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InsureCast
a division of Gaston & Associates, Inc. 
Technology Insurance
  Defending software that performed as promised.
A software company was sued by a customer after he used the company´s cost estimating software. The software itself was found to have functioned perfectly. The customer eventually dropped the case, but only after considerable legal expenses were incurred by the software company.
Indemnity Paid: $0
Defense Cost Paid: $175,000
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But I Want to Fight, Not Settle Out of Court!

Many professional liability policies contain “consent to settle” clauses, which usually provide that your insurance carrier can't settle a liability claim against you without your consent. But that doesn't mean they won't suggest strongly that you follow their lead in determining the best possible outcome for the claim. And sometimes your insurer will believe the best outcome is to offer to settle the claim before going to court. Even if you're convinced that you're not negligent in any way for the damages claimed, your carrier might still believe that you'd lose your case, due to past experience with similar cases.

But suppose you don't want to consent to such a settlement? You might fear damage to your reputation. You might simply feel that it's wrong to give in when you firmly believe you've done nothing wrong. Why shouldn't you tell your insurer that you refuse to settle the case, and demand that they defend you in court?

Before deciding whether to give or withhold your consent, talk with us about what provisions in your policy might apply. For example, suppose you withhold your consent to settle a claim for a small amount and the court later awards a significantly larger amount to the claimant? Since the carrier could've settled the claim for far less if you'd consented, do you have any responsibility for any portion of the additional amount paid?

And don't forget that the same provisions might apply in reverse. You strongly want to settle the claim, but the carrier feels that such an offer would be premature and prefers to go to court. What are your options?

Armed with the knowledge from our discussions with you about your specific coverage provisions, you and your attorney can make the best choices with a clear understanding of your options and their implications.

 
 
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