Haynes Boone Counsel Joseph Balice spoke with Law360 as Towers Watson's defeat at the Fourth Circuit in its bid for coverage of settlements resolving merger-related shareholder litigation has become one of the higher-profile developments in court battles over so-called bump-up exclusions.
"I wouldn't be surprised if, as these cases progress — not just bump-up cases but D&O cases in general — and this sort of variability continues in the outcomes of cases, policyholders look to bargain for choice of law, if only because of the uncertainty," Balice told Law360.
He views Towers Watson as another data point for policyholders to evaluate, noting that case law on the bump-up exclusion is not nearly as developed as other contentious insurance matters, such as the definition of "occurrence" in a commercial general liability policy.
"There can be a lot more art than science to litigation — in all litigation, but particularly insurance coverage litigation — because some of these issues are novel or still developing and fluid," Balice said.
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