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List of Forms by Chapter - Chapter 1 — Basic Types of Policies and Coverage
- I. [1.1] Fundamentals of Insurance
- II. [1.2] History of Insurance
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III. [1.3] Components of an Insurance Policy - IV. [1.7] Concepts Fundamental to Analysis of Potential Insurance Coverage
- V. [1.13] Who Is Entitled to Coverage
- VI. [1.16] Types of Coverages
- [1.17] Personal Insurance
- [1.18] Homeowner’s Insurance
- [1.19] Personal Automobile Insurance
- [1.20] Other Personal Lines Products
- [1.21] Business Insurance
- [1.22] Commercial General Liability Insurance
- [1.23] Directors and Officers Liability Insurance
- [1.24] Professional Liability
- [1.25] Fidelity/Dishonesty Insurance
- [1.26] Workers’ Compensation and Employers Liability Insurance
- [1.27] Commercial Property Coverage
- [1.28] Other Insurance Products for Businesses
- [1.29] Government Insurance
- [1.30] Reinsurance
- Chapter 2 — Rules of Policy Interpretation and Construction
- I. [2.1] Scope of Chapter
- II. [2.2] Principal Objective: Determining the Intention of the Parties
- III. [2.3] The “Four-Corners” Rule
- IV. [2.4] Determining Whether Language Is Ambiguous or Unambiguous
- V. [2.9] Parol Evidence Rule
- VI. [2.10] Doctrine of Contra Proferentum
- VII. [2.11] Doctrine of Reasonable Expectations
- Chapter 3 — Duties of Policyholders and Insurer
- I. [3.1] General Considerations
- II. Duties of the Policyholder/Insured
- Formation of Contract
- [3.4] Honesty in Application
- [3.5] Duty To Disclose After-Acquired Information
- [3.6] Payment of Premium
- Notice of Loss, Occurrence, or Claim
- [3.7] Policy Requirement of Notice
- [3.8] Time Within Which Notice Must Be Given
- [3.9] Delayed Notice
- [3.10] Notice Under Excess Policies
- [3.11] Notice Under Claims-Made Policies
- [3.12] Content of Notice
- [3.13] Failure To Give Notice
- [3.14] Prejudice to Insurer
- Notice of Suit
- [3.15] Policy Language
- [3.16] What Is a Suit?
- [3.17] Notice from Another Source
- [3.18] Delayed Notice
- [3.19] Notice to Excess Insurers
- [3.20] Prejudice to Insurer
- Cooperation
- [3.21] In General
- [3.22] Application to Others
- [3.23] Submission to Service of Process
- [3.24] Providing Information About the Claim
- [3.25] Attendance at Trial
- [3.26] Insurer’s Duty To Seek Cooperation
- [3.27] Insured’s Failure To Seek Other Coverage
- [3.28] Colluding with Claimant
- [3.29] Prejudice to Insurer
- [3.30] Waiver
- [3.31] Concealment or Fraud
- [3.32] Special Situation Duties
- [3.33] Duty To Produce Records and Submit to an Examination Under Oath
- [3.34] Duty To Care for an Insured Animal
- [3.35] Duty To Retrieve a Stolen Vehicle
- [3.36] Payment of Liability Deductible or Self-Insured Retention
- [3.37] Subrogation Claims — Preservation of Insurer’s Rights
- III. Duties of Insurer
- [3.38] Statutory Compliance and Bad-Faith Litigation
- [3.39] General Duty of Good Faith and Fair Dealing
- [3.40] Duty To Provide Notice of Nonrenewal or To Renew
- [3.41] Duty To Give Notice of Cancellation
- [3.42] Duty To Offer Certain Vehicle Coverages
- [3.43] Duty Regarding Property Loss — The Appraisal Process
- [3.44] Duty To Defend and Indemnify
- [3.45] How the Duty To Defend Is Determined
- [3.46] When Does the Duty Begin — The Targeted Tender Rule
- [3.47] When Does the Duty End — Duty To Appeal
- [3.48] Extent of Duty To Defend Noncovered Claims
- [3.49] Declaratory Judgment and the Estoppel Principle
- Duty To Settle Claims
- [3.50] Duty to the Insured
- [3.51] Duty to Excess Insurers
- [3.52] Duty To Indemnify
- [3.53] Duty To Investigate
- [3.54] Duty To Preserve Evidence — Spoliation
- [3.55] Duty To Conduct a Reasonable and Prudent Defense
- [3.56] Duty To Keep the Insured Apprised of Developments That Affect the Interests of the Insured
- Chapter 4 — Choice of Law Issues Regarding Coverage
- I. [4.1] Introduction
- II. [4.2] Is There a Conflict of Laws?
