When insurance coverage disputes turn on answers to questions of fact or the nature of the claim for which an insured may be held liable, a special verdict or answers to special interrogatories should be considered. Public Service Mutual Ins. v. Goldfarb, 53 N.Y.2d 392, 399 (1981); Utica Mutual Ins. v. Cherry, 45 A.D.2d 350, 355 (2d Dep’t 1974), aff’d, 38 N.Y.2d 735 (1975); New York Mutual Underwriters v. Cavallaro, 90 A.D.2d 962, 963 (4th Dep’t 1982); American Home Assurance v. Weissman, 79 A.D.2d 923, 924 (1st Dep’t 1981). This device may obviate the need for a separate trial and will avoid the risk of inconsistent determinations. Besides these potential gains, there are serious risks in not moving to intervene. Absent special answers from the jury, it may be impossible to allocate damages between covered and uncovered (or excluded) claims.

In Butterfield v. Giuntoli, 448 Pa. Super. 1 (Superior Ct. Pa. 1995), the plaintiff sued a hospital and four doctors for medical malpractice, seeking compensatory and punitive damages. An excess insurer notified the insurance broker that public policy precluded insurance against punitive damages and therefore there would be no coverage for punitive damages. The broker responded that vicariously assessed punitive damages were insurable and that the policy was broad enough to provide coverage. The insurer had the right to participate in and control the defense of the action, and an attorney representing the insurer attended the trial, including settlement conferences and discussions in chambers. No one requested special interrogatories to determine whether the jury awarded punitive damages directly, vicariously or both.

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