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Erica Villanueva has extensive experience handling claims under a variety of insurance policies, including general liability, directors’ and officers’ liability, aviation, employment practices liability, property and business interruption policies.  She works with policyholders to ensure that their claims are properly presented to insurers, in order to obtain the maximum possible insurance recovery.  Ms. Villanueva advocates on behalf of her clients to resolve any coverage disputes that may arise during the course of a claim, taking a practical and proactive approach to negotiation with insurers.  In cases where a negotiated resolution is not possible, Ms. Villanueva litigates insurance coverage disputes.  She has substantial coverage litigation experience, both at the trial and appellate levels.

Defense counsel often assume that an insurer has a “duty” to fund any settlement opportunity their client wants to accept. The legal requirements under California law for triggering an insurer’s duty to settle are far more nuanced.  For non-insurance practitioners, this is often a confounding and confusing topic!  The fact is, an insurer doesn’t have a “duty to settle” a case simply because the defendant wants to do so, or because defense counsel recommends it.  And while a demand within the policy limits is essential, that isn’t the only required element.

I will moderate a Bar Association of San Francisco program on this subject on September 19. The panel will cover all the required elements necessary to trigger an insurer’s duty to settle, and provide helpful practice pointers for satisfying those elements.  We’ll also talk about consequences of the breach of the duty to settle.  The panelists will provide the defense counsel perspective, as well as perspectives from both sides of the insurance coverage bar. For program details and to register to attend, visit the BASF event page, here.

Blog-Image---attorney-clientOn October 6, the California Supreme Court heard oral argument in Los Angeles Board of Supervisors v. Superior Court, a case that we have blogged about twice in the past because of its possible impact on policyholders (see posts Submitting Your Defense Bills to Insurers Could Mean Waiving Privilege and California Supreme Court Will Review Appellate Decision Holding That Attorney Bills Are Privileged). On appeal, the Court will decide whether to affirm the California Court of Appeal’s decision that legal invoices sent to the County of Los Angeles by outside counsel are within the scope of attorney-client privilege and thus exempt from disclosure under the California Public Records Act. As this issue could have a major impact on policyholders’ ability to share defense bills with insurers, we attended the oral argument. Continue Reading California Supreme Court Leans in Favor of Treating Defense Bills as Privileged Communications

shutterstock_226730068_Insurance ChecklistErica Villanueva and Tyler Gerking will be presenting to the Association of Corporate Counsel (ACC) on September 14 (in San Francisco) and 15 (in Palo Alto) about private company D&O liability insurance, also known as management liability insurance. Below is a description of the program, which will touch on hot issues that many companies are dealing with right now. Use the links to view the event details and register online.

Private D&O Insurance:  Things You Should Know

September 14 – San Francisco

September 15 – Palo Alto

Companies are staying private longer and purchasing private company directors’ and officers’ liability (D&O) insurance, sometimes known as “Management Liability” insurance. When it comes to D&O coverage, most private companies focus on two things: obtaining it, and keeping the premium low. When a company faces a claim, however, it discovers there is much more complexity to private D&O insurance, and often broader coverage than a public company D&O policy. Accessing and maximizing the available coverage may require a concerted, strategic effort on the part of  the company,  its insurance broker, and  insurance coverage counsel. This program will cover:

  • Key features of management liability policies
  • Common exclusions and limitations
  • The practical impact of certain clauses – and widely-available coverage enhancements that can mitigate these impacts
  • Implications of common pitfalls and mistakes in reporting and managing claims’”

shutterstock_113739760-Protection Level HighDirectors’ and officers’ liability insurance is a key resource for funding defense and settlement of claims without depleting the insureds’ assets. Private company D&O insurance, in particular, can provide exceptionally broad coverage to the company, its individual directors, officers, and sometimes even employees against shareholder litigation and derivative actions, criminal and regulatory investigations, and other business litigation claims based on negligence or breach of duty theories.

This article I wrote for VC-List presents guidelines and key policy features to ensure that the PC’s insurance provides meaningful protection to the board members and the private equity or venture capital firm.

You can read the full article on VC-List‘s website.  Click here.

