President’s Message/State of the College
Meet the New ACCC President
Get to Know ACCC's New Board of Regents Members
Call for Volunteers
Introducing Some of ACCC's Newest Fellows
Nominate a Fellow
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In Memoriam: Steven R. Gilford
9th Annual Insurance Law Symposium
The Sky is Falling: Climate-Related Impacts on the Property Insurance Market
And You Thought that the American Law Institute Was Done With Insurance? Heads Up—More Is On the Way!
(Updated version)
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Announcing the Edward Currie Founder’s Award
Member Spotlights: Membership Committee Co-Chairs
Fellow News
Welcome New Fellows
ACCC Upcoming Events
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President's Message / State of the College |
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By Debra Varner, Varner & Van Volkenburg, PLLC
Dear Fellows:
There has been a lot of energy and excitement in the College during the past few months. Planning for the Law School Symposium is mostly complete, and the Annual Meeting Co-Chairs are well on the way to another spectacular event in May 2024. Many thanks to Mike Huddleston for championing the College during the past year and for his wisdom and guidance along the way this year.
The College is strong financially and the ever-astute Finance Committee continues to explore additional avenues of investment and growth. Wayne Taylor will officially be cycling out of his many leadership positions. Wayne provided extensive effort and dedication to making the College better for all. Many thanks to Wayne for his years of service on the Membership Committee, the Board of Regents, and as an Officer. As always, the College is in good hands with Angela Elbert serving as the President-Elect and Steve Pate having been elected to serve as the Secretary-Treasurer. In addition to the Officers, Robert Allen and Koorosh “KT” Talieh have been appointed as members of the Executive Committee.
We have focused the first few months of this year on committee participation. There is no better way to get involved than to join a committee and participate. There are many opportunities within the College to speak and to write. The College is made up of some of the most brilliant and creative minds in the insurance arena. We want your input and advice. So please “raise your hand” or send an email and let a Committee Chair or an Officer know of your interest and your willingness to serve.
One of my goals for the year was to continue with the pop-up calls and expand the offerings. The Pop-Up Committee chaired by Marc Gravely and Lisa Weixelman was challenged with planning one pop-up call per month. They are doing a great job. If you have a topic that you would like to be the subject of a pop-up, reach out to one of them.
The 9th Annual Insurance Law Symposium will be held on October 20, 2023, at Golkin Hall, Fitts Auditorium on the campus of the University of Pennsylvania, Carey Law School, Philadelphia, PA. Joann Lytle and Mike Hamilton, along with a fantastic committee have done a tremendous job in identifying cutting edge topics and top speakers. If you have not registered, take some time to do so. We would love to see you in Philly.
For those of you who were unable to attend, the 2023 Annual Meeting in Chicago was a huge success. Many thanks to Koorosh “KT” Talieh and Mary Borja for their work as Annual Conference Co-Chairs. Suzann Charlton and Barbara O’Donnell have already begun work of planning the 2024 Annual Conference scheduled for Chicago May 8-10, 2024. Mark your calendars now. Watch for announcements coming soon.
To the many of you who have raised your hand already, thank you. To those of you who have yet to get involved, jump in. The College is a fantastic organization full of opportunity, talent, brilliance, and great people. We look forward to seeing you at one of the many events being planned this year.
Warm regards,
Deb
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Meet the New ACCC President |
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Debra Tedeschi Varner assumed the role of the ACCC’s 10th President at our Annual Meeting in Chicago last May. This month, former ACCC President Michael Aylward (MA) caught up with Deb to discuss how her Presidency is progressing, what drew her to the ACCC in the first place and what she hopes to do if she ever has free time.
MA: As long as I’ve known you, you’ve been a West Virginian. Were you born there?
Varner: Actually, no. I was born in New Jersey and went to college there and law school in Virginia. I ended up in West Virginia because of bad taste in men (not her husband Jim!).
MA: Was there any expectation in your family that you would become a lawyer?
Varner: No, there were no lawyers in my family. But I had a grandfather that I was close to and he encouraged me to join the FBI and that was my goal from the third grade on. In fact, I did get an accounting degree in college before going to law school but I never got to the FBI because they also had a running requirement and that was never my thing.
MA: Did law school live up to your expectations?
Varner: Law school can be treacherous at times but once you're trained to think the way you're trained and to analyze things, I really believe that you can do anything with a law degree.
MA: What’s it like handling coverage claims for insurers in West Virginia?
Varner: West Virginia is a little bit different when it comes to coverage. There are not a lot of people who do just insurance work but there are lot of plaintiffs’ personal injury lawyers who dabble in policyholder claims. I also represent insurers in Kentucky, Ohio and Pennsylvania on coverage issues and am fortunate to be able to focus in that area of the law.
MA: What’s the most interesting coverage claim that you’ve ever handled?
Varner: Back in 2017, I handled an insurance dispute in the Fourth Circuit involving coverage for a hole in one tournament at the Greenbrier Resort in West Virginia. I love golf and I won! (The court held that the “winning” entrants had hit from 137 yards whereas the coverage stipulated that the minimum distance would be 170 yards).
MA: You mentioned golf. What else do you like to do in your spare time?
Varner: Jim and I both like to travel. We did an awesome trip to South Africa and were in British Columba earlier this year fishing for salmon and halibut near what used to be called the Queen Charlotte Islands. We have hunted in New Zealand. We just got back from the Amalfi Coast in Italy. I have been fortunate to go to cooking school in Tuscany and travel throughout Italy including the small town in which my grandfather was born.
MA: You had been very active with the Federation of Defense and Corporate Counsel and other groups before joining the ACCC. What’s different about the College?
