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TRENDS IN BAD FAITH CLAIMS IN PROFESSIONAL MALPRACTICE CLAIMS

TRENDS IN BAD FAITH CLAIMS IN PROFESSIONAL MALPRACTICE CLAIMS. Michael D. Handler  Brian Anderson Member Senior Claims Attorney Cozen O'Connor Wisconsin Lawyers Mutual Insurance Company 206-808-7839 608-821-6988 mhandler@cozen.com brian.anderson@wilmic.com

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TRENDS IN BAD FAITH CLAIMS IN PROFESSIONAL MALPRACTICE CLAIMS

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  1. TRENDS IN BAD FAITH CLAIMS IN PROFESSIONAL MALPRACTICE CLAIMS Michael D. Handler  Brian Anderson Member Senior Claims Attorney Cozen O'Connor Wisconsin Lawyers Mutual Insurance Company 206-808-7839 608-821-6988 mhandler@cozen.combrian.anderson@wilmic.com Timothy M. Fletcher, JD, CPCU Donald Patrick Eckler Vice President Partner Specialty Claims Line Pretzel & Stouffer, Chartered Of Business Manager 312-578-7653 Gen Re - Global Claims deckler@pretzel-stouffer.com 404-365-6804 tfletch@genre.com

  2. WHAT IS BAD FAITH? • EXAMPLES ON THE SPECTRUM • COLORADO • WASHINGTON • ILLINOIS

  3. THE DUTY TO DEFEND AND THE DUTY TO INDEMNIFY • DEFENSE UNDER RESERVATION OF RIGHTS • THE NEED TO PROVIDE INDEPENDENT COUNSEL (Cumiscounsel) • DEFENSE WHERE THERE IS A NON-TRIVIAL PROBABILITY OF EXCESS JUDGMENT

  4. TRIGGER OF DUTY TO SETTLE • ASSETS TO PROTECT FOR PROFESSIONAL DEFENDANTS

  5. CONSENT JUDGMENTS • COVERAGE BY ESTOPPEL • ILLINOIS’ ESTOPPEL DOCTRINE

  6. ETHICAL CHALLENGES OF HANDLING CLAIMS IN PROFESSIONAL LIABILITY CONTEXT WITH ERODING OR WASTING POLICIES • Situation with sufficient policy limits to coverage a potential judgment, no client consent, a good, but expensive defense to liability, that could erode the policy below sufficient limits to satisfy a judgment.  Duties of insurer and counsel. • Situation where are relatively low limits, no client consent, but not a good defense to liability.  The possibility of exercise of the hammer clause and recoupment of fees.  • Situation where there are relatively low limits, client consent to settle, but a good defense to liability.  The possibility of bad faith if the insurer does not settle within the remaining limit.

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