litigating contract surety bond & fidelity insurance ... - Sedgwick LLP

litigating contract surety bond & fidelity insurance ... - Sedgwick LLP

No other fidelity & surety

conference provides as many

business development opportunities

as this one. Just on the faculty

alone you’ll have the ability to

meet with leaders including:

Courtney Turnage Walker

Product Underwriting - Zurich Surety

Regina Gaebel

Liberty Mutual Surety

Thomas Rush

The Hanover Insurance Group

Douglas Willis

Chubb & Son

W. Glenn Speicher, Jr.

Zurich Surety & Financial Claim

David Lewis, JD, CPCU

North American Specialty Insurance Co.

Washington International Insurance

Alan Pavlic

Old Republic Surety Co.

Mary Jean Pethick

Product Underwriting - Zurich Surety

Gregory Arnold

Insurance Company of the West

Vincent C. Miseo

Argo Surety

Tracey Santor


Dominique Sena-DiDonato


American Conference Institute’s National Advanced Forum on



October 17-18, 2012 • Union League • Philadelphia, PA

Top in-house claims professionals and counsel, leading outside counsel from

prestigious law firms, and renowned federal and state judges will provide

valuable, practical information on all the key issues that arise in litigating

contract surety bond and fidelity insurance claims including:

• Negotiating and drafting effective indemnity agreements: enforcing the rights of the surety,

holding the surety harmless, and reducing litigation

• Performance bonds: the surety’s defenses to the bond claim and the surety’s options

to take action in the event of default, termination, or the principal’s bankruptcy

• Payment bonds: ensuring payment is made to subcontractors and material suppliers

when the principal is at financial risk

• Understanding the size, scope, and nature of public and private partnerships to reduce risk,

exposure, and delay

• Fidelity insurance litigation and special nuances with fidelity bank bonds: direct loss,

exclusions, forgery, and dishonest employees

• Examining bad faith claims in the fidelity insurance context

• Drafting and implementing effective tender, takeover, and completion agreements in the

surety context: performing due diligence, investigating the surety, accessing financial records,

and practical considerations in funding projects

Obtain insight as to the perspectives from the Bench. Hear from:

Hon. J. Michelle Childs

U.S. Dist. Ct., D.S.C.

Gregory P. Brown

Hill Ward Henderson

Hon. Linda K. Caracappa

U.S. Dis. Ct., E.D. Pa.

Honorable Victor DiNubile

Philadelphia Ct. C.P.

Distinguished Conference Co-Chairs:

Hon. James O’Hara

U.S. Dist. Ct., D. Kan.

Susan Koehler Sullivan

Sedgwick LLP

Plus, complete your two-day experience by also attending the Innovative Master Classes:

A A Deep Dive Into the State of California: Complex Wage and Labor Issues, Subdivision Bonds,

and Enforcing Stop Notice Claims

B Discovery and E-Discovery: Recovering Volumes of Records, Documents, and Data in the Surety

and Fidelity Context

Hon. Mildred E. Methvin

U.S. Dist. Ct., M.D. Pa.

Hon. Michael Kaplan

U.S. Bankr. Ct., D.N.J.

Hon. Juan Ramirez (retired)

Fla. Third Dist. Ct. App.

Register Now • 888-224-2480 •




The premier Contract Surety Bond and Fidelity Insurance Claims event where

outside counsel and leading in house counsel and claims professionals are

meeting to devise practical solutions for today’s most critical issues

The issues surrounding contract surety bonds are complex and ever evolving. The weak economy and heavy competition

on bids for projects have principals under bidding and over extending their resources on projects that are beyond their

scope and consideration. As a result, claims for performance and payment bond in the contract surety context are on the

rise. Projects are incomplete and damage/defects on projects are common problems principals, owners, and sureties are

facing in today’s industry. In addition, fidelity insurers are handling and processing claims more so now than ever before.

Direct/indirect loss, forgery exclusions, dishonest employees are just a few of the many issue and complexities surrounding

fidelity insurance claims today. To complicate matters further, investigating all claims requires volumes of data, records, and

documents that not only increase litigation costs but causes delay.

