Lowenstein Sandler's Insurance Recovery Podcast: Don’t Take No For An Answer

Host Lynda A. Bennett, chair of the Insurance Recovery Practice at Lowenstein Sandler, introduces the100th episode of Don't Take No For An Answer. Since its launch, the podcast has interviewed guests from all corners of the insurance ecosystem to offer market insights, different perspectives, and practical tips to understand how insurance works and how to maximize recovery when claims are presented. Lynda describes the feedback from listeners, including clients, competitors, and adversaries across the country; she also lists the topics that sparked special interest, such as D&O risks, how to implement better risk management hygiene, and the intersection of insurance and bankruptcy.  In case you missed any, just click on the links below to listen again! Finding the Right Fit: The Duty to Defend vs. the Duty to Reimburse (Part II) Insurance Needs in the Biden Administration Protecting Against Environmental Risks Reps & Warranties Insurance: Sealing The Deal The ABCs of D&O Insurance The Brave New Frontier of Securing D&O Insurance for SPACs and deSPACs The Intersection of Insurance and Bankruptcy – Part 1 The Intersection of Insurance and Bankruptcy – Part 2 Wait, that’s covered? Insurability of Fines and Penalties Flowing From a Cybersecurity Breach Wearing Multiple Hats: Making Sure You Are Covered in All Capacities Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery

Lynda A. Bennett, Heather Weaver, and Josh Weisberg of SterlingRisk continue their year-end conversation about what changed in the insurance recovery space in 2024 and what to expect in 2025.  Lynda, Heather, and Josh anticipate rate relief and broader coverage in cyber insurance, provided that companies can show that they have good risk control measures in place. They also expect this year’s Crowdstrike event to affect the availability of contingent business income coverage, high jury verdicts in personal injury cases to result in continued rate pressures and potentially more restrictive coverage in the excess casualty insurance market, and the new administration in Washington, DC, to have an impact on the insurance space generally. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryHeather Weaver, Counsel, Insurance RecoveryJosh Weisberg, Chief Risk Officer, SterlingRisk

In this episode of “Don’t Take No for An Answer,” Lynda A. Bennett, Chair of Lowenstein’s Insurance Recovery Group, joins Lowenstein’s Heather Weaver and Josh Weisberg, Chief Risk Officer at SterlingRisk to recap changes in the insurance industry over the past year, particularly in the property and casualty sectors. They discuss areas in which insurance companies are increasingly looking to restrict coverage so businesses know what to look out for during the renewal process, and they share some steps that businesses can and should take internally to make sure that they're presenting themselves as an attractive risk as they go through the underwriting process. Lynda, Heather, and Josh also address extreme weather, drones, and AI, and emphasize the importance of preparedness while navigating events that are out of one’s control. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryHeather Weaver, Counsel, Insurance RecoveryJosh Weisberg, Chief Risk Officer, SterlingRisk

In this episode of “Don’t Take No for An Answer,” Eric Jesse, partner in Lowenstein Sandler’s Insurance Recovery Group, is joined by Alexander B. Corson to discuss bad faith in insurance claims. Highlighting a recent example of a case involving Rockefeller University, Eric and Alex explain how breach of contract claims are different from bad faith claims, why choice of law matters, and how policyholders can protect themselves against insurers who sit on their hands. Speakers: Eric Jesse, Partner, Insurance RecoveryAlexander B. Corson, Associate, Insurance Recovery

On this episode of “Don’t Take No for An Answer,” Lynda A. Bennett, Chair of Lowenstein’s Insurance Recovery Group, speaks with David Anderson, Vice President of Cyber at Woodruff Sawyer, about the difference between operational technology (OT) and informational technology (IT). They discuss how system failures or cyber-attacks on a company’s OT system may not only give rise to risks to data security, but also may have real world consequences, from business interruption and wasted inventory to physical injury and environmental damage. Lynda and David stress the need for policyholders to carefully understand and negotiate their cyber insurance coverage to cover all potential OT impacts—preferably at the purchase phase, and not after a failure has occurred.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryDavid Anderson, CIPP/US, Vice President, Cyber Liability, Woodruff-Sawyer & Co

Today on Don't Take No For An Answer, Lynda A. Bennett and Alexander B. Corson discuss a recent Second Circuit decision that reinforces the importance of reading claims-made policies carefully.  The case involves Tinder, the online dating service provider, which received notice of a lawsuit on Wednesday but did not provide notice to their insurer until Monday.  The insurer denied coverage on the basis that the insurance policy had expired on Saturday at 12:01 AM! Their discussion focuses on such issues as what constitutes a “claim” triggering notice requirements in claims-made policies, the scope of a 60-day grace period applicable to such notice requirements, how policy audits may help companies avoid similar situations, and why it is critical for business to provide notice to their insurers early, often, and immediately upon learning of a potential liability.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryAlexander B. Corson, Associate, Insurance Recovery

