12 Onstream Claims-made versus occurrence coverage: How about some of each? By Jennifer E. Michel & Tabitha R. Durbin, Partners, Lewis Brisbois Bisgaard & Smith LLP Lafayette Louisiana US Jennifer Michel Partner, Lewis Brisbois Bisgaard & Smith LLP, Lafayette Louisiana US – Jennifer Michel has drafted, negotiated and litigated contract and coverage issues for much of her career. She has represented insurers, including London market insurers, in these areas and in first party property disputes, both offshore and land based. She headed the Contracts & Coverage Practice Group at a local defense firm before joining Lewis Brisbois. She is admitted to practice in the state Courts of both Louisiana and Texas, the Federal District Courts of the Eastern, Middle and Western Districts of Louisiana and the Southern District of Texas, the United States Fifth Circuit Court of Appeals and the United States Supreme Court. Jennifer earned her Juris Doctor from Louisiana State University in 1987. What is the first thing one does when a new claim is presented? Open a file. Simple, right? Perhaps if you have an occurrence based policy, but what if it is claimsmade? Something as simple as getting the claim opened under the correct policy can be confoundingly complex when claims-made policies are involved. All questions are not necessarily resolved once the correct policy is chosen, however. Identifying in advance issues created by utilization of claims-made forms, especially when they intersect with occurrence forms in the placement of multiple layers of coverage, can make the claims handling process considerably less problematical. The following notes some of the points to be considered before they become potentially troublesome. Triggering coverage: What is a claim and which policy period is invoked? Subject, of course, to the express language of the relevant contracts, claims-made coverage generally extends coverage only to those claims first made against the insured during the policy period. This coverage differs from occurrence coverage, the form traditionally most commonly used for liability insurance, which (again, subject to the language of the relevant contract) covers claims arising out of occurrences happening within the policy period, regardless of when the claim is later made. One of the first issues to arise in assessing coverage under a claims-made policy is determining whether coverage has been triggered, and if so, which policy period is invoked. In the case of a lawsuit, the analysis can be a simple one. There is usually no question that coverage is triggered by the filing of a lawsuit against an insured. The policy period invoked is the one in effect on the date the suit is filed. However, claims-made policies can be triggered by other events which precede the filing of an actual lawsuit. For Tabitha Durbin Partner, Lewis Brisbois Bisgaard & Smith LLP, Lafayette Louisiana US – Upon graduation from law school at Louisiana State University, Tabitha Durbin worked for eight years as an associate and then partner in the Contracts & Coverage Practice Group of a local defense firm before joining Lewis Brisbois. She specializes in insurance coverage and bad faith – first party and third party; admiralty, marine and energy matters – wrongful death, personal injury and property damage; appellate advocacy; construction defects and products liability; contractual indemnity and insurance; and drafting, negotiation and interpretation of oilfield service contracts. © 2013 Xchanging