The Unsettling Nature of the Right to Settle Provisions in a Professional Liability Policy

being discussed in chat rooms, blogs, or other websites. these issues can create the conflict least allege a bad faith claim based on a settlement without consent. an insurer should, at held, however, that where the statute creating the fund did not create any 7 see 2 rowland h. long, the law of liability insurance § 5a.19, p. 5a-112.1, fn. 1). new york in feliberty v. damon, 527 n.e.2d 261 (n.y. 1988), before a judgment was right to settle provisions in a professional liability policy 39 pending counterclaim of the insured or exposure of the insured to additional damages above brian r. biggie see appendix "a" which provides a jurisdictional analysis of how various courts have handled settle- fdcc quarterly/fall 2008 10 coverage disputes and analysis. he has successfully argued kentucky in american physicians assurance corp. v. schmidt, 187 s.w.3d 313 (ky. prudence. . . . the duty of "good faith" settlement is an implied obligation derived dispute. the settlement would eliminate a counterclaim available to the insured. offer of judgment made by an insurer . . . shall be made in good faith and in the florida in contrast to california, florida has passed a statute stating that a profes- "unbridled power to preclude settlement." id. at 519. 1326. the insured refused to reimburse st. paul for a settlement arguing that policy limits without the consent of the defendant." id. at 136. to personal assets, and the forced involvement in our litigation system undoubtedly cause a florida court stated as follows: "in the best interests of the insured mean[t] the interests of the insured's rights that dr. freeman's arguments were insufficient as a matter of law.19 stating that the failure to obtain such consent does not invalidate the settle- bad faith.'" id. at 197. conclusion language and by the statutory and common law of the jurisdiction handling any resulting to a settlement offer for the policy limits and trial resulted in an excess 14 one would expect that concerns over reputation have increased exponentially as the do away with the consent requirement by simply canceling or refusing to right to settle provisions in a professional liability policy tion. the court stated, in part, "the only bad faith action available to an insured when the id. at 27. 13 bad faith claim against the insurer. (ohio ct. app. 2002). the insured argued that the provision required an statute requires that any settlement be "made in good faith and in the best on different grounds), the court held that where the insurer has the absolute in fact, the statute states that it is against public policy for an insurance consent by cancelling the policy and advising his insurer that it no longer represented his id. the court stated that it was undisputed that the insured did not consent dition to the fact that some states require insurance companies to report claims, physicians, the insurer's failure to settle cannot be deemed `bad faith' that would give unconditioned right to settle any claim or suit without plaintiff's consent.11 we do you agree to repay us as soon as we notify you of the settlement." id. at reached without chambi's consent. chambi filed suit and alleged that re- indiana no reported case applying a right to consent provision. of good faith exists in all insurance policies, "[t]he insured owes no duty app. 2007). deductible after settling a personal injury claim. the court stated that the obligation to act in good faith in settling an action and stated is . . . a public interest in extrajudicial settlement of lawsuits. the settlement clause tends to that the allegedly injured party may be lying about, or exaggerating, his · what are the standards governing an insured's decision to withhold consent? and/or reinsurer in these types of situations? rhode island no reported case applying a right to consent provision. deductible? 37 appendix a final legal determination; therefore, in the context of a negotiated settlement fdcc quarterly/fall 2008 1316 (ala. 1991), st. paul issued a policy generally reserving the right to provisions in the contract authorizing the carrier to settle the case. the court simply stated 969 so. 2d 1150 (fla. dist. ct. app. 2007), rev. denied, 980 so. 2d 1070 (fla. 2008). maryland no reported case applying a right to consent provision. hawaii no reported case applying a right to consent provision. from the insurance contract.14 professional liability policy. once given, may not be withdrawn, or of proof that the insurer has acted authority to settle the claim, and it acted in bad faith because the settlement would result right to investigate, negotiate and settle any suit or claim if it thinks that settlement is ap- under a policy with a consent provision. based on an extensive search of cases across the nevada no reported case applying a right to consent provision. insured and the primary insurer for refusal to consent to settle. the court 15 policies giving insurers the exclusive right is the head of its litigation defense practice. he is a mem- 41 freeman, 969 so. 2d at 1155. claims, the insured revoked his consent. despite his revocation, the matter lawyers, and engineers must worry about details of a settlement, whether accurate or not, the policy at issue did not require the consent of the insured to settle the matter. in and counsel appeal the verdict. the insurer did not do so. before the judgment was entered, in chambi v. regents of univ. of cal., 116 cal. rptr. 2d 50 (cal. dist. ct. obligations both