American College of Coverage Counsel 9th Annual Meeting

2020-2021 Conference Co-chairs:
Spence Taylor
John Bonnie

Vice Chairs:
Laura Hanson
Tracy Saxe

** This meeting is open to American College of Coverage Counsel Fellows only. **

Annual Conference Agenda
(All times listed are in the Central Time Zone)

Wednesday, September 22, 2021

6:30 – 8:00 pm Camelot Room
Welcome Reception - Sponsored by KCIC

Thursday, September 23, 2021

8:00 – 9:00 am Camelot Room
Breakfast Buffet & Committee Roundtables

9:00 – 9:15 am King Arthur Court
Welcome Remarks

  • Sherilyn Pastor, McCarter & English; ACCC Immediate Past President
  • John Bonnie, Weinberg Wheeler Hudgins Gunn & Dial; Annual Meeting Co-Chair
  • Spence Taylor, Barze Taylor Noles Lowther LLC; Annual Meeting Co-Chair

9:15 – 10:00 am King Arthur Court
Coverage Issues from HAL: Risk Management and Insurance for AI Systems & Robotics

  • Laura Foggan, Partner, Crowell & Moring LP
  • John Buchanan, Senior Counsel, Covington & Burling LLP
  • Lorelie Masters, Hunton Andrews Kurth LLP

As Artificial Intelligence systems and robots proliferate, both in business and at home, their many benefits may go hand-in-hand with some risks: e.g., potential bias or discrimination, privacy concerns, data breaches, and old-fashioned bodily injury or property damage. This panel will explore insurance underwriting and other risk management considerations for AI and robotics suppliers, operators, and users; and discuss the coverage issues that may arise under currently available policies when machine intelligence goes awry.

10:00 – 10:45 am 
King Arthur Court
Strategic Issues in Insurance Arbitration Clauses

  • Dan Bailey, Bailey Cavalieri LLC
  • Steven Gilford, JAMS
  • Christine Haskett, Covington & Burling LLP
  • Paul R. Koepff, Clyde & Co.
  • Sherilyn Pastor, McCarter & English
This session will discuss various issues presented by arbitration and the importance of contractual arbitration provisions. Key issues will include: forum selection; consolidation of potentially related cases; and arbitrator selection and qualification. The panel will draw on its broad experience with these types of issues in the context of various kinds of policies (particularly D&O, CGL and Bermuda form) and practice in various markets (particularly US, London and Bermuda.)

10:45 – 11:00 am

11:00 – 11:45 am
King Arthur Court
Litigating the Duty to Indemnify

  • Chris Mosley, Sherman & Howard LLC
  • Ellen Van Meir, Nicolaides Fink Thorpe Michaelides Sullivan, LLP

There is a legion of case law addressing how parties and the courts determine an insurer's duty to defend. These decisions provide litigants with ample guidance on that issue. However, there is far less case law informing parties and the Court how to determine a liability insurer's duty to indemnify a judgment, arbitration award or settlement. Thus, there are many questions regarding the applicable legal standard(s), permissible evidence, and the like. This state of affairs leads to confusion which, in turn, leads to inconsistent court decisions and substantial expense for litigants. This panel will address the approaches courts across the country are taking, as well as provide practical advice to policyholders, insurers and courts on how best to address the duty to indemnify.

11:45 am – 12:30 pm King Arthur Court
Can You Climb the Excess Tower and Enjoy the View From Up There?

  • Beth Bradley, Tollefson Bradley Mitchell & Melendi LLP
  • Margo Brownell, Maslon LLP
  • Gary Gassman, Cozen O'Connor
  • Marilyn Fagelson, Murtha Cullina LLP
The challenges of proving exhaustion of underlying insurance so as to access excess policies can be daunting. This panel will explore two aspects of exhaustion. First, what is “proper” exhaustion? To establish proper exhaustion, does a policyholder have to prove that an underlying settlement or judgment encompassed only covered claims or, put another way, when does an excess carrier get to dissect the underlying settlement or the claims handling decisions of the underlying carriers? Second, how can exhaustion be established when entering into a below-limits settlement with the underlying carrier? Has Qualcomm made such below-limits settlements impossible or just difficult?

12:30 – 1:30 pm Grand Ballroom (7th Floor)

1:30 – 2:00 pm
Extended Work Break

2:00 – 2:45 pm King Arthur Court
The Illusory Coverage Doctrine: Going Beyond the "Plain Language" of the Policy

  • Mike Hamilton, Goldberg Segalla
  • Vince Morgan, Bracewell LLP
  • Monica Sullivan, Nicolaides Fink Thorpe Michaelides Sullivan LLP
  • Moderator: Marion B Adler, Adler Law Practice, LLC

Historically, the courts have been hostile to policyholders' reliance upon the "illusory coverage" doctrine as a basis to rebut an insurer's denial of coverage. In recent years, however, there has been an uptick in cases that have accepted the argument. The program will explore the case law and arguments from both the policyholder's and insurer's perspective, including addressing the relationship between that doctrine and other rules of construction, including "reasonable expectations" and contra proferentem.

