Breakfast

Premier Session I - There is More Than One Way to Mediate: Considerations for Improving Mediation Results

• Speakers:

• Christopher Butler, Bowhead Specialty Underwriters, Inc.

• Kelly Hopper Moore, Providence Healthcare

• Cathleen Rebar, Rebar Kelly

• Giulio Zanolla, Zanolla Mediation

This session will focus on how to structure the mediation process effectively for the most challenging cases. The panel will discuss elements of process design and impasse breaking techniques. 
 
The typical, straightforward mediation structure predicated on a shuttled bargaining dance aiming at bridging the gap between demands and offers can work when the parties are equally eager to settle their dispute in mediation, and the resistance to resolution is moderate.
 
However, more complex cases present nuanced issues, varied dynamics and peculiar obstacles to resolution. In such cases, parties may be recalcitrant to engage in the process with a real intent to resolve the matter at the mediation session, and it is critically important to approach the process strategically to prevent getting stuck early on in the mediation or being pushed to the limit without a foreseeable, realistic chance of achieving resolution. 
 
Mediation is a flexible process and it can be adapted to the particular challenges of each case. Some of the key elements of an effective process design and implementation that will be addressed in this session include: timing of the mediation, planning for the session (or multiple sessions), preparation steps, understanding leverage and develop process tools and techniques to overcome impasse.    
 

Break

Session 1 - Are Humans Becoming Obsolete: Robots, Drones, and 3D Printing

• Speakers:

• J. Thaddeus Eckenrode, Eckenrode-Bauman

• Constance Endelicato, Wood Smith Henning & Berman LLP

• Sherry Merber, Palms Insurance

• Courtney Young, Medmarc Ins. Group

Robots are being used to support, assist, and extend healthcare services. Although they are mostly known for their use in surgery, robots also are responsible for a 70% drop in hospital acquired infections with their fast and effective systematic disinfection of healthcare facilities. It is predicted that robots will replace humans completely in jobs of a repetitive nature. Similarly, drones are being used in lieu of humans for tasks such as transporting blood for transfusions or delivering medicine to rural areas. 3D printing (aka additive manufacturing) enables the construction of human tissue used for burn victims and organ prosthetics for those in need of transplants, again lessening the personnel required to provide healthcare. Such innovations are mandated by evidenced-based standards, yet there exits a pushback from healthcare clinicians who are fearful that such integration of technology will make their positions obsolete. This session will address the available technology, the legal requirements involved in providing evidence-based medicine, the potential risk exposure, and analysis of case law that suggests the failure to incorporate technology, even in the face of minority support, can constitute a breach of the standard of care. 

Takeaways:
--With the integration of innovative medical technology through the use of robots, drones, and 3D printing, the need for humans is decreased. 
--Application of enterprise risk management and evidence-based medicine principles are an effective way to determine whether providers can benefit from new technology. 
--When evidence-based medicine standards demonstrate benefits outweighing the risks, the Integration of medical technology is required.

Session 1 - Artificial Intelligence and the Practice of Law: What Does the Future Hold?

• Speakers:

• Erica Holzman, Beazley

• Jason Judovin, Munich Re Specialty Insurance

• Rinat B. Klier Erlich, Zelms Erlich & Mack

• Gary Strong, Gfeller Laurie LLP

What is artificial intelligence and how is it used in the day-to-day life of insureds? How has, and how will, AI change the way we underwrite businesses, manage claims, and practice law? This session will explore existing technologies and how to better prepare the insurance industry in a rapidly changing world.

Takeaways:
--Understanding the benefits of Artificial Intelligence as it applies to professionals and how a professional’s standard of care changes with use of Artificial Intelligence.
--Regulation of AI is important to protect customers who buy and use AI-enabled devices.  
--The increased reliance on AI will likely cause an increase of cyber-claims. 

Session 1 - As the Market Soars, So Do the Lawsuits: How Market Conditions Impact Real Estate Professional Liability Claims

• Speakers:

• Regan Katz, Wortham Insurance and Risk Management

• Alicia Kennon, Wood Smith Henning & Berman LLP

• Elizabeth O'Neill, AIG

• Dax Watson, Lipson Neilson P.C.

• Kelly Wylie, American National Insurance Company

America's real estate market is trending up and approaching pre-2008 levels. How does that impact real estate claims? This session will focus on claims that arise out of investment-related transactions like fix-and-flip, buy-and-hold, and investment partnerships that ultimately lead to claims citing poor workmanship, undisclosed defects, and non-permitted work all passed on to the real estate professionals involved in the transaction. The active real estate market also is leading to increased property management portfolios and VRBO type properties. This, too, leads to claims against the real estate professionals. Join us as we discuss how hot markets lead to increased claims and explore how the standard insurance policies for real estate professionals respond to such claims.