the insurer, and the insured, owe under the policy. one example where these establish a bad faith claim,15 and coverage matters, labor law, bad faith and fraud, and faith" in defending and settling claims over which it exercises exclusive control nebraska no reported case applying a right to consent provision. in increased premiums and damage to his reputation. the argument that authority to settle 533 so. 2d 194 (ala. 1988). law and/or statutory bad faith standard applied in the relevant jurisdiction. for example, the insured's carrier tendered its policy limits, and the commissioner then negoti- kansas in saucedo v. winger, 915 p.2d 129 (kan. ct. app. 1996), the court of ap- not permit unreasonable rejection of [a] settlement by the insured"5 35 texas in dear v. scottsdale ins. co., 947 s.w.2d 908 (tex.app. 1997) (overruled a bad faith action against the insurer. the court held, however, "where the make an investigation, consider the desires or instructions of the insured and that the settle- that do not include a `right to consent' clause generally provide that the insurer has the was tried to a verdict in favor of the insured, appealed, and remanded for a was settled. the court held that absent a policy provision stating "consent, written consent." § 801(f). partner in the law firm of goldberg segalla llp, where he california california has adopted a statute that requires written consent of the insured entered, and without the consent of the insured, the insurer settled the claim georgia no reported case applying a right to consent provision. florida is one state that has addressed `right to consent' clauses statutorily. for ex- new trial, the insurer thought it best to simply settle the case. the settlement less than the verdict. the insured filed suit alleging that the insurer acted in bad faith by resolved, the happier the insured will be. jurisdiction application of consent provision 2 for bad faith after three malpractice actions were settled without the insured's children in need. he is the 2006 recipient of the commitment to similar to the jayakar decision in michigan, in webb v. witt, 876 a.2d 858 (n.j. super. ct.app. div. 2005), a doctor employed by a hospital argued that defendants. jayakar contended that the insurer needed his consent to settle reasonable expectation that the insured will accept a settlement offer as a alaska no reported case applying a right to consent provision. is reserved to the insurer. generally, providing the insurer this authority does not present a 12 there are a number of questions that remain regarding consent to settlements in a mal- between the insurer and the insured over a potential settlement, even if that settlement is 11 of the applicable limits of liability under this policy."18 provision that gave the insurer the exclusive right to settle any claim against its insured north dakota no reported case applying a right to consent provision. purpose was indemnification and defense against covered claims. its purpose was not to id. at 262. the doctor contended that allowing the settlement without her consent was washington no reported case applying a right to consent provision. that the insurer refused to renew the policy in "an attempt to get around the in transit casualty co. v. spink corp., 156 cal. rptr. 360 (cal. dist. ct. the plaintiff was served with a summons and complaint seeking recovery based upon al- liability policies as well. in employers' surplus line ins. co. v. city of in mitchum v. hudgens, 533 so. 2d 194 (ala. 1988), the court held that the alabama in st. paul fire & marine ins., co. v. edge memorial hosp., 584 so. 2d thomas f. segalla is a founding member and senior trial fdcc quarterly/fall 2008 iv. vermont no reported case applying a right to consent provision. he currently serves as a board member for the buffalo alliance mississippi no reported case applying a right to consent provision. the most anxiety. arguably, the insured under the traditional liability policy is more than professional liability insurance trust, 591 so. 2d 174 (fla. 1992). in shus- practice action, regardless of who retains the authority to settle, including constitutional claims.21 environmental and toxic tort matters. he is also retained as an · what are an insurer's obligations where the settlement is less than the insured's gents violated § 801. the court noted that § 801 applied to "insurers" and new jersey in lieberman v. employers ins. of wausau, 419 a.2d 417 (n.j. 1980), the right to settle provisions in a professional liability policy insurer. bartulica v. american physicians capital, inc., 2002 wl31386666 ohio in an unreported decision, the ohio court of appeals applied an exception 2006), the insured obtained a professional liability policy that contained a right to settle provisions in a professional liability policy 6 veto a settlement within policy limits is against public policy.2 whether an insurer is liable for bad faith will undoubtedly be judged by the common 31 liability, arbitration, settlement or judgment, unless such offer and compromise is in excess app. 1979), the court upheld an excess insurer's right to recover against an 1 wisconsin no reported case applying a right to consent provision. of good faith and fair dealing which is an implied reciprocal term of the policy."4 consent was not required where the insured was no longer covered by the right to settle claims by a third party, the court will not "engraft any consent gives the insured the express right to control the settlement aspect of litiga- statute states, "notwithstanding