Spontaneously, my idea to protect against such a ligitation would be, put it in the contract that if the insurance rules that the client has no valid case, the client can take it up to a committee, for example the pool of all clients. And have it in the insurance contract that the decision of the committee is final. Obviously/hopefully it'd be in the interest of the other clients that their insurance payments won't being spent on the wrong type of cases.
If I'm purchasing litigation insurance, I'm not going to want a provision where the denial of my coverage is determined by a pool of individuals who have an interest in not granting the coverage. Insurance agreements are legally binding contracts and that's why they get litigated over. Your scheme essentially waives an insured's right to a breach of contract claim over non-coverage.
(Shrugs emoji) Well okay, sooooorry I can't convince you to buy this fictitious insurance to protect your fictitious self against fictitious patent lawsuits...
Insurance schemes pool the insureds' moneys together in case something bad happens to one of the insureds, of course it'd be in all the insureds' best interest that the money is used properly, if the company says "We won't fight this particular patent troll", it's also in the pool's interest to tell the company "Wait, we think this is a valid case, and you have to fight it!", because otherwise, when a similar patent troll shows up trolling one of them, the insurance company will also ignore it, leaving them exposed.
> Insurance agreements are legally binding contracts and that's why they get litigated over. Your scheme essentially waives an insured's right to a breach of contract claim over non-coverage.
If I drink and crash my car, my insurance won't pay me. I can sue them and the judge will tell me to fuck off. In a poor analogy of my fictitious example, I can ask the pool of other drivers to judge whether the insurance should pay or not, and if they say no, sure I can also go to the judge, and she'll say "Sorry, the contract says the pool's decision is final.".
>If I drink and crash my car, my insurance won't pay me. I can sue them and the judge will tell me to fuck off.
Because of the terms of your insurance agreement that will clearly disavow coverage in this circumstance.
> In a poor analogy of my fictitious example, I can ask the pool of other drivers to judge whether the insurance should pay or not, and if they say no, sure I can also go to the judge, and she'll say "Sorry, the contract says the pool's decision is final.".
The thing you don't get is that insurance agreements are already legally binding agreements which is why coverage decisions are made with respect to the facts of the matter and the terms of the insurance agreement. As an insurer, if you do not cover something that the agreement requires you to cover, the insured will win win in court and get the coverage.
>Insurance schemes pool the insureds' moneys together in case something bad happens to one of the insureds, of course it'd be in all the insureds' best interest that the money is used properly, if the company says "We won't fight this particular patent troll", it's also in the pool's interest to tell the company "Wait, we think this is a valid case, and you have to fight it!", because otherwise, when a similar patent troll shows up trolling one of them, the insurance company will also ignore it, leaving them exposed.
Insurers make the decision based upon the terms of the insurance agreement that they signed.