Today on “Don’t Take No for an Answer,” Eric Jesse and Alexander B. Corson discuss Aearo Technologies v. ACE American, in which a Delaware court held 3M could not credit $372 million it paid in defense costs against self-insured retentions in legacy CGL policies issued to its subsidiary, Aero Technologies, before its aquisition. The hosts discuss the implications of non-market language included in those policies – which specified that the self-insured retention could not be satisfied by payments made on Aearo’s behalf – and steps the insured might have taken to avoid this hyper-technical coverage defense that seemingly ignored the reality of corporate structuring and would have required 3M to engage in the “pointless formality” of transferring money to an Aearo bank account in order to satisfy its self-insured retentions. Speakers: Eric Jesse, Partner, Insurance Recovery Alexander B. Corson, Associate, Insurance Recovery

In this episode of “Don’t Take No for an Answer,” Lynda A. Bennett and Alexander B. Corson of Lowenstein’s Insurance Recovery Group examine a recent California Appellate Court decision that underscores the necessity of negotiating seamless and consistent insurance policies across all coverage lines, highlighting the implications of poorly defined terms and the critical importance of broad notice to avoid coverage gaps. They also explore practical steps to ensure your insurance program functions as a well-stitched patchwork quilt, covering all potential risks effectively. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryAlexander B. Corson, Associate, Insurance Recovery

Today on “Don't Take No for an Answer,” hosts Lynda A, Bennett and Eric Jesse discuss what they see as an increase in insurers acting in bad faith trying to avoid their coverage obligations, with more roadblocks, more requests for perfect information, and more entrenched positions than ever before, and insurers trying to abandon their insureds even when there is a meaningful settlement opportunity to resolve the underlying case. They explain the covenant of good faith and fair dealing, the importance of choice of law, and how policyholders can protect themselves, particularly regarding the appointment and management of panel defense counsel, and in determining who has the ultimate authority to settle a case. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Today, Lynda A. Bennett and Heather Weaver of Lowenstein’s Insurance Recovery Group sit down with Yelena Dunaevsky, Senior Vice President, Transactional Insurance, at Woodruff Sawyer to talk about the current state of SPAC related litigation and its impact on the insurance market. After a SPAC frenzy in 2020 which then slowed by 2022, SPACs appear to be popular again; Dunaevsky says these transactions still offer a good alternative to IPOs when conducted correctly, and that she expects a healthy market in the SPAC vehicle from now on. The lawyers also discuss the litigation that arose from the earlier SPACs craze, such as securities class actions and fiduciary duty cases in Delaware over issues such as misleading or fraudulent disclosures about a product, misrepresentation of revenue or growth, deceptive or fraudulent disclosures, and accounting issues. They all agree that D&O insurance is crucial for all entities involved to cover alleged wrongful acts occurring up until the closing, claims made during the time period following the transaction for wrongful acts that took place before the transaction closed, and go-forward coverage for the surviving entity; and they address a potentially helpful new structure called a combined policy for post-merge, which creates prior acts coverage for the D&Os of the original SPAC. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryHeather Weaver, Counsel, Insurance Recovery Yelena Dunaevsky, Esq. Senior Vice President, Transactional Insurance, Woodruff Sawyer

Today, hosts Lynda A. Bennett and Eric Jesse discuss a recent decision that addresses broker malpractice – a common claim for policyholders to pursue after learning insurance protection is unavailable or insufficient to cover claim. Although the Lowenstein partners call the opinion a situation where “bad facts making bad law,” they do advise policyholders to take away certain key lessons, including the need, and how to create a record to establish the existence of a special relationship with the broker which in turn imposes a fiduciary duty on the broker. Policyholders also should be responsive when brokers make inquiries designed to understand and value the risks that are intended to be insured not only to confirm the existence of a special relationship but also to avoid the need to sue the broker because the right coverage is placed in the first instance.

In this episode of "Don’t Take No for an Answer," Lynda A. Bennett and Alexander B. Corson explore the complex issue of "allocation" in the context of defense costs in insurance claims.  They discuss what steps to take when insurers attempt to shift part of their coverage obligations onto policyholders in a reservation of rights (ROR) letter, the common law approach to allocation, and the implications of "allocation" provisions in policies. The conversation also addresses whether the allocation question changes when an insurer has a duty to reimburse versus a duty to defend. Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery Alexander B. Corson, Associate, Insurance Recovery

On this episode of “Don’t Take No For an Answer,” host Eric Jesse  speaks with Mike Richmond, executive vice president and shareholder at the Horton Group, about the ABCs of D&O insurance, including the three fundamental coverages under a typical D&O policy. They dive into the subjects of sublimits on such items as derivative investigations, public relations and crisis management; what types of claims are covered by a D&O policy, including Side A DIC; and common exclusions in traditional Side ABC D&O policies. They also discuss the current state of the market and give tips to policyholders for going through the underwriting process. Speakers: Eric Jesse, Partner, Insurance Recovery Michael Richmond, Executive Vice President, The Horton Group

