By Anthony D. Martino, OLDER LUNDY KOCH & MARTINO, Attorneys at Law
Say you or your company is being sued in a claim for which you have insurance. As part of your insurance coverage, the insurer will provide you with a lawyer. This lawyer is either an “insurance defense lawyer” who makes their money from insurance companies only or is an “in-house” lawyer that is captive to the insurance company. Either way, both occupy the unenviable position of serving two masters, which may place your interests in conflict with the insurer that is paying “your lawyer’s” bills and directing their defense of you.
What to do?
Personal counsel serves a critical role in monitoring your insurer and its retained defense counsel to ensure that you (or your company) are not exposed to liability beyond your insurance policy. Personal counsel serves only you, the client. While your insurance company may provide you with a defense, they may not be sufficiently incentivized to protect your rights or interests fully. What if your interests are not perfectly aligned with your insurer? Or if one or more of the claims against you is not covered by your insurance policy? Personal counsel provides you unfettered access to the counsel of your choosing and one whose loyalty is only to you and insulating you from liability. Personal counsel ensures that your expectations are met and your interests protected.
Personal counsel is not beholden to the insurance company and only focuses on the risks you face, personally. Personal counsel is positioned to push the insurance company, and its counsel, to litigate more aggressively in your defense. For instance, personal counsel can pressure the insurer to authorize the expenditure of additional monies necessary to retain particular experts in your defense. Personal counsel also adds immeasurable value in pushing the insurance company, and its counsel, to get the claims resolved within your policy limits. “Bad faith” on the part of an insurance company arises when an insurance company fails to settle a claim when, under the circumstances, it could and should have done so, had it acted fairly and honestly toward you as the policyholder, and with due regard for your interests. Personal counsel monitors this potential for exposure, throughout, and can use it to effectively persuade your insurance company to resolve the claim within your policy limits. In the unfortunate event that a verdict more than your policy limits still occurs, personal counsel’s involvement serves to document the unreasonable conduct and decisions which lead to your exposure. This evidence can be used to make the insurance company ultimately responsible for the entire amount awarded including the amount above the stated policy limits.
Personal counsel may also be required if your insurance company is defending you under a reservation of rights. This means that while your insurer is providing you with a defense, it has not agreed to indemnify you for the claims being made. This reservation of rights indicates an unresolved coverage question and likely creates a conflict of interest for the defense counsel hired. Personal counsel acts to examine the coverage issues precipitating this scenario and determine whether the insurer’s coverage position is valid.
A claim against you is likely one of the hundreds being handled by your insurance adjuster and insurance defense counsel. Your access to information and control is markedly limited. Personal counsel obtains access to strategy decisions and provides you with a learned voice in the room who is advocating only for you and your interests.
Personal counsel is not always needed. However, there are plenty of circumstances when it is in your best interest. Identifying these circumstances is not always easy as it often requires an understanding of your insurance company’s legal obligations, the nuances of your insurance policy and the potential for exposure under the facts and the law. It is always a good idea to seek legal advice about these issues to determine whether personal counsel makes sense in a particular situation.
OLDER LUNDY KOCH & MARTINO is a multi-specialty law firm with five offices in the Tampa Bay area. Regardless of the issue, OLKM attorneys have the skills and interdisciplinary expertise to consistently deliver extraordinary service and results, whether it’s business or personal. To learn more visit https://olderlundylaw.com/
ANTHONY D. MARTINO is a partner at OLDER LUNDY KOCH & MARTINO. In addition to being a seasoned litigator, with over 20 years of experience, Mr. Martino has received many distinctions including being named to Florida Super Lawyers, Florida Legal Elite and Best Lawyers, year after year. For more information about Mr. Martino, or to schedule a consultation, please visit https://olderlundylaw.com/anthony-martino/ or call 813-254-8998