any other provision of law, no insurer shall the insurer the right to settle a claim and instead only stated that the insured propriate. understanding the different effect these two provisions have on competing duties it was not notified and did not give consent. the court stated that "where the the claim. the court disagreed noting that pursuant to jayakar's reason- sions.as a result, there is limited case law addressing disputes over malpractice settlements south dakota no reported case applying a right to consent provision. montana no reported case applying a right to consent provision. reached. a malpractice action was filed naming the hospital and jayakar as within the policy limits. see fla. stat. ann. § 627.4147(1)(b) (west 2005). judgment. subsequent to an assignment of rights, the injured plaintiff filed the insured was entitled to seek damages for breach of contract after the but the claim exceeds the amount of coverage, the insurance commissioner tennessee no reported case applying a right to consent provision. prevents an insured from vetoing a settlement, an insurer's power to settle is not absolute could not settle an action without the insurer's consent. the court held that desires or instructions of the insured and that the settlement not be made in on behalf of its insured is an enduring principle, well settled in this state's juris- insured's deductible? and such settlement of any claim or suit as it deems expedient.' unlike bargained- court held that the plaintiff's alleged damages were speculative and held where a claim is settled "within the policy limits if such settlement was requirement onto [the] policy." id. at 914. holding that the insurer did not act in bad faith, the court of appeals stated that the ment provisions in insurance policies and some of the unique concerns for professionals, introduction policies containing a "right to consent" provision that this prohibition shall not void any settlement entered into without that south carolina no reported case applying a right to consent provision. professional liability policy of the dri law institute and a past chair of its insurance fdcc quarterly/fall 2008 16 consent requirement." id. at 1370. or her reputation and may be faced with significantly higher premiums subsequent to a loss. willing to grant the insurer the authority to resolve a claim, and the sooner the claim can be the interests of the insured to its own prejudice. the law favors settlement without and must be in the best interest of the insured. the court held that an insurance policy's defeat that interest and therefore will be narrowly construed so as not to defeat the covenant id. the insured the exclusive right to veto any . . . settlement offer, or offer of judgment, the matter is settled within the policy limits. ber of the dri board of directors, is the emeritus chair dr. freeman tried to prevent his insurer from settling a claim against him without his institute and the new york and erie county bar associations. must be interpreted to mean that the carrier, "cannot settle for less than the buffalo niagara partnership. for the past two years he has or- potential bad faith claim will have to be assessed according to the common law and/or and published articles for these organizations. his litigation the policy limits[.]"20 that the insurer acted in bad faith by settling the matter without his consent. the insurance policy in freeman provided: "the company is authorized to compromise notably, if the policy does not contain a right to consent provision, or the provision for education and works on the schools committee with the 38 contracts clause of the u.s. constitution. dr. freeman's complaint was dismissed because cohen v. freeman, 914 so. 2d 449, 450 (fla. dist. ct. app. 2005), aff'd 969 so. 2d 1150 (fla. dist. ct. florida, however, has passed a statute stating that a consent clause allowing the insured to argued that it was against public policy to allow one insured the ability to less of whether the insurer, or the insured, is vested with the right to settle a claim. consent" statute was unconstitutional because it violated the supremacy clause and the faith update published by mealeys/lexis-nexis. of their substantive committees. he has lectured extensively thomas f. segalla interests of the insured." id. ample, in freeman v. cohen,16 contract to contain a clause granting such authority to the insured. the right to settle provisions in a professional liability policy "[i]n recognition of the value of a professional reputation, the instant contract this article discusses the legal limitations affecting the right to settle claims covered by a connecticut no reported case applying a right to consent provision. protect an insured from increases in insurance premiums or damage to the insured's reputa- obtain written consent in order to settle a claim; however, this requirement has increased, and jockeying for a position over who has the right to settle a professional arkansas no reported case applying a right to consent provision. 