>Agfa</i>, the majority analyzed the CAFC's decision in <i>Gardco Mfg. v. Herst Lighting Co.</i>, 820 F.2d 1209 (Fed. Cir. 1987) and determined that it applied to the case in <i>Agfa</i>. The majority also distinguished the CAFC decision in <i>In re Lockwood</i>, 50 F.3d 966 (Fed. Cir. 1995), <i>vacated</i>, 515 U.S. 1182 (1995), as inapplicable to the equitable issue in question in <i>Agfa</i>. Conversely, the dissenting panel member argued that the CAFC's decision in <i>Lockwood</i> was indeed applicable to the issues in Agfa. This article reviews the above cases with the goal of determining if the CAFC decision in <i>Agfa</i> is indeed a departure from its previous jurisprudence concerning a patentee's right to a jury trial on the issue of equitable conduct.

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