Varner: Maybe because it's so new, no one says “that’s now how we’ve done it in the past.” There’s more opportunity for innovation and creativity. Importantly, you have the ability to work with people who are actively involved and can figure out the best plan. I like having both sides of issues represented in one place.
MA: Who recruited you to join the ACCC?
Varner: Ned Currie.
MA: You’ve been president for a few months now. How’s it going?
Varner: It’s been wonderful. It's great to be with a group of people who you can talk about issues even if they're esoteric and someone's had it, done it, heard it. I like the intellectual stimulation that you get from being with so many smart people even if it’s a bit intimidating at times. I also really like getting to know our policyholder members in a social context. It’s just a totally different interaction than being in litigation. I think it’s so valuable to have a chance to interact with other lawyers and get their side of the story. It makes you think outside of the box and it makes you think how you are going to deal with these issues when they are presented to you in a case.
MA: What are your goals as our tenth president?
Varner: I’m really trying to energize our committees and encourage Fellows to join committees and get active. I’m also really pleased by the work that the Pop-Up Committee has been doing this year. They’ve been putting on a new program every month and it’s a great way to give back to your membership. You can sit in your office for an hour a month and learn something new. We are also working hard on this year’s Law School Symposium in Philadelphia.
MA: What do you tell people sitting next to you on airplanes who ask what you do?
Varner: I tell them the truth and then usually they don't understand. Like, usually I'll say I'm an attorney and for some reason a lot of people think, well, are you a criminal lawyer? And I'll say, I handle insurance coverage and they have no clue what it is.
MA: You get the last word.
Varner: It's been great. I would just encourage ACCC Members to get active. One of the best things about our College is its size and the ability to meet such fantastic people on a more personal level. It’s fantastic.
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Get to Know ACCC's New Board of Regents Members |
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Tyler Gerking, Farella Braun + Martel LLP
By Andrew Downs, Bullivant Houser
New policyholder-side Regent Tyler Gerking is a partner in Farella, Braun + Martel in San Francisco, where he’s been his entire career.
Tyler grew up in Medford, Oregon and took a somewhat roundabout route to being an insurance lawyer. He became interested in International Law while studying in Germany and didn’t find insurance until arriving at Farella after graduation from Berkley Law. He recalls working with former ACCC President Mary McCutcheon on a case involving CGL coverage for the failed construction of a Geothermal Power Plant in which the Farella team had success avoiding application of the “j.” exclusions. He says that experience got him hooked on insurance coverage.
Away from work Tyler is an avid skier, runs ultra marathons and is active in a number of community and law-related groups besides the College.
According to Tyler, the biggest change he’s seen in the practice of insurance law over the course of his career is the courts are moving much more slowly now than they used to.
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Laura Hanson, Meagher & Geer, PLLP
Laura Hanson is a senior partner in the Minneapolis office of Meagher + Geer, the only law firm that any one of us has ever heard of that has offices in Chicago, Los Angeles and Bismarck, North Dakota. Laura has been listed as among the Top 100 Women Super Lawyers and The Best Lawyers in America® for her insurance coverage practice. Laura served as Co-Chair of the Section of Litigation’s Insurance Coverage Litigation Committee for the American Bar Association from 2013-2016. Earlier this month, she sat down for a chat with former ACCC President Michael Aylward (MA).
MA: We’ve been friends for nearly twenty years, but I know so little about your personal life. Are you a born and bred Minnesotan?
Hanson: I grew up in a small town in Southern Minnesota. I am one of 9 children.
MA: What steered you to a career in law?
Hanson: I don’t really remember when it was that I decided I wanted to be a lawyer, but it was sometime in the junior high years. I was definitely a competitive kid and wanted to do something where you could compete and win.
MA: What did you do after law school; what was your first job as a lawyer?
Hanson: I am a part of that “dying breed” of lawyers who only worked one place! I clerked at Meagher & Geer, the summer after my second year of law school (1984) and then joined the firm after graduating in 1985. I have been there for 38 years now.
MA: What is the most interesting thing you do outside of the practice of law?
Hanson: I’m not sure this is interesting, but I am somewhat of a sports fan geek, but not of professional sports. I avidly follow college football and go to several games a year, including at least one at Notre Dame (where I attended law school). I follow college hockey and attend some games, college basketball (mainly women’s but men’s too) and I follow certain Olympic sports, such as swimming. The only professional sport I follow regularly is tennis.
MA: Tell us about your first big insurance coverage case.
Hanson: My first significant coverage case was Boardman Petroleum v. Federated Mutual. We started in the U.S. District Court in Augusta, Georgia, then handled an appeal in the Eleventh Circuit and ended up arguing certified questions in the Georgia Supreme Court before we got a final outcome. The parties to that case had several other cases against each other in Georgia and South Carolina, so the outcome of the appeal was going to make a difference. The key for insurers, as you know, is having as much certainty on the law as we can get! So, during the frenzied litigation in the environmental arena, we could serve our clients well by getting a “rule” in a particular jurisdiction on the critical issues, such as the pollution exclusion or whatever. I enjoyed that case a lot because I was able to argue in the Eleventh Circuit and the Georgia Supreme Court in the same case!
MA: You’ve been practicing for nearly 40 years. What is the biggest change you’ve seen over your career with respect to coverage litigation?
Hanson: Over my career, I think the insurance industry has responded much better in more recent years to the courts’ interpretations of policy language, and also to fill gaps in coverage and offer the proper insurance product for policyholders to obtain the protection they need. In the 1980s and 1990s the response of the industry was slower.
MA: Tell us about how it is to practice in the states where you work?
