Emerging Risk | Bankruptcies, Consent Judgments & Conflicts: The Growing Risks for Insurers

While North American legal doctrines may appear highly technical, they share a common theme, efforts that limit insurers’ ability to participate in and steer the defense of claims.

In this episode of our Emerging Risks podcast, host Neil Beresford is joined by Akash Brijpaul, Konrad Krebs, and Kirsten Soto to examine a series of developing legal doctrines in the US and Canada that are significantly impacting insurers’ ability to control and defend claims.

The discussion focuses on three rapidly evolving areas: bankruptcy tactics, consent judgments, and conflicts of interest and how each is being used in ways that can undermine insurers’ rights of defense.

The panel explores why these issues are now surfacing as emerging risks. In the US, the rise of nuclear verdicts is increasing pressure on policyholders to seek settlements that may be collusive or disproportionate.

Bankruptcy courts are also increasingly approving claim resolution plans that restrict insurers’ ability to investigate or defend claims. Meanwhile, in Canada, recent appellate decisions have expanded insureds’ control over defense counsel and restricted insurers’ access to critical defense information, even in cases where the insurer is funding the defense.

Despite these challenges, insurers are not powerless. By understanding the proportionality principles within new case law, leveraging local jurisdictional expertise, and pushing back against overly rigid interpretations of reporting obligations, insurers can still take practical steps to maintain visibility and protect their rights.