Be Nice; Then Follow the Money
If I were allowed to give only two pieces of gratuitous advice to every lawyer and business person in 2008, they would have to be as follows:
1. if you think an insurance policy * will not indemnify you or your client against a particular loss or provide a defense to a legal action, you haven't thought deeply enough unless you have, at a minimum:
- researched the law pertaining to the pertinent policy language in the jurisdiction in which the loss occurred or suit was brought;
- painstakingly compared the law in that jurisdiction to the precise language contained in the insurance policy;
- researched the most recent case law in that jurisdiction pertaining to burdens of proof on potentially applicable exclusions and exceptions thereto;
- distinguished apparently negative case law that is actually dictum;
- creatively considered all of the ways in which you might bring the loss or potential liability within the terms of the policy, focusing on the fact that nearly every jurisdiction will require the court to interpret the policy broadly in favor of the "insured's objectively reasonable expectations of coverage" and will -- unless you have the bargaining power of Exxon -- construe all ambiguities against the carrier;
- investigated and determined whether you or your client are named as "additional insureds" by the policy of another; and,
- consulted with a policy holder insurance recovery specialist -- I understand that this attorney -- Stephen N. Goldberg of Heller Ehrman -- who represented GMAC in the World Trade Center coverage action is one of the best in the country.
2. treat others as you would expect to be treated yourself (this is the conflict avoidance part)
OBJECT LESSON OF THE DAY
Two points worth noting for the health of any small city's fisc.
First, as Kingman resident and Plaintiff Travin Pennington is reported to have said, "communication and accountability, could have prevented a bill for  attorneys' fees that exceeded $40,000 following a seven-month battle with the city for e-mail records."
The Back Story?
In June, Pennington filed public records requests for thousands of pages of e-mail from then-City Manager Paul Beecher and two other employees. He said Beecher took him into the city hall parking lot, and instead of asking how to resolve the issue, Beecher allegedly made some comments that pushed Pennington to "the tipping point."
"I said, 'this guy's out of control. I'm going to take this guy to task,'" Pennington told the Miner. And he did. After the city failed to disclose more than 8,000 pages of e-mail whose contents the city claimed were personal, Pennington filed a lawsuit in the Mohave County Superior Court.
The Conflict Avoidance Point? Be civil; be responsible; be accountable; and if you fail, be willing to course correct.
But when civility, responsibility and accountability haven't worked, check your insurance coverage.
The Kingman story continues:
The city's insurance policy will cover much of the costs of the lawsuit, including the city's own attorneys' fees, which topped $32,000, according to City Attorney Carl Cooper.
Good work on the City's part in tracking down the necessary insurance coverage!
Resolution: Cutting the baby in half.
Pennington's attorneys offered $48,337.65 - 75 percent of the $64,448.50 in the plaintiff's total fees. The city came back with a $32,225 offer, and the two parties settled in the middle, at $40,281.30.
We mediators do try to generate solutions other than the one arising from the descriptive (not prescriptive) rule that any zero-sum negotiation will resolve half way between the first two reasonable offers.
The good news: you don't need a mediator to achieve this result. Even your fifth grader is capable of adding two numbers and dividing them by two.
Types of insurance include Automobile; Aviation; Boiler; Builder's risk; Business; Casualty; Credit; Mortgage; Crime; Crop; Workers'compensation; Directors and Officers Liability; Disability; Errors and Omissions; Expatriate; Fraternal; Financial loss; Fire; Hazard; Health; Kidnap and Ransom; Homeowners; Renters; Environmental Liability; Professional Liability; Locked Funds; Marine; Nuclear Incident; Pet; Political risk; Pollution; Prize Indemnity; Property; Protected Self-Insurance; Purchase Insurance; Stop-loss; Surety Bond; Terrorism; Title; Travel; Volcano; and, Workers' Compensation.
Thanks to Wikipedia for this ridiculously comprehensive list (see lay explanations there; always consult an attorney -- and if you are one -- always consult a coverage specialist).