In "Coverage Arbitration: A Policyholder's Survival Guide," attorneys John Nevius and Peter Halprin explain why about a dozen states have banned coverage arbitration and how policyholders should evaluate whether and how to proceed to arbitrate. Among other things, arbitration fosters compromise and streamlines the process. However, policyholders seek to be made whole and should not be denied due process under the guise of efficiency. Once you determine to arbitrate, this presentation takes you step by step through the process and provides practical tips on avoiding pitfalls and making the process as fair and useful as possible while maximizing your potential coverage award.
I. Understand whether and when coverage arbitration is necessary, may be advantageous, and was agreed upon as well as how to proceed with arbitration in a manner that maximizes the chances of prevailing and the award of coverage
II. Avoid coverage arbitration which can be disadvantageous, as many states have recognized by banning coverage arbitration outright
III. Recognize how to take advantage of the differences between coverage arbitration and typical litigation while obtaining due process and without being outmaneuvered by insurance companies
IV. Gain a practical understanding and practical tips on selecting (and rejecting) arbitrators, how they think and what policyholders can do to win them over or, at least, provide them with the information and tools they need to support a favorable outcome
V. Garner sophistication when it comes to how arbitration provisions work, whether they, in fact, require arbitration and how, and to avoiding them or making them work for you
VI. Identify practical tips on how to address and and minimize the impact of issues such as provisions that contain language which purports to erode many traditional policyholder protections and presumptions in favor of coverage and can limit the scope of what can be recovered in terms, for example, of fees, interest, and bad faith
Peter A. Halprin is a partner in Pasich LLP’s New York office. Peter represents commercial policyholders in complex insurance coverage matters with a focus on recovery strategies in relation to cyber crime, natural disasters, professional services, regulatory investigations, and technology disputes. Over the course of his career, Peter has arbitrated, litigated, and mediated claims involving a broad range of insurance policies and recovered hundreds of millions of dollars in insurance proceeds for policyholders.
Peter has advised clients regarding insurance coverage under an array of forms and policies including Boiler & Machinery, Builder’s Risk, Commercial Crime, Cyber, Directors & Officers (D&O), Employment Practices Liability (EPL), Errors & Omissions (E&O), Fidelity, General Liability (GL), Kidnap & Ransom (KKR), Media Liability, Pollution Legal Liability (PLL/EIL), Products Liability, Property, Technology E&O, Trade Credit, and Workers’ Compensation.
Peter also drafts coverage analyses and correspondence, and advises captive insurance companies regarding reinsurance recoveries. In this area, with a focus on health care and hospital professional liability programs, Peter has recovered over $200 million in reinsurance proceeds for captive insurance companies. He has also advised such companies in the design of claims adjustment and related alternative dispute resolution programs.
Peter acts as counsel for U.S. and foreign companies in domestic and international arbitrations, including both ad hoc (ARIAS, Bermuda Form, London) as well as institutional (AAA, ICC, ICDR, JAMS, LCIA) arbitration forums. He has served as both party-appointed and sole arbitrator, and is a Member of the AAA National Roster of Arbitrators.
Peter assisted in the drafting of the new ARIAS•U.S. Panel Rules for the Resolution of Insurance and Contract Disputes.
John G. Nevius is a shareholder in the New York office of Anderson Kill and is chair of the firm's Environmental Law Group. Mr. Nevius has successfully resolved and litigated a variety of legal and technical matters, most of which involve insurance coverage. He provides advice and scientific expertise on a wide range of engineering issues and has represented numerous Fortune 500 companies. Mr. Nevius has extensive experience trying or arbitrating complex environmental, telecommunications, construction, real estate and work-place safety disputes on behalf of policyholder clients.
