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

In this episode of "Don't Take No For An Answer," host Eric Jesse and Heather Weaver from Lowenstein's Insurance Recovery Group invite guest Michael Young, partner at Reichardt Noce and Young, to discuss an insurer's duty to indemnify, a lesser discussed but equally important coverage obligation as the duty to defend. The conversation notes key differences between the insurer's duty to indemnify and duty to defend, emerging approaches that courts have adopted to determine whether an insurer must pay in whole or in part for a judgment entered against or settlement reached with its insured, and ways insurers and policyholders can work together to encourage settlement of a lawsuit with duty to indemnify strategies and considerations.  Speakers: Eric Jesse, Partner, Insurance RecoveryHeather Weaver, Counsel, Insurance RecoveryMichael Young, Partner, Reichardt Noce & Young LLC

In this episode of "Don't Take No For An Answer," hosts Lynda A. Bennett and Eric Jesse discuss how the current claims environment is taking a toll on policyholders as insurance claims take years to resolve and insurers deny or limit coverage for clearly covered claims. Our hosts theorize causes for the increasing challenges in the claims environment in recent years, suggest industry reforms, and offer advice to policyholders seeking coverage.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

In this special crossover episode of “Terra Firma: Conversations on Commercial Real Estate” and “Don't Take No for an Answer,” Lowenstein's Stacey C. Tyler and Heather Weaver speak with Brad Dubler, Managing Partner and Executive Vice President of SterlingRisk Insurance, about the latest developments in business interruption insurance, which continues to become increasingly important for businesses, landlords, and tenants alike. The conversation covers the scope and limitations of traditional business interruption insurance, new legislation that allows insurance companies to issue standalone business interruption insurance policies without a physical loss or damage requirement, and the types of policyholders that have the most to gain from this expanded form of authorized coverage. Speakers: Stacey C. Tyler, Senior Counsel, Real Estate Heather Weaver, Counsel, Insurance Recovery Brad Dubler, Managing Partner and Executive Vice President, SterlingRisk

In this episode, Lynda A. Bennett continues her conversation with Matt Sabino and John McKenna, managing partners at ARC Excess and Surplus; Justin Kudler, senior vice president and senior claims counsel for ARC Excess and Surplus; and Scott H. Moss, Co-chair of Lowenstein's Investment Management Group, about the new regulatory environment in the second Trump Presidency and how the D&O insurance market is reacting.  The panel discusses risks and concerns from an underwriter and policyholder standpoint; they also assess the state of existing regulatory claims, the potential change in risk profile that may impact future claims, and the prospective decrease in regulatory claims. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryScott H. Moss, Partner and Co-chair, Investment Management GroupMatthew Sabino, Managing Partner, ARC Excess & SurplusJohn McKenna Jr., Managing Partner, ARC Excess & SurplusJustin Kudler, Senior Vice President/Senior Claims Counsel, ARC Excess & Surplus  

In the first of two episodes, Lynda A. Bennett talks with Matt Sabino and John McKenna, managing partners at ARC Excess and Surplus; Justin Kudler, senior vice president and senior claims counsel for ARC Excess and Surplus, and Scott H. Moss, co-chair of Lowenstein's Investment Management Group, about the new regulatory environment in the second Trump Presidency and how the D&O insurance market is reacting. In episode one, the panel discusses anticipated risk changes for financial line companies and how they will intersect with premium pricing, underwriting processes and policy terms and conditions.  The guests discuss how fund managers may be less of a focus for regulatory enforcement, how the underwriting industry handles the back-and-forth of federal policies over time, and the impact of Trumps initial policy initiatives.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryScott H. Moss, Partner and Co-chair, Investment Management GroupMatthew Sabino, Managing Partner, ARC Excess & SurplusJohn McKenna Jr., Managing Partner, ARC Excess & SurplusJustin Kudler, Senior Vice President/Senior Claims Counsel, ARC Excess & Surplus  

