Butler Insurance Symposium – 2022 Series

Challenging Expert Testimony in Construction Defect Litigation under Daubert | April 12, 2022

Presented by: Denise Anderson, Ashley Mattingly

Expert testimony is typically the evidence that construction defect litigation plaintiffs rely on most heavily to prove their case at trial. When expert witnesses are called to testify at trial, their opinions can have a significant impact on the jury’s perception of the case. Therefore, it is critical that their theories are backed by actual scientific evidence rather than their own personal beliefs. This presentation will discuss the “Daubert Standard” for admissibility of expert testimony, and strategies that can be used in challenging expert testimony.

Ensuing Loss Under Property Policies | April 19, 2022

Presented by: Clark Schirle, Adam Masef

First party property policies contain a number of exclusions. Some of the exclusions, however, have an ensuing or resulting loss clause. Those provisions provide that even though a loss may be caused by a peril that is excluded, such as a design defective, the insurance company will pay for an ensuing or resulting loss that is otherwise covered. Insurance companies and insureds have been litigating the issue of ensuing or resulting loss for decades. This presentation will provide an over of the ensuing or resulting loss clause, including a discussion of key and recent cases. The speakers will also provide an example of a case that Mr. Schirle tried to a jury involving the issue of ensuing loss.

Life Hacks to Avoid Common Traps – Third Party Coverage | April 26, 2022

Presented by: Fay Ryan, Yonit Rosengarten

This presentation outlines the most common blunders made by adjusters handling third-party claims and offers strategies to avoid these mistakes. Issues covered include: importance of identifying all potential insureds up front; the need to evaluate potential conflicts before assigning the same firm to defend multiple insureds; differentiating between, and responding to, contractual indemnity versus additional insured tenders; not assuming that the forum state’s law applies to interpretation of policy; “separation of insureds” provision; and statutory deadlines that limit assertion of certain coverage defenses in some jurisdictions.

Landlord/Tenant Subrogation and the Sutton Rule | May 3, 2022

Presented by: Geoff Waguespack, Aaron Jacobs

This presentation will highlight the various ways courts throughout the country evaluate subrogation claims asserted by a landlord’s insurer against a negligent tenant. There are three general approaches utilized by courts: (1) a presumption that subrogation is not permitted, which is commonly known as the “Sutton Rule”; (2) a presumption that subrogation is permitted; or (3) an assessment on a “case-by-case” basis, which is generally determined by evaluating the parties’ intentions and expectations under the terms of the lease and other factors. We will provide a survey of certain jurisdictions that adhere to each of these approaches and the critical case law from each state. Lastly, we will provide a summary of recent cases that illustrate developments in this area of jurisprudence and the critical factors that courts use to evaluate tenant/landlord subrogation claims.

Defusing the Fuse: Bad Faith Across Jurisdictions | May 10, 2022

Presented by: Kathy Maus, Jamie Combee Novaes

More and more insurance litigation focuses on the insurance company’s conduct and how it handled a claim. This presentation will provide a discussion of insurance bad faith across the nation’s jurisdictions, including defining bad faith, defending against it, and how to prevent it.

Discovering Bias in Treating Medical Providers and Expert Witnesses | May 17, 2022

Presented by: William Linero, Abraham Shakfeh

Proving witness bias in personal injury cases can help a party attack the credibility of a witness at trial. This includes expert witnesses and a plaintiff’s health providers. A defense attorney may want to show that a health provider receives numerous referrals from a plaintiff’s counsel or how much of their practice involves treating plaintiffs. However, limitations may exist on discovering bias of certain experts depending on the jurisdiction. This issue can be complicated as it intersects with numerous areas of law such as discovery, evidence and rules of ethics. This presentation will provide an overview of bias discovery of expert witnesses and health providers in select jurisdiction.

Navigating the Complexities of Occurrence/Accident-Based General Liability and UM Policies | May 24, 2022

Presented by: Mihaela Cabulea, Latasha Scott

This presentation provides an understanding of what constitutes a single accident or a single occurrence within the meaning of a “per accident” clause in a general liability or UM policy, which limits the liability of the insurer to a specified amount per accident or occurrence. The presentation analyzes the cause theory, the effect theory, and the unfortunate events test, as applied by various courts around the country (including Florida state courts and federal courts sitting in diversity jurisdiction) when interpreting occurrence/accident-based liability and UM policies for purposes of determining coverage.