Hanson: I am licensed in South Dakota and Montana, primarily because of cases I had there and the fact that both states have somewhat problematic case law for insurers in the bad faith arena. Neither state has a lot of “coverage only” lawyers and most firms who represent insurers do both defense work and coverage, and as a result, there are often conflicts. There are a lot of good lawyers in both those states, but not enough of them when there is a big coverage battle! I have also litigated coverage cases in places like Georgia, Louisiana, North and South Carolina, New Hampshire, and Ohio. I really enjoy meeting and learning from great lawyers around the United States.
MA: What drew you to the ACCC and how does it differ from other bar associations that you’re active in?
Hanson: The ACCC is an amazing organization made up of the best and most experienced coverage lawyers in the country. When you compare it to other bar organizations that focus on insurance coverage, what sets the ACCC apart is the level of wisdom and experience of the Fellows. These are people I have seen on cases for many years . . . and then I meet a Fellow I did not previously know, and I find out about their amazing depth of knowledge and experience in their jurisdiction. I feel like I am with old friends and new friends who have all been through similar experiences and professional history. It’s great!!
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Alex Potente, Clyde & Co.
By Mary Craig Calkins, BlankRome LLP and Seth H. Row, Miller Nash LLP
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New ACCC Board of Regents member Alex Potente has practiced on both “sides of the aisle” in insurance coverage for over twenty years, starting his coverage practice in San Francisco at Heller Ehrman and then at Farella Braun + Martel where he worked with Mary McCutcheon. After a sojourn as a county attorney in Eagle County, Colorado, he returned to the Bay Area and changing “sides” to work with Bruce Celebrezze representing insurers at Sedgwick and then Clyde & Co. Before starting practice, he clerked for the late Hon. James B. Zagel in the Northern District of Illinois, who Alex described as a tremendous mentor and the clerkship as a fantastic learning experience.
As a Fellow of the College, he rubs elbows with the “highest, most experienced” practitioners in our practice area, which is organized on principles of excellence and “where collegiality can dominate.” In addition to the high caliber of substantive expertise that is shared, there is a good chance to get to know fellow coverage lawyers, which is “very useful” in the practice.
Where were you born?
Kenosha, Wisconsin, now famous for race riots and the childhood home of Mark Ruffalo, who Alex claims, without verification, as a distant cousin. (The Ruffalos and Potentes are both from the same tiny town in Calabria.)
What was your first big insurance coverage case?
It was on the policyholder side representing Kaiser Aluminum in a dispute over coverage for asbestos related claims in the 1990s involving the meaning of “bodily injury by disease.”
What is the most interesting thing you do outside of the practice of law?
I love to go backcountry telemark skiing with family and friends (including ACCC fellow regent Tyler Gerking). I enjoy skiing in the high Sierras near our home in Tahoe, and I’ve taken skiing trips to Europe and British Columbia. I was a county attorney for four years in Eagle County, Colorado which was very convenient for skiing. [Editor’s note: Tyler Gerking provided this input on Alex and skiing: “I’ve skied with Alex for over 20 years, and I’ve come to appreciate his boundless ‘zest for life” or joie de vivre. My enduring image of Alex, because it recurs every time I’m in the mountains with him, is of a guy on telemark skis (one of the few still in existence!) waddling out to the edge of the cliff in a snowstorm and looking back over his shoulder to me, waving his hand and yelling: ‘Come on! It’s totally doable!’”].
What else should members of the ACCC know about you?
I am committed to seeing the ACCC continue to be a forum where policyholder and insurer-side attorneys can meet outside of the context of contentious litigation and forge friendships that help us all both become better lawyers and people.
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Want to become more involved in the ACCC? Join a committee!
Our Co-Chairs are actively seeking volunteers to join their committees:
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Introducing Some of ACCC's Newest Fellows |
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Christina May Bolin, Christian & Small LLP
By Robert Allen, The Allen Law Group
New Fellow Christina Bolin is originally from Queens New York, where she grew up as the daughter of a legal secretary for a Manhattan law firm. Going to work with her mother sparked Christina’s interest in the law. In fact, she was a runner and then a secretary at the firm up until the time she went to law school.
After law school, Christiana started her law career in Mobile, Alabama at Alford, Clausen & McDonald. Early on, Christina handled a $40M condo claim related to Hurricane Ivan, involving the application of building sub-limits, which she remembers as being a lot of money at the time.
Over the course of her career, Christina has noticed the slow disappearance of provable bad faith claims because states are making it increasingly difficult for plaintiffs to get bad faith to a jury. As a result, most of her negotiations do not even contemplate bad faith damages.
In her practice, Christina handles coverage issues in numerous states, particularly in the Southeast. From this perspective, another trend she has noticed is that some state bars are becoming more territorial and parochial--for example, Alabama, which does not allow public adjusters, considers practicing law without a license a misdemeanor and is showing resistance to out of state lawyers handling coverage matters in Alabama.
Outside of her law practice, Christina rides with a Mardi Gras parade organization in Fairhope, Alabama. For one night each year, she gets to dress up in a ridiculous costume, don a mask and throw candy, beads and toys to parade goers.
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Emily E. Garrison, Honigman LLP
By Christine Haskett, Covington & Burling LLP
Emily Garrison was born and raised in Ardmore, PA (just outside Philadelphia). Emily comes from a family of non-lawyers, but her interest in the law was piqued when she worked as a paralegal for the Department of Justice after college, which included working on the trial of the federal RICO case against the tobacco companies. In that context, she had the opportunity to work with "incredible" lawyers, and "learned that being a lawyer is so much more than what you see on TV."
Emily went on to law school and made the mistake of graduating in 2008... But the recession wasn't all bad, because it resulted in Emily joining an insurance recovery practice (after stints at a legal aid organization and a smaller firm).