3 was settled, roger was no longer an insured; therefore, his consent was freeman, 969 so. 2d at 1152 (quoting fla. stat. ann. § 627.4147(1)(b) (west 2005)). upon such consent to its detriment, [it] discern[ed] no sound reason for terms of an insurance contract by settling a claim without his consent. the faith."6 17 conclusion. as stated in 7c j. appleman, insurance law and practice § 4711 (3d liability claim has become more complicated. when it comes to the settlement of a third- delaware no reported case applying a right to consent provision. the court held that it is possible to assert a bad faith action against an insurer association of defense counsel where he serves on several a commonly cited case in florida discussing consent to settlement in a plaintiff for an amount within the policy. the plaintiff/physician demanded that the insurer action was instituted against the insured. the insured did not give consent the filiberty decision, although decidedly in favor of the insurer, does not foreclose the in kansas, under the health care provider insurance act, health care pro- new mexico no reported case applying a right to consent provision. brian r. biggie concentrates his practice on complex insurance generally, policies that contain consent clauses also include mandatory arbitration provi- not required. lastly, the court rejected the argument that an insurer could 34 § 627.4147 was passed, and the statute, therefore, did not apply. the court 4 transit casualty co. v. spink corp., 156 cal. rptr. 360, 367 (dist. ct. app. 1979) (citation omitted). typically, under a general liability policy, the authority to investigate and settle claims agreement granted the insurer the exclusive authority to control settlement the supreme court of alabama confronted a policy arbitrarily and went on to state, "`the right given by contract still requires that the insurer the new york court of appeals held that the decision to settle a case was with a third party, the consent of the insured was required. policy applied the deductible to an amount that the insured was "legally obligated to pay." id. at 565. the court interpreted this phrase as requiring a contract still requires that the insurer make an investigation, consider the statutory standards applicable in that particular jurisdiction. entirely clear, it may have been because the cancellation was a tactical move to negate the tice claim. the court went on to state, "this is not to say, however, that the app. 2002), chambi and regents were sued for malpractice resulting in "an opportunity to convince a jury or judge that his refusal to agree to a settlement was · what is the right of the insurer to collect from the insured any payment of the in the case mitchum v. hudgens,7 new york court of appeals in feliberty v. damon10 the insured required her consent before a settlement was reached. the doctor id. he lacked standing to bring the claim. as a result, the court did not reach the merits of his · what are the relationships between the insured, primary insurer, excess insurer, district of new york and is a member of the defense research 5 pennsylvania in bleday v. oum group, 645 a.2d 1358 (pa. super. ct. 1994), the court a breach of the insurer's fiduciary duty. the court rejected each of these 43 (as of december 2007) 21 the notion that an insurer may be held liable for the breach of its duty of "good duties and obligations may vary is when a policy grants the insured the right to consent to sional liability policy cannot grant an insured veto power for a settlement 1989), the hospital obtained a policy including employees as insureds. the third party beneficiary, simply because it will confer an additional benefit most recently, dr. freeman filed a complaint seeking a declaration that florida's "no affirmative act by the insured and that it was the insurer who chose not to means of `protecting' the carrier from exposure." id. at 1041-42. any settlement poses a risk to an insured's reputation and possibly the insured's ability to thereby exposing the insured to a potential excess judgment; and (2) where under the policy, not some collateral effect" unrelated to the claim. a settlement. the consequence of such a provision will be governed in part by the policy cies.3 stated that district of columbia no reported case applying a right to consent provision. a settlement that included the dismissal of chambi. the settlement was insured initially gave consent to settle a malpractice claim. after hearing id. at 196. viders pay a surcharge to the fund to qualify for excess coverage. see kan. the claims adjuster was finalizing a settlement with the plaintiffs. the plaintiffs filed a 527 n.e.2d 261 (n.y. 1988). this dynamic changes, however, in the context of an insured covered under a profes- or settlement of any claims against the insured, and that it is not bound to consult considered the following fact pattern. to settle within policy limits: the obligation of good faith in rogers v. chicago insurance co., 964 so. 2d 280, 284 (fla. dist. ct.app. for an amount slightly less than the verdict. the insured filed suit alleging right to settle provisions in a professional liability policy is unenforceable, an insurer's right to settle is not absolute. the insurer must satisfy its insured's consent was not required before the insurer could settle a malprac- breach of contract action." id. at 185. malpractice action is shuster v. south broward hospital district physicians' missouri in brion v. vigilant insurance co., 651 s.w.2d 183 (mo. ct. app. 1983), massachusetts no reported case applying a right to consent provision. two exceptions to this general principle: (1) where there are multiple parties, duty of care. that reasoning was subsequently rejected by the california any claim hereunder without the consent of the insured, including any offers for admission of in assessing the enforceability of a "right to consent" clause, at least one court, while addressed an insurer's concerns about the insured's professional reputation or the possibility of higher insurance of § 801 did not apply. 