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

On the last “Don't Take No For an Answer” podcast of 2023, Lynda Bennett, Chair of the Insurance Recovery practice at Lowenstein Sandler, looks back on some of the series' most popular topics, such as difference between the duty to defend and the duty to reimburse;  a day in the life of an insurance broker when the building is on fire; and avoiding the bait and switch. 2023 generally revealed a more entrenched coverage position by insurers, a trend that the podcast host predicts is likely to continue in the new year.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery

In this episode of “Don't Take No For an Answer,” hosts Lynda A. Bennett and Eric Jesse, partners in Lowenstein Sandler's Insurance Recovery Group, discuss an insurance coverage issue stemming from the U.S. Supreme Court case involving Harvard University's affirmative action program. After Harvard and/or its broker failed to notify an excess insurer of the affirmative action lawsuit, and after Harvard litigated and lost against that insurer to try to get coverage, Harvard went to the next chapter in the coverage playbook and filed a broker malpractice lawsuit. Lynda and Eric use this lawsuit as a case study for what policyholders can and should do to proactively protect themselves and how to respond if faced with having to bring such a claim against an insurance broker. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Today on “Don't Take No for An Answer,” Eric Jesse and Heather Weaver of Lowenstein Sandler's Insurance Recovery Group continue their discussion about the property and casualty insurance market. With guests Josh Weisberg, Chief Risk Officer at SterlingRisk, and Brad Barron, partner and managing Deputy General Counsel at Conner Strong & Buckelew, Eric and Heather explore how insurers are reacting to challenging market conditions including inflation and supply chain delays, and the increased claims arising therefrom. They explain the shift from blanket limits in commercial property insurance towards the increased use of sublimits, larger deductibles, and co-insurance; where there may be room for pushback and negotiation with the insurers; and what policyholders may expect in the future from possible rate increases to a more stringent underwriting process.  Speakers: Eric Jesse, Partner, Insurance RecoveryHeather Weaver, Counsel, Insurance RecoveryBradford Barron, Partner, Managing Deputy General Counsel, Conner Strong & Buckelew LLPJosh Weisberg, Chief Risk Officer, Sterling Risk Insurance

Today, Eric Jesse and Heather Weaver of Lowenstein Sandler's Insurance Recovery Group sit down with executives from two major insurance brokerage firms: Josh Weisberg, Chief Risk Officer at SterlingRisk, and Brad Barron, partner and managing Deputy General Counsel at Conner Strong & Buckelew, to discuss recent developments in the property and casualty insurance market, including the current state of the market, major drivers, new coverage restrictions, ways policyholders can improve their risk profiles, and where they think the market is going over the next few years. The conversation touches on the impact of the plaintiff's bar, supply chain issues, and inflation, as well as climate change and population densities; and the rising costs of reinsurance. Speakers: Eric Jesse, Partner, Insurance RecoveryHeather Weaver, Counsel, Insurance RecoveryBradford Barron, Partner, Managing Deputy General Counsel, Conner Strong & Buckelew LLPJosh Weisberg, Chief Risk Officer, Sterling Risk Insurance

On this episode of Don't Take No for An Answer, host, Lynda A. Bennett, Partner and Chair of Lowenstein's Insurance Recovery Group, is joined by David Anderson, Vice President, Cyber Liability at Woodruff Sawyer, and Heather Weaver, Counsel in Lowenstein's Insurance Recovery Group, to take a deeper dive into insurance coverage for claims arising from tracking tools. They examine the different types of policies and coverage grants that may be triggered, stress the importance of understanding potential coverage limitations for these claims including exclusions, narrow definitions, and sublimits, and discuss how the underwriting process may be impacted by the recent surge of litigation in this space.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryHeather Weaver, Counsel, Insurance RecoveryDavid Anderson, CIPP/US, Vice President, Cyber Liability, Woodruff-Sawyer & Co

