We explore and analyze current issues and relevant topics to help accountants, attorneys, architects and engineers, insurance agents and real estate brokers avoid a professional liability case.
When a professional faces a malpractice claim, contacting the insurance carrier can often lead to further feelings of dread or worry. Yet it is critical to timely and accurately report every actual or potential claim, or coverage may be barred.
Attorneys who have withdrawn from representing a client, either at the client’s request or for other reasons, may experience a lingering fear of later being the subject of a legal malpractice claim In some states like Virginia, such a fear may be heightened if the “continuous representation rule” is found to apply. The recent case of Moonlight Enterprises, LLC v. Mroz, 2017 WL 1237947 (Va. Mar. 30, 2017), illustrates how this rule operates.
IntroductionConcurrent causation can be a tricky doctrine to apply, but nonetheless is important in determining whether professional liability insurance will cover a claim. Generally speaking, concurrent causation mandates coverage if two causes—one covered by a policy, the other excluded by a policy—contribute to a loss. But, this simple formulation is not as straightforward as it first appears, as was recently demonstrated in the case of Financial Strategy Group, PLC v. Continental Cas. Co., 2015 WL 4635783 (6th Cir. 2015).
INTRODUCTIONThis past March, the Missouri Supreme Court had occasion to review whether an insurance policy would cover certain malpractice claims against an insured attorney who was found liable for breaching certain fiduciary duties owed to the client. See Taylor v. Bar Plan Mut. Ins. Co., 457 S.W.3d 340 (Mo. banc 2015). Though the Supreme Court’s application of basic insurance law principles was not particularly noteworthy—for example, the Supreme Court applied several long-established rules pertaining to the proper interpretation of an exclusionary clause—several observations by the Supreme Court bear mentioning, if only as a poignant reminder. This article synthesizes those observations, reminding both the professional liability insurer and the insured professional of the outer limits of professional liability coverage under Missouri law.
IntroductionArbitration is a powerful tool for those involved in a professional malpractice action—an area of liability that, despite numerous state efforts, can still be resolved using alternative dispute resolution. See, e.g., Triad Health Management of Georgia, III, LLC v. Johnson, 679 S.E.2d 785, 789 (Ga. App. 2009) (statute providing that “no agreement to arbitrate shall be enforceable unless the agreement was made subsequent to the alleged malpractice” is preempted by the Federal Arbitration Act); Marmet Health Care Ctr. v. Brown, 132 S.Ct. 1201, 1203 (2012) (state law prohibiting a particular type of claim from arbitration is preempted by the Federal Arbitration Act). Unlike public litigation, arbitration provides parties with privacy and confidentiality. Indeed, confidentiality is seen as the principal advantage of arbitration. See, e.g., Global Reinsurance Corp. v. Argonaut Ins. Co., 2008 WL 1805459, *1 (S.D.N.Y. Apr. 21, 2008). This advantage can be particularly useful in the professional malpractice context, whereby arbitration ensures a spotlight is not placed directly over the facts surrounding the alleged malpractice. But, is arbitration truly confidential? Emerging case law suggests the answer is “not really” or “maybe not.” See, e.g., Eagle Star Ins. Co., Ltd. v. Arrowood Indem. Co., 2013 WL 5322573 (S.D.N.Y. Sep. 23, 2013).