Session 1 - Indecent Exposure: The Erosion of Privity and Expanding Design Professional Liability

• Speakers:

• Lisa Black, Black Marjieh & Sanford LLP

• Margaret Donnell, Self Employed

• Mark Shifton, Gfeller Laurie LLP

In the 2014 case of Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP, the Supreme Court of California held that, as a matter of first impression, an architect owed a duty to condominium unit owners even in the absence of privity of contract. This groundbreaking decision upended the traditional common-law rule that design professionals owe no duty of care to third-party beneficiaries. This panel presentation will discuss the erosion of the longstanding requirement of privity, starting with the Beacon case, and will discuss how, if the doctrine continues to expand, design professionals will face significantly increased exposure to both professional liability claims, as well as indemnity obligations. The presentation also will discuss how expanding indemnity obligations on the part of design professionals may impact insurance issues, such as whether increased indemnity obligations owed by a design professional may trigger an additional insured’s coverage under a professional liability policy, and, assuming the continued erosion of the common-law rule started by Beacon, how design professionals can better insulate themselves from the expansion of liability that accompanies the expansion of their duty of care.  

Takeaways:
--Examine design professional contracts and consider revision to clearly outline duties and responsibilities and intent of parties to avoid court creating a duty where no privity existed.
--Require indemnity and Additional Insured requirements in down the chain contracts to protect design professionals.
--“Strategery?” Insist on Defense counsel examining efficient and direct resolution strategies.

Lunch

Session 2 - Confessions of a Malpracticing Lawyer or How I Learned to Stop Worrying and Love the Law

• Speakers:

• Michele Gottfried, Beazley

• Mitchell Orpett, Tribler Orpett & Meyer, P.C.

• Kim Quarles, WTW

• Elizabeth Whitney, Swiss Re

Most lawyers and insurance professionals would be shocked to learn how often lawyers are guilty of acts of malpractice. This panel will uncover and discuss the many surprising ways in which lawyers subject themselves to potential liability and damages, and will explore the hidden, and typically unspoken, dangers confronted in the everyday practice of law, looking at issues such as the use and abuse of engagement letters, conflicts of interest, cyber risk and data management, and the resurgent concerns of sexual harassment and protected class discrimination. What can firms do to protect against malpractice in these and other areas?  How can claims arising out of these practices best be prevented and defended?  What unique legal issues do they pose and how big will the verdicts be?  This session will help us confess our past misdeeds, prevent future trouble, and teach us how we can stop worrying about malpractice and learn to love the practice of law.

Takeaways:
--Acts of legal malpractice are more common in the everyday practice of law than we think. We are ignoring liability hazards at our own peril, making claims against us more likely and difficult to defend and are unnecessarily jeopardizing our work, our insurance coverage, and our reputations.
 --The use and abuse of engagement letters and how we deal with potential and actual conflicts of interest both represent longstanding risks to law firms and present areas of great potential exposure. Nevertheless, lawyers and law firms overall still devote little attention to ensuring that their practices and procedures are sufficient and meet a lawyer’s standard of care.
 --New risks to lawyers are emerging in the areas of cyber, data management, electronic and wire transactions, and artificial intelligence. Legal standards are developing that will establish our duty of care. The wise lawyer will learn about these risks now and take appropriate steps to guard against breaching those still-emerging duties.
 

Session 2 - Current Issues Regarding Dual Agency and Conflicts of Interest for Real Estate Professionals

• Speakers:

• Vin Catania, AXA XL

• Laura Foster, Sompo International Insurance

• Philip Grennan, Wood Smith Henning & Berman LLP

• Aisling Jumper, Fair American Insurance and Reinsurance Company

Because of the inherent potential for conflicts of interest when a real estate agent or broker acts as a dual agent in a transaction, care must be taken to prevent and/or limit exposure by the agent and broker in these types of transactions. Given the evolving legal and fiduciary duties with respect to dual agent transactions, various states are addressing those issues through both statutory and case law decisions. This presentation will address current trends, including best practices when handling dual agency matters, and present ideas and group discussions with respect to legal advice when counseling real estate professionals.

