Insurance

• Author: Leonard H. Bucklin
• Pages: 387-392

23. Insurance

Insurance underlies almost every case. A plaintiff may have liability insurance that

covers counterclaims. Medical insurance or collision coverages may have given rise to a

subrogation interest that must be paid out of a settlement check payable only to your

client. On the defendant’s side there may be multiple layers of insurance, or insurers of

co-parties that will be involved in settlements. Because of the abundance and varieties

of insurance coverage, the examples can be multiplied almost unendingly.

§23.1 Obtain the Policy

You may be surprised how much information it provides. You may find exact and

correct corporate names and additional insureds that should have added as parties,

additional no-fault coverages, and/or clues to how you can amend the pleadings to

come within the policy coverages. A nominally uninsured corporate officer may be

open to settling because he is to be reimbursed for his reasonable actions in settling per-

sonal claims against him by the corporation, which in turn is to be reimbursed by the

insurer. The possibilities are as endless as the additional insurance coverages used to

increase sales of policies.

If you are in federal court, demand that your adversary comply with Rule Civ. Proc.

26, which provides:

Rule 26. General Provisions Governing Discovery; Duty of Disclosure (a)

Required Disclosures; Methods to Discover Additional Matter. (1) Initial

Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E),

or to the extent otherwise stipulated or directed by order, a party must, with-

out awaiting a discovery request, provide to other parties:. . . . (D) for inspec-

tion and copying as under Rule 34 any insurance agreement under which any

person carrying on an insurance business may be liable to satisfy part or all of

a judgment which may be entered in the action or to indemnify or reimburse

for payments made to satisfy the judgment.

§23.2 Subrogation

At the start of the case, the attorney should ask about the client’s own insurance.

These policies may have subrogation clauses which give the insurer a right to control

the defense. A common mistake of plaintiff’s counsel in an automobile case, or corpo-

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