Once Emily started working on coverage cases, she was hooked, and hasn't looked back since. Emily's first coverage case was a long-tail asbestos case in Cook County, Illinois. She has also litigated in Texas, California, Delaware, and Florida. Emily currently has a case in Oregon, where she is enjoying the policyholder-friendly law that flourishes in the rainy climate of the Pacific Northwest.
Outside of work, Emily loves staying active, trying new workouts, and is currently taking boxing lessons. (Watch out, insurance companies!)
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Kimberly Steele, Clyde & Co US LLP
By Eric B. Hermanson, White & Williams LLP
Kim is Senior Counsel at Clyde & Co US, in Dallas, Texas, representing carriers in complex coverage disputes. She practices primarily in Texas, but also handles cases in Florida, Louisiana, California, Tennessee and a few other states. She particularly enjoys working on large construction defect cases because of the complex nature of the causation and coverage issues and the interplay between the various contractors, subcontractors, and their carriers. Other than college, Kim's lived in Dallas her entire life; she and her husband (pictured) grew up just down the street from each other, and his father was one of her law professors at SMU.
Upon graduating from law school, Kim clerked for the Tyler Court of Appeals. After a year with the Court, she joined the firm of Zelle and Larson (now Zelle LLP) in Dallas, where she first dipped her toe into coverage and bad faith defense work. She has been defending carriers in a wide variety of cases ever since. When asked what interested her in the practice of law, she answers: "When I was little, my mother was young, single and struggled to support us both at times. Growing up, I knew I wanted to be self-sufficient. I originally thought I wanted to be a doctor, until I actually started down the pre-med track. Once that was off the table, I realized that writing, and sometimes arguing, were strengths of mine that just naturally dove-tailed into a career in law. Thirty-three years later, I'm still utilizing both of those strengths ... "
When not handling coverage cases, Kim loves being outdoors; her latest obsession is with pickleball. She also enjoys delivering meals for Meals on Wheels: "Just giving a few minutes every other week to lonely seniors in my area is so fulfilling and good for my heart."
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Nominate a Fellow
The Membership Committee routinely vets prospective Fellows of the College. To maintain the prestige of membership, the only entry to the College is through a referral from a current member (someone who is NOT at the same firm as the nominee).
ACCC is seeking nominations of qualified candidates who practice insurance coverage law in the U.S., Canada, and Bermuda.
Qualified candidates are lawyers engaged in the private practice of law, with a concentration primarily in the fields of insurance coverage, bad faith and/or extracontractual claims, licensed to practice law in the highest court of their respective states, and who have engaged substantially in the practice of insurance law for at least 15 consecutive years. Time spent as a judge or law clerk may be considered in determining whether the 15-year requirement has been satisfied.
Nominations should be submitted to [email protected]. Please include the nominee’s name, basic contact information, and link to their firm bio. The Membership Committee will conduct an initial vetting, including contacting other Fellows for references, and will then send an application to the candidate as a next step. If a candidate is nominated and does not progress to the application stage, the nominator will be informed.
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In Memoriam: Steven R. Gilford
Steven R. Gilford, Esq., 70, of Evanston, Illinois passed away on August 13, 2023. He was a mediator and arbitrator in commercial, insurance and a variety of other types of disputes. Steve joined JAMS following 40 years of experience in litigation, insurance, and negotiation of complex settlements. Chambers described him as having “a remarkable ability to focus on the points that really matter” and with the “ability to talk to both sides in a clear and down-to-earth manner.”
Steve dedicated his life to improve the lives of many through his professional and volunteer efforts. He was a strong trial and appellate litigation attorney who spent much of his career at major law firms, including Isham Lincoln & Beale, Mayer Brown & Platt and, in 2008, opening a Chicago office for Proskauer Rose, where he was office head and co-chair of the insurance recovery practice. Steve then “retired” from private practice to continue domestic and international arbitration mediation and other forms of alternative dispute resolution for JAMS. He was a long-time board member of various not-for-profits and former member of state and local boards of education. Steve’s experiences, knowledge, and compassion will be missed by many.
ACCC Fellow Marc Rosenthal said “Working with Steve for 30 years, first on the insurer side, then as a policyholder advocate, what stood out to me was his dedication to his clients, his credibility with
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opposing parties, and his unlimited willingness to mentor and encourage younger lawyers. He was a highly valued advisor and counsellor who looked for business solutions, rather than leaping to litigation. This trust and willingness to see the whole picture made Steve a popular and successful arbitrator and mediator with JAMS over the past five years. His counsel, humor, and friendship will be greatly missed.”
Steve was married to Anne Christine Johnson Gilford for 49 years. Their family includes three children, and five grandchildren.
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ACCC 9th Annual Insurance Law Symposium
By Symposium Committee Co-Chairs:
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Michael A. Hamilton
Goldberg Segalla
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Joann M. Lytle
McCarter & English
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Join your colleagues on Friday, October 20, 2023 for the American College of Coverage Counsel’s 9th Annual Insurance Law Symposium at the University of Pennsylvania Carey Law School. The Symposium brings together leaders in the field of insurance coverage from both the carrier and policyholder sides, ensuring a lively discussion on the following cutting-edge topics:
· The Influence of the Restatement in the Courts and State Legislatures (Samuel J. Arena, Laura Foggan, Lorelie Masters)
· Intersection of Bankruptcy and Insurance (Professor Tom Baker, Blair Dancy, Seth Lamden)
· PFAS (Michael A. Hamilton, John T. Harding, Joann M. Lytle)
· Window Opening Statutes (Tim Burns, Dan D. Kohane, Laura Hanson)
· ESG and D&O (Doug Richmond, Lisa M. Campisi, Ronald P. Schiller)
· Student Presentation: Insurance Coverage: Why it Should Called Torts II (Randy Maniloff)
Out-of-town attendees are also invited to attend the Speakers' Welcome Dinner at the White Dog Café on Thursday, October 19, 2023 (advance registration required).