In this episode of “Don't Take No for an Answer,” host Lynda A. Bennett is joined by David Anderson, Vice President of Cyber at Woodruff Sawyer, and Heather Weaver, counsel in Lowenstein's Insurance Recovery Group, to discuss the recent surge of litigation related to pixel and other tracking tools, including billion-dollar exposures in the technology and healthcare sectors. How are these claims impacting the insurance industry, are they covered by your company's insurance policies, and what are the underwriting processes associated with these policies? Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery Heather Weaver, Counsel, Insurance Recovery David Anderson, CIPP/US, Vice President, Cyber Liability, Woodruff-Sawyer & Co

On this episode of “Don't Take No for an Answer,” Lynda A. Bennett and Eric Jesse explain the policy procurement process, highlighting a disturbing trend they have observed lately where insurers attempt to rescind policies after a claim is made against their insureds! The hosts talk about the rights and remedies that policyholders have when their insurer tries to declare their policy null and void due to a supposed misrepresentation in the policyholder's application or warranty letter. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Despite the popularity of reps and warranties insurance (RWI), many common misconceptions about this insurance product still exist. For example, while it's often believed that RWI is too expensive or unsuitable for a specific type of deal, it is actually quite versatile and pricing today is competitive. The area where RWI insurers have some real work to do is on claim payments where perception is closer to reality. In this episode, hosts Lynda A. Bennett and Eric Jesse do a deep dive into the myths, misconceptions and the path forward to improve overall satisfaction with the claims process, as supported by their recent white paper.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery Eric Jesse, Partner, Insurance Recovery

In today's episode, hosts Lynda A. Bennett and Eric Jesse break down who's who in the insurance industry: the insurance companies, the brokers, the agents, and, of course, the policyholders. They explain why it is necessary to consider the reputation of your insurance company, as well as its financial strength; the difference between a traditional insurer, managing general underwriters, and non-admitted insurers; and the roles of the underwriters, claims adjusters, and brokers. They also provide some tips for policyholders on maximizing their coverage. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Today on Don't Take No for an Answer, Lynda A. Bennett and Eric Jesse discuss the stealth disappearance of social engineering and fraudulent instruction coverage, and what you can do to make sure you have insurance coverage for online scams. A fidelity bond policy and standalone cyber policies are supposed to cover the situation of an employee being duped, but as scams increase, insurance companies are reducing both their own transparency and their coverage. To mitigate risk, policyholders should also consider additional protections such as independent verification, firewall protections, and enhanced employee training.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery 

Today on the podcast, host Eric Jesse talks to Alex Corson about the life of a policyholder lawyer, what does it take to do battle with an insurance company, and how one decides to become an insurance recovery attorney. The two lawyers address the importance of being detail-oriented, creative, and strategic, and how the practice of insurance recovery law has infinite applications. Speakers: Eric Jesse, Partner, Insurance RecoveryAlexander B. Corson, Associate, Insurance Recovery

Today on Don't Take No for an Answer, Lynda A. Bennett and Eric Jesse discuss what happens under D&O policies when an executive wears multiple hats—or, as it's known in the insurance industry— acts in more than one capacity, as often happens when a private equity fund places one of their representatives on the board of a portfolio company. What's the definition of a wrongful act, and what's the difference between a coverage grant that says it will pay for wrongful acts committed by people acting in their capacity as an insured, and a coverage exclusion clause that states it will not provide coverage for executives acting outside of their capacity?  Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery Eric Jesse, Partner, Insurance Recovery

In this episode, the hosts explain waivers of insurers' subrogation rights: what are they, what are the risks, who is bound by them, and how to obtain a waiver from an insurance company. They also discuss specific examples in industries such as construction and cybersecurity.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Hosts Lynda Bennett and Eric Jesse build on their recent discussion with Lowenstein M&A Chair and Transactions & Advisory Group co-Chair Marita Makinen about the current state of play in the M&A and private equity space. The co-hosts consider emerging RWI trends and lessons learned from the fast paced deal flow activity of the past several years and the RWI claims that followed. They analyze Makinen's predictions that diligence must become even more careful, especially in light of the increased frequency and severity of RWI claims found by Lowenstein's recent survey, as well as the growing impact of globalization and cyber threats, and how to manage expectations and strike a reasonable balance at the negotiation table. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

