Asset Management. Capital Markets. Class Action. Commercial Contracts. Consumer Protection. Government Contracts. Intellectual Property. International Arbitration. International Trade. Law In-Depth. Legal Ethics. Legal Industry. Life Sciences. Native American. New Jersey. New York. Private Equity. Product Liability. Project Finance. The program explicitly requires insurers to participate in "good faith.
The mediation is nonbinding and will not deprive policyholders of their other legal remedies, including the right to appraisal and to bring civil litigation. At this time, the program will not include disputed claims under flood insurance policies, as they are handled through the federal National Flood Insurance Program. All insurance carriers authorized and admitted to conduct business in New Jersey and the New Jersey Insurance Underwriting Association are obligated to participate in the program.
Surplus lines insurers and risk retention groups will have the option to participate on a case-by-case basis. State-regulated carriers will be required to advise their policyholders with unresolved claims of the availability of the mediation program. While costs for the mediators will be borne entirely by the participating insurers, policyholders are responsible for their own attorneys' fees. The program is being established by DOBI, and it is accepting proposals until March 7 from companies seeking to provide mediation services.
DOBI anticipates the program may handle between 20, and 25, disputed claims, so the company selected must be experienced in the administration of voluminous claims. DOBI expects the program to be up and running by early April. Additional details and information about the program is expected to be released in the next few weeks. Insurers who wish to deny or limit their coverage obligations to their policyholders routinely seek production of privileged communications between the insured and its independent counsel.
The information requested typically includes case evaluations, legal research memoranda and other analyses concerning the merits and value of the underlying plaintiff's claims, which the insurers hope will provide a basis to deny coverage.
Policyholders facing these types of discovery requests walk a tightrope between producing these documents, with the potential risk that they will fall into the hands of the underlying plaintiffs, and resisting discovery, with the risk that the insurer will claim a breach of the policy's cooperation clause. Heffler opposed certain of CAMICO's discovery requests, which sought communications between Heffler and its independently retained defense counsel, claiming that these communications were protected by the attorney-client privilege.
While CAMICO did not challenge the privileged nature of the communications, it nonetheless moved to compel the production of those documents, asserting the common interest and co-client exceptions to the privilege.
The court rejected CAMICO's common interest argument, which applies only where separate clients retain different attorneys who share information with each other pursuant to a common legal interest. Based on its review of Pennsylvania appellate court opinions, the Restatement of the Law Governing Lawyers and Third Circuit precedent, the court refused to recognize an absolute rule that an insurer who pays for its insured's defense is always a co-client of defense counsel.
In concluding that no joint representation existed, the court relied on statements by a member of the O'Brien Firm that the firm had been independently retained by Heffler and that it had never represented CAMICO. The Heffler decision provides support to policyholders whose carriers attempt to further their own interests at the expense of their insureds. In a number of jurisdictions -- such as Pennsylvania -- an insurer who has reserved its right to deny coverage cannot rely on the cooperation clause to discover an insured's privileged communications with its defense counsel.
Under the regulation, in the event of one of the contingencies listed below, an insurer is required to inform the policyholder of a right to mediation; include instructions on how to request mediation and provide the insureraEUR TM s address and phone number so the policyholder can request additional information. The insurer is required to forward a policyholderaEUR TM s request for mediation to an approved organization within 3 business days of receiving same and must also pay the mediating organizationaEUR TM s fee within 5 business days of receiving a bill.
Under subsection b 1 of the regulation the obligation to advise the policyholder of this new aEURoeright to request mediationaEUR? The regulation requires notice to the policyholder of the right to mediation if aEURoeprior to the effective date of this section: the insurer denied a claim in whole or in partaEUR?
0コメント