The Symposium has been approved for a total of 5.0 Pennsylvania CLE credits (4 Substantive and 1.0 Ethics). Attendees seeking CLE credit must pre-register for CLE prior to or on the day of the event.
All law school faculty and students are invited to attend free of charge. The registration fee is waived for the first 30 registrants who have been practicing for fewer than five years. For more details and to register visit: americancollegecoverage.org.
The registration deadline for both the Symposium and the optional Speakers Welcome Dinner is Thursday, October 12, 2023. (Separate CLE registration also required - See event description for details)
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The ACCC would like to thank the following sponsors for making this event possible: |
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Speakers Welcome
Dinner Sponsor
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The Sky is Falling: Climate-Related Impacts on the Property Insurance Market
By Seth D. Lamden (SL), BlankRome LLP
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Seth D. Lamden
BlankRome, LLP
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Gina Clausen Lozier
Clausen Choquette PLLC
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Rick Hammond
Insurance Claims &
Litigation Consultants, LLC
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The increasing frequency, severity, and unpredictability of extreme weather events continues to present challenges to insurers, reinsurers, policyholders, and regulators. While climate change may lead to increased premium revenue due to higher demand for property insurance, the number and size of claims promises to outstrip the increased revenue. Policyholders in some high-risk areas are already struggling to find property insurance. Allstate and State Farm recently announced that they would stop selling insurance to California homeowners, and since last year at least four major insurers have stopped selling homeowners insurance in Florida. Other property insurers are excluding or limiting coverage for damage caused by hurricanes and wind in at-risk areas, as well as increasing premiums and deductibles.
We invited two of the College’s renowned property insurance specialists, Gina Clausen Lozier (Clausen Choquette PLLC) and Rick Hammond (Insurance Claims and Litigation Consultants, LLC), to provide some insights on the impacts of climate change on the property insurance industry. Gina is based in Florida and focuses her practice on representing commercial policyholders. Rick is based in Illinois and provides insurance industry, underwriting, and regulatory expert consulting and testimony services.
SL: What are some property insurance trends you are seeing as a result of the increased frequency of catastrophic weather events?
Rick: As a result of the increased risk exposure resulting from weather catastrophes, several big insurers have scaled back their home insurance business costal states to avoid paying billions of dollars for anticipated wildfire damage, or have decreased or eliminated the sales of new policies in these locations. Although many state agencies are striving to keep premiums affordable for consumers, the economic cost of climate change keeps spiraling upwards and many insurers say they can't increase rates high enough to cover the damage occurring in the highest exposure locations.
A 2005 report authored by three insurance industry experts, cited a fifteen-fold increase in insured losses from catastrophic weather events (those with over $1 billion of damages) in the past three decades - losses that have far out-stripped premium increases, inflation, and population growth over the same time period. The report was written by Dr. Evan Mills, a scientist with the U.S. Department of Energy's Lawrence Berkeley National Laboratory; Richard Roth Jr., former chief property and casualty actuary and assistant commissioner at the California Department of Insurance who now works with a leading U.S. actuarial consulting firm; and Eugene Lecomte, president emeritus at the Institute for Business and Home Safety in Boston and 50-year veteran in the insurance industry. Mindy S. Lubber, president of Ceres, that commissioned the study noted:
Insurance as we know it is threatened by a perfect storm of rising weather losses, rising global temperatures and more Americans than ever living in harm’s way. Insurers and regulators have failed to adequately plan for these escalating weather events that scientists predict will intensify in the years ahead due to warming global temperatures.
Gina: A lot of my clients have properties located in Florida, which is unfortunately subject to extreme weather events, most notably from hurricanes and flooding. Given its propensity to experience catastrophic losses, the insurance market has suffered resulting in the following trends:
· There has been significant debate, and blame, regarding the cause of Florida’s “insurance crisis” which has resulted in a substantial overhaul of Florida’s Insurance Code in recent years including the removal of statutory attorneys’ fees in an insurance dispute.
· The number of insolvencies has increased putting pressure on Florida’s Insurance Guaranty Association to handle and resolve a significant volume of claims.
· Reinsurers are unwilling to assume risks in Florida’s market.
· Insurance companies are substantially increasing premiums and offering insurance on less favorable terms, such as high deductibles and low sub-limits on coverages. Additionally, some underwriters require replacement of building elements such as roofs prior to agreeing to insure a risk.
SL: If this trend continues, where will Florida policyholders be able to obtain homeowners property insurance?
Gina: In 2002, the Florida Legislature created the not-for-profit Citizens Property Insurance Corporation to provide both windstorm coverage and general property insurance for homeowners who could not obtain insurance elsewhere.
SL: Is insurance provided by Citizens comparable to private homeowners insurance?
Gina: Citizens is a statutorily created governmental entity that is often described as the “insurer of last resort.” Given it is not a traditional insurance company, it is not subject to the same requirements as the private market. As an example, Citizens is not subject to Florida’s statutes governing “bad faith” conduct and is not liable for extracontractual damages.
An additional difference between Citizens and the private market is that flood insurance is now required as of April 1, 2023, for new Citizens personal residential policies that include wind coverage for covered property within the special flood hazard area. The requirement to secure and maintain flood coverage for personal lines residential policies resulted from the December 2022 legislative session.
One common misconception is that Citizens must insure a property if coverage is otherwise unavailable. Unfortunately, I have had many clients who were not able to procure coverage, even with Citizens, given ongoing litigation or unrepaired damages as the property did not meet Citizens underwriting requirements.
SL: What changes have you seen regarding property insurance for commercial policyholders?