In response, American Conference Institute presents its premier National Advanced Forum on LITIGATING

CONTRACT SURETY BOND AND FIDELITY INSURANCE CLAIMS. Network with leading insurers from around

the country including Zurich Surety, Liberty Mutual Surety, Hanover Insurance Group, Chubb & Son, North American

Specialty Insurance Co. & Washington International Insurance, Old Republic Surety Co., Insurance Company of the West,

Argo Surety, Travelers, Chartis, and many others. Plus hear from our renowned faculty of federal and state jurists who will

share their insights on how they interpret evidence and arguments specifically in the specialized insurance context.

With all the networking and business development opportunities and unique judicial insights, this is the one Fidelity

& Surety event you can’t afford to miss.

Plus, be sure to also attend the Innovative Master Classes:

A: A Deep Dive Into the State of California: Complex Wage and Labor Issues, Subdivision Bonds, and Enforcing Stop

Notice Claims

B: Discovery and E-Discovery: Recovering Volumes of Records, Documents, and Data in the Surety and Fidelity Context

Register now by calling 888-224-2480, faxing your registration form to 877-927-1563 or registering online at


Attorneys Specializing in

• Contact Surety Bond

• Payment Bond

• Performance Bond

• Fidelity Insurance

• Direct Loss

• Construction Litigation

• Bad Faith

• Insurance

• Property

• Casualty

Insurance Industry Professionals including:

• In House Counsel

• Claims Specialists

• Adjusters

• Risk Managers

• Litigation Specialists

• Underwriters

• Contract Bond Surety Specialists




Accreditation will be sought in those jurisdictions requested by the registrants which

have continuing education requirements. This course is identified as nontransitional

for the purposes of CLE accreditation.

ACI certifies that the activity has been approved for CLE credit by the New York State

Continuing Legal Education Board in the amount of 10.5 hours. An additional 2.0 credit hours

will apply to each workshop participation.

ACI certifies that this activity has been approved for CLE credit by the State Bar of California in

the amount of 9.0 hours. An additional 2.0 credit hours will apply to each workshop participation.

You are required to bring your state bar number to complete the appropriate state forms during the

conference. CLE credits are processed in 4-8 weeks after a conference is held.

ACI has a dedicated team which processes requests for state approval. Please note that event

accreditation varies by state and ACI will make every effort to process your request.

Questions about CLE credits for your state? Visit our online CLE Help Center at


With more than 500 conferences in the United States, Europe, Asia Pacific, and Latin America,

American Conference Institute (ACI) provides a diverse portfolio devoted to providing business

intelligence to senior decision makers who need to respond to challenges spanning various industries in

the US and around the world.

As a member of our sponsorship faculty, your organization will be deemed as a partner. We will

work closely with your organization to create the perfect business development solution catered

exclusively to the needs of your practice group, business line or corporation.

For more information about this program or our global portfolio of events, please contact:

Wendy Tyler

Head of Sales, American Conference Institute

Tel: 212-352-3220 x5242 | Fax: 212-220-4281 |

Register now: 888-224-2480 • Fax: 877-927-1563 •

7:30 Registration and Continental Breakfast

8:00 Co-Chairs’ Welcoming Remarks

Gregory P. Brown


Hill Ward Henderson


8:05 In-House Roundtable: Counsel and Claims Examiner Insights on New & Emerging Issues in

Contract Surety Bond and Fidelity Insurance Claims



Courtney Turnage Walker

Assistant Vice President

Product Underwriting- Zurich Surety

Regina Gaebel

Home Office Counsel

Liberty Mutual Surety

Thomas Rush

Assistant Vice President, Senior Counsel

The Hanover Insurance Group

Douglas Willis

Assistant Vice President, Senior Surety Counsel

Chubb & Son

W. Glenn Speicher, Jr.

Senior Claims Counsel

Zurich Surety & Financial Claim

Tracey Santor

Vice President - Claims


Panel 1 & 2 Moderator

Theodore M. Baum


Goldberg Segalla

In this valuable panel, hear from in-house counsel and claims examiners on the front lines. Gain perspective on claims management,

interpretation of current case law, and what they expect from outside counsel. Join a great discussion with plenty of opportunities for Q&A.

Topics include:

• Best practices in claims investigation

• Underwriting fidelity insurance policies and including the appropriate exclusions

• Direct loss

• Paid when paid clauses

• Subrogation

• Uptick in surety claims in a downturn economy

• Pricing premiums on surety while understanding the financial stability of obligees and principals on both public and private projects

10:05 Morning Coffee Break

Susan Koehler Sullivan


Sedgwick LLP



David Lewis, JD, CPCU

Vice President

NAS Surety Group

Alan Pavlic

Senior Vice President, Claims and General Counsel

Old Republic Surety Co.

Mary Jean Pethick

Assistant Vice President

Product Underwriting - Zurich Surety

Gregory Arnold

Surety Claims Consultant

Insurance Company of the West

Vincent C. Miseo

AVP - Senior Surety Counsel & Director of Claims

Argo Surety

Dominique Sena-DiDonato

Assistant Vice President


Register now: 888-224-2480 • Fax: 877-927-1563 •

10:15 Negotiating and Drafting Effective Indemnity

Agreements: Enforcing the Rights of the Surety,

Holding the Surety Harmless, and Overcoming

Defenses to Indemnifying the Surety

Edward D. Lodgen


Robins, Kaplan, Miller & Ciresi L.L.P.

Bruce Charles King


Carlton Fields

Gregory P. Brown


Hill Ward Henderson

• Drafting indemnity agreements to hold the surety harmless

• Defenses to indemnifying the surety: overpayment of

payment bond claimants including sub contractors and


• The right of the surety to obtain collateral, records, etc.

• The right of the surety to recover losses in “good faith”

• Interpreting case law in enforcing indemnity agreements

• Problems with enforcing indemnity agreements when the

principal is lacking funds

11:15 Performance Bonds: The Surety’s Defenses to

the Bond Claim and the Surety’s Options to Take

Action in the Event of Default, Termination,

or the Principal’s Bankruptcy

Jonathan Bondy


Wolff & Samson PC

Matthew M. Horowitz


Wolf Horowitz & Etlinger LLC

Gary A. Wilson


Post & Schell, P.C.

John W. Morris


McElroy, Deutsch, Mulvaney & Carpenter, LLP

• What are the conditions prerequisite, if any, to successfully

asserting a claim under particular performance bond forms?

• What are the remedies available to the obligee under

particular performance bond forms?

• What are the completion options available to the surety

under particular performance bond forms?

• How much time is afforded to the Surety to complete

its investigation of an alleged default termination?

• What are the surety’s possible defenses to a performance

bond claim?

• What is the impact of the principal’s bankruptcy

on a performance bond claim?

12:15 Networking Luncheon for Delegates and Speakers

1:15 Payment Bonds: Minimizing Exposure When

There’s More Than One Surety on a Large

Scale Project, Ensuring Payment Is Made to

Subcontractors and Material Suppliers When the

Principal Is at Financial Risk, and Examining

How a Payment Bond is Exonerated

Roger W. Bradley


Melvin & Melvin, PLLC

Timothy D. Boldt


Ernstrom & Dreste, LLP

• Minimizing exposure and risk by having more than one

surety in a large scale project

• Ensuring sub contractors and suppliers are paid at end of

a project if there is default and claims are on the horizon

• Exoneration of payment bond in the surety context

o Determining whether the claimant cuts a deal with the

bond principal without telling surety and whether surety

is off the hook

o Settling the case and coming up with a new deal that

could release the bond

o Assessing whether there really was a new deal and it

was communicated to surety

o Examining whether a new arrangement gave rise and

that surety could claim defense

2:15 Everything You Now Need to Know About the Size,

Scope, and Nature of a Public and Private Partnership

Matthew J. Christian


Kolesar & Leatham

Ralph J. Kooy


Tressler LLP

Noah H. Charlson


Bazelon Less & Feldman, P.C.

