President’s Message
Insurance Law Symposium Wrap-Up
Member Spot-Lights:
Annual Meeting Co-Chairs
Call for Volunteers
The ALI First Party Bad Faith Restatement Nears Completion
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Regional Meet Ups –
A Banner Year!
Meet ACCC's New Fellows
Call for Fellows Nominations
The Short, Happy Life of the 1973 CGL Form
12th Annual Meeting Preview
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Civil War Battlefields Tour
Edward Currie Founder's Award Call for Nominations
Are Duty to Defend Rulings Immediately Appealable?
Fellow News & Articles
Welcome New Fellows
ACCC Upcoming Events
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By Debra Tedeschi Varner
Varner & Van Volkenburg, PLLC, Clarksburg, WV
Dear Fellows:
As John F. Kennedy once said, “We must find time to stop and thank the people who make a difference in our lives.” It has been an honor to serve as the President of the ACCC for the past six months. As the snow falls in West Virginia and the holiday season enters its full swing, it seems to be a fitting time of the year to thank the Fellows of the ACCC, Executive Director, Carol Montoya, Account Director, Pearl Ford-Fyffe, and their staff, the Officers, Executive Committee and Board of Regents for the many contributions and tireless effort put into making the ACCC a success. Thank You.
The Fellows who make up the ACCC have done a tremendous job of making a difference in our lives through planning and participating. The Insurance Law Symposium recently held at the University of Pennsylvania Carey School of Law was a tremendous success! An excess of 100 participants showed up, including students from three different universities, claims executives, and Fellows and Non-Fellows alike. Congratulations to Mike Hamilton and Jo-Ann Lytle, Co-Chairs of the Committee for a job well done!!! Kudos to Professor Tom Baker for his efforts in making the Symposium a success. And, a huge thank you to all of the speakers, moderators and attendees. You nailed it!!!
The next Insurance Law Symposium will take place in November 2024 in conjunction with the University of Minnesota School of Law. Angela Elbert has put together a fantastic team and planning has already begun. Stay tuned for more details.
The Planning Committee for our Annual Meeting at the Intercontinental in Chicago May 8-10, 2024, is hard at work. The Meeting Agenda has been prepared and early registration is open. You can register now by using this link. Thank you to the Planning Committee for its efforts to date.
And how about the work of the Pop-Up Committee? Co-Chairs Mark Gravely and Lisa Weixelman have knocked it out of the park with more to come. There have been seven Pop-Ups so far this year, with more scheduled for December 20, 2023, and March 26, 2024. If you have not yet registered, do so now. Thank you to the Pop-Up Committee for all its work.
A special thank you to Marty Pentz and Andy Downs, Co-Chairs of the Outreach and Regional Meetings Committee for helping to coordinate food, friendship, and perhaps a cocktail or two throughout the country this year. Many thanks to the Fellows who undertook the tasks in their locale. From the photos floating around it appears that a good time was had by all!!!
The ACCC will end this calendar year with many achievements having been made. Let’s keep the momentum going in 2024. Again…. Thank You for making a difference in our lives.
Happy Holidays & Best Wishes for a Safe and Happy New Year!
Warm regards,
Deb
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Insurance Law Symposium Wrap-Up
By Symposium Committee Co-Chairs:
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Michael A. Hamilton
Goldberg Segalla, Philadelphia, PA
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Joann M. Lytle
McCarter & English, Philadelphia, PA
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On October 20, 2023, the American College of Coverage Counsel held its 9th Annual Insurance Law Symposium at the University of Pennsylvania Carey Law School. The Symposium was a huge success, with a room full of attorneys, industry professionals, faculty and students from the Penn, Villanova and Rutgers law schools.
The Symposium featured presentations and lively discussions on the following timely insurance coverage topics:
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The Influence of the Restatement in the Courts and State Legislatures (Samuel Arena, Laura Foggan, Lorelie Masters)
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Intersection of Bankruptcy and Insurance (Professor David Skeel, Blair Dancy, Seth Lamden)
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PFAS (Michael Hamilton, John Harding, Joann Lytle)
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Window Opening Statutes (Tim Burns, Dan Kohane, Laura Hanson)
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ESG and D&O (Doug Richmond, Lisa Campisi, Ronald Schiller)
In addition, at lunchtime, Randy Maniloff addressed the law students with a presentation on “Insurance Coverage: Why it Should be Called Torts II.”
We wish to thank the speakers for all their hard work in putting together great presentations.
In addition, the College thanks the sponsors of the Symposium: Schulwolf Mediation, Jeff Kichhaven Commercial Mediation and Stout.
Lastly, we wish to thank Professor Tom Baker and the University of Pennsylvania Carey Law School, for making this event possible.