Gina: The most significant trend is the availability of insurance at rates that are adequate but not excessive. In Florida, there are few domestic carriers that continue to write commercial risks. Accordingly, most commercial property owners are forced to utilize the surplus lines market. While this provides availability, it comes at an increased cost, less statutory regulation under Florida’s Insurance Code as well as no protection under Florida’s Insuranc Guaranty Association in the event of insolvency.
SL: What are insurance regulators’ main concerns regarding weather-related impacts on the property insurance markets?
Rick: It is first important to note that the primary mission of the various states’ Departments of Insurance is consumer protection and insurer solvency. With respect to consumer protection, most Departments strive to protect consumers by providing relevant assistance and information regarding their insurance issues, by efficiently regulating the insurance industry's market behavior, ensuring financial solvency, and by fostering a competitive insurance marketplace. The Departments’ mission is intended to protect all consumers, not just claimants and insureds, but those consumers who pay their premiums month-in and month-out and who may never make a claim, but whose dollars nevertheless fund the claims and expenses paid by their insurers.
That said, from an economic standpoint, financial solvency and insurer stability are two of the most important goals that Departments focus on. Simply, because an insurer’s financial instability jeopardizes the rights and security of its policyholders and consumers at-large who depend on an insurer’s ability to defend and indemnify policyholders and third parties in the event of a loss or catastrophe. Unfortunately, insurance regulators’ efforts to ensure financial stability by insurers is being challenged by rising global temperatures that are causing significant increases in hurricanes, floods, hailstorms, wildfires, droughts and heat waves, and an associated increase in insurance claims. Although the insurance industry is highly regulated, insurance companies can and do fail for a variety of reasons. For example, they might underprice their products and/or have a greater-than-expected number and/or severity of insurance claims arising out of climate change.
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And You Thought that the American Law Institute Was Done With Insurance? Heads Up - More Is On the Way!
(Updated following July 2023 Newsletter Release)
By Michael F. Aylward[1], Morrison Mahoney LLP, Boston, MA
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In May 2018, the members of the American Law Institute convened in Washington, D.C. and voted to give final approval to the first Restatement devoted solely to issues of insurance coverage. The Restatement of Law, Liability Insurance (“RLLI”), which took eight years to complete, had proved to be a controversial undertaking and continues to meet with opposition from the insurance industry as well as several state legislatures that have enacted statutes forbidding state judges to rely on its provisions in deciding coverage cases.
While some ACCC Fellows have continued to track how the RLLI is faring in the courts, most have, not unreasonably, assumed that the ALI is done with insurance law. As may be seen, ALI Reporters are, in fact, presently working on three separate projects that will have important implications for how courts decide insurance and bad faith cases.
1. First Party Bad Faith (Restatement (Third) of Torts—Miscellaneous Provisions)
For the last two decades, the ALI has been working on a new Restatement (Third) of Torts. When the project is completed, it will consist of nine volumes separately addressing subject such as Products Liability, Apportionment of Liability, Liability for Physical and Emotional Harm, and Liability for Economic Harm.
In 2019, the project Reporters began work on a catch-all volume, entitled “Concluding Provisions,”[2] which will address miscellaneous topics not covered in another part of the Restatement Third of Torts that either require updating or that have emerged since the publication of the Second Restatement in the 1970s. These topics will include medical monitory, vicarious liability, wrongful death and survival actions, among others.
The project Reporter is Professor Michael Green of the Washington University in St. Louis School of Law. It is Professor Green’s view that first party bad faith is a significant tort that has emerged since the Second Torts Restatement and that the ALI would be remiss in creating a Third Torts Restatement that did not address it[3]. As the ALI does not appear to be interested in undertaking a Restatement of Law, First Party Insurance, the agreed remedy is to at least address the tort aspects of first party bad faith in this catch-all Concluding Provisions volume for the Third Tort Restatement.
In August 2022, Professor Green circulated Preliminary Draft No. 3, which addressed diverse topics, including vicarious liability, negligent misrepresentations, wrongful death and medical monitoring. Chapter Three (Interference with Economic Interests) for the first time now includes a section (Section 20 A). addressing “Bad Faith Performance of First Party Insurance Contracts.”
[1] Michael F. Aylward is a former President of the ACCC and a member of the ALI. From 2014 to 2018, he served as an ALI-appointed Adviser on the Restatement of Law, Liability Insurance.
[2] This volume has since been re-named “Miscellaneous Provisions.”
[3] Sections 49 and 50 of the Restatement of Law Liability Insurance did address bad faith remedies and damages but solely in the context of third party liability insurance.
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Announcing the Edward Currie Founder’s Award |
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The American College of Coverage Counsel is pleased to announce the creation of the Edward Currie Founder's Award. The award's namesake, Edward "Ned" Currie is one of the founders of the College, and served as its third president, 2015-2016.
The award will recognize a senior insurance lawyer, who must be, or must have been, a Fellow (regular, honorary, or emeritus) in good standing, who represents the highest level of accomplishment, competence, professionalism, and ethics in the practice of insurance law and/or insurance litigation, and who has inspired others to do likewise.
Criteria and Process
No more than one award may be made in any one year. An award need not be made each year. The awards given, when given, will alternate between recognizing one policyholder and then one carrier counsel.
The award may be given posthumously.
A committee will be appointed by the President of the College consisting of two carrier counsel and two policyholder counsel. The President of the College will be a liaison to the Committee. It will be within the discretion of the Committee to determine whether any award will be given in their year of service, and, if so, who the recipient will be.
The award, if given, will be announced at the Thursday night dinner at the Annual Meeting.