Today on “Don't Take No For An Answer,” host Lynda A. Bennett is joined by Alexander B. Corson for a discussion about priority of coverage, or who pays what when there are numerous claims, parties, and policies at play. As always, Lowenstein’s Insurance Recovery lawyers reinforce the bedrock insurance principle that the words matter when determining the scope of coverage responsibilities. Through that lens, Lynda and Alex discuss the variations of “other insurance” clauses and how courts interpret those clauses. Along the way, the pair also debunk a few myths about priority of coverage issues, including insurer overuse of such clauses and how to push back in the face of that situation/how to avoid it altogether. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryAlexander B. Corson, Associate, Insurance Recovery

In this episode of “Don’t Take No for an Answer,” host Eric Jesse is joined by Jeff Rubocki, senior managing director of the Private Equity practice at Risk Strategies, to predict what the rest of 2024 may hold from a reps and warranties insurance perspective. They address what changes to expect as deal flow begins to resume, pro tips for M&A and PE buyers, and how R&W insurers have adapted to the current market. They also discuss the pivotal role of communication in streamlining processes and achieving excellence, and offer practical strategies with actionable advice.  Speakers: Eric Jesse, Partner, Insurance RecoveryJeff Rubocki, Senior Managing Director, Private Equity Practice, Risk Strategies

In this episode, host Lynda A. Bennett is joined by Robert D. Crocitto, President at ARC Excess & Surplus, and Lynn C. Mirabella, Broker at ARC, for a discussion on the dynamics of the Directors and Officers (D&O) insurance market, in which they explore the rollercoaster ride experienced by policyholders over the past four years, particularly during the challenging COVID period. They share valuable perspectives on the current state of the D&O market, covering topics such as premium pricing, coverage flexibility, negotiations during renewal seasons, the impact of COVID-related questions, emerging challenges in industries like banking, healthcare, crypto, and cannabis, as well as the growing focus on ESG and DEI initiatives. Additionally, they anticipate increased attention to AI exposures in 2024, discussing potential supplemental applications and underwriting considerations in the evolving landscape of artificial intelligence. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryRobert D. Crocitto, RPLU, President, ARC Excess & SurplusLynn C. Mirabella, Broker, ARC Excess & Surplus

Hosts Lynda A. Bennett and Eric Jesse of Lowenstein Sandler discuss how to access a tower of insurance coverage in light of the recent decision in Pharmacia Corporation v. Arch Specialty Insurance Company, where an eighth-level excess insurer leveraged a hyper-technical condition to avoid coverage even though each and every underlying insurer had actually paid its full policy limit. They outline best practices for policyholders to follow when negotiating the terms of excess policies and resolving claims that implicate excess coverage so that if the parties enter into a settlement at the lower layers, all the terms have been properly preserved throughout. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Host Lynda A. Bennett, Chair of the Insurance Recovery practice at Lowenstein Sandler, welcomes back Freda L. Wolfson, Michael A. Kaplan, and  Ruth Fong Zimmerman to continue their discussion on mass arbitration and mediation, taking a deep dive into what to do when a company is subject to a mass arbitration demand, or when a company has been asked to head off to a mass mediation. The panel emphasizes the importance of identifying the scope of valid claims early in the process and evaluating the exposure, particularly with respect to statutory claims. They also address how much information to share in negotiations, how to structure a settlement, and the role of insurance coverage for this emerging risk.  Speakers: The Honorable Freda L. Wolfson (ret.), Partner and Chair, Alternative Dispute ResolutionLynda A. Bennett, Partner and Chair, Insurance RecoveryMichael A. Kaplan, Partner, White Collar Criminal DefenseRuth Fong Zimmerman, Associate, Litigation

Host Lynda A. Bennett is joined by Freda L. Wolfson, former Chief Judge of the United States District Court for the District of New Jersey and Chair of Lowenstein's Alternative Dispute Resolution group; Michael A. Kaplan, partner in Lowenstein’s White Collar Criminal Defense group, and Ruth Fong Zimmerman, an associate in the Litigation Department, to talk about the emergence of mass arbitrations and mediations in the class action space. Mandatory arbitration clauses were originally intended as a way to avoid expensive class actions; now they are being leveraged by litigation funders to generate massive arbitration fees before anything is known about the asserted claims. Targeted advertising, automated claims filing systems, data aggregation, and even artificial intelligence, are being used to generate thousands of individual arbitration claims in what is essentially a mass arbitration. In this episode, the panel discusses this emerging trend, including the options available to companies hit with these types of requests and how the insurance industry may react to it. Speakers: The Honorable Freda L. Wolfson (ret.), Partner and Chair, Alternative Dispute ResolutionLynda A. Bennett, Partner and Chair, Insurance RecoveryMichael A. Kaplan, Partner, White Collar Criminal DefenseRuth Fong Zimmerman, Associate, Litigation

In 2024’s first episode of “Don’t Take No for an Answer,” hosts Lynda A. Bennett and Eric Jesse discuss some achievable New Year's resolutions that may help listeners improve their risk management hygiene, including best practices that policy holders should follow to secure the best terms and conditions in their insurance policies. Recommendations include making sure you can locate and are thoroughly acquainted with your most recent policies, scrutinizing your renewal application with fresh eyes, and evaluating your relationships with brokers and underwriters.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery