President’s Message/Year in Review
Regional Meet Ups – Local Networking, Nationwide
Segalla Award Recipients
Law School Writing Competition Winners
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And You Thought the American Law Institute Was Done With Insurance? Heads Up - More Is On the Way!
How Insurance Companies Defraud Their Policyholders
Lawyer Hijinx In Insurance-Related Litigation
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Member Spotlight: Marc Gravely
Fellow News
Call for Volunteers
Call for Nominations of Fellow Candidates
New Fellows
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President's Message/Year in Review |
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By Michael Huddleston, Munsch Hardt Kopf & Harr P.C.
Dear Fellows:
I am proud to have served as president of the College for a year that saw membership growth, both the largest annual conference and law school symposium to date, and the return to in-person regional networking. With gratitude, I would like to acknowledge and thank the past presidents who served the College before me. They paved the way for our organization to expand and remain relevant to the best coverage attorneys in the nation. In a perfect example of how relationships are developed and nurtured through the College, I kicked off this bar year attending a rock concert and a jazz session in New York City with a group of past presidents and another distinguished Fellow..
The 8th Annual Insurance Law Symposium was held this year in Dallas at the Southern Methodist University Dedman School of Law. Under the leadership of Bob Allen, Ernest Martin, and Marc Gravely, we had a record number of student participants. Over 100 people registered, a third of which were law students and young lawyers. A highlight was the “All Star Panel Discussion of Insurance Law Career Opportunities and Law Student Q&A.” We were able to highlight insurance law to a new generation of attorneys.
The College continues to grow in membership, with 366 Fellows, 20 Emeritus Fellows, and 18 Honorary Fellows. The Membership Committee, including chairs Lisa Pake and KT Talieh, and members Bob Allen, Helen Michael, Vince Morgan, and Steve Pate, did a fantastic job vetting candidates. We are always seeking qualified candidates and I encourage you to nominate those who will enhance the College.
The Outreach & Regional Meetings Committee, led by Andy Downs and Marty Pentz, worked with Fellows across the country to set up eight in-person networking events. We plan to continue these popular sessions going forward.
We once again held the Law School Writing Competition. John Bonnie, Seth Lamden, and Angela Elbert led a focused effort to market the competition to law schools and law school students. As a result, we had the largest response to the call for submissions to date.
The 2023 Annual Conference broke attendance records. Almost 200 people were registered, including Fellows, guests, and sponsors. Conference chairs Mary Borja and KT Talieh, along with vice chairs Suzan Charlton and Barbara O'Donnell, did a stellar job planning the conference. The topics and speakers they gathered in Chicago addressed a number of cutting edge issues, providing the College’s signature balanced approach to speakers from both sides of the aisle.
Participation and involvement are vital to the success of the College and I encourage you to find an opportunity to get involved. You can join one of our substantive committees, contribute to this newsletter, or participate as a speaker at the annual meeting, law school symposium, or on a pop-up.
I would like to extend a special thanks to everyone who worked on these projects. An enormous amount of time, effort, and creativity goes into planning these activities and events. It is an exciting time to be involved with the ACCC!
Lastly, I would like to acknowledge our outgoing board members. Our immediate past president, Wayne Taylor joined the board in 2017. In 2018, he was appointed to the Executive Committee, and in 2019 he was elected as Secretary-Treasurer, putting him on the track to be president. I cannot emphasize enough how much his creativity and dedication has meant to the College. After six years, Wayne’s Board service has come to an end, and I thank him for his leadership. I look forward to his active involvement in the College continuing.
Chris Mosley joined the Board in 2018 and has served two terms. This past year, he served as a member of the Executive Committee. Chris has been a great contributor in his years on the board, as a committee chair and liaison, and frequent speaker at our events. Chris is cycling off due to term limits and will continue to be of service to the College for many years to come.
I would be remiss not to mention how happy I am to have Steve Pate elected as Secretary-Treasurer. Steve has been incredibly involved through my years with the College and brings great energy and continuity to the College.
At our conference in May, I turned over the presidency of the College to Deb Varner. The coming year will be a great one under Deb’s leadership. I am excited for what lays ahead for the College and look forward to supporting Deb in her year as president. In the next newsletter, we’ll share more about her and our other new leaders.
Thank you to everyone who volunteered their time this year, who attended our events, and who represented the College as an organization of the highest caliber of coverage attorneys. See you in Philadelphia in the fall and again in Chicago next year.
