Insurance coverage disputes

• Author: Evan Schaeffer
• Pages: 405-436

INSURANCE COVERAGE

DISPUTES

7-1

CHAPTER 7

INSURANCE COVERAGE DISPUTES

I. ELEMENTS OF THE PLAINTIFF’S CAUSE OF ACTION

A. Typical Causes of Action

§7:01 The Distinction Between First- and Third-Party Cases

§7:02 Contract Claims

§7:03 Property Insurance/Insurable Interest

§7:04 Breach of the Implied Duty of Good Faith and Fair Dealing

§7:05 Statutory Bad-Faith Claims

§7:06 Other Causes of Action

§7.07 Practice Tip: Use the Same Court Reporter for Every Deposition

B. Typical Defenses in an Insurance Coverage Case

§7:20 Typical Defenses

§7:21 Practice Tip: Material Misrepresentations and Intent to Deceive

§7:22 Practice Tip: What Is the Purpose of a Reservation of Rights Letter?

II. THE DISCOVERY PLAN

A. Sequence and Timing

§7:30 The Initial Round

§7:31 Practice Tip: Other Sources of Information

§7:32 Requests for Admissions

§7:33 Depositions

§7:34 Opinions of Defendant’s Experts

§7:35 Practice Tip: Use Your Opponent’s Interrogatory Answers at Trial

B. Documents and Exhibits

§7:40 Liability Documents

§7:41 Damage Documents

§7:42 Practice Tip: How to Make an Objection

C. Typical Deponents

1. The Plaintiff’s Likely Deponents

§7:50 Liability and Damage Witnesses

§7:51 The Defendant’s Expert Witnesses

§7:52 Practice Tip: A Little Psychology Goes a Long Way

2. The Defendant’s Likely Deponents

§7:60 Depositions the Defendant Will Take

INSURANCE COVERAGE

DISPUTES

Deposition Checklists and Strategies 7-2

III. SAMPLE DEPOSITION: CORPORATE DESIGNEE OF INSURER IN A HEALTH INSURANCE DENIAL CASE

A. Setting the Stage

§7:70 Overview

§7:71 Timing

B. Goals, Strategy and Preparation

§7:80 Deposition Goals

§7:81 Deposition Preparation

§7:81.1 Practice Tip: Searching the Internet for Deposition Tips

§7:82 Deposition Strategy

§7:83 Deposition Exhibits

C. The Deposition Outline

1. Background and Thumbnail Outline

§7:90 Background Facts

§7:91 Thumbnail Outline/Deposition Checklist

2. Preliminary Questions

§7:100 Standard Introductory Questions

§7:101 The Witness’s Background, Including His Background With the Defendant

§7:102 Practice Tip: Speak Up, and Encourage the Witness to Do the Same

3. The Notice and Witness’s Preparation

§7:110 The Deposition Notice and Areas of the Witness’s Knowledge

§7:111 The Witness’s Preparation for the Deposition

4. Specif‌ic Deposition Topics

§7:120 Process for Requesting Out-of-Network Procedures

§7:121 Whether Plaintiff Properly Requested Out-of-Network Procedure

§7:122 Practice Tip: Terminology

§7:123 Defendant’s Process for Handling Out-of-Network Requests

§7:124 Whether “Nerve-Sparing Radical Prostatectomy” Was Available Within the Network

§7:125 Process by Which Plaintiff’s Out-of-Network Request Was Considered and Denied

§7:126 Practice Tip: The Witness Who Tires as the Deposition Goes On

§7:127 Why Plaintiff’s Out-of-Network Request Was Denied

5. Closing Questions

§7:140 Closing Questions

IV. SAMPLE DEPOSITION: DEFENDANT’S ROOFING EXPERT IN A PROPERTY DAMAGE CASE

A. Setting the Stage

§7:150 Overview

§7:151 Timing

B. Goals, Strategy and Preparation

§7:160 Deposition Goals

§7:160.1 Practice Tip: A Method of Organizing a Trial Notebook

§7:161 Deposition Preparation

§7:162 Deposition Exhibits

§7:163 Practice Tip: An Alternative Method of Organizing a Trial Notebook

C. The Deposition Outline

1. Background and Thumbnail Outline

§7:170 Background Facts

§7:171 Thumbnail Outline/Deposition Checklist

2. Preliminary Questions

§7:180 Standard Introductory Questions

§7:181 Past Deposition and Trial Testimony

§7:182 Practice Tip: View Your Case Objectively

3. The Expert’s File Materials and CV

§7:190 The Expert’s File Materials

§7:191 The Expert’s CV

§7:192 Practice Tip: To Improve Quickly, Take More Depositions

INSURANCE COVERAGE

DISPUTES

7-3 Insurance Coverage Disputes

4. The Expert’s Background

§7:200 The Expert’s Educational Background

§7:201 Practice Tip: Deposing the “Unsophisticated” Expert

§7:202 The Expert’s Work History

§7:203 The Expert’s Current Job

5. Past Work as an Expert

§7:210 Past Testimony as an Expert

§7:211 Consulting Work as an Expert

§7:211.1 Practice Tip: Deposition Exhibits—Dealing With Originals

§7:212 Income From Work as an Expert

§7:212.1 Practice Tip: Responding to Incivility in Litigation

§7:213 Past Work for the Opposing Lawyer

§7:214 Practice Tip: Past Work for the Defendant

6. Work on the Present Case

§7:220 What the Expert Is Charging

§7:221 When and How Was the Expert Retained

§7:221.1 Practice Tip: Learn from the Old Pros

§7:222 Overview of the Expert’s Work on The Case

§7:223 Cross-Reference: Practice Tips From the Products-Liability Chapter

§7:224 Communication With Lawyers About the Case

§7:224.1 Practice Tip: Experts and Their Communications

§7:225 Communication With Others About the Case

§7:226 Practice Tip: The Expert’s Knowledge and Understanding of Case-Related Facts

§7:227 Preparation for the Deposition

7. The Expert’s Opinions

§7:240 Report Prepared by the Expert

§7:241 Practice Tip: Ask Simple Questions to Identify Opinions

§7:242 Process by Which the Report Was Prepared

§7:243 Opinions Contained in the Report

§7:243.1 Practice Tip: Experts and Motion Practice

§7:244 Opinions Not Contained in the Report

§7:245 Practice Tip: Foundation for the Admission of Photographs

§7:246 Factual Basis for the Opinions

§7:247 Practice Tip: Questions Calling for Legal Conclusions

8. Testimony that Supports the Plaintiff’s Case

§7:260 Questions to Suppor t Damages

§7:261 Knowledge of and Disagreement With Other Experts

§7:262 Practice Tip: Other Opinions From the Expert Supporting Your Theory of the Case

9. Closing

§7:270 Closing Questions

§7:271 Practice Tip: Object to the Form of the Question—Or Lose Your Chance to Do It

V. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES

§7:280 Insurance Executive in a Bad-Faith Case

VI. FORMS (LOCATED ON DIGITAL ACCESS)

Form 7:01 Interrogatories in an Insurance Coverage Dispute (With Reference to Illinois Rules)

Form 7:02 Request for Production in an Insurance Coverage Dispute (With Reference to Illinois Rules)

Form 7:03 Deposition Notice for a Corporate Representative in Health Insurance Denial Case

(With Reference to Federal Rules)