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book image Texas Insurance Coverage Litigation: The Litigator’s Practice Guide 2015
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Author Name Amy Elizabeth Stewart
558 Pages  
Published date 2014
ISBN no. 978-1-57625-884-2
eBook ISBN no. 978-1-57625-883-5
Condition New
 
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Title
Preface
About the Author
Acknowledgments
PART I LIABILITY INSURANCE POLICIES
Chapter 1: Navigating the Insurance Policy
1-1 INTRODUCTION
1-2 POLICY DECLARATIONS
1-3 PACKAGE POLICIES
1-4 THE POLICY FORM
1-4:1 Insuring Agreements
1-4:2 Exclusions
1-4:3 Definitions
1-4:4 Conditions
1-5 ENDORSEMENTS
1-6 SCHEDULES
Chapter 2: Commercial General Liability
2-1 INTRODUCTION
2-2 RISKS INSURED
2-3 INSURING AGREEMENTS
2-3:1 Coverage A—Bodily Injury and Property Damage
2-3:1.1 Bodily Injury
2-3:1.2 Property Damage
2-3:1.3 “Accident” Requirement
2-3:1.4 “Legally Obligated to Pay”
2-3:2 Coverage B—Personal Injury and Advertising Injury
2-3:3 Coverage C—Medical Payments
2-4 INSUREDS
2-4:1 Named Insured
2-4:2 Other Insureds
2-4:2.1 Additional Insureds
2-4:2.2 Statutory Limitations on Additional Insured Coverage
2-4:2.3 Contractual Limitations on Additional Insured Coverage
2-4:2.4 Newly-Acquired Corporations
2-5 OCCURRENCE V. CLAIMS-MADE POLICIES
2-5:1 Occurrence-Based Coverage
2-5:2 Claims-Made Coverage
2-6 COVERAGE TRIGGERS AND LONG-TAIL CLAIMS
2-7 EXCLUSIONS
2-7:1 Coverage A—Bodily Injury and Property Damage
2-7:2 Coverage B—Personal and Advertising Injury
2-7:3 Coverage C—Medical Payments
2-8 OTHER INSURANCE
2-9 DAMAGE DURING MULTIPLE POLICY PERIODS
2-10 LHVHTS
Chapter 3: Professional Liability: Errors & Omissions
3-1 INTRODUCTION
3-2 RISKS INSURED
3-3 INSURING AGREEMENT
3-4 INSUREDS
3-5 CLAIMS-MADE COVERAGE
3-5:1 Retroactive Date
3-5:2 Extended Reporting Period and Tail Coverage
3-6 COMMON EXCLUSIONS
3-6:1 Crime/Fraud Exclusion
3-6:2 Known Claims or Circumstances
3-6:3 Personal-Profit Exclusion
3-7 INSURABILITY OF PUNITIVE OR EXEMPLARY DAMAGES
3-8 INSURED’S CONSENT TO SETTLE
Chapter 4: Directors & Officers Liability
4-1 INTRODUCTION
4-2 RISKS INSURED
4-3 INSURING AGREEMENTS
4-3:1 Individual D&O Coverage—Coverage A
4-3:2 Corporate Reimbursement Coverage—Coverage B
4-3:3 Entity Coverage—Coverage C
4-3:4 Outside Director Liability Coverage
4-4 CLAIMS-MADE COVERAGE
4-4:1 Notice of Potential Claims
4-4:2 Retroactive Date—Prior Acts Coverage
4-4:3 Pending or Prior Litigation—Prior Notice
4-5 DEFINITION OF “CLAIM”
4-6 INSURED CAPACITY
4-7 COVERED LOSS
4-8 COMMON EXCLUSIONS
4-8:1 Intentional Fraud and Dishonesty
4-8:2 Personal Profit
4-8:3 Claims Brought by Insureds
4-8:4 Breach of contract
4-9 OTHER KEY POLICY PROVISIONS
4-9:1 Severability
4-9:2 Presumptive Indemnification
4-9:3 Apportionment or Allocation
4-9:4 Recoupment of Defense costs
Chapter 5: Employment Practices Liability
5-1 INTRODUCTION
5-2 RISKS INSURED
5-3 INSURING AGREEMENT
5-4 WRONGFUL ACTS
5-5 COVERED “LOSS”
5-6 COMMON EXCLUSIONS
