Commercial policyholders that have purchased insurance over multiple policy periods or that are additional insureds on third-party insurance programs can suffer a single loss that triggers multiple insurance policies. These policyholders may be able to require insurers in multiple policy periods or from multiple insurance programs to respond to that loss, a phenomenon that is sometimes referred to as “stacking.” Insurers generally seek to avoid stacking wherever possible, while insureds generally favor the stacking of policy limits because it can significantly increase the amount of insurance coverage available to address a loss.
This program, presented by Jenner & Block partners David Kroeger and Brian Scarbrough, addresses the potential stacking of commercial insurance policies, the types of circumstances in which it can occur, and key insurance policy provisions relevant to a stacking analysis.
I. Recognize the types of losses for which the stacking of commercial insurance coverage might be permitted
II. Understand the types of commercial insurance policies that can be stacked and the policy provisions that are relevant to a stacking analysis
III. Identify jurisdictions that allow, and do not allow, the stacking of commercial insurance coverage
IV. Summarize the impact of stacking on deductibles and policy retentions
David M. Kroeger is a litigator and Co-Chair of the firm’s Reinsurance Practice. Clients seek his counsel on a variety of insurance and reinsurance issues related to actual and anticipated litigation, particularly matters involving general liability, property damage, business interruption, professional liability and directors and officers coverage. Mr. Kroeger also has experience with a wide range of commercial litigation matters, ranging from contract, product liability and securities to intellectual property, antitrust and constitutional law.
In 2014, Mr. Kroeger was recognized by Chambers USA as a leading lawyer in the area of Insurance Dispute Resolution. He is also a five-time Illinois Super Lawyer in the area of Insurance Coverage, and is co-author of the treatise "Directors and Officers Liability: Prevention, Insurance and Indemnification" and an updating author of the treatise "Insurance Coverage Disputes." Mr. Kroeger has also taught as an adjunct professor at the University of Illinois College of Law.
Mr. Kroeger is a member of the firm’s International Arbitration and Insurance Recovery and Counseling Practices. He also serves on the firm's Diversity & Inclusion Committee, Finance Committee, and International Committee.
Brian S. Scarbrough represents corporate policyholders in disputes with insurers and has significant experience both in counseling regarding insurance coverage and in litigating insurance coverage disputes. He successfully has pursued millions of dollars of insurance recoveries for policyholders in state and federal court as well as in domestic and international arbitrations.
In a counseling role, Brian frequently reviews proposed policy language and suggests revisions and enhancements to ensure such coverage is best in market. Brian has undertaken policy reviews both for renewal programs and in placing new programs of insurance, including for spun-off entities, at the primary, excess and umbrella layers. Such counseling has included all major types of coverage, both occurrence-based and claims made, and both first party and third party: D&O (including Side A only and difference in conditions), E&O, professional liability, employment practices liability, environmental, CGL and products liability, Bermuda Form, cyber, commercial property and punitive damage wrap policies.
In a litigation role, Brian has tried insurance cases to summary judgment or jury verdict in state and federal courts nationwide at the trial and appellate levels. This includes cases involving large environmental liabilities with multiple primary and excess insurers, bad faith, the duty to defend, D&O liabilities, Chinese drywall liabilities, commercial property and business interruption loss. In late 2013, Brian secured a groundbreaking victory in one of the year’s most significant pollution exclusion rulings, as noted by Law360 and Mealey’s. In a ruling of first impression under Massachusetts law, a Colorado court rejected the application of an insurer’s absolute pollution exclusion to Chinese Drywall claims, finding that that an absolute pollution exclusion was ambiguous as to whether Chinese drywall was a “pollutant”. Brian also has tried insurance cases to final merits decisions in domestic and international arbitrations, including London arbitrations under Bermuda Form policies. Brian has extensive experience with London Market insurance, including schemes of arrangement under U.K. law and has recovered millions of dollars from London Market insurers. He also has negotiated and drafted numerous settlement agreements with insurers, including commutation agreements, policy buy backs and coverage in place agreements. Brian has litigated reinsurance disputes, including reinsurance arbitrations, and has both counseled and litigated as to captive insurance issues.
Outside of the insurance context, Brian has broad experience obtaining discovery in the U.S. under 28 U.S.C. Section 1782 for use in foreign litigation and arbitration.
Brian serves as an updating author to the Firm treatise "Directors and Officers Liability: Prevention, Insurance and Indemnification," has presented at leading insurance seminars and has authored or co-authored a number of insurance articles and updates. Brian also maintains an active pro bono practice, including pro bono insurance litigation and counseling.
good explanation of a complicated area
very informative and easy to grasp
Useful information about stacking - should apply to other torts - mva etc.
It's important to know when to call upon an expert in an area of law. This course highlights that point. Insurance law can be extremely tricky for the generalist.
Well presented program
Dry subject but they did a good job.
Nicely paced well organized presentation. Enjoyed 2 speaker format-both excellent. Interesting and important topic.
Information was very helpful.
Very interesting and well explained
These guys were really good. Would like to see something on commercial renovation and construction insurance coverage as well
Unlimited CLE Subscription gives you access to take almost any course from our catalog and earn as much CLE credit as you need.