Public and Private Partnerships

• Explore emerging issues relating to multi-entity partnering

arrangements, such as joint ventures, teaming agreements,

and mentor/protégée programs, including:

o One entity providing surety credit to another

o Proper structure of partnering arrangements

o Scope of a joint venture and negotiating an effective

teaming agreement

o Who has control of the project?

o The joint venture’s eligibility to bid on federal project

o Potential scrutiny by federal government into “sham”


Public Owners

• Understanding why and how public owners are actively

getting involved in projects

• How the economic downturn has affected the public

owner’s ability to pay for a project

• Desire for principals to proceed in lieu of change

o Difficulty of negotiating and pricing change orders

Register now: 888-224-2480 • Fax: 877-927-1563 •

• Examining public records, funding, and budgets of public

owners and identifying whether they are financially stable

o Principal’s ability to understand funds may not be available

o Practice of public owners to hold onto funds longer than


o Ensuring that the amount of available funds are sufficient

to size and scope of project and work is performed

especially with change orders

• Resolving payment issues with the public owner

o Negotiation/Dispute Resolution

o Litigation

o Ensuring that both surety and principal are made whole

3:15 Afternoon Break


Opportunity to Hear How Judges Interpret

Evidence and Arguments Specifically in the

Specialized Insurance Litigation Context

Hon. J. Michelle Childs

U.S. Dist. Ct., D.S.C.

Hon. Linda K. Caracappa

U.S. Dis. Ct., E.D. Pa.

Hon. James O’Hara

U.S. Dist. Ct., D. Kan.

Hon. Mildred E. Methvin

U.S. Dist. Ct., M.D. Pa.

Hon. Michael Kaplan

U.S. Bankr. Ct., D.N.J.

Hon. Victor DiNubile

Phila. Ct. C.P.

Hon. Juan Ramirez (ret.)

Fla. Third Dist. Ct. App.

Moderator TBD

Top jurists who have presided over specialized insurance

litigation matters will provide attendees with candid, practical

insights on these and other topics:

• Survey of insurance litigation landscape

• Key do’s and dont’s for counsel

• Trends and developments in 2012 and beyond

• And much more

5:00 Mandatory Arbitration Provisions: Practical

Approaches That Will Help You Avoid ADR

Pitfalls Specifically in the Surety Context

Jacob Charles Cohn


Cozen O’Connor

Lawrence Lerner

Shareholder, Vice-President

Levy & Craig, P.C.

George Anthony Smith


Weinberg Wheeler Hudgins Gunn & Dial LLC

• Federal contracts that have a mandatory arbitration provision

• Assessing whether a surety has to get involved

• Interpreting case law on arbitration provisions

• Avoiding litigation by all parties and arbitrating the sticking


• Understanding the arbitration between the owner and the


• Language in the bond that states the bond incorporates

the general contract

• How do you prepare for arbitration and avoid pitfalls?

6:00 Conference Adjourns



7:30 Continental Breakfast



8:00 Fidelity Insurance Litigation & Special Nuances

with Fidelity Bank Bonds: Direct Loss, Exclusions,

Forgery, and Dishonest Employees

Susan Koehler Sullivan


Sedgwick LLP

Carleton Burch

Senior Partner

Anderson, McPharlin & Conners LLP

Anthony R. Twardowski


Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C.

Michael Keeley


Strasburger & Price, LLP

Denae Hildebrand Budde


Alborg, Veiluva & Martin LLP

Direct Loss

• What is a direct loss?

o Economic detriment, subtracting exclusions

o Exclusions of damages

o Assessing whether peril occurs: requiring immediate

damage suffered by insured because of peril

o How do you measure causation?

