USA – MISSOURI Trends and Developments Contributed by: Aaron French, Katrina Smeltzer and Philip Graham, Sandberg, Phoenix & von Gontard, P.C.
A short checklist you can use tomorrow Important actions include the following. • File early and in the right court: If coverage is dis- puted, file the declaratory judgment promptly. • Intervene narrowly: Move to intervene solely to seek a stay. If denied, consider appeal. • Keep the policy limits offer live: Reconfirm it in writ- ing at sensible intervals. • Ask for the actual documents: If a 537.065 agree- ment is referenced, request the draft – repeatedly and in writing. • Document everything thoroughly, showing you are acting in good faith: Treat your file as if it will be Exhibit A in the bad faith action. Closing thought McCrackin gives insurers a clean way to protect their right to defend when there is questionable coverage. Escabusa reminds both sides that clarity wins: with- out a definite offer, there is nothing to accept – and no bad faith. Together, they recognise insurers and defence counsel who move quickly, think procedurally and build a careful record showing the insurer acted in good faith.
and protection for the insured’s personal assets. If no draft is forthcoming, document every request – silence on their side strengthens your good faith story and defeats any claim that you “refused” to settle. What in-house counsel should look for in outside counsel General counsel should prioritise teams that blend procedural knowledge with prompt execution. Your outside counsel should be well versed in intervention- and-stay strategy, and procedures under McCrackin , able to promptly file declaratory judgments in the right forum and pursing appellate review of intervention denials. Just as importantly, they should understand the importance of properly handling and document- ing the settlement process, including clear commu- nications, prompt responses and contemporaneous documentation showing that the carrier is acting in good faith. Equally important, your outside coverage counsel should know the notable plaintiffs’ bad faith attorneys in the venue so that proper case strategy and management can be employed.
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