Policy Limit Demands—part Ii: a View Into the Other Room

• Publication year: 2021
• Author: By Richard Huver

Policy Limit Demands—Part II: A View Into the Other Room

By Richard Huver

Through his 30 years of litigation experience and leadership roles; Richard Huver developed the skills and expertise necessary to serve as a successful mediator for your case. As a mediator, Richard has handled cases in a variety of fields and specialties, including business, real estate, employment, and personal injury. From the simple to the complex, and from the cooperative to the contentious, Richard has the experience, the temperament and the skills that are needed to help parties resolve their disputes in an expeditious and professional manner. Learn more about Richard at: https://www.judicatewest.com/adr/richard-huver

In the first article published in The Practitioner's last issue (Issue 4 of 2020), Mr. Huver discussed the interplay of policy limit demands and confidentiality. This "Part II" article covers issues to run through in deciding whether a case is a policy limit case, and how to approach negotiations during mediation.

Negotiations during mediation can be a bit like playing poker— you know what is in your hand (what you are willing to offer, or accept, to settle) but you are not sure what is in your opponent's hand. When mediating a policy limits demand case, all eyes are on one number— the policy's limits— and the insurance company wants to know whether plaintiff intends to hold firm for the policy limits, or whether he or she will agree to take less. The plaintiff and his or her attorney come into mediation wondering whether the policy limits will be tendered at the end of the day, or whether the final offer will be for something less. At some point during the negotiation process, each side usually asks the same question—what is really going on in the other room? This article is intended to provide information that will help you understand what might be influencing your opponent's negotiation strategy. My hope is that these insights will allow you to consider things from your opponent's perspective as a way for both sides to reach an acceptable resolution of the case.

Having litigated civil cases for nearly thirty years, I realize no two cases are alike. Each case, and frankly each client, has their own strengths and their own weaknesses. There are risks on both sides. Figuring out what any case is potentially worth is far from an exact science and involves more moving parts than we can address here. The ultimate determination of value is usually defined by the jury's verdict, but if you tried the same case ten times, you could get ten different verdicts. The only certainty about trial, of course, is the uncertainty of the outcome, a fact confirmed by a cursory review of any weekly jury verdict report. Before we address what might be influencing your opponent's negotiation strategy, there are a number of basic considerations to keep in mind.

Before we address what might be influencing your opponent's negotiation strategy, there are a number of basic considerations to keep in mind.

IS THIS REALLY A POLICY LIMITS CASE? HOW LIKELY IS AN EXCESS VERDICT IN YOUR CASE?

I realize this is the proverbial $50,000 question. As discussed in Part I of...