2:45 – 3:30 pm King Arthur Court
Six Cases in 45 Minutes

  • Robert Chesler, Anderson Kill, P.C
  • Anthony Leuin, Shartsis Friese LLP
  • Suzanne Midlige, Coughlin Midlige & Garland LLP
Examination of key decisions from 2020.

3:30 – 3:45 pm

3:45 – 4:30 pm King Arthur Court
Recent Developments in Excess Judgment Liability

  • William Barker, Dentons
  • Jim Cooper, ReedSmith
  • Rebecca Weinreich, Lewis Brisbois Bisgaard & Smith LLP 

There are fine points, which vary among jurisdictions, such as (1) does the insurer have a duty to make offers or only to respond to demands, (2) what are the insurer’s obligations when there are multiple claimants and inadequate limits, (3) what are the insurer’s obligations when the plaintiff seeks information about the insured’s assets or other possible sources of funding, and (4) what reliance, if any, may the insurer place on counsel’s statements about minimum requirements for an acceptable settlement. Aldana follows in the wake of Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 6 (Fla. 2018). This panel will discuss the extent to which pro-policyholder rules prevail in many jurisdictions (and might be followed in jurisdictions that have not yet ruled on the issues) and the problems those rules create; as well as opportunities that such rules may create for policyholders.

4:30 – 5:15 pm King Arthur Court
Reinfection: Examining Judicial Traits and Estimating Outcomes as Covid-19 Cases Gain Appellate Review

  • Leo Martinez, UC-Hastings/Andersen
  • Rick Hammond, Insurance Claims and Litigation Consultants, LLC
  • John Shugrue, ReedSmith
  • Jeffrey W. Stempel, William S. Boyd School of Law, University of Nevada Las Vegas

The first wave of trial decisions regarding Covid-19 claims is moving toward the stage of appellate review; This panel will examine the characteristics of judges making these rulings, as well as the overall scorecard as a means of assessing likely results on appeal.

6:00 – 6:30 pm Empire Ballroom (7th Floor)
New Fellows & First Time Attendees Reception

6:30 – 7:30 pm Empire Ballroom (7th Floor)
General Reception - Sponsored by BDO

7:30 – 9:00 pm
 Grand Ballroom (7th Floor)

  • Recognition of 2020 & 2021 Thomas F. Segalla Service Award Recipients
  • Recognition of 2020 & 2021 New Fellows
  • Recognition of 2021 Law School Practical Skills Writing Competition Winners

Friday, September 24, 2021

8:00 – 9:00 am Camelot Room
Breakfast Buffet

8:15 – 9:00 am King Arthur Court
Technology for Coverage Geeks: Effective use of technology in coverage and bad faith litigation

  • Edward "Ned" Currie, Jr., Currie, Johnson & Myers, P.A.
  • Gregory P. Varga, Robinson & Cole LLP

Ned Currie and Greg Varga will use selected iPad applications to demonstrate creative and persuasive uses of technology in coverage and bad faith litigation.  This iPad technology broadly ranges from organizing every aspect of your case inception through conclusion, to document storage and use, taking depositions, motion practice and hearings, mediations, and trying the case from your iPad.  Using different applications and the touch of a finger (or Apple pencil), you can combine images, pictures, videos, and other visual and audio media to make compelling presentations and memorable messages that show, tell, advocate, and teach your client’s case to such audiences as clients, mediators, judges, and juries. 

9:00 – 9:45 am
King Arthur Court
Insurance Issues in Bankruptcy

  • Mary Borja, Wiley Rein LLP
  • Seth Lamden, Blank Rome LLP

In bankruptcy, the debtor’s rights to insurance coverage, including extra-contractual claims against its insurers, are often among its most valuable assets. In addition, when claims are made against the debtor’s directors and officers, they often must look to their D&O insurance for protection. However, there is not always agreement among insurers and other bankruptcy stakeholders regarding the extent and value of those rights, or the proper forum for those rights to be enforced. This panel will discuss some of the most significant coverage issues that can arise in a bankruptcy, as well as the role coverage attorneys play in resolving those disputes and monetizing insurance assets for the benefit of the bankruptcy estate.

9:45 – 10:30 am King Arthur Court
Multiple Insureds with Insufficient Limits - The Law, Considerations and Recommendations

  • Patrick J. Kenny, Armstrong Teasdale LLP
  • Garth Gersten, Shapiro Bieging Barber Otteson
  • Sara Thorpe, Nicolaides Fink Thorpe Michaelides Sullivan LLP
  • Meghan Moore, Flaster Greenberg PC
Imagine an accident causing damages far in excess of the applicable insurance limit, where multiple insureds are exposed to the liability, and a claimant offers to release some - but not all insureds - in exchange for the payment of the policy limit. How should the insurer respond? Surprisingly, most jurisdictions have no clear guidance on the question. Worse, the rules in those jurisdictions have not addressed the issue conflict. This program will address those rules, the policies underpinning them, and recommendations for handling the situation in jurisdictions that have yet to settle on an approach.