- III. What Law Applies to Insurance Policies Containing Choice-of-Law Provisions?
- IV. What Law Applies to Insurance Policies That Do Not Contain Choice-of-Law Provisions?
- [4.7] In General
- [4.8] “Most Significant Contacts” Test
- [4.9] Special Considerations Regarding the Location of the Insured Risk
- [4.10] Location of the Underlying Lawsuit
- [4.11] Location of Premium Payments
- [4.12] RESTATEMENT (SECOND) OF CONFLICT OF LAWS
- [4.13] RESTATEMENT (SECOND) OF CONFLICT OF LAWS §6
- [4.14] RESTATEMENT (SECOND) OF CONFLICT OF LAWS §188
- [4.15] RESTATEMENT (SECOND) OF CONFLICT OF LAWS §193
- V. [4.16] Conclusion
- Chapter 5 — Duty to Defend
- I. [5.1] Introduction
- II. Overview of the Major Cases
- [5.2] The Beginning
- [5.3] Conflicts of Interest
- [5.4] Evolution of the Estoppel Principle
- [5.5] Clarity of the Allegations
- [5.6] No Allocation Between Covered and Noncovered Counts
- [5.7] Timing of the Declaratory Judgment
- [5.8] Conflicts of Interest Revisited
- [5.9] Sample Letter: Additional Disclosure of Conflict of Interest To Be Sent by Insurer
- [5.10] Sample Letter: Disclosure of Conflict of Interest To Be Sent by Attorney Retained by Insurance Company in Compliance with Peppers
- [5.11] Bad-Faith Decisions Not To Defend
- [5.12] Termination or Confirmation of the Obligation To Defend by Extrinsic Evidence
- [5.13] Termination of the Obligation To Defend by Payment of the Limits
- [5.14] Termination of the Obligation To Defend Following Trial Court Decision
- [5.15] Environmental and Toxic Tort Cases
- [5.16] Public Policy
- [5.17] The Targeted Tender
- [5.18] Other Estoppel Issues To Consider
- III. Strategic Considerations for Contesting Coverage
- IV. [5.24] Conclusion
- V. [5.25] Outline of Major Points and Supporting Cases
- Chapter 6 — The CGL Policy
- I. [6.1] Introduction
- II. Coverage A — Bodily Injury and Property Damage Liability
- III. Coverage B — Personal and Advertising Injury Liability
- IV. [6.11] Coverage C — Medical Payments Coverage
- V. [6.12] Supplementary Payments — Coverages A and B
- VI. [6.13] Who Is an Insured?
- VII. [6.14] Limits of Insurance
- VIII. [6.15] Commercial General Liability Conditions
- IX. [6.16] Definitions
- X. [6.17] Conclusion
- Chapter 7 — Claims-Made and First-Party Policies
- I. [7.1] Errors and Omissions Insurance
- Prerequisites for Coverage Under an Errors and Omissions Policy
- [7.2] Claims-Made vs. Occurrence-Based
- [7.3] Wrongful Acts Committed in the Performance of Professional Services
- [7.4] Errors and Omissions Policy Exclusions
- [7.5] Damages Typically Covered by Other Policies
- [7.6] Insured vs. Insured
- [7.7] Governmental Agency Action
- [7.8] Prior Acts Exclusion
- [7.9] Prior Policies Exclusion
- Exclusions Addressing Particular Types of Conduct
- [7.10] Dishonesty, Fraud, or Criminal or Malicious Conduct Exclusion
- [7.11] Personal Gain Exclusion
- [7.12] Business Enterprise Exclusion
- [7.13] Contract Exclusion
- [7.14] Special Issues Under Errors and Omissions Policies
- II. [7.15] Directors and Officers Insurance
- [7.16] Prerequisites for Coverage Under Directors and Officers Policies
- [7.17] Wrongful-Act Requirement
- [7.18] Wrongful Act vs. Business Decision
- [7.19] Requirement of a “Claim”
- [7.20] Notice and Reporting
- [7.21] Severability Clauses
- [7.22] Payment of Loss
- [7.23] No Duty To Defend
- [7.24] Claims Made and Reported
- [7.25] Disclosures of Potential Claims
- [7.26] Are the Acts Covered?