Mr. Nevius has a broad range of legal experience, but is considered an expert on environmental insurance, including general liability, pollution legal liability (PLL), clean-up costs cap (CCP), finite risk, financial assurance and so-called pollution exclusions. Mr. Nevius is co-author with Eugene R. Anderson of a treatise on Brownfields Law and Practice involving clean up and redevelopment of contaminated real estate and the use of environmental insurance. He is routinely retained by policyholders, developers and other lawyers to evaluate, and maximize, recovery of insurance assets. He is also a Senior Consultant at Anderson Kill Insurance Services (AKIS), a non-legal subsidiary of the firm as well as an Adjunct Faculty member at Pace University Law School where he teaches Science for Environmental Lawyers as well as the inaugural Insurance class as part of the World's first Climate Change LLM Program.
Mr. Nevius has a J.D. from Pace University School of Law with a concentration in environmental law. He has Masters degrees in Civil/Systems Engineering as well as Geology from the University ofPennsylvania. He also has a B.S. in Geology/Geophysics from the University of Connecticut.
Mr. Nevius is a Registered Professional Engineer (PE 045229E) and was a Senior Project Manager/Hydrogeologist at the U.S. EPA for more than 8 years. He has written and lectured widely on insurance coverage and environmental issues, including Brownfields and clean-up provisions of federal and state environmental laws (generally RCRA and CERCLA a/k/a Superfund). At EPA, he provided technical and enforcement support to Region III's Criminal Enforcement Branch, the Inspector General and the FBI. Mr. Nevius is the author of two Records of Decision (RODs), has testified as an expert witness in federal court and received an EPA National Excellence in RCRA Enforcement award and a Bronze Medal.
In 2010, Mr. Nevius was selected by his peers to Super Lawyers for Insurance Coverage.
In 2010, Mr. Nevius was also selected for the Editorial Board of the Environmental Claims Journal.
Mr. Nevius has represented numerous corporations, including such household names as American Standard, Arrow Electronics, Brooks Brothers, Clorox (First Brands), Cyprus Amax Minerals, DynCorp, Freeport McMoRan, Henry Schein, Jacobs Engineering, Murphy Oil, PPM America, Pulte Homes, Purdue Pharma, Reynolds Metals, Samsung, Savin, Sbarros, Sprint, Structure Tone,Tektronix, Texas Instruments, Textron, Thiokol, TransCanada, Waste Management, Weyerhaeuser, and Yukon Nevada Gold Corp. Mr. Nevius has also represented the State of California, and the Canadian provincial Government of the Yukon, as well as several Brownfield developers and lenders, including Commerce Bank, Valley National Bank and JP Morgan Chase.
Major Cases, Trials and Arbitrations
Mr. Nevius has been directly involved in obtaining favorable outcomes for policyholder clients in the following:
NA Dulles Real Estate Investors, LLC v. Chicago Title Insurance Company, Index No. 10-44582 (Dist. Ct., Suffolk County) (filed January 31, 2011) (Real Estate-Development Dispute Involving Access and Title Insurance)
Triangle Aviation Services, Inc. v. Fenley & Nicol Environmental, Inc., Docket No. 600228/2010 (N.Y. Sup. Ct. Nassau Cty.) (filed March 31, 2010) (As Yet Unresolved Environmental Dispute)
Sprague Energy Corp. v. American Home Assurance Company, a wholly owned subsidiary of American International Group, Inc. ("AIG"), a/k/a American International Underwriters ("AIU"), Civ. Action No. 1:09-cv-01136 (AWT) (D. Conn) (filed July 20, 2009) (Environmental Insurance Coverage Dispute)
Queenstake Resources U.S.A., Inc. v. American Int’l Specialty Lines Ins. Co. (AIG), Civil Action No. 07-CV-00148 (D. Colo. filed January 19, 2007) (International Arbitration – Mine Financial Assurance)
