Vertical vs. Horizontal Exhaustion of Policy Limits: Tips, Tricks, and Maximizing Your Insurance Coverage

Kenneth M. Gorenberg | Barnes & Thornburg LLP

Ken Gorenberg represents businesses in insurance coverage matters, as well as in product liability, professional liability and commercial litigation. Whether litigation or counseling, Ken always focuses on the business problem or opportunity at the heart of the matter. He partners with his client to create and implement a strategy tailored to the specific client and matter.

Ken has resolved coverage issues involving an alphabet soup of insurance policies, including CGL, D&O, E&O, EPLI, PLL and WC/EL, as well as first party property policies, crime bonds and surety bonds. He offers a deep understanding of loss-sensitive insurance programs, having litigated disputes involving workers’ compensation claim handling and deductible and retrospective premium billing.

Ken also works in the trenches of product liability, professional liability and commercial litigation, including as national coordinating counsel for defendants in asbestos, benzene and other toxic tort litigation. Ken brings his underlying litigation experience to bear in insurance coverage litigation, negotiation and counseling for corporate policyholders.

Ken has a truly national practice. He has won trials, arbitrations and appeals in dozens of jurisdictions across the country. Still, Ken considers litigation only one of many ways to solve problems, and he is particularly adept at developing multiple possible exit strategies that a client may pursue.

Clients and colleagues also tap Ken’s unique perspective in transactional matters. He often negotiates, drafts or reviews risk allocation provisions in contracts, including indemnification, insurance and limitation of liability. He has drafted special contracts and manuscript endorsements to insurance policies to effectuate parties’ risk allocation preferences. He also participates in due diligence on insurance coverage and product liability issues in corporate mergers and acquisitions.

Earlier in his career, Ken represented insurance companies. This experience has made Ken a more effective advocate for businesses because he knows how insurance companies think, operate and make decisions.

Ken frequently delivers continuing legal education seminars to practicing lawyers, and judges moot court and other competitions for law students. He also contributes his time to legal aid clinics and pro bono representation of indigent clients.

A native of South Jersey, Ken continues to ride the high of the Philadelphia Eagles’ 2018 Super Bowl victory, and he is also a fan of the Phillies, 76ers and Flyers. His golf game is only slightly better than average, but he broke through with the round of his life in 2017.

Kelsey Dilday Miller | Barnes & Thornburg LLP

With a focus on the resolution of insurance coverage disputes and other commercial litigation, Kelsey Dilday Miller helps clients with a wide range of litigation needs. In the area of insurance coverage litigation, Kelsey advises on virtually all stages of the dispute, from legal analysis of initial coverage to trial and appeal. She also guides her clients successfully through alternate dispute resolution, helping clients settle for the maximum possible amount, including settlements in the seven and eight figures for several Fortune 500 companies.

As part of her practice, Kelsey has helped litigate coverage disputes related to professional liability, builder’s risk, commercial general liability, commercial property, employment practices liability, and homeowners’ policies. She has experience navigating clients through both first party and third-party claims, including long tail claims related to asbestos and PFAS exposures.

Kelsey’s other commercial litigation experience includes disputes involving breach of contract and professional negligence in a variety of industries, including insurance, construction, aviation, advertising, landlord/tenant, and manufacturing.

Prior to beginning her full-time career at Barnes & Thornburg, Kelsey was a summer associate for two summers in the firm’s Indianapolis office.

I. Vertical vs. Horizontal Exhaustion | 1:00pm – 2:00pm

• Key differences between vertical and horizontal exhaustion structures
• Choice of law and when each structure applies
• Typical exhaustion scenarios in claims and litigation
• Coverage layering: Primary, excess, and umbrella policies in vertical vs. horizontal contexts

Break | 2:00pm – 2:10pm

II. Claim Management Strategies | 2:10pm – 2:25pm

• Efficient claim handling and settlement strategies under vertical and horizontal exhaustion
• Managing complexities in multi-layered insurance policies

III. Settlement and Coverage Disputes | 2:25pm – 2:40pm

• Impact of exhaustion structures on settlement negotiations
• Strategies for resolving coverage disputes arising from policy exhaustion
• Case studies to illustrate vertical vs. horizontal exhaustion in real world claims

IV. Practical Tips and Collaboration | 2:40pm – 3:10pm

• Avoiding common pitfalls in policy exhaustion scenarios
• Effective communication and collaboration between insurers, insureds, and third parties to mitigate conflicts