- [7.27] Common Directors and Officers Policy Exclusions
- [7.28] Exclusions for Coverage That Is Provided by Other Policies
- [7.29] Exclusions for Prior or Pending Claims
- [7.30] Exclusions for Criminal, Dishonest, Fraudulent, or Deliberate Acts
- [7.31] Insured vs. Insured
- [7.32] Personal Profit
- [7.33] Regulatory Exclusion
- [7.34] Tax Liability
- [7.35] Bodily Injury and/or Property Damage
- [7.36] Actual or Attempted Takeovers
- [7.37] Special Issues Under Directors and Officers Policies
- III. [7.38] Employment Practices Liability Policies
- [7.39] Prerequisites for Coverage Under Employment Practices Liability Insurance Policies
- [7.40] Deductibles and Self-Insured Retentions
- [7.41] Claims Made
- [7.42] Duty To Defend
- Common Employment Practices Liability Insurance Policy Exclusions
- [7.43] Coverage Provided by Other Policies
- [7.44] Particular Wrongful Acts
- [7.45] Claims Arising Out of Written Employment Agreements
- [7.46] Special Issues Under Employment Practices Liability Insurance Policies
- IV. [7.47] Environmental Impairment Liability Policies
- [7.48] Prerequisites for Coverage Under Environmental Impairment Liability Policies
- [7.49] Environmental Impairment
- [7.50] Claims Made
- [7.51] Deductibles, Self-Insured Retentions, and Burning Limits
- Common Environmental Impairment Liability Policy Exclusions
- [7.52] Intentional Acts
- [7.53] Own Property
- [7.54] Particular Types of Damages
- [7.55] Sudden and Accidental Release of Pollutants
- [7.56] Special Issues Under Environmental Impairment Liability Policies; Allocation Among Insurers
- V. [7.57] First-Party Policies
- [7.58] Property Insurance
- [7.59] Prerequisites for Coverage Under First-Party Property Policies
- [7.60] Cooperation with the Insurer’s Investigation
- [7.61] Common First-Party Property Insurance Exclusions
- [7.62] Increased Risk or Hazard Within the Knowledge of the Insured
- [7.63] Policyholder Neglect of the Property
- [7.64] War Risks, Nuclear Accident, Governmental Action, Operations of Law
- [7.65] Damage Caused by Animals, Earth Movement, Volcanoes, Flooding, or Other Risks Specific to Certain Regions
- [7.66] Pollution or Contamination
- [7.67] Mold and Asbestos
- [7.68] Special Issues Arising Under First-Party Property Insurance
- [7.69] Business Interruption Insurance
- [7.70] Prerequisites for Coverage Under Business Interruption Policies
- [7.71] Common Business Interruption Exclusions
- [7.72] Special Issues Under Business Interruption Policies
- Employee Dishonesty/Fidelity Coverage
- [7.73] Prerequisites for Coverage Under Employee Dishonesty Policies
- [7.74] Common Employee Dishonesty Exclusions
- [7.75] Special Issues Arising Under Employee Dishonesty Policies
- VI. [7.76] Conclusion
- Chapter 8 — Reservations of Rights Letters
- I. [8.1] Introduction
- II. [8.2] The Duty To Defend
- III. [8.7] Options Available When a Defense Is Requested
- [8.8] Providing an Unconditional Defense
- [8.9] Defending Under a Reservation of Rights
- [8.10] Filing a Declaratory Judgment Action
- [8.11] Defend Under Reservation of Rights If Insured Consents After Full Disclosure When Conflict of Interest Exists
- [8.12] Agree To Reimburse the Insured’s Independent Counsel Under a Reservation of Rights When a Conflict Exists
- [8.13] Outright Declination of a Defense
- IV. [8.14] Use of Reservation of Rights Letters
- Chapter 9 — Common Exclusions and Defenses to Coverage
- I. [9.1] Introduction
- II. [9.2] Preliminary Issues