The recipient or the recipient’s family will be given a suitable gift commemorating the award. In addition, a scholarship in the name of the recipient will be given in the name of the recipient to the law school hosting the symposium that year. An announcement will be made at the symposium regarding the scholarship and the background of the honoree.
If you would like to nominate a Fellow for consideration by the committee, email [email protected].
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Ned Currie (front) with, from left to right, Lewis Collins, Bruce Celebrezze, Chris Naples (Dan Kohane’s wife) and Dan Kohane, at the first College meeting at Galatoires, in New Orleans. |
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Ed Currie, Sue Currie, and Wayne Taylor at the 2022 Annual Meeting in Chicago |
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Member Spotlights: ACCC Membership Committee Co-Chairs |
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Vince Morgan
Bracewell LLP
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Lisa Pake
Haar & Woods, LLP
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Seth Lamden of BlankRome recently interviewed ACCC's Membership Co-Chairs to learn more about each of them and gain their insights. Here's a transcript of their conversations:
Vince E. Morgan:
1. Where are you from; where did you grow up?
I was born in Michigan, but moved to Dallas, Texas when I was very young.
2. What steered you to a career in the law?
The NBA didn’t work out, so I went with a legal career as a back-up.
3. What did you do after law school; what was your first job as a lawyer?
My first job after law school was doing coverage work with Mike Huddleston, and I’ve been doing it ever since.
4. How did you come to specialize in insurance law?
I was friends with Mike’s legal assistant, and he heard I was going to law school, so he offered me a job as a clerk before I went off to school. I came back during the summers, and then kept working with him as a first-year associate after graduation. My undergraduate degree is in Economics & Finance, but I’m allergic to math so being a coverage lawyer was a perfect fit because insurance law deals with many of the same analytical concepts and it’s in a language I can (usually) understand. I had no idea what Mike did when I met him – I was just thankful to have an opportunity to see what it was like to work in a law firm before I started school. He could’ve been any kind of lawyer, but it was a happy accident for me that he did coverage work and is one of the very best at it. That’s one reason I’m so grateful he took a chance on a young college kid.
5. What are some of the cases that you enjoyed most over your career?
Coverage lawyers are really fortunate to work on lots of interesting things, including events that make the news. I did mostly CGL claims when I started, but then branched out to commercial property, D&O and other lines of coverage. Although the events coverage lawyers tend to work on are often tragic, I’m glad I’ve been able to help clients with claims from events such as 9/11, Deepwater Horizon, major hurricanes, earthquakes, wildfires, and other mass disasters. One of my most interesting cases involved a piracy incident on an oil rig off the coast of Nigeria. The carrier claimed it was terrorism, but we were able to show that the terms of their terrorism definition weren’t triggered by the allegations in the underlying lawsuit.
6. What is the biggest change you’ve seen over your career with respect to coverage litigation?
A couple things stand out: First, we used to get paper copies of policies when I started but now they’re almost always electronic. That makes searching for similar and contrasting terms across a policy much easier, which helps drive policy construction arguments. Second, the volume of insurance caselaw just continues to expand. When I started there were maybe a couple hundred decisions a practitioner needed to know. Now, dozens of insurance cases come out each week, so that’s a new challenge. This is one of the things that makes the ACCC great – it’s really helpful to have so many smart colleagues keeping us all up to date on the latest developments.
7. How many jurisdictions have you handled coverage or bad faith litigation? Do any of them stand out for one reason or another?
Haven’t really counted, but I’m sure it’s in the dozens at this point. I’m currently handling matters in about 10 different states. Insurance law is largely uniform across the states, but sometimes you do run into important differences that can change the outcome.
8. What do you like to do in your spare time?
Hang out with friends and family.
Lisa A. Pake:
1. Where are you from; where did you grow up?
I grew up in a suburb of Boston and attended college and law school there. “Love that Dirty Water.” I never thought I would live anywhere else until I met a guy from St. Louis when I was commuting on a train to my first job at a law firm. Now I’ve lived in St. Louis twice as long as Boston and this is home.
2. What steered you to a career in the law?
My father (who was not a lawyer) was head of claims for a Massachusetts-based life insurance company. His philosophy was to “deny first, ask questions later,” so he was always involved in litigation somewhere in the country, usually in mysterious small towns like Nacogdoches, Texas, where not surprisingly life insurance companies from the Northeast were not treated kindly. He would tell lurid stories at the dinner table about murders or suicides that were set up to look like accidents in order to trigger extra benefits under the policy. I thought going into law would be like living in a gothic novel.
3. What did you do after law school; what was your first job as a lawyer?
My first job was as an associate with a medium-size law firm in Boston where I had clerked for one summer during law school (I also worked as a legal secretary there while I was finishing college). It was a great general practice/litigation firm, although a few years after I began working there, it merged with another firm and became three times larger in size. That changed the feel of the firm for me and I found that it was not as enjoyable for me to practice in a firm so large that I did not know or interact with many of my colleagues.
4. How did you come to specialize in insurance law?
One of my first rotations when I started at my law firm was working for a partner who was very intense (he would stalk the halls every morning with his dictaphone in hand, looking in each office to make sure everyone was at their desk working). His only client was an insurance company. I spent six months working on coverage opinion letters, mostly involving environmental property damage and bodily injury claims. I enjoyed the process of developing the underlying facts and scouring the policies to find the applicable coverage provisions and exclusions. As my career progressed, I always expressed interest when a coverage matter would come into the office. Coverage work became a regular part of my practice, both from the insurer side and on behalf of policyholders.
5. What are some of the cases that you enjoyed most over your career?
I’ve always enjoyed cases with unusual facts. Early on I represented an insurer in a case that appeared to involve a straightforward property damage claim by the neighboring property owner of a gas station with a leaking underground tank. However, it turned out the neighbor had a teenage son who had become addicted to the smell of gasoline from growing up next to the leaking tank. So the case involved a bodily injury claim as well as property damage.