Warm regards,
Mike
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Insurance Law Symposium, Southern Methodist University Dedman School of Law |
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2023 Annual Meeting, InterContinental Chicago |
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Regional Meet Ups – Local Networking, Nationwide |
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Over the past year, the College continued its tradition of convening regional networking events for Fellows, also referred to as “meet ups.” As the name suggests, these events are informal get togethers, typically over beverages and hors d'oeuvres, at a favorite watering hole or sometimes in a law firm conference center.
This time around, the events took place in Atlanta, Boston, Chicago, Dallas, San Francisco, Seattle and South Florida. The size of the events varied, with some relatively intimate get-togethers and other events attracting up to 25 attendees (Way to go, San Francisco!). Best we can tell, a good time was had by all, new connections were forged, and existing relationships were reinforced.
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This photo includes most of the Fellows who attended our Boston event. Past President Mike Aylward arrived minutes after this shot was taken. Looks to have been fun!
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The Atlanta event was coordinated by John Bonnie and attended by Ely Tucker, Paul Fields, Wayne Taylor, Mike Johnson, Larry Bracken, and Harold Weston. |
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Fellows also gathered for a dinner held in conjunction with the annual ABA Conference in Tucson, AZ in March. (Seated front row left to right: David Baldwin, Peter Rosen, Scott Godes
Standing left to right: Gregory Gotwald, Bob Allen, Stephen Melendi, Paul Walker Bright, Dorothea Regal, Clifford Shapiro, Anthony Leuin)
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Segalla Award Recipients
The Thomas F. Segalla Service Award recognizes dedication and service to the College. Award recipients must demonstrate Creativity, Visibility, and Persistence, three characteristics that embody Tom Segalla’s approach to his practice, volunteerism, and leadership in the practice of law.
Recipients must be members in good standing at the time of the award. There are two recipients each year: one who represents insurance companies and one who represents policyholders or plaintiffs in insurance coverage and extracontractual matters.
The selection committee for this year’s award included Tom Segalla, Angela Elbert, Chris Mosley, Bob Allen, and Helen Michael.
The policyholder recipient was Lorie Masters of Hunton Andrews Kurth LLP (Washington, DC) Lorie was one of the first Fellows of the College and its second president. She has demonstrated ongoing loyalty and willingness to support the organization whenever needed. She shares her expertise as a frequent speaker at annual conferences, insurance law symposiums and pop-up dialogue sessions, and has served on numerous committees during her tenure.
The insurer recipient was Andy Downs of Bullivant Houser Bailey PC (San Francisco, CA). Andy has been an active Fellow since 2015, is a current member of the Board or Regents, and serves on the Finance and Communications Committees. In addition, as co-chair of the Outreach & Regional Meetings Committee, he leads efforts to coordinate social gatherings for our Fellows across the country. He has also served as a panelist for annual conferences and insurance law symposiums, and has participated in several other ACCC committees over the years.
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Law School Writing Competition Winners
ACCC is pleased to announce the winners of the 2023 annual law school writing competition. This year’s First Place winner is William McCarter of Penn Law. Second Place was awarded to Elizabeth Gorman of UC Berkeley, School of Law. Third Place has been awarded to Ian Lindsay of Loyola University Chicago School of Law. Each of these winners received a cash award. Ian was in attendance at the ACCC Annual Meeting in May, to learn from our panelist sessions and network with Fellows.
The goal of the competition is to educate law students and encourage them to consider a career in insurance law. This year, competitors were challenged to prepare a memorandum of points and authorities in support of or in opposition to a motion for summary judgment in a coverage case between a Philadelphia based insurance company and a Texas based corporation.
Thank you to all the students who participated and to the advisors and professors who shared this opportunity with their insurance law students.
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And You Thought the American Law Institute Was Done With Insurance?
Heads Up - More Is On the Way!
By Michael F. Aylward, Morrison Mahoney LLP (Boston)
From 2014 to 2018, Aylward served as an Adviser on the American Law Institute’s Restatement of Law, Liability Insurance.
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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 continue 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—Concluding 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,” which will address miscellaneous topic 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.[1] 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.
Yet, this Restatement’s treatment of first party bad faith is in its earliest stage of development.[2] In mid-August, Professor Green circulated Preliminary Draft No. 3, which addresses 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 20A). addressing “Bad Faith Performance of First Party Insurance Contracts.”
[1] 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.
[2] Restatements are drafted through an iterative process in which law professors appointed by the ALI (Reporters) prepare Preliminary Drafts that are circulated to project Advisers and a voluntary Members Consultative Group and reconfigured as Tentative Drafts. These Tentative Drafts are eventually refined into Council Drafts that must be approved by the ALI Council before being submitted to the full ALI membership for discussion and a vote. It is not uncommon for this process to take 7-10 years.
