In mediations involving personal injury claims, the issue about which parties seem to disagree the most vehemently is whether or not the defendant’s insurance policy is ‘open’ – making the insurance carrier responsible for all damages, even those that exceed policy limits. In almost every case, the insurance carrier believes that the policy is firmly closed, leaving the defendant on the hook for anything beyond the policy limits. In cases where the defendant’s policy limit is high and the plaintiff’s claimed losses are minimal, it isn’t even a discussion point during mediation. But if the plaintiff’s damages potentially exceed policy limits, this can become a major sticking point in settlement discussions because the insurance carrier understandably does not want to pay any amount over the policy limit. 

During this presentation, our PDG co-leader Anthony Khoury will go over case and statutory law to help guide mediators through this issue. He will also use two hypothetical scenarios, in which the open-or-closed policy question becomes central to the mediation, to highlight how the issue may present itself to mediators.