Symposium Co-Chairs:
Michael Hamilton, Goldberg Segalla LLP
Joann Lytle, McCarter & English LLP
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The ACCC would like to thank the following
sponsors for their generous support:
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Member Spotlights: ACCC 2024 Annual Meeting Committee Co-Chairs |
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Suzan Charlton
Covington & Burling LLP, Washington, DC
By Christine Haskett of Covington & Burling LLP.
Suzan Charlton was born and raised in Silver Spring, Maryland, in the DC area. She decided to become a lawyer so she could win arguments against opponents who couldn’t simply say “because I said so” in order to defeat her. (And we’re guessing her parents were also glad she found other people to argue with….) After law school, she chose her first job based on the amazing people who worked at the firm, and as it turned out, that firm exclusively represented policyholders in coverage litigation. Although Suzan didn’t pick the firm based on the subject matter, she enjoyed it, and she has never looked back.
Suzan’s favorite case was a pro bono health insurance case for a client who needed surgery and had health insurance under COBRA, which was about to run out. On the day of the client’s surgery, the hospital turned her away, saying her insurer had denied coverage based on an exclusion in the policy. Suzan fought the application of the exclusion and won, the surgery took place before coverage expired, and the surgery was 100% covered by the insurer. The client baked the whole office cookies and sent Suzan a kite along with a thank-you note saying “You’ve sent my spirits soaring.” The kite still hangs in Suzan’s office today.
Some of the biggest changes that Suzan has seen over her career involve new types of coverage (she remembers when first-party claims were rarely disputed and some types of coverage litigated today didn’t even exist), as well as attitudes towards women. Suzan recalls one elderly male judge who had trouble grasping that lead counsel for the policyholders were all women, and even referred to one as her (male) local counsel’s “assistant.” But today, Suzan is set to argue an appeal in which all three judges on the panel are women, the trial judge was a woman, and her local co-counsel are women.
In her spare time, Suzan volunteers with her local Girl Scout Association, golfs, kayaks, skis, travels, dreams of getting back into cartooning and becoming a stand-up comic, and reads travel guides in her hammock.
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Barbara O'Donnell
Sulloway & Hollis, P.L.L.C., Boston, MA
Andy Downs of Bullivant Houser Bailey PC in San Francisco, CA, recently interviewed ACCC's 2024 Annual Meeting Co-Chair, Barbara O'Donnell. The following is a transcript of their conversation:
· Where are you from; where did you grow up?
I grew up in Northampton MA, an area with a relatively eclectic demographic drawn from the “five college region” in the Pioneer Valley (Smith, Amherst, UMass, Hampshire and Mount Holyoke) as well as the farming communities in the Connecticut River Valley. While growing up as the oldest of four, our mom Sarah (a transplant from Arkansas who met my dad while attending graduate school in Iowa, where I was born) taught elementary school art in the public schools and our dad, John, ran his law practice in Florence (one of the villages that make up Northampton). Post my graduation from the University of Virginia, I returned to Massachusetts to attend Boston College Law School.
· What steered you to a career in law?
My various jobs while growing up included stints at my dad’s law practice, two of my close friends were raised by Judges and family friends included several other attorneys so the legal profession was more familiar to me than other potential occupations. During my college years, I had summer jobs as a “gofer” in the D.A.’s office and a part time office job with a Charlottesville law firm during the academic year. My early introduction to the legal profession, coupled with my love of learning (I could have been a perpetual student if someone paid my way) made my trajectory to law school an obvious (and for me, fortunate) choice.
· What did you do after law school; what was your first job as a lawyer?
Through my participation in BC Law’s mock trial competition, with judges drawn from area firms, I obtained a position with Sherin and Lodgen LLP, a Boston firm with a well-regarded litigation and commercial real estate practice. Given the firm’s relatively small size (I was one of two first year associates), I had the ability to work directly with experienced litigators who gave me early opportunities to develop litigation and problem-solving skills with valuable courtroom opportunities (including a jury trial a few years after my admission to the bar).
Through my firm’s representation of one of the defendants in an EPA environmental contamination lawsuit involving the discharge of PCBs into the New Bedford Harbor, I gained my initial exposure to coverage disputes (including time spent examining ISO records concerning the drafting history of the “sudden and accidental” exception to the pollution exclusion). With the encouragement of the firm’s managing partner, I joined the ABA/TIPS Insurance Coverage Litigation Committee in the late 90s when it was a relatively new committee with ample opportunities for involvement. By working with Sue Popik on program planning when she chaired the committee, I gained the opportunity to step into the chair’s role when she handed over the reins. A steady array of subsequent TIPS appointments, including several publication roles, allowed me to make long time professional friends around the country, including several of my ACCC Fellows.
· What is the most interesting thing you do outside of the practice of law?
