Establishing intent to sue before defendant gets legal insurance

[dtronvig]

I'm preparing a libel suit against a 501(c)(3). They have a sense that it's coming, and I have heard that they are considering getting legal insurance -- if that's the right term -- and that might happen pretty quick. Correct me if I'm wrong, but I would assume that it would be to my advantage to initiate the case before it's covered under their insurance policy. I'm hoping that faced with the prospect of the organization having to pay legal expenses they'll be better motivated to settle.

The question is essentially what determines whether the case will be covered by the insurance they haven't purchased yet. I expect that I can get an attorney to send out a demand letter within about a week, but I want to be sure that the case gets in under the wire if they get insurance in the next few days.

So from the insurance company's point of view, what determines whether a case falls within the coverage period?Would it be the date when the libel commenced or the date when a demand letter was received? If the latter, should I send something like a Preliminary Intent To Sue right away, to be sure the case is considered to have been initiated before their insurance kicks in? The damage to me continues to accumulate until they disavow their allegations, so I would hope that any ongoing damage from the initial libel will not become covered by their insurance.

I just reached a substantial settlement of a personal injury claim entirely pro se, so I now have a fairly good sense of civil process, given a good template. If I need kind of a placeholder letter, I think I could compose a pretty open-ended preliminary demand letter that wouldn't undercut any claim my attorney might make.

This is all happening in Oregon, if that might make any difference.

 

[Taxing Matters]

Frankly I would not get all that hung up on whether or not they get that insurance and when. That is not under your control and isn't likely to materially affect the outcome of your litigation. While policies differ, generally they will not cover the cost of litigation for events that occurred prior to getting the policy.

 

[quincy]

I'm preparing a libel suit against a 501(c)(3). They have a sense that it's coming, and I have heard that they are considering getting legal insurance -- if that's the right term -- and that might happen pretty quick. Correct me if I'm wrong, but I would assume that it would be to my advantage to initiate the case before it's covered under their insurance policy. I'm hoping that faced with the prospect of the organization having to pay legal expenses they'll be better motivated to settle.

It is probably better for you if the organization is insured (and that it has insurance enough to cover the damages you are claiming). Being awarded damages in a lawsuit doesn't mean much if you cannot collect on them.

The question is essentially what determines whether the case will be covered by the insurance they haven't purchased yet. I expect that I can get an attorney to send out a demand letter within about a week, but I want to be sure that the case gets in under the wire if they get insurance in the next few days.

I don't quite understand your question but you should benefit if the organization is insured. If the organization isn't insured when you initiate your suit, a policy obtained by the organization later will not help them (or you).

If you are hoping to settle with the organization rather than go to trial, I suggest you have your attorney draft a demand letter, prepare to negotiate a settlement, and prepare to go to trial if a settlement can't be reached.

So from the insurance company's point of view, what determines whether a case falls within the coverage period?Would it be the date when the libel commenced or the date when a demand letter was received? If the latter, should I send something like a Preliminary Intent To Sue right away, to be sure the case is considered to have been initiated before their insurance kicks in? The damage to me continues to accumulate until they disavow their allegations, so I would hope that any ongoing damage from the initial libel will not become covered by their insurance.

Why exactly do you prefer that the organization not be insured?

There are different kinds of insurance policies, including policies that will cover claims that are made if the policy is in effect at the time of the filing of a claim, even if what gave rise to the claim occurred before the policy went into effect.

I just reached a substantial settlement of a personal injury claim entirely pro se, so I now have a fairly good sense of civil process, given a good template. If I need kind of a placeholder letter, I think I could compose a pretty open-ended preliminary demand letter that wouldn't undercut any claim my attorney might make.

I don't know what you mean by a "placeholder letter."

This is all happening in Oregon, if that might make any difference.

Yes, the state makes a difference. Laws vary by state. Defamation laws vary by state.

I think your concentration should be less on the organization's insurance and what they are doing, and more on building your defamation case against the organization.

It is good that you have an attorney in your area to work with you. I recommend you rely on his advice and direction.

You have one year from the date of first publication of the libelous statement(s) to file your defamation suit.

Good luck.

 

[dtronvig]

Excellent. Bottom line, I'll just work with the attorney, with all deliberate speed.

Thanks,
Drew

 

[quincy]

Excellent. Bottom line, I'll just work with the attorney, with all deliberate speed.

Thanks,
Drew

That sounds like a good plan of action.

Good luck.

 

[Taxing Matters]

It is probably better for you if the organization is insured (and that it has insurance enough to cover the damages you are claiming). Being awarded damages in a lawsuit doesn't mean much if you cannot collect on them.

I agreee, though I think the kind of policy that the OP had in mind is a policy that only covers the cost of litigation should the insured get sued, not a policy that pays for the actual damages from the tort or contract claim. While the organization might have obtained insurance to cover the damages from defamation it commits, no insurer will give a policy for that after the defamation has been done. There may be some insurer that would insure for just the cost of litigation for an event that has already occurred but for which the litigation itself has not yet commenced, though off the top of my head I don't know of one. So I think at this point it unlikely the organization will get either kind of insurance since the alleged defamation has already occurred.

 

[quincy]

I agreee, though I think the kind of policy that the OP had in mind is a policy that only covers the cost of litigation should the insured get sued, not a policy that pays for the actual damages from the tort or contract claim. While the organization might have obtained insurance to cover the damages from defamation it commits, no insurer will give a policy for that after the defamation has been done. There may be some insurer that would insure for just the cost of litigation for an event that has already occurred but for which the litigation itself has not yet commenced, though off the top of my head I don't know of one. So I think at this point it unlikely the organization will get either kind of insurance since the alleged defamation has already occurred.

I suspect dtronvig was referring to legal services that can be purchased as part of (or in addition to) liability insurance.

There are insurance policies that are offered that can cover defamatory statements made before an insurance policy is in effect - as long as the policy is in effect at the time a defamation lawsuit is filed over the defamatory statements. Whether there is coverage can depend on whether the insurance is an "occurrence-based" or a "claims-made" policy.

It is hard to say a statement is defamatory until the statement causes reputational injury, gives rise to a lawsuit, and is analyzed in context and all facts (including defenses) are known. This means it takes a judge/jury to determine whether a statement is defamatory.

 

[adjusterjack]

There may be some insurer that would insure for just the cost of litigation for an event that has already occurred but for which the litigation itself has not yet commenced, though off the top of my head I don't know of one.

As Quincy points out, it's called a "claims made" policy that could be written with optional coverage for prior acts for which the insured has no knowledge of potential litigation. However, known acts are likely to be excluded. If OP puts the opponent on written notice of his claim and the opponent then gets the insurance, there would be an exclusion.

 

[quincy]

As Quincy points out, it's called a "claims made" policy that could be written with optional coverage for prior acts for which the insured has no knowledge of potential litigation. However, known acts are likely to be excluded. If OP puts the opponent on written notice of his claim and the opponent then gets the insurance, there would be an exclusion.

And regardless of whether the organization has insurance of any kind or has a pre-paid legal services policy, there generally is little benefit to a plaintiff in delaying a defamation action, as the reputational injury that is generated by libelous statements tends to increase if they are allowed to remain without retraction or deletion. The one defamed should want to limit (mitigate) the harm caused.