1983)). renew a policy. the court stated there was no foundation for the proposition did not address the issue of consent. in saucedo, after a malpractice claim 9 unlucky enough to the find him or herself a defendant in a personal injury action, for example, a decision the insurer had the right to make. id. at 262. insured retains the right to consent to settlement and withholds that consent, that regents was a self-insured public entity. therefore, the requirements oregon no reported case applying a right to consent provision. education award from the buffalo alliance for education. law committee and is also a member of the federation of that the insured have control over acceptance or rejection of settlement offers. faith claim filed by an insured who does not agree with a potential settlement. again, any deems expedient." id. at 176. the insured filed an action seeking recovery upholding the provision, considered the public policy implications and noted that "[t]here endorsement stating, in part, "we can pay the deductible to settle a claim. if west virginia no reported case applying a right to consent provision. cases before the third and fourth departments and practices duty to the health care provider, and consent was not required. in pavia v. state farm mut. auto ins. co., 626 n.e.2d 24 (n.y. 1993), the utah no reported case applying a right to consent provision. held that there existed a three-way relationship that created a three-way provisions in professional liability policies while addressing the bad faith claim, the court stated that while the florida statute rise to liability for an excess judgment." id. at 317. to settlement . . . , here the parties' contract unambiguously gave the insurer the listrom, eisenbarth, sloan and glassman, 978 p.2d 922 (kan. 1999), the contrary to the intent and expectation of the parties." id. at 1360-61. the court noted that the policy contained a clause that required the insurer to id. when such offer is within the policy limits. however, any . . . settlement offer, or to settle provisions in a the court stated that the insured's discontent was based upon the decision to settle the stat. ann. § 40-3403 (2006). if an insurer tenders the limits of its policy, baton rouge, 362 so. 2d 561 (la. 1978), the insurer sought payment of a ii. to the terms of a right to consent clause contained in a policy and held that 2007), the court held that the statutory requirement that a settlement be made oklahoma no reported case applying a right to consent provision. renew the policy. the court held that the provision was unambiguous and continue to practice. a minimum, be mindful of the possibility that it may incur the expense of defending a bad ment. see cal. bus. & prof. code § 801 (2007). the relevant portion of the [m]ost courts construing identical or similar policy provisions have reached the same obligation to act in good faith. following a brief and general introduction regarding settle- 20 id. at 197 (quoting 7c john alan appleman, insurance law and practice § 4711, 369-70 (3d ed. fla. aug. 1, 2008). in courts throughout new york. he is also admitted to prac- the decision in feliberty, the court of appeals in pavia v. state farm 13 (ill. app. ct. 1979), the plaintiff filed suit alleging his insurer breached the insurance and corporate counsel and the international within the policy limits. in affirming the insurer's authority to resolve the claim, the court this conflict, and these divergent interests, have led some physicians to seek policies michigan in jayakar v. north detroit general hosp., 451 n.w.2d 518 (mich. ct.app. id. on her, not because it contravenes public policy." id. at 867. ter, south broward issued a policy reserving the right to settle a claim "as it is authorized to negotiate a settlement with the claimant. in miller v. sloan, and obligations of the insured and insurer can be challenging. tice law before the united states district court for the western to the settlement and st. paul breached its contractual obligations. fdcc quarterly/fall 2008 32 and without the consent of the insured, the insurer settled the claim for an amount slightly possibility of a bad faith claim even where the insurer retains the right to settle. following iii. ment provisions in professional liability policies. interests in settling a malpractice action.adispute, and possible litigation, may arise regard- maine no reported case applying a right to consent provision. not give consent to the agreement reached by the commissioner. the court held that phrase "deems expedient" placed the insured on notice "that the while the pavia decision still requires an insured to show more than negligence to practice is largely devoted to the defense of general insurance applied it as written. leged medical malpractice. following trial, the injured party obtained a verdict against the id. at 26-27 (citations omitted). party claim against the professional/insured, an insurer must be mindful of the duties and colorado no reported case applying a right to consent provision. that a plaintiff must present more to maintain a claim for bad faith where be subject to increased premiums, loss of earnings, and harmed reputations. 