- III. Commercial General Liability Policies
- [9.3] Business Risk Exclusions
- [9.4] Own-Product or Own-Work Exclusion
- [9.5] Sistership Exclusion
- [9.6] Loss-of-Use or Impaired Property Exclusion
- [9.7] Pollution Exclusion
- [9.8] Owned-Property Exclusion
- [9.9] War Risk Exclusion
- Defenses to Coverage
- [9.10] Late Notice
- [9.11] Known Loss or Loss in Progress
- [9.12] Considerations of Coverage for Alleged Violations of the Illinois Biometric Information Privacy Act
- IV. First-Party Property Policies
- V. Directors and Officers Liability Policies
- VI. Fidelity/Dishonesty Policies
- VII. Professional Liability Policies
- VIII. [9.26] Employment Practices Liability Policies
- Chapter 10 — Declaratory Judgment Actions
- I. [10.1] Introduction
- II. [10.2] The Purposes of a Declaratory Judgment Action
- III. When a Declaratory Judgment Action Is Appropriate
- IV. Where To File a Declaratory Judgment Action
- V. Necessary Parties to a Declaratory Judgment Action
- VI. Litigating a Declaratory Judgment Action
- [10.14] Pleadings
- [10.15] Pleadings in Illinois State Court
- [10.16] Pleadings in Federal Court
- [10.17] Discovery
- [10.18] Insurer’s Claim File
- [10.19] Insurer’s Claims-Handling History
- [10.20] Insurer’s Underwriting File
- [10.21] Defense Counsel’s File and Communications with the Insured
- [10.22] Motions
- [10.23] Burden of Proof
- [10.24] Trial
- VII. [10.25] Conclusion
- Chapter 11 — Bad-Faith Claims in Illinois
- I. [11.1] Introduction
- II. [11.2] Bad-Faith Claims Based on §155 of the Illinois Insurance Code
- Conduct That Constitutes a Violation of §155 of the Illinois Insurance Code
- [11.3] Knowingly Misrepresenting Relevant Facts or Policy Provisions
- [11.4] Failing To Communicate Promptly or Regularly with an Insured
- [11.5] Failing To Pay Either All or the Portion of the Claim the Insurer Acknowledges Is Due
- [11.6] Settling a Claim for Less than It Is Worth
- [11.7] Forcing an Insured To Litigate To Obtain His or Her Benefits
- [11.8] Failing To Properly Investigate a Claim and/or Basing a Denial on Improper Investigative Grounds
- [11.9] Failing To Affirm or Deny Coverage Within a Reasonable Time After Proof of Loss Statements Have Been Completed
- [11.10] Failing To Defend an Insured in an Underlying Action That Potentially Falls Within the Policy’s Coverage
- Damages Available for Violations of §155 of the Illinois Insurance Code
- [11.11] Penalties
- [11.12] Attorneys’ Fees
- [11.13] Costs
- [11.14] Prejudgment Interest
- [11.15] The Primary Defense to a Claim Under §155 of the Illinois Insurance Code
- III. [11.16] Bad-Faith Claims Based on a Failure To Settle
- IV. [11.17] Bad-Faith Claims Based on the Insurer Committing an Independent Tort
- V. Tips for Prosecuting Bad-Faith Claims in Illinois
- VI. Tips on Defending Bad-Faith Claims in Illinois
- [11.23] Argue That a Claim Under §155 of the Illinois Insurance Code Should Be Dismissed Because No Coverage Exists
- [11.24] Argue That Any Tort Based on an Insurer’s Post-Claim Conduct Has Been Preempted by §155 of the Illinois Insurance Code
- [11.25] Argue That Damages Under §155 of the Illinois Insurance Code Cannot Be Awarded in an Arbitration
- [11.26] Argue That the Plaintiff Has Failed To Plead What Is Required for a Bad-Faith Claim
- [11.27] Argue That the Plaintiff Does Not Have Standing To Pursue a Bad-Faith Claim
- [11.28] Argue That the Insurer Never Received a Demand To Settle Within the Policy Limits