 

When a venture capital or private equity firm invests in a portfolio company (PC) and places a general partner on the PC’s board, they typically require that the PC agree to defend and indemnify the board member in any litigation arising out of their board service, and to purchase directors’ and officers’ liability insurance. However, the D&O insurance requirements are typically quite vague, and some firms may be surprised to learn of key gaps in the PC’s coverage. These gaps are usually discovered when the VC/PE firm needs the coverage most – i.e., after a lawsuit has been filed, naming their board member as a defendant. Here are two examples I’ve come across in representing venture capital and private equity firms: Continue Reading Do You Know What’s In Your Portfolio Company’s D&O Insurance?

When a new company moves to secure funding and formalize operations, insurance is often an afterthought. But with a bit of effort, emerging companies can obtain strong insurance protection, maximize their existing coverage, and make themselves more attractive to future investors and other partners. Emerging companies should focus in particular on commercial general liability, data privacy and cyber liability, errors and omissions liability, directors’ and officers’ liability (D&O) and, depending on the number of employees, fiduciary liability and employment practices liability policies. An effective risk management strategy will also depend on strong external support from insurance brokers and counsel.

In the article 5 Insurance Tips for Emerging Companies published by Risk Management, I discuss five best practices for getting started on an insurance program.

I co-moderated a panel discussion at the Bar Association of San Francisco entitled “Insurance Issues In The Sharing Economy.” We had a lively and informative panel discussion between Kate Sampson, Managing Director at Marsh Risk & Insurance Services (and former VP of Insurance Solutions at Lyft), Chris Shultz of the California Department of Insurance, and Dan Wade of United Policyholders, a consumer advocacy group. Continue Reading Insurance Issues in the Sharing Economy

On Wednesday, September 30, from 12:00 to 1:30 pm I will be co-moderating a panel discussion on insurance issues that arise in the context of mediating complex civil cases. Panelists will include Hon. William Bettinelli (Ret.), mediator at JAMS, and Daniel Purcell, Partner at Keker & Van Nest. The panel will be held at the Bar Association of San Francisco (301 Battery Street, Third Floor, San Francisco, CA). Click here for more information and to register.

In June, I blogged about County of Los Angeles Board of Supervisors v. Superior Court, 235 Cal. App. 4th 1154 (2015). In that case, the California Court of Appeal (Second Appellate District) concluded that legal defense bills qualified as privileged attorney-client communications, and therefore need not be produced in response to a California Public Records Act request. I noted that the case could have major implications for the insurer-policyholder relationship, particularly whether and/or when an insured could feel comfortable submitting defense bills to an insurer. The California Supreme Court has now granted review in the case. The ultimate pronouncement from the Supreme Court will likely provide useful guidance for insurers and policyholders alike regarding the appropriate treatment of defense counsel invoices.

Related post: Submitting Your Defense Bills to Insurers Could Mean Waiving Privilege

Recently, the California Court of Appeal decided County of Los Angeles Board of Supervisors v. Superior Court, 235 Cal. App. 4th 1154 (2015), a case considering whether the Los Angeles County Sheriff's Department could be required to produce legal defense bills in response to a California Public Records Act request.  While not an insurance case, the case could have implications for a common practice in the insurance context: submitting defense bills to the insurer.

The Board of Supervisors court held that attorney billing statements are “confidential communications” within the meaning of California Evidence Code Section 952, and therefore their production could not be compelled.  Significantly, the court held that the LA County Sheriff could not be required to simply redact portions of the attorney time descriptions that reflected attorney opinions or advice.  Indeed, the court concluded that a communication between attorney and client, arising in the course of representation for which the client sought legal advice, need not include “legal opinion or advice” at all in order to qualify as a privileged communication.  Because the bills were, by definition, an attorney-client communication, they were privileged in their entirety.

This new ruling presents a conundrum for California insureds.  An insurance company that is footing the bill for the defense of a lawsuit will of course demand to see the bills, and as a practical matter it is unrealistic to expect that the insurer will pay them without being able to review the descriptions.  In situations where the insurer is defending without a reservation of rights, the insured's and the insurer's interests are completely aligned and the two are effectively joint clients.  But by providing the defense bills to an insurer who has reserved its right to deny coverage – or who has not yet taken a coverage position at all – is the insured waiving privilege?  If the plaintiff in the underlying lawsuit demands that the insured produce “all communications with its insurer,” could the insured then be required to produce its legal bills to plaintiff?

Continue Reading Submitting Your Defense Bills to Insurers Could Mean Waiving Privilege