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How Insurance Companies Defraud Their Policyholders, and What Courts and Legislators Should Do About It
Authors: ACCC Fellow Robert Chesler, with Amy Weiss and Jade Sobh, all of Anderson Kill.
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The insurance industry devotes substantial resources to a lobbying campaign against insurance fraud. These efforts have borne fruit, and rightly so. Insurance fraud, though, is a two-way street. It is now time to address the fraud and wrongful practices that the insurance industry perpetrates on policyholders.
Over the past twenty years, state courts and regulators have found on several occasions that major insurance companies had procedures in place that systemically denied or underpaid policyholders’ legitimate claims. In other cases, courts have found that misrepresentations or other dishonest behavior on the part of insurance company personnel have wrongfully denied claims. Below, we overview illustrative cases, as well as various forms of recourse provided by state law to policyholders who have been wrongfully denied or outright cheated out of coverage.
I. It Is Judicially Established That Insurance Companies Defraud Their Policyholders.
In Campbell v. State Farm,[1] a driver made a dangerous maneuver that caused two cars to collide. The driver was insured by State Farm, which investigated the accident and produced a report that stated there was evidence of fault on behalf of its policyholder. Despite this evidence, and despite that it seemed likely there could be an excess judgment in the resulting litigation against its policyholder, State Farm rejected offers to settle and “never departed from its ‘no settlement stance.’” Instead, State Farm’s superintendent and divisional superintendent rejected their own claim investigator’s report and ordered the claim investigator to alter the facts and analysis of liability that indicated exposure for its policyholder and the potential of a high settlement value. The superintendent also demanded that the claim investigator return a letter proving the superintendent had agreed with the claim investigator’s initial analysis, whereafter the claims investigator’s involvement was discontinued in the case.
Although State Farm’s appointed attorney reassured the policyholder that his assets were safe, and that he had no liability for the accident, the jury found the policyholder 100 percent at fault for the accident. The jury entered a judgment of $185,849 in damages, greatly exceeding any proposed settlement amount and resulting in $135,849 in excess liability. Subsequently, the three parties to the accident entered into an agreement compelling the policyholder to pursue a bad faith action against State Farm. In doing so, the policyholder uncovered how his claim was part State Farm’s larger “national scheme to meet corporate fiscal goals by capping payouts on claims company wide” – known as State Farm’s Performance, Planning and Review (“PP & R”) policy.
The Supreme Court of Utah, in laying out the PP & R scheme, summarized just three examples of the “most egregious and malicious behavior” from twenty-eight pages of extensive findings. First, to meet financial goals, State Farm “repeatedly and deliberately deceived and cheated its customers,” consistently targeting “poor racial or ethnic minorities, women, and elderly individuals” – groups State Farm believed would be less likely to object or take legal action. For instance, agents would change the contents of claim files to distort the assessment of the value of claims against State Farm's policyholders. In the underlying lawsuit, the claim adjuster was instructed to falsely report that the victim was “speeding to visit his pregnant girlfriend.”
Second, State Farm “engaged in deliberate concealment and destruction of all documents related to this profit scheme” to avoid potential disclosure through discovery requests. To shield itself from bad faith actions, it created company policy not to retain any corporate records related to lawsuits against the company.
Finally, State Farm “systematically harassed and intimidated opposing claimants, witnesses, and attorneys” to deter litigation. It did this by mandating attorneys to ask claimants personal, intrusive questions – sometimes bribing third parties in exchange for scandalous information – and using its large company resources to employ “mad dog defense tactics” and “‘wear out’ opposing attorneys by prolonging litigation, making meritless objections, claiming false privileges, destroying documents, and abusing the law and motion process.” The Utah Supreme Court found that this scheme supported the imposition of a higher-than-normal punitive damages award.[2]
This is not a case of a rogue employee. This is a deliberate and conscious fraud perpetrated by a major insurance company – ‘the good neighbor’ – on its most vulnerable policyholders.
Campbell v. State Farm is just one example of insurance companies consciously and deliberately committing fraud. Unum, one of the nation’s leading disability insurers, was investigated in 2005 and found to have to have committed widespread fraud.[3] The investigation concluded that the company was engaged in pervasive violations of state insurance regulations and in fraudulent denial practices. Those included using phony medical reports, policy misrepresentations, low-balling tactics and biased investigations as pretexts for cutting off legitimate claims of disabled, and often destitute, policyholders.
[1] Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89, 65 P.3d 1134, rev'd, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003).
[2] The case made its way to the Supreme Court of the United States, which found that a punitive award of $145 million, where full compensatory damages were $1 million, was excessive and violated due process. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 1515, 155 L. Ed. 2d 585 (2003). On remand, the Utah Supreme Court found that State Farm’s egregious conduct warranted punitive damages of over $9 million. Campbell v. State Farm Mut. Auto. Ins. Co., 2004 UT 34, ¶ 51, 98 P.3d 409, 420.
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Lessons from Olde Tymes: Lawyer Hijinx In Insurance-Related Litigation
By John C. Bonnie, Weinberg Wheeler and Neil B. Posner, Much Shelist, P.C.
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It’s a plain fact that stories cut from the pages of real life can be more entertaining than fiction. They can also be a source of professional education and ethical insight, and in this installment of Lessons from Olde Tymes, we explore two cases from the past in which lawyers were alleged to have crossed ethical lines in their handling of insurance-related litigation by advancing personal interests over those of the client. While these cases describe events in the very distant past, they present an opportunity to revisit the modern rules governing a lawyer’s duties to a client, and the potential consequences of breaching these obligations.
Request by Plaintiff’s Counsel that the Defendant Insurer Secretly Make A Payment To Him in Exchange for Disclosure By the Lawyer to the Insurer of Information Adverse to the Client’s Claims
In Re Enright, 67 Vt. 351, 31 A.2d 786 (1895) presented drama that played out in a suit by Matthew Bingham against the Phoenix Insurance Company of New York, in which he was represented by J.J. Enright. While the suit against the insurer was pending, Bingham died, and Enright was then appointed an executor of Bingham’s estate, along with a co-executor (“Mr. Dodds”). The cast of characters also included E.R. Hard, the attorney for the insurer, and U.C. Crosby, the insurer’s agent.
Enright and Dodd ended up in a serious dispute while serving as co-executors of the estate, leading Dodd to hire another lawyer to act on his behalf. The evidence revealed that in the throes of his dispute with Dodd, Enright contacted Hard; claimed that he was owed $400 by Bingham’s estate; and stated that if the defendant insurance company would pay him this amount, “he would impart . . . information which would be absolutely sure to insure the defense of [the insurance company in the suit against it by Bingham].” Id. at 786. The evidence also revealed that Enright had a similar conversation with the insurance company’s agent, Mr. Crosby, in which he stated that:
Mr. Dodds . . . was a rascal, . . . and that [Enright] had in his possession facts which, if placed in the possession of the company, would make the defense of the suit absolute, and if he could be remunerated he would put Mr. Crosby in possession of such facts.
Id.
Enright’s stratagem came to the attention of the Vermont Supreme Court who (1) ordered the county attorney to pursue charges of unprofessional conduct and (2) name a two-lawyer panel to hear testimony and make appropriate findings of fact about potential disbarment. Noting the apparently undisputed evidence of Enright’s statements to the insurer’s counsel and agent, the disciplinary panel found that Enright did not actually have information of any kind that would have revealed an absolute defense to Bingham’s suit by the insurance company. On this basis, the panel found that Enright was not guilty of knowingly suing or prosecuting a false or unlawful suit.[1]
The disciplinary panel was divided, however, on the motives of Enright in proposing a payment to him in exchange for damning evidence adverse to his client. One panel member found that Enright’s offers were made “with the corrupt intention of benefiting himself at the expense of the estate of which he was then executor, and in violation of his oath as an attorney.” Id. The other, however, found no corrupt intention, concluding that the conversations were “an attempt to draw out something from the other party looking towards the settlement of the suit, and, failing in this, the whole subject-matter was dropped.” Id.
Presented with these findings, the Vermont Supreme Court began its analysis with the observation that all inferences taken would be those most favorable to Enright because of the grave professional consequences of disbarment. The court also noted, however, that by admission to the bar, Enright was being held out to the community as worthy of confidence, and someone of integrity and honesty “to whom all could safely confide and entrust their rights to property, liberty , and life.” Id. The court stated that Enright was thereby “under the most solemn obligation known to the law to obey and be ruled by it.” Id. The court also noted certain oaths by which Enright was bound, including the obligations to:
do no falsehood, nor consent that any be done . . . and . . . delay no man for lucre or malice, but will act in the office of attorney, within the court, according to his best learning and discretion, with all good fidelity, as well to the court as to his client.