Takeaways:

Session 2 - Effective Tactics for Handling Harassment Claims Involving Executives: The First 48 Hours

• Speakers:

• Adam Guttin, Starr Companies

• Robert Hellner, Wood Smith Henning & Berman LLP

• Jennifer Stancil, Beazley

• Monica Wahba, Suitsupply

This panel will discuss the emerging trends in handling executive-level harassment claims and the increasing early involvement of defense counsel. Panelists will place specific focus on the first 48 hours of handling, a critical period that often dictates what, if any, liability the employer will face. Topics will include how to optimize the role of defense counsel and claim handlers, as well as perfecting best practices for investigations, data preservation, creating strong confidentiality agreements, tactics for imposing administrative leave, and effective options for transitioning out high-level and executive employees.

Takeaways:
--The initial 48 hours during the response to a harassment claim against an executive level employee is critical, and the steps taken during that time can impact liability issues, spoliation and overall valuation of a potential claim in the future.  
--In light of the current climate and movements such as #MeToo, companies are taking a more pro-active approach to handling executive liability matters. For instance, best practices now may include within the first 48 hours establishing a response team, defining roles on the team, bench marks for each team member, ensuring internal investigations are prioritized and avoiding negative impacts on company culture.  
--Statistics show that now 87% of Americans favor zero tolerance of harassment. Having a policy of zero tolerance in place, however, may not be enough unless the company takes immediate and decisive actions to investigate claims, implement corrective action and ensure that a hostile environment is resolved upon first notice.

Session 2 - Technology and Construction in the Age of the Integrated Project Delivery

• Speakers:

• Alex Niederman, Amerisure Mutual Insurance Company

• Fred Perez, McLarens

• Fredric Trester, Manning & Kass, Ellrod, Ramirez, Trester LLP

• Gwen Weisberg, Donovan Hatem LLP

The panel will explain the basics of one of the most common types of integrated project delivery, i.e., the design-build process. It will discuss the positives and negatives of design-build including but not limited to the financial risks, liability, important contractual provisions, and insurance concerns. In connection therewith, the panel will also discuss the effects of technology on the design-build process including but not limited to task management software, advancements in Building Information Modeling, use of drones, and as a corollary the various advantages and disadvantages faced by design professionals in connection with technological advances in an integrated project delivery situation.     

Break

Session 3 - Exploring the Defense Arsenal: How to Attack Damages in Professional Malpractice and Catastrophic Injury Cases

• Speakers:

• Daniel Fallon, Tyson & Mendes LLP

• Brian Hoffman, Wood Smith Henning & Berman LLP

• Kelly Hopper Moore, Providence Healthcare

Many professional malpractice defendants refuse to introduce a defense number to a jury and accept any responsibility for fear of conceding liability. In reality, giving the jury a number and accepting responsibility can be powerful tools to mitigate damages to avoid runaway jury verdicts without ever stipulating liability. This session equips participants with concrete strategies on how to effectively position cases set for trial to win over the jury. This diverse panel with expertise in significant personal injury damages cases, professional liability claims, defense valuations, and high exposure trials will guide an interactive session exploring these and more novel trial tactics. The topics discussed will include: common elements of exaggerated special damages, discovery tools to use in arguing emotional distress, and tactics to reduce and often eliminate artificially enhanced general and special damages. In addition, attendees will learn how to develop defense themes at the claims stage and prior to trial that will minimize chances of a runaway jury verdict, and how to use effective strategies such as giving a number and taking responsibility. Lastly, attendees will walk away with strategies to take advantage of the political makeup of their relative jurisdictions. The session will be interactive, challenging, and informative for senior level claims and risk professionals, litigation managers, and attorneys.

Takeaways:
--Of all emotions, anger is the most dangerous amongst jurors. 
--Giving the jury a number and accepting responsibility can be powerful tools to mitigate damages to avoid runaway jury verdicts without ever stipulating liability. 
--Noneconomic damages are the biggest element of every runaway jury verdict. Your defense counsel must be able to argue noneconomic damages even when seeking a defense verdict.

Session 3 - Issues in Managing Current High Profile Claims Under EPL, Cyber, and Professional Liability Policies

• Speakers:

• Kenneth Cesta, Carlton Fields

• Anne Marie Davine, Integro USA Inc.