o Confusion in case law on what is a direct loss and

indirect loss

Dishonest Employees

• Employees who gain from their fraudulent behavior

• Knowledge imputed to employer if they knew employee

was dishonest

o Automatic exclusion in fidelity policy unless employer

shows good cause

o Conduit of knowledge

• Proving the prima facie case that the employee was dishonest

Register now: 888-224-2480 • Fax: 877-927-1563 •

• Assessing whether a third party lawsuit is required

• Insurers who deny a claim because the case settled

and the direct loss was not a result of the fraud

Forgery Exclusions

• Application of forgery exclusions on commercial crimes


o Issues relevant to identify theft

Fidelity Bonds in Banks

• Banks who fail to investigate the loan and then issue

a loan based on fraudulent documents

• Examining the bond form and assessing if there is a direct

loss requirement

o Assessing where there is a direct loss connected with fraud

• Special terms and provisions in a banker’s blanket bond

issued specially to banks

o Involvement of the American Bankers Association

o Crafting wording of policy, forms, and how the courts

recognize and look to the form based on facts of case

o Examining FDIC requirement that banks have fidelity

bonds to insure against dishonesty and fraud

o Using a standard form to avoid variations and differences

in forms

Good Faith

• Fidelity bonds requiring financial institutions to act

in good faith in proceeding with financial transactions

• Lack of guidance on good faith

• Learning lessons from the subprime mortgage crises

• Factual dispute often decided by jury

9:20 Bad Faith Claims in the Fidelity Insurance

Context: The Scope, the Merits, and Creating

the Best Strategy for Motion Practice

R. Brent Cooper


Cooper & Scully, P.C.

Thomas V. Gebler, Jr.


Margolis Edelstein

• The frequency of bad faith claims in first party agreements

in fidelity claims

• Assessing merits of the claim

• Assessing bad faith as a defense to indemnity obligations

• Calculating litigation cost to assert bad faith claims

• Summary judgment motion practice in the fidelity context

10:05 Morning Coffee Break

10:15 Drafting and Implementing Effective Tender,

Takeover, and Completion Agreements in the

Surety Context: Performing Due Diligence,

Investigating the Surety, Accessing Financial

Records, and Practical Considerations in Project


Harold E. McKee


Riordan McKee & Piper, LLC

David D. Gilliss


Pike & Gilliss, LLC

Tender Agreements

• Difficulty in obtaining information when the principal

is in financial distress

• How do you access records when principal is bankrupt?

• Good faith duty to investigate by the surety when notice

of bond is received

Takeover Agreement

• Executing a contract with owner and ensuring payment

• New principal stepping in and taking over a project must

have ability to pay surety

• Litigation based on AIA form and demanding owner

for adequate resources to fund project

• Ensuring lender is solvent and committed to funding


• Asserting other offsets to ensure other funds will flow

Completion Agreement

• Issues when new principal takes over a project

• Problems when new agreements are not mentioned

in performance bond

11:15 The Interplay Between the Equitable Right of

Subrogation and Contract Assignment Rights

in the Surety Bond Context

Matthew Bouchard


Lewis & Roberts, P.L.L.C.

Mark Oertel


Lewis Brisbois Bisgaard & Smith LLP

• What types of rights do agreements of indemnity typically

assign from principals to sureties?

• How does a surety’s contractual assignment rights

supplement its equitable subrogation rights?

• What considerations should a surety keep in mind before

enforcing its assignment rights?

• What strategies might a surety employ to persuade the

principal that voluntary assignment of rights is in the

principal’s best interests?

• When the principal won’t cooperate, what steps might

a surety take to enforce its contractual assignment rights

through litigation?

12:15 Main Conference Ends

Lunch for Master Class Participants

Register now: 888-224-2480 • Fax: 877-927-1563 •

1:00 – 3:00 p.m.