Id.
The court found that under the circumstances presented, Enright should be disbarred:
[I]n a pending suit, in which he was both party and attorney, . . . he approached the attorney, and the agent, of the [other] party, with a falsehood; pretended to have knowledge of facts which he did not possess; offered to sell it for a price, to induce an offer of settlement, which would not otherwise be made.
Id. As the court described it, his overture to the defendant carrier was “to secure an unfair and fraudulent settlement” of the suit, which was a plain violation of Enright’s oath and duties as an attorney.
The modern rules provide various pathways for the same outcome. As an initial matter, the decision as to settlement rests with the client, ABA Model R. Prof. Conduct (“MRPC”) 1.2(a), and under today’s rule Enright plainly had no authority to offer a settlement at all without the consent of the estate, much less offer a settlement that financially benefitted Enright alone and presumptively destroyed the client’s claims against the insurer. Enright’s actions furthermore violated the obligation of reasonable diligence in the representation of the client. MRPC 1.3.
In terms of communication, a lawyer must promptly advise of circumstances implicating the client’s informed consent, MRPC 1.4(a)(1); 1.4(b); must consult about how the objectives of the client are to be accomplished, MRPC 1.4(a)(2) and (3); and must keep the client reasonably informed of the status of the matter. MRPC 1.4(a)(3). Enright’s conduct violated all of these tenets.
It is also plain under the modern rules that a lawyer cannot acquire a pecuniary interest adverse to a client absent disclosure to the client of terms that are fair and reasonable and the client’s informed consent after an opportunity to seek the advice of independent counsel. MRPC 1.8(a)(1), (2) and (3). And upon receiving funds in which the client has an interest, the lawyer is obligated to promptly notify the client, and to promptly deliver to the client funds to which he or she is entitled. MRPC 1.15(d). Here too, Enright’s actions were contrary to his obligations to the client.
More fundamentally of course, it is manifest that a lawyer cannot use information relating to the client’s representation to the client’s disadvantage contrary to rules or in the absence of informed consent. MRPC 1.8(b). In sum, were Enright facing disciplinary action under the modern rules, he was objectively guilty of multiple infractions.
Refusal of Lawyer to Pay Proceeds of Settlement of Life Insurance Dispute to Client on Basis that the Lawyer Was Owed Money By His Law Partner, Who Was a Relative of the Client
In Jeffries v. Laurie, 27 F. 195 (Cir. Court, E.D. Mo. 1886), Laurie was counsel for Jeffries, the administrator of a decedent’s estate, in an action against an insurance company for benefits under a life insurance policy. The litigation was “protracted” and actually reached the U.S. Supreme Court! Before the Supreme Court ruled, however, Laurie reached a settlement with the insurance company on behalf of the estate in the amount of $9,000. None of it was paid to the estate, however: Laurie retained half of the settlement on the basis of a contingent fee agreement. The other half he retained on the basis that his law partner Mr. Crews (a relative of the administrator of the estate) owed him money based upon unsettled partnership transactions, and that since Crews owed Laurie, Crews should pay the estate the 50 percent of the settlement amount it was due.
The estate brought an action to recover the entire amount of the settlement, and the trial court ordered half of the amount to be paid into the registry of the court. The court found no basis on which Laurie could withhold payment of the amount the estate was due simply because Laurie had a dispute with his former law partner, stating:
[I]t was no excuse to the attorney who received the money for not paying it over that he had an unsettled partnership dealing with his former partner in the practice of law. . . . He could not make his client suffer by reason of any quarrel with, or even wrong committed on the part of, his former partner. That duty he must discharge, and then, in appropriate proceedings, settle any controversies which he has with his former partner.”
Id. at 197.
Laurie did not pay the amount as ordered, falsely contending that Crews had settled the matter with the estate. Presented with the fact of nonpayment by Laurie nearly one year later, the trial court noted that the matter had become one of contempt, meriting a summary proceeding and, as appropriate, punishment by fine, imprisonment, or discharge in light of misconduct by an officer of the court.
The court repeated that where an attorney collects money for a client, he or she has a prima facie duty after deducting costs and disbursements to pay what is due to the client. The court also noted that failing to do so is gross misconduct and dishonesty that brings discredit on the court and the administration of justice. As the court framed the proceeding, it was a “quasi criminal” matter respecting a lawyer’s professional duties not to act improperly or dishonestly. The court commented on the task before it and ultimately ruled as follows:
Unpleasant as the duty is in [this] case, I know of but one way for a court to act, and that is to act firmly.