In today's episode of Don't Take No For An Answer, hosts Lynda Bennett and Eric Jesse are joined by Marita Makinen, Partner and Chair of Lowenstein's Mergers & Acquisitions group and Co-chair of its Transactions & Advisory Group, to talk about the intersection of the M&A transactions, private equity deals, and the reps and warranty policies that insure them. The trio explore current instabilities in the market with respect to deal flow, valuation issues, and emerging risks. The partners also discuss current hot topics in due diligence, why RWI has become standard for deals of all sizes, and when and where deal flow will stabilize before the end of the year.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance RecoveryMarita A. Makinen, Partner, Chair, Mergers & Acquisitions, Co-chair, Transactions & Advisory Group

Hosts Lynda A. Bennett and Eric Jesse of Lowenstein's Insurance Recovery Group continue their discussion about the difference between the duty to defend, the duty to reimburse, and the duty to advance. They run through the steps of a typical case involving these issues, addressing how to negotiate the allocation of costs, and the importance of securing an insurer's immediate defense in the event of a claim. Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery Eric Jesse, Partner, Insurance Recovery

In this episode of “Don't Take No for an Answer,” hosts Lynda A. Bennett and Eric Jesse of Lowenstein's Insurance Recovery Group discuss the difference between a duty to defend versus a duty to reimburse. They explain why policyholders may intentionally choose one option over the other, what each option covers, and how much say in choice of counsel and legal strategy a policyholder maintains under each. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Today on “Don't Take No for an Answer,” co-hosts Lynda A. Bennett and Eric Jesse of the Insurance Recovery Group at Lowenstein Sandler discuss how to deal with excess insurers who refuse to follow a primary insurer's acknowledgement of coverage. They provide an overview of excess insurance policies, explain how “follow form” excess coverage is designed to work, and what policyholders can do to “fight the good fight” to try to secure coverage. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Today on “Don't Take No for an Answer,” co-hosts Lynda A. Bennett and Eric Jesse of the Insurance Recovery Group at Lowenstein Sandler discuss the upcoming publication of their second report on reps and warranties insurance claims.  The report examines recent changes and developing coverage issues in the RWI market since their 2020 survey, and Lynda and Eric give listeners a sneak peek at their findings, including more claims exceeding the retention, less claims being resolved through negotiations with R&W insurers, the overlay of R&W claims and SPAC and ESG transactions to name a few.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

In this episode of “Don't Take No for an Answer,” Lynda A. Bennett talks to Stacey C. Tyler, counsel in Lowenstein's Real Estate practice group, about some of the key insurance coverage issues that come up when a company wants to either lease or own property. Stacey notes that there is always room to negotiate the many kinds of insurance policies necessary for leasing or buying real property, from specific subrogation language to the right to adjust coverage requirements in the future. Lynda and Stacey also discuss the difference between a loss payee and an additional insured, and why that matters; how courts are treating business interruption and force majeure claims since COVID; and pollution liability policies. Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryStacey C. Tyler, Counsel, Real Estate

Lynda A. Bennett talks with Matt Kerman, Broker with ARC Excess & Surplus, about coverage emergencies, and how to streamline the process of securing coverage “while the fire alarms are ringing and smoke is filling the room.” They discuss why a policy might not be renewed, and how to find alternate insurer options post haste, as well as the importance of warranty letters, replacement “go forward” coverage, and understanding prior acts coverage.  Speakers: Lynda A. Bennett, Partner and Chair, Insurance RecoveryMatthew Kerman, Broker, ARC Excess & Surplus LLC

