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1 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA [email protected] (213) 243-2422 John Frantz Vice President and Associate General Counsel Verizon Communications [email protected] (908) 559-5731 Sheila Small Assistant Treasurer, Risk Management Verizon Communications [email protected] (908) 559-5829

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Page 1: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

1

How To Pursue and Win the Complex Claim

RIMS 2012 – Philadelphia, PA

Wednesday, April 18, 2012 Ty Childress,

Partner, Jones DayLos Angeles, CA

[email protected](213) 243-2422

John FrantzVice President and Associate General Counsel

Verizon [email protected]

(908) 559-5731

Sheila Small Assistant Treasurer, Risk Management

Verizon [email protected]

(908) 559-5829

Page 2: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE RISK MANAGER

POTENTIAL STRENGTHS Understands the policy and underwriting

history Has a good grasp of the business

relationship with the insurer Can help assess impact of this claim on

overall insurance relationship

Page 3: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE RISK MANAGER

POTENTIAL WEAKNESSES Less willing to pursue aggressive strategy if it

involves conflict with professional relationships

Less attuned to legal arguments Less knowledge of how similar claims are

being handled by other policyholders (Over)concern of premium impact on claim

pursuit

Page 4: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE IN-HOUSE ATTORNEY

POTENTIAL STRENGTHS Can offer perspective of overall business

objectives of client Brings understanding of legal issues and legal

strategy Early integration in policy negotiations can

enhance coverage Can monitor cost-effectiveness of alternative

strategies

Page 5: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE IN-HOUSE ATTORNEY

POTENTIAL WEAKNESSES Often focused on liability claims and brings

defense oriented perspective‑ Coverage claim not always perceived as high

profile within company Workload limitations Lack of insurance expertise

Page 6: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE OUTSIDE COUNSEL

POTENTIAL STRENGTHS Legal expertise in insurance issues More familiar with insurer negotiating strategy Able to marshal resources quickly Not encumbered with internal company

politics

Page 7: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE OUTSIDE COUNSEL

POTENTIAL WEAKNESSES Not as sensitized to internal company needs May be less sensitive to impact to business

relationship with insurer Can let case take on a “life of its own” if not

monitored

Page 8: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE BROKER

POTENTIAL STRENGTHS Familiarity with insurance industry Potential commercial leverage

Page 9: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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THE MEMBERS OF THE TEAMTHE BROKER

POTENTIAL WEAKNESSES Generally not privileged communications Not familiar with legal issues Not sensitive to internal company objectives

Page 10: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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DEVELOPING THE STRATEGYUnderstanding The Underlying Claim

What is the exposure? One-time or recurring issue? What potential arguments in the coverage

claim could be inconsistent with underlying defense?

Timing considerations

Page 11: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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DEVELOPING THE STRATEGYUnderstanding The Coverage

What coverage is potentially implicated? Were these exposures discussed during

underwriting process? Other parties’ coverage available?

Page 12: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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DEVELOPING THE STRATEGYUnderstanding The Company’s Objectives

Is this a bet-the-company exposure? Need for a defense? Is company prepared to fully assert its legal

rights?

Page 13: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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TENDERING THE CLAIMWho?

By risk manager, in-house counsel, or outside counsel?

What message is sent? Who is your “company witness”?

Page 14: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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TENDERING THE CLAIMWhich Policies?

All policies? Third party’s policies versus company’s own

policies? “Targeted tender”

Page 15: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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TENDERING THE CLAIMHow?

Is there a risk of a forum battle? Do you sue simultaneously? Do you ask for specific acts or just

precautionary notice?

Page 16: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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NEGOTIATING THE CLAIMRole of Risk Manager

Can use outside counsel as “bad cop” to push insurer to negotiating table

Can offer perspective on overall insurance relationship

Page 17: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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NEGOTIATING THE CLAIMRole of In-House Counsel

Uniquely situated to balance legal strengths, costs, and company objectives

Can facilitate team communications

Page 18: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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NEGOTIATING THE CLAIMRole of Outside Counsel

Can aggressively advocate company’s legal rights

Can develop legal plan to maximize exit strategy opportunities

Page 19: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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LITIGATING THE CLAIMRole of Outside Counsel

Brings legal expertise and resources to bear

Full understanding of procedural aspects of litigation

Page 20: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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LITIGATING THE CLAIMRole of In-House Counsel

Monitors proper internal and external resource allocation

Coordinates underlying claim strategy with coverage strategy

Can help translate legal process to client constituencies

Page 21: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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LITIGATING THE CLAIMRole of Risk Manager

Serves as critical company witness

Can monitor insurer conduct to assess future role of insurer in program

Page 22: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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SETTLING THE CLAIMThe Outside Counsel

Identify important timing issues for leverage

After filing suit?

After critical threshold motions decided?

After witnesses deposed?

On courthouse steps?

On appeal?

Page 23: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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SETTLING THE CLAIMThe Outside Counsel

Identify personality of mediator needed

Develop mini-trial presentation to show other side’s decisionmakers

Page 24: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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SETTLING THE CLAIMThe Risk Manager

Identify other side’s decisionmakers

May be able to add business elements to settlement

Identify renewal issues, impact on other claims

Page 25: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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SETTLING THE CLAIMThe In-House Counsel

Has broadest perspective on underlying claim legal strategy, coverage legal strategy, costs

Important internal advocate for claim team decisions

Page 26: 0 How To Pursue and Win the Complex Claim RIMS 2012 – Philadelphia, PA Wednesday, April 18, 2012 Ty Childress, Partner, Jones Day Los Angeles, CA tchildress@jonesday.com

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CONCLUDING THOUGHTSRisk Manager Perspective

Establish relationships with key insurer personnel Maintain close working ties with Legal Department

In-House Legal Perspective Anticipate company exposures when negotiating

coverage Persistence matters

Outside Counsel Perspective Acknowledge team members’ strengths and

weaknesses Provide real-time practical guidance and expertise