Amy Elizabeth Stewart has been invited to join the faculty of a seminar designed for architects and engineers, entitled Minimizing Engineering Liability Exposure, to be held in Arlington, Texas on July 19, 2012.  Ms. Stewart will address common insurance issues arising under professional liability and general liability insurance policies in connection with claims against engineers, architects and other design professionals, including considerations in purchasing insurance, the scope of coverage under v ...

Among other sweeping reforms designed to mitigate against the next financial crisis, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) created the first federal regulatory agency focused on insurance, an industry historically subject primarily to state regulation under the McCarren-Ferguson Act of 1945.  Undoubtedly prompted by the near-failure of insurance giant AIG, the Federal Insurance Office Act of 2010 established the Federal Insurance Office (FIO) within the U. ...

Companies purchase fiduciary liability policies to mitigate against financial loss, including potentially significant defense costs, in the event of litigation alleging violations of the Employee Retirement Income Security Act of 1974 (“ERISA”).  A recent New York Court of Appeals case illustrates common—but often unanticipated—limitations on the scope of coverage under many fiduciary liability policies.  Federal Ins. Co. v. IBM Corp., 2012 N.Y. LEXIS 311 (N.Y. Feb. 21, 201 ...

By Kara Altenbaumer-Price

For forty years, the Securities & Exchange Commission (SEC) has allowed defendants to settle SEC matters and pay monetary penalties and disgorgement while “neither admitting, nor denying” the truth of the allegations against them. This practice allowed the SEC to avoid overt denials of wrongdoing, while also allowing defendants avoid creating admissions that could be used against them in separate civil proceedings—or by D&O insurance carriers seeking to prove underlying facts necessary to exclude coverage under certain conduct-based exclusions.

Considering the conflicts of interest imbedded like landmines in the tripartite relationship, the Texas Supreme Court has clearly articulated defense counsel’s obligations under Texas law.  Nearly 40 years ago, the Texas Supreme Court addressed these issues in the Tilley case.  Employers Cas. Co. v. Tilley, 496 S.W.2d 552 (Tex. 1973).  The standard is surprisingly simple.  The lawyer appointed by the insurer to defend the insured owes a duty of undivided loyalty to the insured.

This is the second post in a four-part series analyzing the competing interests inherent in the tripartite relationship, which has long been recognized as "a source of unending ethical, legal, and economic tension.”  State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625, 633 (Tex. 1998) (Gonzales, J., dissenting).  This post focuses on conflicts of interest commonly encountered in the tangled relationships between and among defense counsel, the insured, and the insurer.

The competing interests inherent in the relationship between the insurance company, its insured, and defense counsel—called the “tripartite relationship”—have long been recognized in the defense of lawsuits covered by insurance.  “[This] so-called tripartite relationship has been well documented as a source of unending ethical, legal, and economic tension.”  State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625, 633 (Tex. 1998) (Gonzales, J., dissenting).  This four-post series will examine the inherent tension in the tripartite relationship, commonly-encountered conflicts, defense counsel’s ethical obligations, and best practices for defense counsel.

Last week, the Ninth Circuit Court of Appeals held that a debtor's insurers had standing to object to a confirmed plan of reorganization. In re Thorpe Insulation Co., No. 10-56622 (9th Cir. Jan. 24, 2012). The insured, Thorpe Insulation Company (“Thorpe”), distributed, installed and repaired asbestos insulation products between 1948 and 1972. Over the last thirty years, Thorpe has been the target of significant asbestos-related litigation, facing an estimated 12,000 claims for personal inju ...

Healthcare providers today are turning to technology to improve the efficiency of their practices—from collecting and monitoring patient data in a digital environment to managing the information avalanche confronting modern practitioners seeking to provide state-of-the art care. Known data breaches affecting the healthcare industry suggest that privacy policies may not be keeping pace with the cyber risks of the new technology.  Based on survey response ...

When an insured has liability insurance that is triggered by a lawsuit, the policy often requires the insurer to provide the insured with a defense against the lawsuit, in addition to covering some or all of a settlement or judgment.  If the insurer has a “duty to defend,” it typically has the right to make strategic decisions regarding the defense of the lawsuit, including the right to choose the lawyer who will represent the insured.  Whether an insurer has the right to conduct its i ...

Amy Elizabeth Stewart is honored to have been selected for inclusion in the 2012 edition of Martindale-Hubbell®’s Bar Register of Preeminent Women Attorneys, exclusively for female attorneys who have received the highest possible rating in both legal ability and ethical standards from their peers—the AV Preeminent Rating.  Martindale-Hubbell® reports that less than 5% of female attorneys have earned this rating, placing the lawyers in the registry among the elite women in the legal ...

After months of planning and exceptional design work by the talented team at MasonBaronet, Amy Stewart PC launched its e-newsletter.  In the months to come, we will share our expertise on insurance issues, along with firm and industry updates. 

The firm marked other key milestones in 2011 – celebrating its second anniversary, hiring its first associate, and expanding its office space. Amy is most excited about her new book deal, a yet-to-be-named guide to litigating insurance coverage lawsuits in Texas.

Headnotes, the Dallas Bar Association's monthly periodical, recently published Amy Elizabeth Stewart's article, "Navigating Insurance Coverage Issues: What You Need to Know" in the December 2011 issue, focusing on business litigation.  The article provides an overview of issues pertinent to business litgators handling lawsuits that may have triggered insurance policies held by the defendants in the case.

On October 17, the Tenth Circuit Court of Appeals dealt a blow to five major insurance company defendants by reversing a lower Colorado court’s summary judgment absolving them of the duty to defend.  The court then remanded the case for further proceedings. The dispute between the insurers and Dish Network is over whether a patent infringement suit qualified for coverage as an “advertising injury” under the policy terms.  In the underlying complaint, Ronald A. Katz Technology ...

The challenges associated with prioritizing payments under insurance programs with insufficient limits continue to surface in financial crisis litigation.  Claims arising out of the Lehman Brothers bankruptcy, seeking billions of dollars in damages, recently forced consideration of this difficult issue.  In August 2011, former directors and officers of failed financial giant Lehman Brothers Holdings Inc. (LBHI), including ex-CEO Richard Fuld, agreed to pay $90 million to settle a single securiti ...