'Follow the Settlements' Doctrine: Implications on a Reinsured's Allocation and Aggregation of Losses
November 30, 2004
The applicability of the bedrock reinsurance principle of "follow the settlements" is at the core of an increasing number of recent reinsurance disputes concerning whether a reinsurer must follow the manner its reinsureds allocate and aggregate underlying losses. Over the last 5 years, a number of courts have addressed whether the doctrine of "follow the settlements" precludes a reinsurer from second-guessing its reinsured's determination of how it allocated and/or aggregated losses in resolving disputes with the underlying insured. As discussed more fully below, reinsureds typically argue that under the "follow the settlements" doctrine, a reinsurer must defer to the allocation and aggregation decisions of its reinsured, provided those decisions are made in good faith. Reinsurers on the other hand, typically argue that "follow the settlements" is not unlimited, but that the reinsured's decisions must be consistent with the language of the reinsurance agreement.
Conspiracy Theory: Coverage for Claims Involving Allegations of Conspiracy
November 30, 2004
Plaintiffs in mass tort cases always have had a knack for expanding the universe of potential defendants, seeking the maximal number of deep pockets in each case. Historically, doctrines such as market-share liability and concert of action have been relied upon by plaintiffs to access all the participants in an industry, based on the acts of only some of the participants therein. Recently, as those theories of broadened liability have begun to meet with judicial resistance, plaintiffs have turned to an ancient common law doctrine through which to expand the number of available defendants in mass tort suits: the conspiracy theory. The focus of this article is on the question of whether industry participants accused of participating in such an alleged conspiracy can and should properly expect their liability insurers to defend such suits and indemnify any loss resulting therefrom. As shown below, there is no categorical bar to coverage for conspiracy liability in standard-form comprehensive general liability policies ("CGL"). Instead, coverage turns on the object of the alleged conspiracy and the injury suffered. Although many courts have shown great hostility to coverage for conspiracy-only claims, in many circumstances arising in the context of traditional mass tort suits insureds should be entitled to a defense (certainly) and indemnity (depending on the facts).
Pre-Divorce Financial Planning: Could This Be the Next Frontier?
November 30, 2004
Over the past several years, alternative dispute resolution (ADR) methods such as mediation and collaborative law have been increasingly applied to the divorce process. This phenomenon has been largely due to 1) incompatibilities between our advocacy system and the need for viable outcomes, and 2) an increased recognition of the importance of resolving emotional issues, particularly those involving children. In short, these approaches sometimes lead to better results than traditional methods.
Children and Partner Abuse
November 30, 2004
On Oct. 26, The Court of Appeals of New York responded to the questions certified to it from the U.S. Court of Appeals for the Second Circuit over a year ago, in the case of <i>Nicholson v. Scoppetta</i>, whose answers would determine whether under New York law a child can lawfully be removed from its mother's care exclusively on the basis that the child has witnessed the mother being domestically abused. The answers the Court of Appeals gave added up to one conclusion: Such removals are not authorized. <i>Nicholson v. Scoppetta</i>, No. 113, 2004 N.Y. LEXIS 3490 (10/26/04). The opinion, written by Chief Justice Judith Kaye, was joined by all the remaining justices on the panel.
Domestic Violence Report Tracks Trends in NYC
November 30, 2004
The New York City Department of Health and Mental Hygiene's (DOHMH) report, "Femicide In New York City: 1995-2002," published Oct. 22, reports that women in the city are more likely to be killed by a current or past husband, boyfriend or partner than by a stranger. Although the overall number of women murdered during this time period declined by more than one half, the number of women killed by intimate partners or other family members declined only slightly. Young, black or Hispanic women were at higher risk than older women of other ethnicities, and three-quarters of the women killed by their partners or other intimate family members were foreign-born. Part of the reason for this may be that some foreign-born women in the city are undocumented aliens who fear that seeking help for their domestic situations may lead to their being deported.
Congress Passes Bill to Speed Interstate Child Placement
November 30, 2004
The House of Representatives passed a bill on Oct. 5 titled the "Safe and Timely Interstate Placement of Foster Children Act of 2004" (H.R. 4504). The proposed law, introduced by House Majority Leader Tom DeLay (R-TX) in June, is meant to speed up the process of sister-state permanent placement, which at present takes on average one full year more than in-state placement. DeLay said upon passage, "This bill will get these children out of their personal hells and into the arms of a loving family, quickly and safely."
Strategic Selling Helps Small Law Firms Narrow The Gap And Bring In New Work
November 30, 2004
Firms that want to be successful in bringing in new business must do more than simply tell prospective clients that they are better than their competition. Law firms must be able to show why they are different, and more importantly, how they will help the general counsel improve his or her bottom line. For a small to midsize firm, keeping up with the large firms who have unlimited marketing budgets can be tough. But technology is allowing small firms like ours to narrow that gap.
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