Course Level:

Intermediate

Advance Preparation:

Print and review course materials

Method of Presentation:

On-Demand Webcast

Prerequisite:

General knowledge of insurance law

Course Code:

149616

NY Category of CLE Credit:

Areas of Professional Practice

Total Credit:

1.0 CLE

Kenneth P. Williams, Shareholder
Segal McCambridge Singer & Mahoney, Ltd.

Ilana Olman, Shareholder
Segal McCambridge Singer & Mahoney, Ltd.

Kenneth P. Williams, Shareholder

Segal McCambridge Singer & Mahoney, Ltd.

AND

Ilana Olman, Shareholder

Segal McCambridge Singer & Mahoney, Ltd.

• Explain context for deposition: establish facts by way of admissible evidence and/or testimony that the carrier (through its representatives) conducted a fair and objective investigation into the facts of the claim.  What is the basis for the deposition and how will the testimony fit in the case? 
  • Focus for depositions:
    • Coverage deposition focuses on the coverage investigation and conclusion.
    • Bad Faith deposition focuses on the potential negligence or improper (biased) claim handling.
    • Note however – the purpose of the deposition must be established: Even if the claim was handled improperly, if there is no coverage, then the conduct of the insurance company or the adjuster cannot be a proximate or producing cause of the insured's damages if there was no coverage initially.
  • Discuss where affirmative duties arise and/or examples of failure act in accord with those duties via:
    • case law
    • expert reports/testimony
    • jury instructions
    • key facts developed in discovery
    • Go in chronological order of discovery to aid in preparation of witness

• Preparing the witness(es) (i.e. claims handler, claims manager, underwriter, underlying defense counsel, corporate representative, etc.)
  • Document review and preparation of working copies of – claim file, claim notes/diary notes and/or underwriting file (pay special attention to any missing pieces)
    • Address:
      • Law of applicable jurisdiction re discoverability
      • Documents produced in discovery
      • Documents that will be subject to discovery
      • Whether deposition is subject to a duces tecum request
    • Nuts and bolts of preparation
      • Address:
        • Advance preparation (multiple sessions)
        • Engage in adverse witness deposition training of claim representative
        • Video mock deposition
      • Preparing witness to testify in capacity as witnesses versus corporate representative
        • If corporate representative: knowledge of the claim and claim history and other issues designated in notice for deposition

• Court intervention prior or after deposition
  • Motions for protective order
  • Objections

• Issues surrounding privilege that arise in context of bad faith and/or coverage depositions
  • When outside or in house coverage counsel operate in a dual capacity as attorney and adjuster (wearing two “hats”)
    • Impact on privilege
    • Becoming a fact witness

• The deposition
  • Confronting reptilian tactics
  • Disciplinary history of claims handler

• Issues surrounding Company/Carrier Policies and Guidelines
  • s legal authority in various key jurisdictions

• Insurance Lawyers
• Insurance Agencies
• Insurers and Policyholders
• Financial Advisors
• Paralegals
• Claims Representatives
• In-House Counsel