Insurance Coverage Disputes
Author | T. Evan Schaeffer |
Pages | 479-504 |
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
2. The Defendant’s Likely Deponents
§7:60 Depositions the Defendant Will Take
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
DISCOVERY COLLECTION 7-2
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
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
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