Sonnenschein partner Bill Barker spoke during the New Appleman's Insurance Coverage Teleconference, titled "Confidentiality in Bad Faith Actions, Other Insurance Clauses and Overlapping Coverage Issues", on December 11.

The points of discussion are as follows:

Attorney-Client Privilege and Work Product Protection in Bad Faith Litigation

• Why communications with the insured’s defense counsel and "ordinary" work product receive little protection
• The competing lines of authority when the insurer has waived protection by placing the privileged communications or "opinion" work product "at issue" in the litigation
• The varying standards and how differences in bad faith standards affect privilege analysis?
• States where the privilege standard is in controversy and the unique Ohio approach
• What can the insurer do to minimize the risk of waiver?
• The applicability of the "crime-fraud" exception to privilege and work product in bad faith cases
• The necessary prima facie showing
• Is bad faith treated as a form of civil fraud or does the exception extend to non-fraud torts?

Understanding Other Insurance Clauses and Overlapping Coverage Issues

• Scenarios in which multiple insurers may cover the same risk
• Explanation of common other insurance clauses
• The resolution of disputes involving similar other insurance clauses
• The ways in which conflicting other insurance clauses operate
• Examining problems caused by underlying contractual indemnity agreements between parties
• Discussing the interplay between other insurance provisions and common forms of self-insurance