Chapter 6: Fiduciary Liability
6-1 INTRODUCTION
6-2 RISKS INSURED
6-3 INSURING AGREEMENT
6-3:1 Definition of Wrongful Act
6-3:2 ERISA Roles and Responsibilities
6-3:2.1 Plan Fiduciaries
6-3:2.2 Plan Sponsors
6-3:2.3 Plan Administrators
6-3:3 Not Wrongful Acts
6-4 WHO IS INSURED
6-5 COVERED LOSS
6-6 COMMON EXCLUSIONS
Chapter 7: Cyber and Privacy Liability
7-1 INTRODUCTION
7-2 THE RISKS
7-3 LIMITATIONS OF CONVENTIONAL COVERAGE
7-4 INSURING AGREEMENTS
7-4:1 Cyber Liability
7-4:2 Privacy Notification Expenses
7-4:3 Crisis Management and Reward Expenses
7-4:4 E-Theft
7-4:5 Denial or Impairment of E-Service
7-4:6 E-Communication
7-4:7 E-Vandalism
7-4:8 E-Threat
7-4:9 E-Signature
7-5 COMMON EXCLUSIONS
Chapter 8: Excess and Umbrella Policies
8-1 INTRODUCTION
8-2 EXCESS LIABILITY COVERAGE
8-2:1 True Excess Policies
8-2:2 Umbrella Policies
8-3 SCHEDULE OF UNDERLYING INSURANCE
8-4 PRIORITY OF INSURANCE
8-5 EXCESS CARRIER’S DUTY TO DEFEND
8-6 EXCESS CARRIER’S DUTY TO SETTLE
8-7 PRIMARY INSURER INSOLVENCY
8-8 NOTICE
Part II TEXAS INSURANCE LAW—KEY CONCEPTS
Chapter 9: The Ground Rules—Construction of Insurance Contracts
9-1 RULES OF CONTRACT CONSTRUCTION
9-2 AMBIGUITY
Chapter 10: The Insured’s Obligations in Event of a Claim
10-1 NOTICE TO INSURER—REPORTING
10-2 NOTICE OF POTENTIAL CLAIMS
10-3 LATE NOTICE AND PREJ-UDICE20 See Appendix A—Glossary. REQUIREMENT
10-3:1 Occurrence-Based Policies
10-3:2 Claims-Made Policies
10-4 TENDER OF THE DEFENSE
10-5 COOPERATION
10-5:1 The Cooperation Clause
10-5:2 Prejudice
Chapter 11: The Insurer’s Obligations in Event of a Claim
11-1 INTRODUCTION
11-2 THE DUTY TO DEFEND
11-2:1 Eight-Corners Rule
11-2:1.1 No Extrinsic Evidence
11-2:1.2 Doubts Resolved in Favor of Duty
11-2:1.3 Focus Is on Facts Alleged
11-2:2 Possible Exception to Eight-Corners Rule?
11-2:2.1 GuideOne
11-2:2.2 Graham
11-2:2.3 More Recent Cases
11-2:3 Duty to Defend Entire Case
11-2:4 Reservation of Rights
11-2:5 Conflicts of Interest and Control of the Defense
11-2:6 Duty to Defend vs. Duty to Pay
11-3 DUTY TO INDEMNIFY
11-4 TEXAS INSURANCE CODE
11-4:1 Unfair and Deceptive Acts or Practices
11-4:1.1 Section 541.051
11-4:1.2 Section 541.060
11-4:1.3 Section 541.061
11-4:2 Prompt Payment of Claims Act
11-5 THE STOWERS DUTY
PART III THE INSURANCE COVERAGE LAWSUIT
Chapter 12: Pre-Litigation Considerations
12-1 INTRODUCTION
12-2 THE INITIAL ASSESSMENT
12-3 EARLY RESOLUTION STRATEGIES
12-3:1 Confer with Opposing Counsel
12-3:2 Settlement Conference or Mediation
12-3:3 Demand Letter
12-4 PRESENTMENT REQUIREMENTS AND DEMAND LETTERS
12-4:1 Presentment of Contract Claim
12-4:2 Statutory Pre-Suit Notice—DTPA
12-4:3 Statutory Pre-Suit Notice—Insurance Code
12-4:4 Strategic Considerations
12-5 MANDATORY ALTERNATIVE DISPUTE RESOLUTION
12-5:1 ADR Provisions
12-5:2 Mediation Under the DTPA
12-5:3 Mediation Under the Texas Insurance Code
12-6 STATUTES OF LIMITATIONS
Chapter 13: The Lawsuit—Procedural Considerations
13-1 INTRODUCTION
13-2 JURISDICTION AND FORUM SELECTION
13-2:1 Forum-Selection Clauses
