Diane L. Polscer – appointed Co-Chair of the Extracontractual and Bad-Faith Liability Committee of the American College of Coverage and Extracontractual Counsel (ACCEC)

Diane Polscer has been appointed Co-Chair of the Extracontractual and Bad-Faith Claims Liability Committee of the American College of Coverage and Extracontractual Counsel (ACCEC). ACCEC, established in 2012, is composed of preeminent coverage and extracontractual counsel in the United States and Canada, representing the interests of both insurers and policyholders. ACCEC is focused on the creative, ethical and efficient adjudication of insurance coverage and extracontractual disputes, peer-provided scholarship, professional coordination and the improvement of the relationship between and among its diverse members.

The Duty to Indemnify When The Insured Settles: Who Has The Burden of Proof?

When an insured’s liability is established at trial, the duty to indemnify is based on the facts proven at trial.  Ledford v. Gutoski, 319 Or. 397, 403, 877 P.2d 80, 84 (1994).  However, when the insured enters a settlement, the duty to indemnify is determined on the facts that form the basis for the settlement.  Bresee Homes, Inc. v. Farmers Ins. Exch., 353 Or. 112, 126, 293 P.3d 1036, 1044 (2012).  Unlike a trial, a settlement agreement may not be documented by a transcript of proceedings or pleadings.  Accordingly, determining coverage for liability incurred in a settlement can present a unique challenge, which raises the question of whose challenge it is.