The thriving arts and music scene on Cape Ann (the “other cape” north of Boston that includes Rockport, where I live, and Gloucester, one of the country’s oldest seaports that just celebrated its 400th anniversary) keeps me entertained on a year-round basis and my ocean front location (in the small condo where my mom lived for over 20 years) allows me to host a steady stream of friends during the “weather hospitable” months of the year. As my reward for continuing to work (too much) in my 60s, I’ve been carving out time for overdue travel to areas outside the U.S. (including a wonderful Smithsonian trip to Sicily and S. Italy in October).
· Tell us about your first big insurance coverage case.
My introduction to coverage disputes through my firm’s representation of one of the manufacturing facilities sued by the EPA in the New Bedford Harbor PCB environmental contamination litigation (which included a lengthy list of Boston area law firms and led to the Massachusetts Appeals Court’s endorsement of the “comparison test” governing an insurer’s defense coverage obligation in its 1983 Sterilite Corp. v. Cont’l Cas. Co. decision) kicked off my “coverage geek” career trajectory.
· What is the biggest change you’ve seen over your career with respect to coverage litigation?
After transitioning to an insurer side role in the late 90s, I was increasingly called upon to handle complicated and/or time sensitive matters that require a short turn around and/or involve high exposure claims, instead of the more routine matters that insurers referred to outside counsel before their legal departments grew large enough to handle most “garden variety” matters. In addition, the coverage and extracontractual bar, on both sides of the aisle, brings a much more sophisticated wealth of knowledge to the table than was the case when I started handling coverage disputes in the 80s and 90s.
· How many jurisdictions have you handled coverage or bad faith litigation? Do any of them stand out for one reason or another?
I’m bar admitted in Massachusetts, Connecticut, and New York, with the ability to handle non-litigated coverage disputes throughout the New England region. While the approach taken to recurring coverage issues in this region is fairly consistent, the unfair claims handling statute in Massachusetts, M.G.L. c. 93A and 176D, provides plaintiffs and policyholders with a strong incentive to bring unfair claims handling and settlement practices claims against insurers to attempt to recover treble damages and attorneys’ fees if they can establish a willful and/or knowing statutory violation. The readiness to assert c.93A/176D claims and the resources committed to same was fueled to a large measure by the Supreme Judicial Court’s issuance of a decision in 2021 (Rhodes v. AIG Domestic Claims) that directed courts to use the judgment entered in the plaintiff’s favor in the underlying action, rather than the “loss use of withheld or delayed settlement funds” as the “multiplier” for an award of double or treble damages for a willful and knowing violation. Over recent years, an increasing amount of my time is directed toward efforts to stave off, or defeat, the assertion of c. 93A claims against insurers.
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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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The ALI First Party Bad Faith Restatement Nears Completion
By Michael F. Aylward[1], Morrison Mahoney LLP, Boston, MA
In the last issue of this newsletter, we surveyed recent developments at the American Law Institute, notably the odd case of Section 20-A, a survey of first party bad faith that is somewhat surprisingly buried within the Miscellaneous Provisions volume of the Third Restatement of Torts.
Although Section 20-A was due to be debated at the May 2023 annual meeting of the ALI, it was put over to the 2024 Annual Meeting due to a heated debate over whether the Torts Restatement should adopt medical monitoring as a cause of action. Given this grace period, Professor Green reviewed his earlier drafts as well as extensive input that he had received from ACCC members Bill Barker, Laura Foggan and Lori Masters and generated a new draft this Fall that addressed many of the concerns that were discussed in prior articles. Unless the ALI Council rejects or objects to Council Draft No. 5, it will likely be presented and approved when the ALI next gathers in San Francisco in the Spring of 2024.
As will be detailed below, Professor Green has eliminated or ameliorated most of the provisions of Section 20-A that insurers and bad faith counsel had expressed concern about. Additionally, this draft uses language that is more familiar to first party lawyers, whereas earlier drafts of Section 20-A used terms that derived from third party claims.
As revised, Subsection E identifies the following examples of conduct for which a first party insurer may be liable. Items 6-8 are new as is the definition of “claims processing.”
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Bad faith in claims processing may include: (1) denials of claims for which no reasonable basis exists for the denial; (2) offers of settlement in amounts below the minimum that would be reasonable based on the facts of the claim and the scope of coverage; (3) investigations that take an unreasonably long time or, that are unreasonably onerous or demanding, or that are otherwise unreasonable; (4) imposing conditions on insureds during claims processing that are unreasonable or impossible to fulfill; and/or (5) conditioning payment for an uncontested aspect of a claim on the insured agreeing to a global settlement of the claim; (6) misrepresentations about coverage; (7) improper destruction of evidence; or (8) overpaying to accelerate the exhaustion of policy limits when the policy otherwise would fund ongoing obligations. “Claims processing” as used in this Section covers the insurer’s conduct from the time when a claim based on an insurance policy is made through to final resolution of the claim. (Emphasis supplied).