Arrow Electronics, Inc. v. Aetna Cas. & Sur. Co., et al., Case No. BC342044 (Cal. Super., L.A.County (filed October 26, 2005) (Environmental Coverage Action – General Liability)
Benenson v. Mass. Mut. Financial Group, (Cal. Super. Ct., Los Angeles Cty., No. BC 296920) (filed November 3, 2004)
Tensolite Co. v. Flextronics Int’l Ltd., Scanfil Oy and Nokia, Inc., Civil Action No. 03-CV-9675 (S.D.N.Y. filed December 5, 2003) (International Arbitration – Telecommunications)
Employers Ins. of Wausau v. Tektronix, Inc., No. CCV 9908032 (Or. Cir. Court, Clackamas County) (August 2002) (Environmental Coverage Trial – General and Environmental Impairment Liability)
Waste Management, Inc. v. Admiral Ins. Co., et al, Docket No. HUD-L-931-92 (N.J. Super., HudsonCounty) (November – December 2001) (Environmental Coverage Trial)
ZRZ Realty Co., et al. v. Beneficial Fire & Cas. Co., et al, Circuit Court No. 9708-06226 (Or. Cir.,Multnomah County) (October – December 1999) (Environmental Coverage Trial)
Cascade Corp. v. American Home Assur. Co., et al, No. 9205-03083 (Or. Cir., Multnomah County) (July – October 1998) (Environmental Coverage Trial)
Published Legal Decisions
Mr. Nevius has represented clients in the following reported decisions:
ZRZ Realty Co. v. Beneficial Fire and Casualty Ins. Co., et al., 222 Or. App. 453, 194 P.3d 167 (Oct. 1, 2008), modified 225 Or. App. 257, 201 P.3d 912 (Jan. 14, 2009)
Federal Ins. Co. v. Samsung Electronics Am., Inc., et al., 268 S.W.3d 506 (Tex. 2008)
Employers Ins. of Wausau v. Tektronix, Inc., 211 Or. App. 485 (2007)
Cascade Corp. v. Am. Home Assurance Co., et al., 206 Or. App.1 (2006)
Hold Bros., Inc., et al. v. Hartford Cas. Ins. Co., Case No. 04 Civ. 7223 (SAS) (S.D.N.Y., Jan. 27, 2005)
Pulte Home Corp. v. Fidelity and Guar. Ins. Co., 2004 WL 516216 (Va. Cir. Ct., Feb. 6, 2004)
Soho Plaza Corp. v. Nationwide Mut. Ins. Co., 2003 WL 22255005 (N.Y.A.D. 1st Dept. Oct. 2, 2003)
Textron Inc. v. Aetna Cas. & Sur. Co., 754 A.2d 742 (R.I. 2000)
R.E.O., Inc., et al. v. The Travelers Cos., No. CV 9503725225 (Conn. Super. 1998)
Thiokol Corp. v. Certain Underwriters at Lloyd's, London, No. 96-CV-028-B, 1997 WL 33798359 (D. Utah 1997)
St. Paul Fire & Marine Ins. Co. v. McCormick & Baxter Creosoting Co., Inc., 324 Or. 184 (1996)
American Bar Association: Climate Change Subcommittee of the Insurance Coverage Litigation Committee of the Trial & Insurance Practice Section; American Geophysical Union; American Society of Civil Engineers; The Bar Association of the City of New York; The Commerce & Industry Association of New Jersey; The Connecticut Business & Industry Association: Environmental Policies Council; The New York State Bar Association: Environmental Insurance Subcommittee; The Risk and Insurance Management Society (RIMS); Chairman, Law Committee of The Holland Society of New York; and Trustee, The Holland Society of New York.
Mr. Nevius lives in Brooklyn with his wife, Alison A. Hess, C.P.G., a Senior Project Manager for the EPA and daughters, Anne and Kathleen. John is a Trustee of the not-for-profit Brooklyn Free Space, a cooperative pre-school. John also is a life-time member of the Holland Society of New York and is a direct descendent of Johannes Nevius, an emigrant from Holland who was the Secretary of New Amsterdam/New York in 1650-60.
Pace University School of Law, J.D.
Certificate in Environmental Law; American Jurisprudence Award
University of Pennsylvania, M.S.E.
University of Pennsylvania, M.S.
University of Connecticut, B.S.
Very interesting presentation and great presenters
Well presented by capable lawyers in a format enjoyable to listen to. First rate!
Very good presentation on arbritration
Very policyholder oriented.
Obviously, I took A course for CLE credit. I took THIS course because I know nothing about the subject, and -- while I really have no practical need for this just now -- it seemed interesting. No disappointment there. The presenters were first class. Kudos to them.