610 p.2d 1038 (cal. 1980) . the court held that while an implied covenant enter into a settlement without the written consent of the insured, except illinois in rogers v. robson, masters, ryan, brumund and belom, 392 n.e.2d 1365 recourse to litigation.'8 19 interests and, therefore, did not have any right to negotiate a settlement. at the same time, arizona no reported case applying a right to consent provision. fdcc quarterly/fall 2008 the settlement clause exhibits no inconsistency with the policyholder's obligation of good right to settle provisions in a professional liability policy containing `right to consent' clauses, which traditionally provide that the insurer shall not 42 did not apply to claims involving a former insured. at the time the claim 44 court held that an insured must show more than negligence to establish a consent. the court noted that the policies at issue were procured before 40 reasonable under all the circumstances, including his concern for professional reputation. fdcc quarterly/fall 2008 the unsettling nature of the right was reached without the consent of the insured. the policy did not reserve to characterized the consent provision as a "pride" provision and stated that insurance treatise couch on insurance 3d and provides commentaries to the monthly bad insurer is entitled to exercise this right arbitrarily. `the right given by the peals for kansas was required to interpret the consequences of a policy that freeman v. medical protective co. of fort wayne, no. 08-80479, 2008 u.s. dist. lexis 59106 (s.d. 8 in shuster, 591 so. 2d 174. the insured filed suit premised upon breach of wyoming no reported case applying a right to consent provision. the referenced language opens the door for an insured to at the court did note that the exclusive right given to the insurer cannot be exercised best interests of the insured."17 country, no court has held that such provisions are unenforceable or against public policy.1 settling the matter without his consent. insured has a direct financial stake in the litigation, the law generally requires policy also required the consent of the insured before any settlements were the court went on to state that a settlement clause (i.e. "right to consent" clause) "does and to be guided by its own self-interest." id. at 176. the court identified was lacking because the policy had been cancelled was rejected. while the reason is not therefore, give rise to damages not generally recoverable in a conventional premiums are not likely prevalent. for those litigants, the prospect of litigation, the threat case. that decision, however, was a decision the insurer had the right to make.12 33 conflict between the interests of the insurer and the insured. for the homeowner or driver arguments stating, "in short, she wants to alter a contract of which she is a tion and thereby protect that reputation. the breach of this contract may, interpreted the same "deems expedient" language as did the florida court since the policy did not say the carrier had the exclusive right to settle, it 36 clause requiring his consent before a settlement was reached.amalpractice insurer settled a malpractice claim without the insured's consent. the court ganized a gift-giving campaign for the benefit of over 300 local within the policy limits. carrier settles a claim against the insured within policy limits is one alleging prejudice to a insurance contract . . . specifie[d] that the `company may make such investigation holding the consent to be irrevocable." id. at 422. investigate and settle claims. the exception to this right was contained in an minnesota no reported case applying a right to consent provision. to effectuate a settlement, but it protects the interests of the injured party by a jurisdictionalanalysis of settlement contract and bad faith, contending that as a result of a settlement, it would veto a settlement, while denying the same right to another insured. further, louisiana the issue of consent by the insured can arise in the context of general ed. 1983): `it was earlier stated that an insurer has the right to make a compromise sional liability policy. in this instance, the insured has a strong interest in safeguarding his ing, every employee or volunteer who qualified for coverage would have motion to enforce the settlement. dr. freeman objected on grounds that the carrier had no ment not be made in bad faith.'"9 supreme court in commercial union assurance co. v. safeway stores inc., information age makes it possible to send and receive information instantaneously. in ad- ated a settlement. the insured objected to the settlement stating that he did i. 626 n.e.2d 24 (n.y. 1993). and allows the insured expert by litigants in coverage and bad faith litigation. he is the co-author of the renowned see fla. stat. ann. § 627.4147(1)(b) (west 2005). in the end, given the concerns of an insured, there is always the possibility of divergent compromise any claim under the policy without the insured's consent. in contrast, policies the consent clause in a professional liability policy naming the hospital as virginia no reported case applying a right to consent provision. idaho no reported case applying a right to consent provision. "it is against public policy for any insurance . . . policy to contain a clause giving new hampshire no reported case applying a right to consent provision. courts have recognized that such provisions are unique to professional liability poli- north carolina no reported case applying a right to consent provision. 18 for, and presumably costlier, policy provisions contemplating the insured's consent litigation between professionals and their liability insurers over the last several years to defend or indemnify the excess carrier; hence, the carrier can possess no and the insurer, in bad faith, simply settles with only some of the parties, iowa no reported case applying a right to consent provision.