- Jill B. Berkeley
Jill B. Berkeley
Jill B. Berkeley is Of Counsel at Neal, Gerber & Eisenberg LLP in Chicago, where she focuses her practice on insurance coverage litigation. She is a Fellow of the American College of Coverage Counsel (2012 – present); a member of the American Arbitration Association serving as a member of the Commercial Arbitration Panel (2008 – present); a Former Chair of the Insurance Coverage Litigation Committee of the American Bar Association’s Tort Trial & Insurance Practice Section; and a recipient of the ABA Lifetime Achievement Award (2017). Ms. Berkeley received her B.A. with high distinction and honors and Phi Beta Kappa from the University of Michigan and her J.D. from the Northwestern University Pritzker School of Law.
- Andrew S. Boris
Andrew S. Boris
Andrew S. Boris is Executive Vice President and Chief Executive Officer of the American Agricultural Insurance Company in Schaumburg. Mr. Boris received his B.A. from Boston College and his J.D., Order of the Coif, from DePaul University College of Law, where he was a member of the Law Review.
- Benjamin Boris
Benjamin Boris
Benjamin Boris is an associate at Neal, Gerber & Eisenberg LLP in Chicago, where he focuses his practice on commercial litigation matters. He received his B.A. cum laude from the University of Illinois at Urbana-Champaign and his J.D. cum laude from the University of Notre Dame Law School.
- Michael C. Bruck
Michael C. Bruck
Michael C. Bruckis a Founder and Partner at Spellmire Bruck, LLP, in Chicago, where he focuses his practice on insurance reinsurance litigation, professional liability, and commercial litigation. He has been peer review-rated AV Preeminent by Martindale-Hubbell and selected for inclusion in Illinois Leading Lawyers for professional malpractice defense law, commercial litigation, and insurance coverage and reinsurance law and in Illinois Super Lawyers for professional liability, business litigation, and insurance coverage. Mr. Bruck received his B.S. from Purdue University and his J.D. from the DePaul University College of Law.
- David J. Buishas
David J. Buishas
David J. Buishas is a Partner at BatesCarey LLP in Chicago, where he concentrates his practice in insurance. He has been recognized as a “40 Under Forty” Illinois Attorneys to Watch by Law Bulletin Media and a Super Lawyers Rising Star, and he is a member of the Chicago Bar Association. Mr. Buishas received his B.A. from the University of Dayton and his J.D. from Saint Louis University.
- Lindsey D. Dean
Lindsey D. Dean
Lindsey D. Dean is an associate at BatesCarey LLP in Chicago, where she concentrates her practice in insurance coverage and litigation. She is Committee Chair (Young Professional Liaison) of the CLM’s Extra-Contractual Committee, and she has been recognized by Illinois Best Lawyers’ “Ones to Watch” and as an Illinois Super Lawyers Rising Star. Ms. Dean received her B.S. cum laude from DePaul University and her J.D. cum laude from the DePaul University College of Law.
- Mark A. Deptula
Mark A. Deptula
Mark A. Deptula is a Partner at BatesCarey LLP in Chicago, where he focuses his practice on litigating insurance coverage cases, including defending bad-faith claims against insurers, and reinsurance disputes. He is a member of the Illinois State Bar Association’s Insurance Law Council. Mr. Deptula received his B.A. from the University of Florida and his J.D. cum laude from the University of Illinois Chicago Law School.
