Where’s The Insurance?

1. Where’s The Insurance?

2. Where’s the Insurance? -Learn to Read an Insurance Policy -Persistence/Tenacity -Creativity

3. Multiple Claimants/Not Enough Insurance Coverage • Difficult situations for all parties involved. • Have to explore ALL possible coverage! • For EACH individual claimant! • Unusual situations for Plaintiff’s lawyers.

4. Multiple Claimants/Not Enough Insurance Coverage Two Important Cases Janes v. Western States Ins. Co., 335 Ill.App.3d 1109 (5th Dist. 2001) Columbia Mutual Ins. Co. v. Herrin, Duncan, et. al., 2012 IL App (5th) 100037

5. Encompass Insurance UIM coverage on the Duncan host vehicle $900,000 (Policies issued to Dr. Roger Herrin, Michael’s father) Monroe Guaranty UIM coverage on Saline County Care Center $3 million Monroe Guaranty UIM coverage on Severin Intermediate Care $2 million 3) Cincinnati Insurance $500,000 UIM Michael Herrin Jared Head Ross Duncan Katherine Duncan Brian Bramlet Bramlet Farm Truck Duncan Vehicle (Host Vehicle) Columbia Insurance Auto Liability coverage on Bramlet: $100,000

6. Multiple Claimants/Not Enough Insurance Coverage Duncan Trial Court Verdicts: Herrin Estate: $10,000,000.00 Jared Headd: $633,804.70 Katherine Duncan: $155,855.11 Ross Duncan: $125,892.50 Russell Duncan: $40,000.00 (LOC)

7. Multiple Claimants/Not Enough Insurance Coverage Duncan Trial Court Distribution (Misapplication of Janes) Herrin Estate: $677,851.06 Jared Headd: $147,368.96 Katherine Duncan: $36,228.77 Ross Duncan: $29,286.12 Russell Duncan: $9,256.09

8. Multiple Claimants/Not Enough Insurance Coverage Fifth District reversed. Error to use a ratio methodology. Herrin Estate not entitled to receive any of the common UIM fund.

9. Multiple Claimants/Not Enough Insurance Coverage What do Janesand Duncan teach us? -MUST determine UIM coverage for EACH claimant. -CANNOT have an equitable distribution of the common insurance fund without this information.

10. Multiple Claimants/Not Enough Insurance Coverage To be determined… Actual amount of UIM recovered vs. actual amount of UIM available? -Duncan court did not need to address this point. -Could make a difference in some cases.

11. Multiple Claimants/Not Enough Insurance Coverage Does this theory apply in different contexts? -Is it limited to just dividing a common pool of UIM coverage? -Hypothetical: Car crash. 3 claimants. Defendant interpleads his insufficient limit. Some have personal UIM, some do not. How do you divide the Defendant’s policy?

12. Multiple Claimants/Not Enough Insurance Coverage Is the Janes/Duncan methodology limited to consideration of UIM coverage? -Health Insurance (public or private)? -Other causes of action available to only one of the claimants? Product liability theory? -Other “collateral sources”? Workers compensation benefits?

13. Statute of Limitation Country Preferred Ins. Co. v. Whitehead, 2012 IL 113365, 979 N.E.2d 35 (2012) -Uninsured motorist claim. -Accident in Wisconsin; 3 year SOL. -Two year contractual limitation policy does not violate public policy even though Wisconsin had a longer SOL.

14. Statute of Limitation How do I protect the UM SOL? -READ the policy! -Presentation of UM claim within time limit: -Be precise. Don’t rely on a “general” notice. -Outline facts leading to claim. Send documents. -Demand formal arbitration. -Nominate your arbitrator. -What else does your insured need to do?

15. Statute of Limitaton How do I protect the SOL? (cont’d.) -Request certified copy of policy/dec sheet. -Can always agree to defer arbitration pending settlement negotiations. -File a formal lawsuit.

16. Statute of Limitation How do I protect the UIM SOL? -Same as UM. -Be careful about timing. Prudent practice: do it immediately, do not automatically wait until there is a limit tender from tortfeasor’s insurer.