The defendant will be adjudged guilty of contempt of court, and the order will be that his name be stricken from the rolls of this court, and that he be debarred from practicing in this court; and, further, that he be committed to the jail of this city for the period of 90 days.
Id.
Under the modern rules, contingent fees are of course acceptable under the proper circumstances. MRPC 1.5(c); 1.8(i)(2). But the basis or rate of the fees and expenses for which the client will be responsible must be communicated before or within a reasonable time after commencing the representation (and should preferably be in writing). MRPC 1.5(b). It is not difficult to conclude that under the modern rules, a lawyer cannot properly withhold payment of the portion of a settlement due to a client merely because of a financial dispute another member or members of his or her law firm. The fact that Laurie did so on the basis that the client was a relative of his law partner arguably makes his conduct even more egregious.
What is quite evident from the decision in Jeffries v. Laurie is that the obvious misconduct by Laurie as determined by the court was not originally identified as a matter requiring or giving rise to disciplinary action. However wrong his conduct, and despite the court’s characterization of its impropriety, Laurie was merely ordered to pay what was due to the client, and by all accounts, there would have been no consequences for this initial conduct if he had done so. It was only Laurie’s later contempt of the court’s order that had him facing charges of dishonest and unethical conduct and the consequences of those actions. In the process, he was subjected not only to the court’s inherent authority to disallow the practice of law before it by someone unworthy of the privilege, but also to impose criminal sanctions for contempt of the court.
The case illustrates the obvious: that ethical misconduct is never helped by further misconduct. There are innumerable examples of initially wrongful conduct that would not have been subject to severe discipline but for the lawyer’s subsequent conduct (often to cover it up) that compounded the ethical misconduct. If there is a conceivable pathway to lenience in disciplinary proceedings, it is paved on forthright and honest conduct on the part of the lawyer in the face of the initial misstep or misconduct.
[1] ABA Model R. Prof. Conduct 3.1 prohibits a lawyer from bringing or defending a proceeding unless there is a basis in law and fact for doing so that is not frivolous.
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Member Spotlight: Marc Gravely |
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Marc Gravely of Gravely Attorneys & Counselors, is an advocate for property owners, boards of directors, community associations and homeowners’ associations in construction defect and insurance coverage disputes. He has been recognized by Chambers for the last two years as a leading insurance lawyer in Texas. He is an author of several books and guides, including Reframing America’s Infrastructure, which was a #1 bestseller on Amazon in four categories (Construction, Sustainability & Green Design, Public Finance, Civil & Environmental Engineering).
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We asked Marc to tell us a little more about himself and his four degrees of separation from Woody Harrelson.
Where are you from?
I was born in Fort Eustis, Virginia before my father left for Vietnam. After he returned we moved to Louisville, Kentucky where I grew up.
What steered you to a career in the law?
My first attempt at graduate school was a Master’s degree program in Neurobiology which was a track to get into medical school in Kentucky. I learned that I liked the idea of neurobiology and all it entailed better than I liked doing basic research part of the curriculum. I quit halfway through the program because I did not like the bench research and all it entailed. As fate would have it, the best job I could find after that was working as a research chemist at an industrial manufacturing company. The thought of going to law school had never occurred to me until I found out what it was like working as a research chemist. I studied for the LSAT and ended up at law school far away from Kentucky….at St. Mary’s University in San Antonio, Texas.
What did you do after law school?
After law school, my first job was defending insurance carriers in first party litigation and defending architects and engineers. I was by far the youngest member of the firm. Virtually all the other lawyers were past retirement age at the time. The firm was Beckmann & Quirk, former firm of Federal Judge John Wood, who was appointed by President Richard Nixon. You may recall the actor Woody Harrelson’s father was convicted of assassinating Judge Wood – a contract hit ordered by a drug kingpin. I heard lots of stories about that over my time at the firm.
Tell us about your first big insurance coverage case.
It wasn’t the first, but one of the most important Texas cases I’ve been involved in was the Ewing Construction case at the Texas Supreme Court that dealt with insurance coverage for damage caused by defective work. My clients included 13 Texas trade groups, including the Texas Hospital Association, Texas Hotel Lodging, and a host of others whose members needed an advocate for their views. As many ACCC Fellows know, the coverage issue in Ewing was how broadly the contractual liability exclusion could be read where a construction contract simply said that the contractor would do the project in a workmanlike manner. The case had many twists and turns until finally the Supreme Court said in 2014 that the exclusion doesn’t apply. As it happens frequently with insurance coverage cases, the outcome is critical to many parties, but its effects can reverberate for many years come…as has the Ewing decision.
What is the biggest change you’ve seen over your career with respect to coverage litigation?
The biggest change I’ve seen in our practice in Texas is the increase in civility and respect amongst lawyers. It has been heartening to be reminded time and time again of our humanity as we make our way together along the way.
What do you like to do in your spare time?
I like to read biographies and history. My most recent book was Underwriters of the United States: How Insurance Shaped the American Founding.
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Fellows Neil H. Selman and Sheryl W. Leichenger announced the formation of Selman, Leichenger, Edson, Hsu, Newman & Moore LLP. Fellow Bryan Weiss has been named a Partner in the new firm.
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Fellows Meredith Werner and Leslie Ahari, along with Douglas Mangel, announced the launch of their new national boutique law firm, Werner Ahari Mangel LLP (WAM). The firm includes 22 lawyers, with an office in Washington, DC.
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Ronald Kammer, Hinshaw & Culbertson LLP, was selected as a finalist in the Lifetime Achievement Category of the 2023 Florida Legal Awards by the Daily Business Review. Kammer has represented insurers in Florida for 35 years. In 1987, he was tapped by Hinshaw to head its expansion into Florida. Under his leadership, the firm’s presence in Florida grew to more than 80 lawyers.
Since 1988, Kammer has helped shape Florida’s insurance law. He has well over 250 reported decisions in both federal and state courts involving insurance, as well as bad faith matters. He has argued cases before the Florida Supreme Court, the First and Eleventh Circuit Courts of Appeals, and the Florida Court of Appeals. He is regularly retained based on his expertise to serve as an expert witness in insurance coverage, bad faith and attorney fee dispute matters.
During his long career, Kammer served as lead counsel for insurance clients in several MDL actions including Chinese drywall, which was estimated to affect 20,000 homes, including many homes in Florida. In that case his efforts ultimately enabled many Floridians to repair their homes. Kammer was also one of the lead lawyers for the insurers in the collapse of the FIU bridge and parking garage. Last year, he was one of the lead insurer-side lawyers instrumental in the coverage settlement following the 2021 collapse of Champlain Towers in Surfside.
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Michael Aylward, Morrison Mahoney LLP, was named Lawyer of the Year by Massachusetts Lawyers Weekly. His work on Berkley National Insurance v. Granite Telecommunications was highlighted by the publication, noting that Aylward charted a course for liability insurers to obtain relief when faced with a Hobson's choice of agreeing to settle a claim that the Insurer believed wasn't covered or getting sued for bad faith. Aylward represented plaintiff Berkley National Insurance in a coverage dispute arising out of a lawsuit brought by a chef working in the company café of the defendant Insured, Granite Telecommuncations. The chef alleged he suffered a severe foot Infection when raw sewage backed up Into his workspace. The ruling in Berkley said that a liability Insurer could recoup both defense and settlement costs for a personal Injury claim it defended under a unilateral reservation of rights and which was later found not to be covered by the policy.
Aylward noted that while some see the case as a win for insurers, the decision also has positive consequences for policyholders. "'The way this case was resolved, I think it actually encourages insurers to defend under a reservation of rights and, where appropriate, to front the cost of settling even cases that don't appear to be covered, because It gives the insurer the recourse of getting a ruling that they are entitled to be repaid if in fact they never had owed coverage."
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Kathy Maus, Butler, Weihmuller, Katz, Craig, LLP, was elected Secretary-Treasurer of the Defense Research Institute (DRI) at its Annual Meeting. She is a former president of numerous organizations and former co-chair of the College’s Bad Faith Committee.
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Robinson+Cole Managing Partner Rhonda J. Tobin was one of five women selected for recognition as “Managing Partner of the Year” as part of Corporate Counsel’s 2022 Women, Influence and Power in Law (WIPL) Awards. Tobin was profiled in a special supplement and presented with the award during a ceremony hosted in conjunction with the WIPL Conference in Washington DC.
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Several College Fellows spoke at the ABA TIPS Mid-Year meeting in Scottsdale, including Janet Davis, Cozen O’Connor, Scott DeVries, Hunton Andrews Kurth, Gary Gassman, Cozen O’Connor, Ezra Gollogly, Kramon & Graham, Rick Hammond, Insurance Claims & Litigation Consultants LLC (pictured), Paula Litt, Honigman, Deborah Minkoff, Cozen O’Connor, Christopher Mosley,Foley Hoag, and Chris Yetka, Larkin Hoffman.