Hosts Lynda Bennett and Eric Jesse explain why it's a mistake to assume that there is no insurance coverage for intentional conduct, and discuss possible ways to find coverage for these kinds of claims. Emphasizing— as always— the importance of the explicit wording of each policy, our hosts discuss D&O policies that do cover defense costs and settlements for intentional conduct and commercial general liability policies that do cover intentional torts, like defamation, liable, slander, false imprisonment, and malicious prosecution. They also explore how such factors as the nature of the claim, intent of the parties, and applicable legal standard may all impact coverage. Speakers: Lynda A. Bennett, Partner and Chair, Insurance Recovery Eric Jesse, Partner, Insurance Recovery

In this episode, Lynda A. Bennett and Eric Jesse examine the topic of warranty letters, through which insurers seek an affirmative representation that the insured is not aware of facts or circumstances that may reasonably give rise to a claim.  Lynda and Eric discuss how they differ from insurance policy applications and no claim declarations, why it is so important to review them carefully before committing, and the importance of policyholders negotiating the wording or even the overall necessity of the warranty letter.  Speaker: Lynda A. Bennett, Partner and Chair, Insurance RecoveryEric Jesse, Partner, Insurance Recovery

Lynda A. Bennett and Eric Jesse continue their discussion with Michael Wakefield from CAC Specialty about MGUs and MGAs in the context of reps and warranties insurance. They address how MGU/MGA-negotiated policies can be insured by multiple insurers that share a percentage of the policy limit, plus the role of the MGU or MGA in the claim process, what incentivizes these entities to be effective advocates on behalf of policyholders, and the risks involved for policyholders choosing MGUs or MGAs. Speaker:Lynda A. Bennett, Partner and Chair, Insurance Recovery Eric Jesse, Partner, Insurance Recovery Michael Wakefield, Executive Vice President – Transactional Insurance Practice Leader, CAC Specialty

In today's episode, Lynda Bennett is joined by Eric Jesse, Partner in Lowenstein's Insurance Recovery Group, and Michael Wakefield, Transactional Insurance Practice Leader from CAC Specialty to explore the differences between traditional insurers that issue rep and warranty policies and other types of transactional risk policies, and MGUs and MGAs, otherwise known as managing general underwriter or agents. How do MGUs and MGAs differ from traditional insurers and from each other, and what are the respective benefits of each for different types of claims? Speaker:Lynda A. Bennett, Partner and Chair, Insurance Recovery Eric Jesse, Partner, Insurance Recovery Michael Wakefield, Executive Vice President – Transactional Insurance Practice Leader, CAC Specialty

In this special episode of “Don't Take No For An Answer,” host Lynda A. Bennett examines key developments in the insurance world that this podcast has covered in the past year, including volatility in the D&O and cyber markets due to economic and regulatory uncertainty in the U.S. and around the world; the rise and fall of SPACs, and the impact of ESG demands by insurers. We invite you to listen to our past episodes on these key topics including: Trends and Hot Issues in D&O Smoother Sailing or Choppy Waters: What Lies Ahead for the 2022 D&O Market? Insurance Renewals: Know When to Hold ‘Em, Know When to Walk Away D&O Insurance: Better to Have it and Not Need it Than Need it and Not Have it The Rise and Fall of SPACs Has the SPAC Bubble Burst?  Lessons Learned from the Early Days of SPAC Mania Has the SPAC Bubble Burst? Part 2: The SEC's New Rules Learning to Love ESG ESG is All The Rage, but How Does It Intersect with the D&O and RWI Insurance Markets? Volatility in the Cyber Markets The Downstream Impact of Ransomware on Cyber Insurance Underwriting – Part 1 The Significance of Operational Technology in Cyber Insurance Underwriting – Part 2 London's Nation-State Attack Exclusion: Game Changer For The Cyber Insurance Market or An Opportunity For Competition Within the Market? Part 2: More about London's Nation-State Attack Exclusion: Game Changer For The Cyber Insurance Market or An Opportunity For Competition Within the Market?         Speaker: Lynda A. Bennett, Partner and Chair, Insurance Recovery