- Catherine L. Doyle
Catherine L. Doyle
Catherine L. Doyleis Department Counsel to Jenner & Block LLP in Chicago and focuses on insurance recovery and counseling. She received her A.B. with honors from Guilford College and her J.D. from the University of Chicago Law School.
- John D. Hackett
John D. Hackett
John D. Hackettis a Partner at Cassiday Schade LLP in Chicago, where he concentrates his practice in complex insurance coverage litigation matters, with an emphasis on the preparation of opinion letters, all phases of declaratory judgment litigation, and regulatory/underwriting matters. Mr. Hackett received his B.A. magna cum laude from Northern Illinois University and his J.D. from DePaul University.
- David M. Kroeger
David M. Kroeger
David M. Kroeger is a Partner at Jenner & Block LLP in Chicago and focuses his practice on insurance recovery and counseling. Mr. Kroeger has been recognized by Chambers USA as a leading lawyer in the area of Insurance Dispute Resolution (2014 – 2022). He is Cochair of the Regional-CLE Programs Committee (2021 – 2022) of the American Bar Association Section of Litigation and is Special Projects Officer (2022 – 2023) of the International Bar Association’s Insurance Committee. He received his BA from the University of Notre Dame and his JD from the University of Illinois College of Law.
- I. Jordan Lowe
I. Jordan Lowe
I. Jordan Loweis a Partner at BatesCarey LLP in Chicago, where he concentrates his practice in insurance coverage. He is a member of the Chicago and Illinois State Bar Associations, the Claims & Litigation Management Alliance, and the Defense Research Institute. Mr. Lowe has been named an Illinois Super Lawyers Rising Star. He received his B.A. from the University of Pittsburgh and his J.D. from Northwestern University.
- James F. Maruna
James F. Maruna
James F. Marunais a Partner at Cassiday Schade LLP in Chicago, where he concentrates his practice in insurance, civil rights litigation and correctional healthcare, and appeals. He is a member of the Illinois State Bar Association. Mr. Maruna received his B.A. from Tulane University and his J.D. cum laude, Order of Barristers, from the DePaul University College of Law, where he served as a research writer for the DePaul Business and Commercial Law Journal and received CALI Excellence Awards in Legal Writing III, Pre-Trial Civil Litigation Drafting, Litigation Lab, and School Law.
- Andrew G. May
Andrew G. May
Andrew G. May is a Partner at Neal, Gerber & Eisenberg LLP, in Chicago, where he focuses his practice on commercial litigation and insurance coverage. May has been featured in the Chicago Daily Law Bulletin’s 40 Under Forty to Watch. He earned his B.S. from Colgate University and his J.D. from Northwestern Pritzker School of Law.
- Gustavo A. Otalvora
Gustavo A. Otalvora
Gustavo A. Otalvora is a Partner at BatesCarey LLP in Chicago, where he focuses his practice on complex coverage litigation, claims analysis, and claims resolution, representing insurers at the pretrial, trial, and appellate stages in a wide range of coverage matters. He is a member of DRI and the Hispanic Lawyers Association of Illinois. Mr. Otalvora received his B.A. from the University of Illinois at Urbana-Champaign and his J.D. from the University of Illinois College of Law.
- Allyson C. Spacht
Allyson C. Spacht
Allyson C. Spacht is a Partner at BatesCarey LLP in Chicago, where she focuses her practice on insurance coverage and litigation. She has been recognized by Illinois Best Lawyers’ “Ones to Watch.” Ms. Spacht received her B.B.A. cum laude from University of Notre Dame and her J.D. magna cum laude from the Notre Dame Law School.
- John E. Zulkey
John E. Zulkey
John E. Zulkey is Assistant Vice President of Complex Public Liability Claims at Westfield Specialty Insurance, where he focuses his practice on errors and omissions/cyber claims. He is a member of the Armadillo Club and a Past Chair of the Chicago Bar Association’s Civil Practice Committee. Mr. Zulkey is the author of Related Acts Provisions: Patterns Amidst the Chaos, 50 Val.U.L.Rev. 633 (2016). He received his JD magna cum laude from the University of Illinois College of Law.
Insurance Law 2023 Edition
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