Insurance Law and Litigation in Illinois and Missouri

Experienced attorneys for complex coverage issues in Illinois and Missouri

The lawyers at Hoagland, Fitzgerald & Pranaitis have for decades dealt with the tripartite relationship among insured, insurer, and the defense counsel retained by the insurer to represent the insured. In many instances, Hoagland, Fitzgerald & Pranaitis lawyers have been retained as coverage counsel, by insurance carriers both large and small, to sort through the maze of issues involved in questions of coverage.

Analysis of those issues begins with the recognition that the interests of the insured and the interests of the insurer do not always completely align with one another. In some instances, causes of action are brought against the insured, alleging both negligent conduct, for which insurance is provided, and intentional conduct, which cannot be insured against as a matter of Illinois public policy. Complicating the issue further is the fact that an insurer's duty to defend is typically greater than its duty to indemnify its insured. Hoagland, Fitzgerald & Pranaitis lawyers have decades of experience in reconciling those issues.

Multiple policies of insurance

Oftentimes there is more than one policy of insurance applicable to a particular claim. While standard policies typically have other insurance provisions intended to address such situations, the language of the multiple policies must be reconciled. Issues to consider include, but are not limited to:

• Which policy is primary and which is excess?
• Are the policies occurrence policies or claims-made policies?
• Has there been a targeted tender of defense, where the insured has tendered the defense to one carrier but not another?

Hoagland, Fitzgerald & Pranaitis lawyers have for many years dealt with such issues, advising some of the largest carriers, as well as insureds and local carriers, in how such issues should be reconciled. Where necessary, they have also both brought and defended declaratory judgment actions related to issues of insurance coverage.

Should an insurer file a declaratory judgment action?

The attorneys at Hoagland, Fitzgerald & Pranaitis recognize that one of the most difficult issues and insurance adjuster may face is whether to bring an affirmative declaratory judgment action, either following a denial of coverage or a decision to defend under a reservation of rights. The issue involves both legal and practical considerations, and the rules governing the declaratory judgment action vary significantly from jurisdiction to jurisdiction. While those considerations are complex where the carrier has made an actual denial of coverage, they often are even more complex where defense of the insured is being provided under a reservation of rights.

Often, coverage can be determined much faster than the resolution of the underlying case. In most instances, the duty to defend can be decided by summary judgment. In the declaratory judgment action, the court should decide as a matter of law whether the facts set out on the underlying Petition fall within the scope of coverage, or fit within an exclusioned coverage. Moreover, there are often procedural advantages provided to a carrier in being the plaintiff in a declaratory judgment action.

Oftentimes, a declaratory judgment can also protect the insurance carrier, if it subsequently decides to withdraw from the defense of the underlying case. It is difficult to argue that the carrier has acted unreasonably if the court has already agreed as a matter of law that there is no duty to defend.

Hoagland, Fitzgerald & Pranaitis attorneys have decades of experience in advising and representing carriers in matters where the duty to defend and the duty to indemnify are at issue.

The importance of local counsel in declaratory judgment actions

Standards and procedures governing declaratory judgment actions vary widely from jurisdiction to jurisdiction, from forum to forum and even from judge to judge. Local counsel with specific knowledge of local practice, specific motions or both is particularly important in declaratory judgment motion practice. Local counsel's assistance can be critical to planning strategy and making strategic decisions. Local counsel's knowledge of local courts and judges, local motion practice, local rules and local customs can be invaluable when considering whether to file a declaratory judgment suit. Local counsel's knowledge of the standards and procedures governing a particular motion is often also critical to realizing the advantages of seeking a declaratory judgment, such as reduced attorney's fees, minimal discovery and strategic advantage. Finally, local counsel can be critical to a carrier in obtaining credibility. Counsel who is known by judges, who is known by opposing counsel, and who knows the courts, the judges and other attorneys, often gives the insurer credibility it could not otherwise achieve.

Indemnity contracts and contracts to procure insurance

In many instances, such as circumstances involving general contractors and subcontractors, contracts provide for indemnity, and may or may not provide for a requirement to procure insurance. In many instances, indemnity provisions cannot be enforced because they violate public policy. In some instances, contracts to procure insurance may act as a valid substitute to an otherwise void indemnity agreement. Hoagland, Fitzgerald & Pranaitis attorneys have many years of experience and expertise in guiding clients through these complex areas.

Coverage disputes

Insurance policies are not written to cover every loss that occurs. We represent insurance companies when coverage disputes arise between the insurance company and an insured or a party claiming to be insured. Our attorneys analyze the relevant policy and formulate an opinion. These include claims for:

• Uninsured or underinsured motorists
• Flood claims
• Fire claims when arson is suspected
• Homeowner claims

Insurance coverage forums

In the state of Illinois, insurance coverage disputes of less than $50,000 and all uninsured and underinsured motorist claims are resolved at an arbitration. In the state of Missouri, insurance coverage disputes are resolved through litigation.

The goals of insurance coverage litigation

The primary goals of insurance coverage litigation, including declaratory judgment actions, are to minimize danger of loss, to provide a remedy to the insurer instead of waiting for the insured to take initiative, to avoid multiple suits, and to achieve a speedy and more economical resolution. In instances where a defense is being provided under a reservation of rights, the goal is to recognize the distinction between the interests of the insured, the insurer and the tripartite relationship among the insured, the insurer and defense counsel. Hoagland, Fitzgerald & Pranaitis attorneys have dealt with these issues many, many times over decades, and can assist you in effectively utilizing reservations of rights, declaratory judgment, or otherwise resolving insurance coverage disputes.

Quality representation.  Formidable litigators.  Ethical reputation.

Insurance carriers, self-insured companies, hospitals, professionals and others seeking high-quality legal defense are invited to call us at (618) 208-4380 to discuss representation.  Or, contact Hoagland, Fitzgerald & Pranaitis online.

Representative cases

Here are some representative cases handled by attorneys at Hoagland, Fitzgerald & Pranaitis:

• Fairchild Corporation v. Arrowpoint Capital—declaratory judgment related to insurance coverage for repetitive injuries having to do with pneumatic power tools—settled
• Henrigh v. Wallace—declaratory judgment related to allegations of intentional tort and punitive damages—issue had to do with insurance coverage and duty to defend—summary judgment granted
• Herr v. Rubbermaid—declaratory judgment action—summary judgment
• Indiana Gaming Company v. Centaur—declaratory judgment action related to sale of casino—summary judgment
• Jefferson Smurfit Corporation v. National Union Fire—summary judgment case related to duty to defend—summary judgment granted
• Western Temporary Services v. AIG—declaratory judgment action—tender of defense and indemnification accepted
• Shell v. AC&S—declaratory judgment action based on duty to defend—judgment granted for defendant, affirmed on appeal
• State Farm v. Simpson—declaratory judgment regarding scope of insurance—summary judgment granted
• McGrath & Associates v. Amerisure Insurance—declaratory judgment for defense and indemnification on construction injury lawsuit—summary judgment granted