• Reed Kleinle, Chubb

• David Spear, CNA Insurance

Reports of substantial company-wide hostile work environment claims and settlements, recurring technology and data breaches, and privacy violation claims under statutes such as the Biometric Protection Privacy Act (BIPA) are common place. Often, the nature and magnitude of these claims and the potential exposure they bring will trigger coverage and claims management issues that may not be present in other claims. Join us as we explore some of the current high profile claims, how these types of claims might be managed, and the unique issues they can create for insurers. Panelists will address issues surrounding relatedness of claims, allocation of covered and uncovered losses, and notice, all of which can impact these types of claims. Particular attention will be devoted to claims management issues when dealing with a real time cyber breach and the time sensitive issues that insureds are facing as a result of the incident as well as how they can affect claims management. 

Takeaways: 
--Careful evaluation of the facts alleged in the initial claim or legal action is critical to determine if the allegations could trigger coverage under multiples lines of insurance. 
--Recent claims alleging prolonged misconduct in the workplace or a series of cyber-related or privacy breaches may necessitate careful consideration of potential exclusions such as prior knowledge, relatedness and intentional acts.   
?--Aggressive claims management of “higher profile” claims from inception of the claim will benefit both the insured and insurer. 

Session 3 - Liability and Exposure of Lawyers to Claims Asserted by Third Parties

• Speakers:

• Scott Ammer, ECC Insurance Brokers

• Jody Cappello, Freeman Mathis & Gary, LLP

• Joseph LoParrino, AM Trust North America

In recent years we have noticed an increase in claims by third parties against lawyers. Particularly, we have seen claims by losing plaintiffs who sue defense counsel alleging that such counsel took advantage of their counsel in an underlying action, claims by beneficiaries of estates against lawyers who drafted testamentary documents, and claims by parties to divorce proceedings against the lawyers representing the other side of the divorce. The panel will explore this area of legal malpractice claims and discuss the parameters of, and defenses to, such claims, the ramifications to insurance coverage, and the impact of such claims on underwriting.

Takeaways:
--The scope of claims being brought against by non-clients’ attorneys is expanding. Courts are allowing more and more parties outside of the attorney-client relationship to proceed with claims against attorneys. 
--Claims against attorneys by non-clients come in many forms and include more than just negligence. Such claims can include abuse of process, vexatious litigation, malicious prosecution, negligent misrepresentation, aiding and abetting breach of fiduciary duty and negligent and intentional infliction of emotional distress. 
--Attorneys must specifically and in writing identify the individual or entity which is the “client.” Then the attorney must be diligent in taking steps to avoid potential claims by non-parties through thorough documentation, communication and diligence with clients and non-clients alike. 
--Attorneys cannot simply rely on the fact that they provided sound advice to their client; they must take affirmative steps to protect themselves from the expanding scope of individuals who can attack the attorney’s conduct. 

Session 3 - Reptile Theory in Employment Cases

• Speakers:

• Sarah Couillard, Markel

• Crystal Ivy, AmTrust Group

• Nicole Rhoades, Davis Rothwell Earle & Xóchihua P.C.

• Stephanie Rojo, Thompson, Coe, Cousins & Irons LLP

The Reptile Theory is currently being successfully used by plaintiff's lawyers around the country to obtain large damage verdicts by pulling at the jury's sense of safety. The Reptile Theory can and is being used in employment cases. Join us as we discuss how defense lawyers should be preparing witnesses and their defense strategy in order to combat this technique when managing EPL cases. 

Takeaways:
--Attorneys and claims handlers will learn to recognize when Reptile Theory is being used against their clients/insureds, specific to employment litigation. 
--They will learn how to effectively prepare witnesses for depositions and how to effectively respond to written discovery written in such a way to utilize Reptile Theory in employment cases. 
--They will be provided techniques for use at trial and in pre-trial to combat use of Reptile Theory against their employer clients/insureds.

Break

Session 4 - Paradise Lost: Challenges to Confidentiality and Privilege In the Use of Technology Post-Paradise Papers

• Speakers:

• Irwin R. Kramer, Kramer & Connolly

• Shari Claire Lewis, Self Employed

• David Rock, Trium Cyber

• Barbara Serafini, GB Specialty (Division of Gallagher Bassett)

Attorney-client privilege  is said to have been brought over from early English common law. As a result, lawyers have well-established legal and ethical duties to protect their clients’ information from unauthorized disclosure.  However,  computer hackers and disgruntled ex-employees were certainly not a consideration in pre-Colonial common law. In 2017, the “Paradise Papers” like the “Panama Papers” demonstrated the explosive impact that a law firm data breach can cause to clients’ financial, personal, and political interests. But the risk is not limited to clients that are multi-nationals or government officials. In the digital age, at last one in four U.S. law firms has been the victim of cyber-breach. Even more have been subject to cyber-intrusion. Technology in the practice creates new challenges to attorney-client relationship. In this session, panelists will discuss recent data breaches and the latest trends in malware that lawyers can anticipate will be used against them in the coming year. The session also will address recent legal and ethical decisions discussing a lawyer’s responsibilities to protect their clients’ data and the repercussions if the lawyer fails to do so. The interplay of cyber and E&O coverage to address these risks will be explored. 

