Insurance - The Elephant in the Room in Professional Liability Mediation
In the preparation for and participation in mediation, it is imperative that counsel, both for plaintiffs and defendants, be conscious of the critical role insurance has in resolving any liability matter. Personal (e.g. auto, homeowners) and commercial (e.g. CGL, professional liability) insurance policies impose on the insurer the “duty to defend” any suit or claim under the policy. Coextensive with this is the carrier’s right to control this defense. This includes that the decision to settle rests exclusively with the carrier. The exceptions to this are professional liability policies (medical, legal). These policies universally include a “consent to settle” clause, which provides that the carrier will not settle any suit or claim without the consent of the insured. This often results in personal counsel for the insured participating in the med...