13-2:2 State Court Jurisdiction
13-2:3 Federal Court Jurisdiction—Diversity of Citizenship
13-2:4 Removal
13-2:5 Joinder
13-3 CHOICE OF LAW
13-4 VENUE
13-4:1 Venue-Selection Clauses
13-4:2 Statutory Venue—Texas State Court
13-4:3 Federal Court Venue
Chapter 14: The Pleadings—Petition & Answer
14-1 DECLARATORY JUDGMENT ACTIONS
14-1:1 Statutory Authority
14-1:2 Federal Court Abstention
14-1:3 Case or Controversy Requirement
14-1:4 Common Issues
14-1:5 Available Relief
14-1:6 Advantages and Disadvantages
14-2 BREACH OF CONTRACT
14-2:1 Elements
14-2:1.1 Duty to Defend
14-2:1.2 Duty to Indemnify
14-2:2 Remedies
14-2:2.1 Duty to Defend
14-2:2.2 Duty to Indemnify
14-3 INSURANCE CODE VIOLATIONS
14-4 DECEPTIVE TRADE PRACTICES
14-5 FAILURE TO SETTLE—STOWERS
14-6 PROMPT PAYMENT OF CLAIMS
14-7 OTHER PLEADING CONSIDERATIONS
14-7:1 Notice
14-7:2 Conditions Precedent
14-8 DEFENSES
14-8:1 Lack of Notice
14-8:2 Failure to Perform Conditions Precedent
14-8:3 Waiver and Estoppel
14-8:4 Exceptions to General Liability Coverage
14-8:5 Ambiguity
14-8:6 Fraud as a Defense
14-8:7 Mistake and Reformation
14-8:8 Policy Procurement Defenses and Rescission
14-8:9 Fortuity
Chapter 15: Litigation Planning
15-1 TAKING INVENTORY
15-2 SCHEDULING ORDERS
15-3 BIFURCATION AND SEVERANCE
Chapter 16: Fact Discovery
16-1 DISCOVERY PLANNING
16-1:1 Initial Investigation
16-1:2 Outline of Claim Elements
16-1:3 Phased Discovery and Strategic Considerations
16-2 SCOPE OF DISCOVERY
16-3 DEPOSITIONS
16-3:1 Taking Depositions
16-3:1.1 Preparation Is Key
16-3:1.2 To Video or Not to Video?
16-3:2 Defending Depositions
16-3:2.1 Avoid “Insurance-ese”
16-3:2.2 Clarify Confusing Questions
16-3:2.3 Review Exhibits
16-3:2.4 Avoid Waiving Privilege Issues
16-3:2.5 Avoid Negative Visual Cues
16-3:2.6 Stay Focused
16-4 PRIVILEGE ISSUES
16-4:1 Disclosure to the Insurer
16-4:1.1 Conflicting Interests
16-4:1.2 Waiver and the “Advice-of-Counsel” Defense
16-5 CONFIDENTIALITY AGREEMENTS AND PROTECTIVE ORDERS
Chapter 17: Alternative Dispute Resolution
17-1 INTRODUCTION
17-2 ARBITRATION
17-3 JURY WAIVERS
17-4 SUMMARY JURY TRIAL
Chapter 18: Pretrial Considerations
18-1 INTRODUCTION
18-2 PRETRIAL JURY RESEARCH
18-2:1 Jury Research Tools
18-2:2 Timing
18-2:3 Preparation
18-2:4 Jury Consultants
18-3 DEMONSTRATIVE AIDS
18-4 MOTION IN LIMINE
18-5 DESIGNATION OF EXHIBITS
18-6 USE OF TRIAL BRIEFS
Chapter 19: Jury Selection & Trial
19-1 JURY SELECTION
19-1:1 Considerations for Voir Dire
19-1:2 Jury Questionnaire
19-2 EVIDENCE—STRATEGIC CONSIDERATIONS
19-3 WITNESS PREPARATION
19-4 BURDENS OF PROOF
Chapter 20: Appellate Issues
20-1 INTRODUCTION
20-2 DEADLINES
20-2:1 Texas Procedure
20-2:2 Federal Procedure
20-3 PERMISSIVE INTERLOCUTORY APPEALS
20-4 CERTIFIED QUESTIONS
20-5 BRIEFS OF ANICUS CURIAE
20-5:1 Texas Procedure
20-5:2 Federal Procedure
Appendix A: Glossary
Appendix B: Texas Insurance Code, Chapters 541 and 542
Appendix C: Forms
Table of Cases
Index
Back Page
 
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