Surveying and Surviving Surveying and Surviving the Wreckage Below:the Wreckage Below:

All About ExcessAll About Excess

Singin’ The PL BluesSingin’ The PL Blues

MODERATOR:

• Anjali Das, Esq., MBA, Partner, Wilson Elser Moskowitz Edelman & Dicker LLP

PANELISTS:

• Andrea D. Lieberman, Esq., Managing Director, Marsh, Inc.

• Scott Meyer, Executive Vice President, Management Liability, ACE USA

• Howard S. Suskin, Esq., Partner, Jenner & Block LLP

• Marjorie Thompson, JD, Vice President, Professional Lines Claims, Allied World Assurance Company Ltd.

Agenda

Part I: The Changing Claims Landscape

Today’s claims headlines and headaches

Challenges in defending claims

How bankruptcy impacts claims

Settling large claims

Agenda

Part II: The View from Mount Everest

Duties of Primary Carriers

Unique rights and defenses of Excess Carriers

Changes in the insurance industry

Damage Control

Managing relationships

The Changing Landscape

Overview Examples of claims spawned by the credit

crisis and Ponzi schemes

Which coverages are hardest hit?

Implications of bankruptcies on coverage and indemnification of D&Os

Potential severity in terms of liability & damages

Increasing defense costs

New areas of potential claims

The Changing Landscape

Today’s “Headache” Claims

Genesis of these claims

The targets

New theories of liability

Changes in the law impacting liability or the defenses available

The Changing Landscape

Challenges in Defending Claims

Skyrocketing defense costs

Impact of E-Discovery

Multiple defendants and counsel

Joint defense agreements and confidentiality

Parallel proceedings and investigations

Litigation budgets

Multi-jurisdictional and global litigation

The Changing Landscape

Impact of Bankruptcies on Claims and Defense

Growing number of insolvent insureds

Aggressive bankruptcy trustees

Implications for indemnification due to Bankruptcies

The Changing Landscape

Settling Claims

Complexities of “global” resolutions

Who are the real decision-makers?

Multiple party mediations

Trend towards larger settlements

Impact of insurance on settlements

Insured’s contribution

The View from Mt. Everest

Historical Duties of Primary Insurers

Consent to defense arrangements

Claim investigation and coverage evaluation

Vetting defense invoices

Communicating with both the insured and any excess insurers

“Secret settlements”

The View from Mt. Everest

Exhaustion of Underlying Limits

─ Policy wording

─ Interpretive case law

The View from Mt. Everest

Changes in the Insurance Industry

Large primary carriers assuming less risk

Traditional excess carriers moving “downstream”

Reduced limits on a “per carrier” basis

Larger insurance towers involving more carriers

Horizontal, versus vertical, layers of insurance

The View from Mt. Everest

Excess Carriers Should Be Actively Involved

Ignorance is not bliss

Rapid erosion of underlying limits

Limited or untimely information

Left out of preliminary settlement discussions

Potential waiver of coverage defenses

Differing views from underlying insurers

The View from Mt. Everest

Managing Relationships With Insureds and Insurers Alike

All for one and one for all?

Or, is everyone out for themselves?

Is the broker a help or hindrance?

All About Excess

Conclusion and Takeaways

Questions&

Answers

Many thanks to …

• Anjali Das

• Andrea Lieberman

• Scott Meyer

• Howard Suskin

• Marjorie Thompson