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Vol. 3, Iss. 15
November 5, 2014

As The Policyholder Sees It:
Carl Salisbury’s Ten Things He Really, Really Wishes Insurers Wouldn’t Do

A popular part of the White and Williams Coverage College has always been the closing general session where a prominent policyholder-side lawyer provides his thoughts on the claims process. In past years, policyholder counsel have looked at mistakes that insurers sometimes make that policyholders then attempt to use to their advantage.

Kilpatrick Townsend & Stockton New York partner Carl Salisbury was kind enough to accept our invitation to tackle the “As The Policyholder Sees It” session at last month’s 8th Annual Coverage College. Carl took a somewhat different take on the presentation than some others. Instead of focusing on mistakes that insurers can make, he looked at ten things that he really, really wished insurers wouldn’t do. To be sure, some of these could also be mistakes that policyholders attempt to exploit. But some are also simply things that insurers sometimes do that simply make the claims process more complex and contentious and can sour the relationship between policyholder and insurer.

Carl’s presentation was superb and very-well received. He was in hostile territory – an audience of hundreds of insurance adjusters and their counsel – but there was nothing at all hostile about his presentation. He was unfailingly gracious and spoke in a non-accusatory tone. He was there to present a policyholder-side view and advocate for change. We sent Carl home with a White and Williams Coverage College golf shirt – the only policyholder lawyer in America to own one.

Here are Carl Salisbury’s “Ten Things That I Really, Really Wished You Wouldn’t Do:”

The Five-Minute Claim Investigation: Denials and reservations of rights in complex coverage claims that come directly on the heels of an insured’s notice

The Kitchen-Sink Information Request: Five-page single-spaced letters that essentially require the policyholder to conduct the claim investigation

The Kitchen-Sink Reservation of Rights Letter: The letter that cuts and pastes every policy provision, relevant or not, into the carrier’s ROR

The Passive-Aggressive Excess Carrier: The excess carrier that denies any obligation to become involved in a claim until underlying limits are exhausted and then conducts all-out litigation warfare when underlying limits do become exhausted

The Thumb-In-the-Eye Settlement Offer: The offer to settle a disputed claim with such a low-ball number that it effectively ends all conversation

The Sprint to the Courthouse: The carrier that rushes to file a pre-emptive declaratory judgment action immediately after receiving a claim for coverage

The Misdirected Allocation Brou-Ha-Ha: Carriers that put the entire burden of allocating among triggered policies on the policyholder instead of engaging other involved carriers in allocation discussions

The Other-Insurance Brou-Ha-Ha: Carriers that put the entire burden on the policyholder to determine which carrier will be primary under an “other insurance” clause

The Impossible Billing Guidelines: Billing requirements that are so onerous or unreasonable they make it difficult for policyholders to find counsel to defend under reimbursement-of-defense coverage

The Notice of Circumstances Shell Game:
Asserting that a notice of circumstances under a previous year’s policy was technically ineffective to trigger coverage after a claim is eventually made

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