In an article recently featured in Westlaw Journal Insurance Coverage, my colleagues Lorie Masters, Michael Levine, and I discuss significant cases and other insurance developments from 2017. The full article can be found here.
With 2017 now in the rearview mirror, my colleagues Michael Levine, Lorie Masters, and I take the opportunity in this year’s annual review to reflect on the cases and other insurance developments that made the year memorable and will influence coverage decisions and disputes in 2018 and beyond.
Thank you and Happy New Year to all of our readers!
In this final post in our Hunton & Williams Bermuda Form Arbitration Series, we discuss case law involving the Bermuda Form. As explained in a prior post, the Bermuda Form includes an arbitration clause specifying that disputes be submitted to arbitration in London under the English Arbitration Act, but applying the substantive law of New York. The natural consequence of this arbitration provision is that reported decisions analyzing the substantive provisions of the Bermuda Form are few and far between. Little binding precedent has developed—or will develop—regarding interpretation of the Bermuda Form given that awards are issued in confidential arbitration proceedings. Nonetheless, several decisions in England and the United States offer insight into the handling and resolution of disputes involving Bermuda Form policies.
Earlier this month, the California Supreme Court agreed to review Montrose Chemical Corporation’s appeal from a September appellate court ruling that rejected Montrose’s preferred “vertical exhaustion” method of exhausting excess-layer policies in favor of a policy-by-policy review to determine which policies are triggered. The California high court’s grant of Montrose’s petition for review is potentially significant in clarifying the appropriate excess policy exhaustion trigger under California law, not to mention in addressing a significant insurer defense in Montrose’s longstanding coverage dispute over environmental insurance coverage, which has been winding its way through California courts for more than 25 years.
As explained in a prior post in the Blog’s Bermuda Form Arbitration Series, some time after the final hearing, the arbitration tribunal will issue an Award. This post focuses on challenges to and enforcement of that Award.
A prior post in the Blog’s Bermuda Form Arbitration Series discussed several strategic considerations for the discovery and briefing stages of Bermuda Form arbitrations. This post focuses on the final stages of arbitration: The final hearing, and awards of interest and costs.
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The Final Hearing
The presentation of evidence in the “final hearing” of a London arbitration differs substantially from traditional trial practice in the United States. A party’s direct or affirmative evidence is presented in writing in witness statements. Witnesses are presented live only for cross-examination. A party should offer all its witnesses for cross-examination; if a party does not do so, it risks that the arbitrators will not give a witness’s direct evidence much weight. This rule does not apply if the parties agree that a witness need not be presented for cross-examination. Continue Reading Bermuda Form Insurance Arbitration Series: The Final Hearing, and Interest and Costs Awards
A prior post in the Blog’s Bermuda Form Arbitration Series discussed several strategic considerations for London arbitrations involving the Bermuda Form, including considerations for initiating the arbitration, selection of arbitrators, and selection of counsel. This post focuses on strategic considerations for the discovery and briefing stages of London arbitrations.
In this post in the Blog’s Bermuda Form Insurance Arbitration Series, we discuss the use of London-based arbitration to resolve disputes involving the Bermuda Form.
In this post in the Blog’s Bermuda Form Insurance Arbitration Series, we discuss additional features of the Bermuda Form that policyholders should take into consideration.
In this post in the Blog’s Bermuda Form Insurance Arbitration Series, we discuss some key features of the Bermuda Form that policyholders should take into consideration.