Frequently our firm is asked to represent parties against whom claims have been made, either defendants in a law suit or recipients of a demand for payment pre-litigation.
It’s easy to just dive in and either respond to a demand letter or to defend such a suit, but that impulsive response can unnecessarily cost the client money.
One question that should be addressed early in the engagement is: Are their insurers or indemnitors who might cover the cost of the claim and/or the cost of the defense of the claim?
Almost all individuals and businesses maintain insurance policies of some sort such as property and casualty insurance (property and auto) or public liability insurance. Some individuals and businesses will also have a variety of specialty insurance policies such as professional liability (i.e., malpractice) insurance, title insurance and fiduciary coverage. These all are contractual arrangements whereby the risk for many typical occurrences in personal and business life that give rise to claims and suits are shifted to an insurance company — both the underlying claim and the attorneys fees associated with defending the claim.
In addition, the client may have a variety of contractual relationships that transfer the risk to a third party (not an insurance company). Commercial leases, for example, many times contain risk-shifting provisions for various occurrences (both shifting risk from landlord to tenant and from tenant to landlord). Employers frequently cover claims against their employees.
In addition to contractual relationships that give rise to indemnity claims, the positioning or actions of parties can cause risk-shifting as well. For example, if someone borrows your car and wrecks it, injuring others, or if someone trespasses on your property and causes damage to property or injury to person, those third parties can be responsible to the client and the claimant for the costs of the claim and its defense.
An aggressive and creative attorney will — near the outset of the relationship — thoroughly explore insurance and indemnity issues so as to minimize or eliminate costs to the client — costs of both the attorneys fees to defend the claim as well as the costs of the substantive claim itself.
The idea is not for the attorney to make money — but rather to maximize the value to the client by retaining our firm. If we can shift the risk near the beginning of the relationship to an insurer or indemnity, we have provided that value. We have “made a difference” for our client!
Read here one example where we made a difference for a client whose prior counsel had failed to advise him of insurance and indemnity issues in a defamation claim.