Smooth Sailing Eclipses Choppy Waters: Navigating insurance law ethical issues successfully

Frederic J. Giordano | K&L Gates LLP

Fred Giordano focuses his practice on insurance recovery and counseling, complex civil and commercial litigation, and arbitration.

Fred’s goal is to help his clients achieve their goals. His insurance coverage practice is limited to representing policyholders. On the front side, he helps clients assess their risks and evaluate potential insurance coverage before claims arise. He reviews insurance policies and programs and advises clients regarding the scope of their existing coverage and implementing potential improvements. He works closely with a policyholder’s insurance broker, as appropriate, and has helped draft custom policy language. When claims do arise, Fred helps clients maximize their insurance recovery by negotiating, mediating, litigating, or arbitrating as necessary. Once engaged, Fred collaborates with his clients and seeks the best and most efficient results for their businesses. Often, such results can be achieved through negotiation, but Fred litigates and arbitrates to protect his clients’ rights and interests when insurers are unwilling to resolve claims fairly and equitably.

Fred has litigated, arbitrated, and counseled clients with respect to claims under a wide variety of insurance policies, including representations and warranties, private equity fund management liability, management and professional liability, directors and officers liability, errors and omissions liability, fiduciary liability, workers’ compensation and employers liability, commercial general liability, business owners, commercial automobile, and owner-controlled insurance programs (OCIPs). Among other things, he has secured insurance coverage for clients for informal US Securities and Exchange Commission (SEC) inquiries, formal and informal SEC investigations, class action securities lawsuits, derivative actions, and lawsuits alleging property damage, serious bodily injury, and construction defects. He also has handled disputes for coverage under homeowners’, builders’ risk, and property policies, including Superstorm Sandy claims.

Fred further helps companies implement effective risk transfer. He has drafted, reviewed, and revised many contractual insurance procurement and indemnification provisions. He has particular experience with respect to the impact of anti-indemnity statutes and case law that limits the scope of indemnification for construction claims in many jurisdictions.

Fred also litigates and arbitrates a variety of other civil and commercial matters. By way of example, he has handled disputes over BPaaS software services, warehouse lending facilities and other loans, liens, construction defects, defective products, fraud, consumer fraud, and multiple types of breach of contract. He has arbitrated numerous cases involving breaches of agreements to purchase real property and defended developers, builders, and product manufacturers in personal injury and property damage actions.

Finally, Fred has published and lectured on, and continues to speak and write about, numerous insurance and indemnity-related topics. He served as Chair of the Insurance Law Section of the New Jersey State Bar Association for the 2017-2018 term.

Jennifer Thiem | K&L Gates LLP

Jennifer Thiem is a partner in the firm’s Charleston office. Her practice focuses on complex commercial litigation and insurance and risk management counseling.

In her commercial litigation practice, Jennifer has represented a diverse group of clients as plaintiffs and defendants in both state and federal courts. Jennifer has represented clients with a variety of cases, including claims for fraud, negligent misrepresentation, trademark infringement, breach of contract, breach of fiduciary duty, tortious interference with contract, deceptive trade practices and trade secret misappropriation. She also has experience in real estate litigation, including lease disputes, foreclosures and other real estate disputes relating to financial services.

Jennifer also provides insurance and risk management counseling for commercial policyholders. Jennifer has counseled clients with respect to coverage or potential claims under a variety of insurance policies, including general liability, directors and officers liability, professional liability, representations and warranties and commercial property. With respect to representations and warranties insurance, Jennifer works collaboratively with deal counsel to represent publicly and privately-held companies in the placement and negotiation of representations and warranties insurance policies. After closing, Jennifer also assists clients pursue claims under their representations and warranties insurance policies and contractual indemnification claims against sellers.

I. Tripartite relationship between insurer, insured, and defense counsel | 12:00pm – 12:10pm

II. Control of the defense | 12:10pm – 12:20pm

III. Reservation of rights letters | 12:20pm – 12:30pm

IV. Independent counsel | 12:30pm – 12:40pm

V. Privilege issues | 12:40pm – 12:50pm

VI. The duty of good faith and fair dealing | 12:50pm – 1:00pm