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Steven Plitt, The Cavanagh Law Firm, was named one of the Top 100 Lawyers in Arizona for 2023 by AZ Big Media. Several Texas Fellows have been recognized as "standout insurance attorneys" by Business Today: Stephen Pate, Thomas Alleman, Nancy Kornegay, Linda Dedman, and Claude Stuart. DBusiness magazine (Detroit) Plunkett Cooney attorneys Charles Browning and Kenneth Newa to its 2023 list of “Top Lawyers.”
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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 [email protected].
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Want to become more involved in the ACCC? Join a committee! We are actively seeking volunteers to join our committees:
ADR
CGL/Excess Liability Insurance
Communications
Cyber Insurance and Computer Crime
D&O and Management Liability
Emerging Risks
Extracontractual and Bad-Faith Claims Litigation
First-Party Insurance
Outreach
Professional Liability
Professionalism and Ethics
Regional Meetings
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Nominate a Fellow
The Membership Committee routinely vets prospective Fellows of the College. In order 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).
We are seeking nominations of qualified candidates who practice law in the U.S. and Canada. The Board of Regents recently approved the consideration of candidates from Bermuda as well.
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 can be sent to [email protected]. Please include the nominees 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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Christina May Bolin
Christian & Small LLP
Daphne, AL
Jeff Bowen
Lindemann Miller Bowen LLC
Chicago, IL
Susan Boyles
Kilpatrick Townsend Stockton LLP
Winston-Salem, NC
Stephen P. Brown
Plunkett Cooney, PC
Bloomfield Hills, MI
William J. Chriss
The Snapka Law Firm
Corpus Christi, TX
Gavin Curley
Manire Galla Curley LLP
New York, NY
Blair Dancy
Cain & Skarnulis PLLC
Austin, TX
Suzanne F. Day
Bracewell LLP
Houston, TX
Christopher P. Ferragamo
Jackson & Campbell, P.C.
Washington, DC
Carl E. Forsberg
Forsberg & Umlauf, P.S.
Seattle, WA
Seth M. Friedman
Lewis Brisbois Bisgaard & Smith LLP
Atlanta, GA
Jason A. Frye
Blank Rome LLP
Chicago, IL
Wendy Stein Fulton
Kiernan Trebach LLP
Ft. Lauderdale, FL
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Emily E. Garrison
Honigman LLP
Chicago, IL
Lee Hall
Jenkins Fenstermaker, PLLC
Huntington, WV
Catherine L. Hanna
Hanna & Plaut, L.L.P.
Austin, TX
Pamela D. Hans
Anderson Kill
Philadelphia, PA
Andrew T. Houghton
Skarzynski Marick & Black LLP
New York, NY
Nicholas M. Insua
Reed Smith LLP
New York, NY
Peter Kochenburger (Honorary)
University of Connecticut School of Law
Hartford, CT
Kevin M. LaCroix (Honorary)
RT Specialty
Beachwood, OH
Justin F. Lavella
Blank Rome
Washington, DC
Sheryl Leichenger
Selman Breitman LLP
Los Angeles, CA
Gina Clausen Lozier
Clausen Choquette PLLC
Lake Worth, FL
David A. Luttinger Jr.
Covington & Burling LLP
New York, NY
Daniel J. Lynn
Jackson & Campbell, P.C
Washington, DC
Marc Mayerson
The Mayerson Firm PLLC
Washington, DC
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Stephen A. Melendi
Tollefson Bradley Mitchell & Melendi, LLP
Dallas, TX
Gregory D. Podolak
Saxe Doernberger & Vita, P.C.
Naples, FL
Adam Scales (Honorary)
Rutgers Law School
Camden, NJ
William A. Schneider
Morrison Mahoney LLP
Boston, MA
Douglas P. Skelley
Shidlofsky Law Firm PLLC.
Austin, TX
Jo Allison (Jody) Stasney
Thompson, Coe, Cousins & Irons, LLP
Dallas, TX
Leah ("Kim") Steele
Clyde & Co US LLP
Dallas, TX
K. James Sullivan
Calfee, Halter & Griswold LLP
Cleveland, OH
David Timmins
Husch Blackwell
Dallas, TX
Seth A. Tucker
Covington & Burling LLP
Washington, DC
Robert Walsh
White and Williams LLP
Philadelphia, PA
Meredith E Werner
Werner Ahari Mangel
Washington, DC
Michele C. Wojcik
Nuzzo & Roberts, LLC
Cheshire, CT
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