Unfortunately, not long after he was deposed, the young man came to a tragic end from his addiction.
I also have very much enjoyed working with other members of the ACCC in representing a utility company seeking coverage for the collapse of a reservoir at a hydroelectric plant that released one billion gallons of water down a mountainside into a popular state park. We spent years seeking coverage under first-party property and third-party liability policies for third-party claims of property damage and business interruption and to recover the cost of rebuilding the reservoir. We resolved the final piece of coverage litigation on almost exactly the ten year anniversary date of the dam breach.
One of the most interesting and rewarding recent cases I was involved in was representing a not-for-profit policyholder whose claim for coverage of a verdict against it for tens of millions of dollars had been denied for late notice (the claim had not been individually reported to the insurer until after the verdict). It was a long, winding case with thorny procedural and substantive issues, removal to and remand from federal court, dispositive motions, privilege battles, bitter discovery disputes, and exhaustive depositions. It ended, as most cases do, with a settlement shortly before trial. But even to get the case to the point of a mutually agreeable settlement felt like a huge victory.
6. Tell us about your first big insurance coverage case.
In the mid-1990s, I represented an excess carrier disputing a claim by a prominent local company for coverage of approximately $50 million in pension class action liabilities. The case was venued in federal district court in the Southern District of Illinois. The primary carrier and my client were able to obtain summary judgment based on a policy provision that excluded coverage if the plaintiff was simply trying to recover benefits that should have been paid by the insured under the plan. I also obtained summary judgment for my client on the additional ground of late notice. The policyholder appealed to the Seventh Circuit, and the judgment was affirmed. We had a scary moment when Judge Posner sua sponte raised a jurisdictional issue related to the citizenship of one of the parties that none of the parties or the district judge had flagged earlier in the case. We were concerned that he might throw the entire case out and we would have to start all over. But he determined that the party at issue was not necessary to disposition of the case, and proceeded to decide the appeal on the merits. So that was a memorable victory that almost slipped away!
7. What is the biggest change you’ve seen over your career with respect to coverage litigation?
The rise of statutory and extracontractual claims against insurers by policyholders. When I started in the mid-1980s, coverage disputes were relatively straightforward and dry: a coverage determination was made by the court, usually on summary judgment, based on the allegations of the complaint and the policy language, and that was the end of it. The rise of policyholder rights and creative causes of action to put insurance companies at risk for liability in excess of the policy limits, statutory penalties and punitive damages have really shifted the balance of power and increased the complexity of coverage litigation.
8. How many jurisdictions have you handled coverage or bad faith litigation? Do any of them stand out for one reason or another?
Principally in state and federal courts in Massachusetts, Missouri and occasionally Illinois. Missouri has traditionally been very pro-policyholder, although since it has in the past decade or so become more of a pure red rather than purple state, insurers are receiving more consideration.
9. What do you like to do in your spare time?
I’ve always enjoyed playing tennis (singles, no doubles, no pickleball!). I love to read, mostly mystery and fantasy novels and historic fiction, and enjoy pop, alternative and R&B music. I am a big St. Louis Cardinals fan. I enjoy nature hikes, as well as walking interesting neighborhoods with historic architecture (St. Louis has no shortage of those!).
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Michigan Super Lawyers magazine names ACCC Fellows Browning and Newa from Plunkett Cooney among its 2023 list of “Super Lawyers” |
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Michigan Super Lawyers magazine recently named ten metro Detroit attorneys from Plunkett Cooney, one of the Midwest’s oldest and largest law firms, to its 2023 list of "Super Lawyers". ACCC Fellows Charles W. Browning and Kenneth C. Newa were among those named on the list.
Super Lawyers selects attorneys using a patented multiphase review process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated based on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. Those named to the annual list represent only the top five percent of the state’s licensed practitioners.
Established in 1913, Plunkett Cooney is a leading provider of business and litigation services to clients in the private and public sectors. The firm employs approximately 130 attorneys in seven Michigan cities, Chicago, Illinois, Indianapolis, Indiana and Columbus, Ohio. Plunkett Cooney recently received Mansfield Rule Certification for midsize law firms, which recognizes leaders in diversity, equity and inclusion within the legal industry.
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Charles W. Browning has also been selected for inclusion in the 2024 edition of The Best Lawyers in America®. First published in 1983, Best Lawyers is based on an exhaustive peer-review survey in which lawyers within their own geographic region nominate their peers. These lawyers are not allowed to select nominees from the same area(s) in which they practice. Inclusion in Best Lawyers is considered an honor because lawyers are not required or allowed to pay a fee to be listed.
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Send Us Your News!
Do you have news to share? We’ll publish news of achievements, firm changes, awards, wins, etc. If you are quoted or published, send that as well. We are looking for content about our members to include in Member News, Article of the Month, and social media posts. Send your information to us at [email protected].
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Fellows:
· Margaret Fonshell Ward, Downs Ward Bender Herzog & Kintigh, P.A. in Hunt Valley, MD
· John Wilson, Latham & Watkins LLP in San Diego, CA
Honorary Fellows:
· E. Farish Percy, University of Mississippi School of Law in University, MS
· Rick Swedloff, Rutgers Law School in St. Camden, NJ
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Upcoming Events
ACCC Pop Up Dialogue
Wednesday, October 11, 2023 at 2:00 pm EDT
Speakers:
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Friday, October 20, 2023 8:00 am - 6:00 pm
Philadelphia, PA
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SAVE THE DATE!
Wednesday, May 8 – Friday, May 10, 2024
InterContinental Chicago
Chicago, IL
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