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
Travelers
Dominique Sena-DiDonato
Chartis
American Conference Institute’s National Advanced Forum on
LITIGATING CONTRACT SURETY BOND
& FIDELITY INSURANCE CLAIMS
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 • AmericanConference.com/FidelitySurety
Earn
CLE
Credits

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
www.AmericanConference.com/FidelitySurety.
wHO YOU wILL MEET
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
CONTINUING LEGAL EDUCATION CREDITS
CLE
Credits
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
www.americanconference.com/CLE
GLOBAL SPONSORSHIP OPPORTUNITIES
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 | w.tyler@AmericanConference.com
Register now: 888-224-2480 • Fax: 877-927-1563 • AmericanConference.com/FidelitySurety

7:30 Registration and Continental Breakfast
8:00 Co-Chairs’ Welcoming Remarks
Gregory P. Brown
Shareholder
Hill Ward Henderson
DAY ONE wEDNESDAY, OCTOBER 17, 2012
8:05 In-House Roundtable: Counsel and Claims Examiner Insights on New & Emerging Issues in
Contract Surety Bond and Fidelity Insurance Claims
PANEL 1
8:05-9:05
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
Travelers
Panel 1 & 2 Moderator
Theodore M. Baum
Partner
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
Partner
Sedgwick LLP
PANEL 2
9:05-10:05
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
Chartis
Register now: 888-224-2480 • Fax: 877-927-1563 • AmericanConference.com/FidelitySurety

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
Partner
Robins, Kaplan, Miller & Ciresi L.L.P.
Bruce Charles King
Shareholder
Carlton Fields
Gregory P. Brown
Shareholder
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
suppliers
• 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
Member
Wolff & Samson PC
Matthew M. Horowitz
Member
Wolf Horowitz & Etlinger LLC
Gary A. Wilson
Principal
Post & Schell, P.C.
John W. Morris
Partner
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
Member
Melvin & Melvin, PLLC
Timothy D. Boldt
Partner
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
Shareholder
Kolesar & Leatham
Ralph J. Kooy
Partner
Tressler LLP
Noah H. Charlson
Shareholder
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”
arrangements
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
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• 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
necessary
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
3:30 THE VIEW FROM THE BENCH: A Unique
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
Member
Cozen O’Connor
Lawrence Lerner
Shareholder, Vice-President
Levy & Craig, P.C.
George Anthony Smith
Partner
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
points
• Understanding the arbitration between the owner and the
principal
• 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
DAY TWO
THURSDAY, OCTOBER 18, 2012
7:30 Continental Breakfast
A FOCUS ON LITIGATING FIDELITY
INSURANCE CLAIMS
8:00 Fidelity Insurance Litigation & Special Nuances
with Fidelity Bank Bonds: Direct Loss, Exclusions,
Forgery, and Dishonest Employees
Susan Koehler Sullivan
Partner
Sedgwick LLP
Carleton Burch
Senior Partner
Anderson, McPharlin & Conners LLP
Anthony R. Twardowski
Shareholder
Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C.
Michael Keeley
Partner
Strasburger & Price, LLP
Denae Hildebrand Budde
Partner
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 • AmericanConference.com/FidelitySurety

• 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
policy
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
Partner
Cooper & Scully, P.C.
Thomas V. Gebler, Jr.
Partner
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
Funding
Harold E. McKee
Partner
Riordan McKee & Piper, LLC
David D. Gilliss
Partner
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
project
• 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
Partner
Lewis & Roberts, P.L.L.C.
Mark Oertel
Partner
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 • AmericanConference.com/FidelitySurety

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
Partner
Lewis Brisbois Bisgaard & Smith LLP
Denae Hildebrand Budde
Partner
Alborg, Veiluva & Martin LLP
POST-CONFERENCE MASTER CLASSES
Thursday, October 18, 2012
A B
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
California
• 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
improvement
• Developers unable to finish a project and stopping mid-way
o How can the city/state remedy a project that is half
complete?
• Drafting a set aside letter so the bank that loans money
to the developer agrees to set aside funds for public
improvement
o What happens when the bank fails to manage funds
and set aside money
• What happens when a new developer steps into a failed
project?
o Does the surety have to continue to guarantee the public
improvements?
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
Partner
Sedgwick LLP
Thomas Gebler
Partner
Margolis Edelstein
Matthew J. Christian
Shareholder
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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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
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SPECIAL DISCOUNT
We offer special pricing for groups and government employees.
Please email or call for details.
Promotional discounts may not be combined. ACI offers financial
scholarships for government employees, judges, law students,
non-profit entities and others. For more information,
please email or call customer service.