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“Recent Developments Affecting Professionals’, Officers,’ and Directors’ Liability Insurance,” ABA Tort Trial and Insurance Practice Law Journal

April 23, 2018
Peter J. Biging

The year 2017 “included some particularly interesting and instructive rulings for directors and officers (D&O) liability insurance coverage practitioners,” writes Peter J. Biging, vice chair of the firm’s Professional Liability Practice Group, in the American Bar Association (ABA) Tort Trial and Insurance Practice Law Journal. In his article, Peter discusses “recent noteworthy court decisions and regulatory actions affecting the liability that a variety of professionals — including corporate directors and officers, architects and engineers, lawyers, accountants and auditors, and insurance agents and brokers — may incur to third parties or for which they may seek insurance coverage.” The article touches on legal developments specific to professionals such as:

  • Directors and Officers — Including courts’ divergent conclusions about coverage available for regulatory investigations and the application of the prior acts exclusion to post-policy claims purportedly arising out of pre-policy wrongful acts.
  • Architects, Engineers, and Design Professionals — Including whether and when they may be obligated to defend an owner, developer, or general contractor for that party’s own negligence, and whether they may escape liability for damages that are solely economic in nature under the “economic loss doctrine.”
  • Lawyers and Law Firms — Including an instance of dismissal for failure to adequately plead harm from the representation, as well as decisions regarding the discoverability of successor attorney files in malpractice cases.
  • Accountants — Including cases addressing the extent to which a non-party to an accounting agreement may seek damages from the accountant, the effect of state law on arbitrability, and whether engagement letters may contractually alter the applicable statutes of limitations.
  • Insurance Brokers and Agents — Including when a “special relationship” exists between a policyholder and its agent or broker that imposes fiduciary or similar duties on the agent or broker, the interplay of statutes of limitations with the policyholder’s duty to read its policy, and the grounds for a negligent misrepresentation claim by a broker against the underwriting insurance company.

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