10:30 – 10:45 am

10:45 – 11:30 am
King Arthur Court
Insurer Bad Faith 2021 and Beyond: A Survey of Extra Contractual Law and Where Things Stand

  • Linda Kornfeld, Blank Rome LLP
  • Jennifer Mathis, Troutman Pepper Hamilton Sanders LLP
  • Bob Allen, The Allen Law Group

The standards for insurance bad faith vary greatly among the various states and they are frequently litigated. The exact same conduct that in one jurisdiction could expose an insurer to extracontractual liability, could be considered perfectly acceptable conduct in another jurisdiction. The standards also vary, in some instances significantly, among first and third party coverages. This panel will address the various schools of thought and discuss developing trends and new case decisions in insurance extracontractual/bad faith law.

11:30 am – 12:15 pm King Arthur Court
Coverage Counsel as Witness: The fine line between “claims handling” and “legal advice”

  • Debra Varner, Varner & Van Volkenburg, PLLC
  • Neil Posner, Much Shelist, P.C.
  • Rikke Dierssen-Morice, Maslon

Policyholder counsel need to know when they may obtain lawyer discovery, and defense counsel need to be sensitive to the distinction between claims handling and legal advice. Privilege issues and the determination of "lawyer as witness" hangs in the balance. A recent lengthy opinion from the USDC Colorado analyzes the important issue that frequently arises in bad faith litigation.

12:15 – 12:20 pm King Arthur Court
Closing Remarks

  • Sherilyn Pastor, McCarter & English; ACCC Immediate Past President

Register Now for the ACCC 2021 Annual Meeting

We will abide by all current COVID-19 restrictions and guidelines that are in place at the time of the conference. All event registrants must acknowledgement an assumption of risk. 

Please note as of August 19, 2021:

Due to the significant number of Fellow concerns that have been raised in regard to COVID-19 and the Delta variant, which has spiked cases in recent weeks, the ACCC Board of Regents and Annual Meeting Planning Committee have decided to implement new attendance vaccination and masking requirements to protect the health and safety of our members.

These updated measures are in accordance with current City of Chicago COVID-related Public Gatherings Guidance:

“For public gatherings and events, it is recommended that event organizers require attendees to be vaccinated against COVID-19 or have a negative COVID-19 test no more than 72 hours prior to attending. To create a safer event, CDPH recommends checking documentation of vaccination or negative test status. CDPH recommends that all attendees, regardless of vaccination status, wear masks whenever social distancing cannot be maintained.”

All ACCC 2021 Annual Meeting attendees will be required to show a copy of their CDC COVID-19 Vaccination Record. Those with medical or religious exemptions must show proof of a negative COVID test result taken no more than 72 hours prior to your meeting arrival.

Please be prepared to show a copy of your vaccination record or test result documentation to ACCC Account Director, Pearl Ford-Fyffe, upon check in at the meeting registration table at the International Chicago. To preserve your privacy, vaccination and test results will be held in strict confidence by this ACCC staff member only.

In addition, the following protocols will be in place:

  • Masking will be required at all times during the meeting, unless you are actively eating or drinking. (Panelists, moderators and other presenters will be permitted to unmask while speaking.)
  • ACCC will provide KN95 masks each day of the meeting for all attendees (you may also provide/wear your own mask).
  • Hand sanitizer will be available.
  • Socially distant seating will be set in all meeting rooms to allow for appropriate and safe space among attendees.
  • Tables for all meals will be limited to no more than 4 or 5 people. We ask that all attendees refrain from moving chairs to add seats to any table.
  • We ask anyone who has a fever, feels sick, or has recently been exposed to COVID-19 prior to the meeting refrain from attending.

We hope you are comfortable with these measures intended to protect the health, safety, and welfare of you and those you are closest to.

Conference Registration Rates:
Fellows - Early Bird $575 (until 7/20/21) | Regular Rate $625 per person.
Honorary Fellows - $450 per person.
Guests - $250 per person.

Registration Closes 9/15/2021.

Cancellation Policy:
Cancellations received prior to 5:00pm ET on Wednesday, September 1st may be refunded, less a 25% processing fee. No refunds can be issued for cancellations received after this deadline.

The InterContinental Chicago
505 North Michigan Ave.ChicagoIllinois 60611

Click here for the hotel's current hygiene procedures and abbreviated services.
Click here for hotel parking options.

Nightly reservation rates are $229 (plus taxes & feesfrom Tuesday, September 21 through Friday, September 24, 2021 for Superior King rooms in the King Executive Tower. Destination fee includes in-room WiFi, daily bottled water, local phone calls, 24/7 access to fitness center + access to the indoor pool. For more information and to book your room, visit the hotel's special group reservation page at this link. (This rate is available until August 23rd or until or room block is sold out, so be sure to make your reservations early.)

Attention: DO NOT make room reservations for the upcoming ACCC Annual Meeting with anyone who calls or emails, representing themselves as agents of the ACCC or the InterContinental Chicago hotel, offering discounted rooms during the meeting. The ONLY legitimate way to reserve your room at the InterContinental Chicago is by using the booking link provided above, or calling 1-877-666-3243 and requesting the ACCC group rate.

We look forward to seeing you in September 2021!

Thank you to our 2021 Annual Meeting Sponsors: