Blown coverage, as every football fan knows, has cost many a game. What defense lawyers need to understand, though, is that failing to work out solvable coverage issues among themselves has kneecapped many a mediation.
Last year, I mediated a pedestrian/car accident with very serious injuries. At the end of the four-hour session, the two insurers, one for the driver and the other for the car owner, had spent all their bullets shooting at each other. They argued over who was going to pay what, each citing non-binding authority about whose policy paid first. Plaintiff’s counsel was fuming. Luckily, though, after advising both defense attorneys to work out their contribution issues among themselves over the next few weeks, I convinced plaintiff’s counsel to give mediation another go.
Shockingly, despite my admonitions, for three of the four hours allotted to the second mediation, the carriers still were still quarreling over their respective contributions. Plaintiff’s counsel was on the verge of abandoning ship. I sat down both defense counsel and their claim reps and reminded both parties of two simple facts: (1) the injuries were catastrophic and (2) trial was just two weeks off. These two facts, considered in the context of the lack of binding caselaw to resolve the contribution issue, screamed out for a pragmatic resolution. Finally, after giving the carriers a little private time, they agreed to a split of liability.
To move things along, I put a number on the case. Plaintiff accepted my number that evening after hours and the carriers accepted my number the next day. The result could have been very different. Had the plaintiff walked out, the mediation would have been an abject waste of time and money, and for none more than the two carriers. Had the case proceeded to verdict with a large number, the carriers would have paid not only the fees and costs of the underlying trial, but also a coverage trial and likely a coverage appeal as well.
In sum, try to resolve simple coverage issues between two or more carriers, if possible, before mediation. Otherwise, instead of working to settle the case with the plaintiff, you will only siphon the mediator’s attention and energy into your coverage quarrel with other defense counsel. Doing so would be like running a quarterback sneak on third down and thirty. And that is how games, and mediations, are lost.
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