Takeaways:
--Lawyers’ legal and ethical responsibilities to safeguard their clients’ confidential and private information are being undermined by the onslaught of malicious malware and the negligent use of pervasive technology in the practice of law. 
--A lawyer’s loss of privileged, confidential or private client information, whether as a result of negligence or malicious interference, may be a violation of the lawyer’s ethical obligations and/or lead to malpractice, breach of privacy or other claims for damages.    
--In the event of a claim, there may be interplay between error and omissions coverage and cyber insurance depending on the nature of the claim asserted and the language of the specific policies.

Session 4 - Resolving Complex Insurance Coverage Disputes Via ADR

• Speakers:

• Anthony Burrows, Sompo International Insurance

• David Levesque, Allied World

• Maurice Pesso, Kennedys

• Giulio Zanolla, Zanolla Mediation

Learn from industry professionals the most effective methods to resolve insurance coverage disputes via mediation and/or arbitration. In this session, panelists will present claims scenarios, resolution strategies, and practical tips to deal with the most complex insurance coverage disputes under professional liability policies and other major lines of business.

Takeaways:
--Mediation is a fluid process and presents many different inflection points where an insurer and policyholder can resolve their disputes in a more informal way short of litigation.  
--Mediation is not a one-size-fits-all approach. There are many different strategies that an insurer and policyholder can use to bridge the gap and resolve their disputes in cost efficient ways.   
--Do not enter into a mediation lightly. The more work you do before the mediation to understand your position, evaluate risk factors and how the other side views the disputes, the better likelihood that the mediation day will be productive. Prepare, Prepare, Prepare.

Session 4 - Sexual Harassment Front and Center: Harvey, Spacey, and Louis C.K. Exposed!

• Speakers:

• Jeff Mokotoff, FordHarrison, LLP

• Erin Ringbloom, Allied World

• Lisa Unger , Self Employed

• Kelly Waters, Unknown

• Brian Weeks, Bullivant Houser Bailey, PC

This panel will discuss the impact of high profile celebrities and public figures who have abused their power with little or no repercussion. From the Hollywood film producers to comedians to politicians, the abuse of power has known no limits. These individuals have engaged in acts of sexual misconduct and abuse that has crossed all lines of morality from a professional and an ethical standpoint. However, the recent exposure of such horrid widespread behavior has put many companies and clients/insureds at risk. Undoubtedly, the flood gates have been opened and it is anticipated that there will continue to be a surge in the number of sexual harassment claims in the workplace. This panel of seasoned industry experts will address some of the issues facing the defense of claims that are seemingly stale and legal considerations such as status of limitations, as well as coverage issues due to intentional or criminal acts.

Session 4 - The Critical First 100 Days in the Evaluation and Litigation of Long Term Care and Assisted Living Facilities Cases

• Speakers:

• James Connors, Lewis Johs Avallone Aviles, LLP

• Alona Croteau, Berkley Management Protection

• Shannan Smith, Lockton Companies, LLC

The aging population is exploding and with it are claims arising out of nursing home care and assisted living facility supervision.  Whether measured from the first request for records or service of the Complaint, the first 100 days of investigation, evaluation, and litigation are critical to evaluating potential exposure, avenues for resolution, and/or defense strategy. The profound issues limiting the defensibility of these facilities do not improve with protracted litigation. The goal is to provide defense counsel and claims administrators with the tools to quickly identify problem cases and develop the tactics and strategy to bring them to an optimum conclusion with minimal expense. In this session we will explore the critical factors that need to be identified, explored, and developed in order to make an accurate and efficient decision regarding the decision to defend or settle from both the claims administration and defense counsel perspective. Speakers will address the issues concerning documentation, critical witness identification and evaluation, administrative governance, policies and procedures, prior litigation, and government licensing at the target facility.  

Takeaways:
--The early evaluation of critical documents and witnesses can provide a reliable assessment of defensibility in matters involving nursing homes and assisted living residences. 
--Armed with an accurate assessment of defensibility, defense counsel and claims adjusters can formulate a dynamic resolution strategy commensurate with the realities of an Aging Services Claim.    
--The defensibility of nursing home liability cases decreases with protracted litigation.