Deep Dive Into the State of California:

Complex Wage and Labor Issues, Subdivision

Bonds, and Enforcing Stop Notice Claims

Gregory Arnold

Surety Claims Consultant

Insurance Company of the West

Mark Oertel


Lewis Brisbois Bisgaard & Smith LLP

Denae Hildebrand Budde


Alborg, Veiluva & Martin LLP


Thursday, October 18, 2012


Wage and Labor

• Surety bonds that are very descriptive in terms of what

it covers including all labor and material law that goes

into project

o Understand the complex wage and labor laws in


• Understanding the administration process, Department

of Labor standards and enforcement which controls heavily

organized labor

o Finding in favor of laborer and challenging and

overturning the administrative decision by writ of mandate

• Getting hit with prevailing wage claims when the principal

or sub contractor on public works project gets hit by:

o Department of Labor

o Owner with labor compliance unit

o Employee

Subdivision Bonds

• Subdividing land and surety guaranteeing a public


• Developers unable to finish a project and stopping mid-way

o How can the city/state remedy a project that is half


• Drafting a set aside letter so the bank that loans money

to the developer agrees to set aside funds for public


o What happens when the bank fails to manage funds

and set aside money

• What happens when a new developer steps into a failed


o Does the surety have to continue to guarantee the public


Public Works Projects

• Understanding budget difficulties in California

• Private contractors moving into the private sector

Stop Notice Claims

• Filing bonded stop notice claim to ensure money is paid out

• Claims usually made by material supplier or subcontractor

that have not been paid by owner

• Assessing whether bank or surety pays out the claim

3:00 – 5:00 p.m.

Discovery and E-Discovery: Recovering Volumes

of Records, Documents, and Data in the Surety

and Fidelity Context

Susan Koehler Sullivan


Sedgwick LLP

Thomas Gebler


Margolis Edelstein

Matthew J. Christian


Kolesar & Leatham

In this interactive session, you will obtain detailed instruction on

how to develop cost-effective and practical discovery strategies

and tools. Learn how to manage and control voluminous data

and streamline information to control discovery cost. Outside

counsel will benefit from detailed review of the scope of

discovery including the limitations and realities of e-discovery.

Topics include:

• Managing massive amounts of data in fidelity litigation

when large financial institutions are involved

• Dealing with document production where multiple insurers

are involved

• Focusing on key documents for coverage issues

• Handing discovery aspect of a surety claim

• Document review

• Deposition of experts

About the Venue

The Union League, which occupies

an entire city block in the center

of Philadelphia’s commercial and

cultural district, is a shining jewel

of history in a city defined by

such treasure. Founded in 1862

as a patriotic society to support

the policies of President Abraham

Lincoln, The Union League has hosted U.S. presidents, heads of

state, industrialists, entertainers and visiting dignitaries from around

the globe. The classic French Renaissance-styled League House, with

its brick and brownstone façade and dramatic twin circular staircases

leading to the main entrance, is listed in the National Historic

Register, and dates back to 1865, when the Broad Street building

was completed. Adorning the walls and hallways is the League’s

distinguished art collection, artifacts imbued with the heritage

and culture of its membership. The collection is a rich, historical

chronicle of Philadelphia’s unique imprint upon the American

landscape from the nineteenth century to today.

© American Conference Institute, 2012

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lunches and refreshments.

ATTeNTION MAILROOM: If undeliverable to addressee, please forward to:

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American Conference Institute’s National Advanced Forum on



October 17-18, 2012 • Union League • Philadelphia, PA




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Experienced faculty includes leaders from:

Liberty Mutual Surety • The Hanover

Insurance Group • Chubb • Zurich Surety

& Financial Claim • Chartis • North

American Specialty Insurance Co.

Washington International Insurance

Old Republic Surety Co. • Argo Surety

Insurance Company of the West • Travelers

Plus hear from these Judges:

Hon. J. Michelle Childs

Hon. Linda K. Caracappa

Hon. James P. O’Hara

Hon. Mildred E. Methvin

Hon. Michael Kaplan

Hon. Victor DiNubile

Hon. Juan Ramirez

Payment Policy

Payment must be received in full by the conference date. All discounts will be

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with any other offer, and must be paid in full at time of order. Group discounts

available to individuals employed by the same organization.

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You must notify us by email at least 48 hrs in advance if you wish to send

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Hotel information

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and mention the “ACI Fidelity and Surety” conference to receive this rate:

Venue: The Union League of Philadelphia

Address: 140 South Broad Street, Philadelphia, PA 19102

Reservations: 215-587-5570

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