Earlier drafts of Section 20-A had strongly suggested that issues of first party bad faith must be determined by juries and were inappropriate for resolution by a judge on a motion for summary judgment. Council Draft No. 5 takes a softer approach by adding these two exceptions to this general rule:
- First, when the question that must be assessed is whether the insurer’s denial of coverage was reasonable based on the policy or statutory language - and that inquiry turns on the interpretation of specific policy or statutory language - courts must assess whether the insurer acted reasonably as a matter of law. Addressing that limited matter as a legal one is consistent with the rule that interpretation of insurance policy or statutory language is a matter for the court because a legally trained official is better able to make that determination than a lay adjudicator.
This new draft also modifies language in earlier draft that had declared that an insurer’s violation of state unfair claims practices statutes might constitute a per se basis for finding first party bad faith. As revised, Subsection M now merely states that such violations “may be considered in determining whether there was a lack of a reasonable basis in the insurer’s claims processing.”
Council Draft No. 5 includes a new subsection dealing with the liability of first party insurers for the actions of independent contractors. It states that, while insurers are free to delegate claims handling duties to employees or independent contractors, it remains vicariously liable for their acts or omissions.
[1] Mr. Aylward is the chair of Morrison Mahoney’s complex insurance claims group. He is a past ACCC president and a member of the American Law Institute, where he served as an advisor to the 2010-210 Restatement of Law, Liability Insurance and is a member of the Members Consultative Group on the current Restatement of Law (Third), Torts.
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Regional Meet Ups – A Banner Year!
By Regional Meeting Co-Chairs
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Andy Downs
Bullivant Houser Bailey, PC
San Francisco, CA
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Martin Pentz
Foley Hoag LLP
Boston, MA
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Once again this year, the College has organized regional meet-ups across the country, and participation has been excellent. To date, we have held events in Atlanta, Boston, Chicago, Dallas, Houston, San Francisco, Seattle and Washington, D.C. Photos of the happy attendees of some of these events accompany this report. As of this writing, additional meet-ups are being planned for Los Angeles/Southern California and Southern Florida. Many thanks to the co-chairs in each city who organized these get-togethers!
The meet-ups are designed to keep Fellows in touch between annual meetings and symposia, to encourage Fellows to be thinking about ways to enhance their participation in the College, and to foster communication about possible nominees for admission to the College. To that end, this year some of the meet ups were joined by aspirants for admission, giving them an opportunity to take our measure – and vice versa. The future looks bright!
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DC Area Meetup
November 15, 2023
Sfoglina
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Boston Area Meetup
November 16, 2023
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Atlanta Area Meetup
November 16, 2023
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Pacific Northwest Area Meetup
November 17, 2023
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San Francisco Area Meetup December 5, 2023
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Houston Area Meetup
December 6, 2023
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Lisa Henderson
Clyde & Co.
Garland, TX
By Bob Allen, The Allen Law Group
Lisa grew up in Grass Valley, California about halfway between Sacramento and Lake Tahoe in California’s Gold Country. She didn’t like her first job out of college, so her husband suggested law and it turns out, he was right. Right out of law school, Lisa was a captive counsel for Safeco in Portland, primarily defending auto accident cases. When she took on first-chair coverage cases, one of her first big cases involved representing the insurer of the wholesaler who sold cantaloupes contaminated with listeria to Walmart and other grocery chains. Although it took several years and multiple rounds of mediation, the cases settled within the available limits. Lisa has handled coverage/bad faith litigation in Texas, Oregon, Washington, California and Florida of which Oregon stands out to her because its state court procedures are quite different from other states and the federal rules. She spends her free time traveling with her husband, hiking, cooking, and working in her garden.
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Susannah Carr
Gordon Tilden Thomas & Cordell LLP
Seattle, WA
By Seth Row, Miller Nash LLP
New Fellow Susannah Carr is the Managing Partner of Gordon Tilden Thomas Cordell in Seattle, WA. She is a graduate of Yale University and the University of Washington School of Law. Suzannah is among the most experienced lawyers in the Pacific Northwest in long-tail environmental coverage claims, having represented Weyerhaeuser (with colleague and Fellow Frank Cordell) for many years in long-tail disputes. She is an avid sailor – read on for more about her adventures!
"I grew up in Hingham, Massachusetts. It’s a historic New England town between Boston and Cape Cod.
I was steered toward law because I was ready for a career with long term growth and development opportunities. I like that by the time people or businesses get to my desk, they have a complicated problem that they need my help to solve. Also, my dad was a lawyer, so I had some familiarity with the field.
After law school I had a lot of fun! I moved from New England to San Francisco, where I ran a youth sailing program and worked at a public relations agency. By the time I started law school, I had sailed across the Atlantic twice, raced in regattas in Denmark, Germany, Belgium, and Portugal, and competed in the U.S. Olympic trials for the women’s singlehanded sailing division.
My first job as a lawyer was clerking for the Honorable Anne Ellington at the Division One Court of Appeals for the State of Washington.
I race an 18’ sailboat with a crew of three on Lake Washington every Wednesday night in the spring and summer. I have a great crew. We have been sailing together for more than 10 years.
Sometimes the matters with a relatively small or mid-sized claim value are the ones that raise complex issues, which is one of the reasons I like the practice area. In terms of size and complexity, my first big case was representing Weyerhaeuser in its coverage litigation related to environmental liabilities at the Kalamazoo River Superfund Site.
I’ve litigated insurance coverage cases in Washington, Oregon, and Alabama. Alabama has the best barbecue, hands down, but if you want delicious salmon, come to Washington!"
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Michelle Chapnick
Gregory, Meyer & Chapnick, P.C., Troy, MI
By Christine Haskett of Covington & Burling LLP.
Michele Chapnick is a native Californian who grew up in the best place in the world (aka the San Francisco Bay Area). Growing up, Michele was involved in theater and enjoyed performing and public speaking. In college, she majored in Political Science and was interested in legal and political topics, as well as the thought processes and strategies that go along with those issues. She ultimately chose a career in law, and litigation specifically, because it seemed like the natural choice for combining her varied interests.
One of the most memorable early insurance coverage cases that Michele handled involved a partial roofing collapse during construction of an airport. The damages were large, the coverage issues were numerous and complex, and the litigation lasted close to ten years and involved an appeal, a remand, and multiple dispositive motions. The case was hard-fought and involved virtually every litigation issue one could imagine, and Michele found it both challenging and a great learning experience.
Michele is licensed in Michigan, Ohio, and Wisconsin and has handled coverage or bad faith litigation in approximately 6-10 other jurisdictions throughout the country. Ohio stands out to her as a challenging jurisdiction in which to defend insurers in light of the fact that Ohio courts allow bad faith claims to exist even if an insurer is not found to have breached its contract, as well as having policyholder-friendly laws around attorney-client communications in bad faith claims.
Outside of work, Michele is an avid pickleball player who plays in a couple of different leagues each week. She has found the exercise, competition, and social aspect of the game to be a great after-work outlet.
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Blake Evans
Schubert & Evans, P.C., Dallas, TX
By Bob Allen, The Allen Law Group
Blake was born and raised in Oklahoma City, the son of a McAfee & Taft partner who has been with the firm for 60 years. Blake grew up hanging around the law firm on Saturdays and determined that he wanted to follow in his dad’s footsteps. After graduating from Georgetown Law School, Blake took an associate position with the Dallas law firm he had clerked for, the late great Vial, Hamilton, Koch and Knox, where he practiced with several Fellows including Tom Alleman, Bob Allen, David Schubert and Aaron Mitchell. His first big case did not necessarily involve a lot of money, however, he was a young associate and he was solely responsible for every aspect of the case. Blake has litigated coverage issues in approximately 15 different states and the biggest changes he has seen are an increasing reluctance on both sides of the docket to aggressively litigate sensitive issues for fear of setting negative precedent, and that coverage knowledge and experience on the bench has increased. In his free time, Blake enjoys college football, jazz music, and gardening.
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Call For Fellows Nominations
The ACCC regularly seeks Nominees to be admitted as Fellows of the ACCC who are distinguished for their skill, experience and high standards of professional and ethical conduct in the practice of insurance coverage and extracontractual law, and who are dedicated to excellence in this area of practice. ACCC's Membership Committee looks for nominees who are prominent in the field, and are committed to the practice of law, professionalism, scholarship, diversity, and civility in the bar.
Nominees should have at least 15 years of experience representing insurers or policyholders in the field of insurance coverage or extracontractual law, typically devoting at least 70% of their practice to this area.
Nominees must be nominated by a current Fellow of the ACCC who is not a member of the Nominee’s law firm.
Fellows should not advise their proposed Nominee that his or her name has been submitted. After review, if the Committee determines a Nominee should be invited to apply for membership, a Committee Member will send a Nomination Form to the Nominee.
Due diligence is completed by a member of the Membership Committee who is not personally acquainted with the Nominee. If the Nominee is determined to qualify for membership by the Committee, the nomination is forwarded to the ACCC Board of Regents with their recommendation to approve membership.
Nominations should be submitted to [email protected]. Please include the nominee’s name, basic contact information, and url 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 accordingly.
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The Short, Happy Life of the 1973 CGL Form
By Michael F. Aylward, Morrison Mahoney LLP, Boston, MA
Amid the tumult of the past few months, one major anniversary has been all but forgotten: the 50th anniversary of the 1973 CGL form. In this brief article, I’d like to make the case that the 1973 form deserves greater recognition in light of its revolutionary impact on the regularization of insurance coverage and claims resolution.
These many years later, it is hard to remember the primordial swamp that was liability insurance in the late 1960s and early 1970s. Although comprehensive general liability insurance had been introduced in 1941, many insurers continued to underwrite different types of liability risk under other GL forms, notably Manufacturers and Contractors (products claims) and Owners, Landlord and Tenants (premises liability) insurance. Also, insurers subscribed to dozens of disparate and regional rating bureaus than is currently the case with the result that different M&C and OL&T forms and other standard bureau forms were used that diverged in minor but consequential ways.
Even though it only remained in place for thirteen years (ISO made major revisions in 1986 followed by minor tweaks in 1990, 1993, 1996, 1998, 2001, 2004, 2007 and most recently in 2013), the 1973 CG 00 01 form revolutionized the insurance playing field in three significant ways. First, it established the primacy of the Insurance Services Office (ISO) as the principal source of standardized policy forms and endorsements for the domestic P&C industry. Second, it cemented the CGL form itself as the dominant means of underwriting general liability insurance. Finally, it effected significant changes to the standard CGL form that proved to have long-lasting consequences for coverage litigation in the years to come.
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12th Annual Meeting Preview
By Conference Committee Co-Chairs:
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Barbara O'Donnell
Sulloway & Hollis, P.L.L.C., Boston, MA
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Suzan Charlton
Covington & Burling LLP, Washington, DC
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Mark your calendars to join your colleagues at the 12th Annual Meeting of the American College of Coverage Counsel from May 8-10, 2024, at the InterContinental on Chicago’s Magnificent Mile. Building on the positive feedback from the high turnout at last year’s Meeting, plans are well underway to offer another stellar line up of cutting-edge coverage and bad faith presentations with a robust exchange of perspectives from leading policyholder and insurer’s counsel, including the following:
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"What Could Possibly Wrong Go?: Generative AI, Liability, and Insurance" (Seth Tucker, Jean Lawlor, Carolyn Rosenberg, and Jeff Bowen)
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Reimbursement 25 Years Post-Buss v Superior Court (Bob Allen, Mary Borja, Allen Van Etten, and Chris Mosley)
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New Fronts on the Erosion of the Insurer Attorney/Client Privilege in Bad Faith Discovery Wars (Ned Currie and Lorelie Masters)
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Leading the Charge: Jury Submissions and Instructions in Insurance Coverage and Bad Faith Cases (Mike Huddleston, Sherilyn Pastor, Chris Martin and Alex Potente)
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Recent Trends in Wrongful Conviction Liability Coverage Battles (William Beck, William Bulfer and Karen Dixon)
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Cutting Edge Conflicts Surrounding the Duty to Defend (John Shugrue, Jeffrey Stempel, Emily Garrison, and Monica Sullivan)
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“Which Side are we On? Practical and Ethical Considerations When Insurer-Side Firms Represent Policyholder Clients (qualifies for CLE ethics credit) (Richard Malone, Amy Johnson, Neil Posner)
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Reps & Warranties Insurance (Vince Morgan and Nancy Adams)
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Shelter from the Storm: Finding Insurance for Climate Risks (Seth Lamden, Gina Clausen Lozier and Heather Sanderson)
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Honorable Disengagements and Dishonorable Engagements: Reinsurance and Ad Hoc Arbitrations (Peter Rosen, JAMS and Paula Litt)
Registered Annual Meeting attendees will obtain approximately 9-10 hrs. of CLE credits, including 1 hr. Ethics credit (Subject to state accreditors’ receipt and review of program materials).
2024 Annual Meeting Planning Committee Members:
Suzan Charlton, Covington Burling LLP – Co-chair
Barbara O’Donnell, Sulloway & Hollis PLLC – Co-chair
Mike Kiernan, Traub Lieberman – Vice Co-chair
Rikke Morice, Blank Rome - Vice Co-chair
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The ACCC would like to thank the following sponsors for their valued support: |
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Civil War Battlefields Tour |
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The Blue and the Gray met on Southern battlefields of the American Civil War last month, retracing the steps of their ancestors. Past and present ACCC officers Michael Aylward, Ned Currie, Michael Huddleston, and Steve Pate toured Shiloh, Vicksburg and lesser conflicts in Tennessee and northern Mississippi, led by leaders of the American Battlefield Trust and former park directors. As they walked across these blood-soaked battlefields, each gained an understanding of both the path of battle and the savage fighting of a war in which each side believed that they were in the right and fighting to save their nation. Although Aylward faced superior Southern forces in the face of Currie, Huddleston and Pate, he reported that he upheld the Union’s honor in the course of subsequent evenings in which sallies, feints and charges were advanced over fried catfish, black-eyed peas and a variety of amber-colored beverages.
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Edward Currie Founder’s Award Call For Nominations |
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The American College of Coverage Counsel is seeking nominations for the 2024 inaugural Edward Currie Founder's Award presentation during the ACCC Annual Meeting. 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 recognizes a senior insurance lawyer, who must be, or must have been, a Fellow (regular, honorary, or emeritus) in good standing, and 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, please submit your candidate's name, contact information and a description explaining how your nominee meets the award criteria to Carol Montoya at [email protected].
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Are Duty to Defend Rulings Immediately Appealable?
By Michael F. Aylward, Morrison Mahoney LLP, Boston, MA
Recent rulings from the Third, Fourth and Eleventh Circuits have considered whether the federal appeals court may exercise interlocutory review of District Court rulings declaring that insurers owe a defense to their policyholders. Insurers have an obvious interest in an expedited review of duty to defend orders, as they may otherwise end up paying legal fees for several years with little hope of reimbursement. As may be seen in these recent rulings, whether insurers can bring such appeals depends a great deal on the nature and circumstances of the lower court’s ruling and whether it merely interprets coverage provisions or expressly commands the insurer to defend.
At the heart of these rulings is the treatment of interlocutory appeals in 28 U.S.C. §1292. Subsection (b) gives federal circuit courts discretion to grant interlocutory review of decisions that are certified by the trial judge believes “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation…” Otherwise, interlocutory review is only allowed under Subsection (a)(1) for orders “continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” But is a non-final opinion ordering a liability insurer to defend an injunction?
In Zurn Industries, Inc. v. Allstate Insurance Co., No, 21-3032 (3d Cir. July 28, 2023), the Third Circuit refused to exercise jurisdiction over a Pittsburgh District Court’s ruling concerning the obligations of second layer excess insurers to pay for the defense of asbestos suits against a plumbing manufacturer. In so ruling, the Court of Appeals found that “the order here merely “denied” American Home’s motion regarding its obligation to defend and pay defense costs. Without more, the order simply reflects the District Court’s decision to decline relief, as a matter of law, before trial. For that same reason, the District Court’s order falls well short of imposing forward-looking equitable relief.”
The Zurn court analyzed two earlier cases in which the Third Circuit had come to conflicting conclusions with respect to the scope of Section 1291(a)(1). In American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1173 (3d Cir. 1989), the Third Circuit declared that when a court defines an insurer’s contractual obligations but does “not order it to undertake the defense” or “do anything,” the court’s order “cannot be enforced pendente lite by contempt and [does] not constitute an injunction.” By contrast, the Third Circuit accepted jurisdiction of an interlocutory appeal in Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660 (3d Cir. 2016) due to the fact that the District Court’s order had not only construed the parties’ rights and duties but had “direct[ed] Westfield to defend Ramara prospectively in the [underlying tort] lawsuit.” Id. at 671. The Third Circuit ruled that this supplemental order granted “forward-looking relief” that constituted the sort of “equitable relief [that is] immediately appealable.”
A few weeks later, the Third Circuit revisited this issue in Zenith Ins. Co. v. Newell, No. 21-1748 (3d Cir. Aug. 24, 2023), a case in which an insurer sought immediate review of a Philadelphia judge’s ruling that it must defend claims that an employer concealed blood tests showing that its workers had dangerously high levels of zinc and lead after being exposed to lead and cadmium on the job. In rejecting Zenith's argument that such an order fell within the exception for non-final orders relating to injunctive relief, the Third Circuit declared that "orders declaring the meeting of the contract are not enforceable by contempt unless the district court explicitly provides as much or in the text of the order, direct some action be taken to effectuate the declaratory relief." The court acknowledged that Subsection (a)(1) might also allow review of orders that have the “practical effect” of granting or denying injunctive relief, even if they do not say so explicitly and declared that courts should use a “functional test” to determine whether an order is effectively injunctive.
Meanwhile, the Fourth Circuit joined the fray in Selective Ins. Co. v. Westfield Ins. Co., 2023 WL 4479322 (4th Cir. July 12, 2023), a South Carolina case involving the rights of parties to a construction defect suit to demand a defense as additional insureds. Relying on the U.S. Supreme Court’s decision in Carson v. American Brands, Inc., 450 U.S. 79, 83 (1981), the court declared that in order be immediately appealable under Section 1292(a)(1), “a litigant must show more than that the order has the practical effect” of commanding or preventing action.” In light of Carson held that an order directing an insurer to defend going forward should be immediately appealable. It further found, however, that this rule did not apply where, as here, the underlying case had settled while the appeal was being brought such that no risk of future defense costs or other irreparable harm to the insurer.
The final decision in this quartet came out of Alabama. At issue in James River Ins. Co. v. Ultratec Special Effects Inc., 2023 WL 4479322 (4th Cir. July 12, 2023) were the claimed defense duties of James River Insurance for wrongful death and personal claims after a catastrophic pyrotechnical explosion at the insured’s plant. The District Court stayed any ruling as to James River’s indemnity duties but ordered it to assume Ultratec’s defense. In keeping with its ruling in National Union Fire Ins. Co. of Pittsburgh, Pa. v. Sahlen, 999 F.2d 1532, 1535 (11th Cir. 1993), the Court of Appeals declared that the lower court’s order, although not a final disposition, was injunctive in effect and was there appealable under § 1292(a)(1).
As these four cases show, there is no simple answer to the question of when court orders may be characterized as injunctions. These cases also demonstrate, however, that solid grounds exist for interlocutory review under Section 1292(a)(1) where the District Court’s order clearly orders the insurer to pay for the insured’s defense going forward.
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Honorary ACCC Fellow Kyle Logue Named Dean of University of Michigan Law School
By Michael F. Aylward, Morrison Mahoney LLP, Boston, MA
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The American College of Coverage Counsel is fortunate to count among its members a dozen Honorary Fellows, who are among the leading professors of insurance law in the United States. One of those Honorary Fellows, Kyle D. Logue, has recently been named to serve as the Interim Dean of the University of Michigan Law School in Ann Arbor.
Logue is well known for his service as the associate Reporter for the American Law Institute’s Restatement of Law, Liability Insurance between 2010 and 2018 and is the co-author of one of the leading insurance law casebooks, “Insurance Law and Policy: Cases and Materials.” His publications have appeared in journals such as the Chicago Law Review, the Cornell Law Review, the Tax Law Review, the Virginia Law Review, the Stanford Law Review and the Yale Law Journal.
Kyle has taught on the law school faculty since 1993. Before joining U-M, he clerked for Judge Patrick E. Higginbotham on the U.S. Court of Appeals for the Fifth Circuit.
“This is an exciting time to lead the University of Michigan Law School. For more than 150 years it has been a leader in legal education and research, and there is no better convergence of extraordinary faculty, dedicated staff and talented students anywhere in the world,” Logue said. “Michigan Law has been my academic home for many years. I am honored and humbled to serve in this role and to build upon the Law School’s legacy.”
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Tracy will now be offering arbitration services while continuing to maintain his active litigation practice at Saxe Doernberger & Vita, P.C. “As I celebrate my 40th year of practicing law, I could not be more excited to expand my skill set as an Arbitrator with the American Arbitration Association. I will continue to be active as an insurance coverage counselor and trial lawyer, and look forward to continuing to serve our clients at SDV,” said Tracy.
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Tracy Alan Saxe
Saxe Doernberger & Vita, P.C., Trumbul, CT
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The article was prepared and presented on behalf of the Dallas Regional Chamber for the Supreme Court of Texas regarding Directors & Officers coverage.
Marc Gravely
Gravely Attorneys & Counselors, San Antonio, TX
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Nancy R. Kornegay
Miller Nash LLP
Portland, OR
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Catamount Services LLC
Edison, NJ
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Words and Jurisdictions Matter – The Preamble Problem
Exclusionary provisions in Director and Officer (“D & O”) Liability and Professional Liability policies –not all of which are necessarily contained in the policy section specifically entitled “Exclusions” – warrant close examination of the preamble wording of the exclusion.
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Amber Finch
Reed Smith LLP, Los Angeles, CA
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· Susannah C. Carr, Gordon Tilden Thomas & Cordell, LLP in Seattle, WA
· Michele A. Chapnick, Gregory, Meyer & Chapnick, P.C. in Troy, MI
· Blake Evans, Schubert & Evans, P.C. in Dallas, TX
· Margaret Fonshell Ward, Downs Ward Bender Herzog & Nintigh, P.A. in Hunt Valley, MD
· Lisa Henderson, Clyde & Co. in Dallas, TX
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Register Now for each of these Upcoming ACCC Events
ACCC Pop Up Dialogue Webinar
Wednesday, December 20, 2023 at 3:00 PM ET
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ACCC Pop Up Dialogue Webinar
Wednesday, January 24, 2024 at 2:30 PM ET
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ACCC Pop-Up Dialogue Webinar
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Presented by the ACCC D&O, Management and Professional Liability Committee
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Wednesday, May 8 – Friday, May 10, 2024
InterContinental Chicago in Chicago, IL
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