April 2020 Newsletter

President's Message

Dear Fellows:

When I began this letter a month ago, it was full of cheerful valedictory comments about how I have enjoyed my service as your President, how much the ACCC has accomplished over the past 12 months and how I looked forward to seeing you all at our annual meeting in Chicago in May. How trite those sentiments seem in retrospect.

Today, we are in the midst of a social, health, and economic crisis like nothing that any of us have experienced. Surely, our generation has weathered many crises over the decades. Some were of natural origin, others human-made, and a few purely the product of evil. Yet, we have never seen anything like the COVID-19 pandemic, both in its international and country-wide scope and the uncertain dimensions of its impact and duration. We will, I am sure, get through to the other side and pick up the pieces. But when? 

Death is never far from us. At a recent college reunion, the Class Secretary read the list of deceased classmates that seemed to go on for an unusually long time. A friend sitting next to me sadly pointed out how many classmates had been bright young men who died in the first throes of the AIDS crisis in the 1980s, much as the flower of England died on the banks of the Somme in 1916. Yet death in this case is remote for most of us: unseen, hidden in statistics and White House briefings. Meanwhile, we are all coping with a new normal of basement workspaces, “quarantine beards” and afternoon walks with the family. 

I’m trying to begin each day with a list of the things that I am grateful for:

  1. A spouse who puts up with my using the dining room as my Zoom “studio.”
  2. The chickadees and cardinal that breakfast with me outside our kitchen window.
  3. Bacon (don’t tell my doctor).
  4. The neighborhood joggers with such great legs (don’t tell my wife).
  5. The scared young people that sell me groceries, gasoline, and wine. Oh, this brave new world that has such people in it.

Mostly, I am grateful for the resilient spirit and optimism of the people that I work with, especially my friends and colleagues in the American College of Coverage Counsel. We know that we are lucky: not only do we still have jobs, but we are about to embark on a new field of coverage litigation that will keep most of us employed until retirement (or whenever my 401(k) gets back to where it was in 2018!).

The ACCC has already taken steps to respond to the pandemic crisis and to provide useful resources to our Fellows. Our monthly pop up calls are now occurring every 10 days and are providing a useful survey of anticipated coverage issues, as well as an opportunity for our members to swap gossip and share insights. We even have a new Zoom account that can handle 500 callers after our initial call busted through our original 100-called ceiling.

If you haven’t visited the ACCC web site, go. There are lots of useful articles. We have also created a Community Forum where members can post commentaries as well as source documents, including proposed legislation, new lawsuits and insurance directives.

Meanwhile, we are reconfiguring our Annual Meeting to reflect this new reality. Unlike past meetings, the September 9-11 event at the Chicago Athletic Association will feature a special afternoon prequel featuring several panels on COVID-19 pandemic insurance issues. We are also hoping to persuade King & Spalding to host an A-Z bar tour of all the Chicago bars and restaurants that are featured in their new COVID-19 bad faith suit!

Although our Annual Meeting has been postponed until the Fall, the business of the College goes on. You will be receiving details shortly of a virtual business meeting that we will hold in May to elect a new Secretary-Treasurer and new members of our Board of Regents and to honor those who are stepping down this year.

Meanwhile, I am reminded that I too will shortly be stepping down. It is indeed trite to say that it has been an honor to serve as your President since 2019, but it is true. The honor lies not in the office, however, but in the opportunity to serve. It has been an extraordinary privilege to get to work with so many of you over the months, making new friends and strengthening old friendships along the way. I had not expected that these valedictory months would become quite such a test of our resilience but in responding and overcoming these challenges, we are discovering the potential of our College and why we joined it in the first place.

Isolated as we may be at the present time, we must not let this crisis prevent us from carrying out our personal and professional obligations. As complex and profound as this crisis may be, it will also surely give rise to significant disputes with respect to the obligations of insurers to provide coverage for business interruption losses, wrongful death suits involving nursing homes, the failure of corporate officers to properly anticipate such problems, and numerous other disputes involving the entire universe of insurance policies. We have a responsibility to shepherd those claims to a socially useful conclusion and not to shelter in isolation or abandon our duties to our clients, our law firms, and ourselves. 

God bless you all. Keep your families safe, be true to your clients, and find some quiet time in the morning to have bacon for breakfast with a chickadee and a cardinal.

Michael F. Aylward

New Date for 8th Annual Meeting

The ACCC Board of Regents has voted to postpone the 2020 Annual Meeting, originally scheduled for May 6-8, 2020. We have rescheduled the event for Wednesday, September 9 through Friday, September 11, 2020 at the Chicago Athletic Association. 

We are planning to present the same agenda on Thursday and Friday. The Annual Meeting planning committee is working diligently to create an additional half-day of programming on Wednesday. These additional sessions will be focused on COVID-19 issues and will be offered at no additional charge to attendees. The updated agenda will be published soon.

Registrations for the 2020 Annual Meeting are being transferred to September unless a refund is requested.

All sleeping rooms booked under the ACCC room block for May have been cancelled by the venue. You should have received a notice via email. If you are unsure whether you booked within our block, you can contact [email protected]. You can click here to rebook your room for September. If you wish to extend your stay, call 844-312-2221 after May 1 to make your room reservation (use Group Code G-6SVY).

If you were not yet registered for the conference, and will be able to join us in September, you can click here to register for the rescheduled event. We will also post information for re-booking your hotel room.

Insights on the First COVID-19 Coverage Lawsuits

By Scott Seaman and Judy Selby, Hinshaw & Culbertson

Scott Seaman

Judy Selby

As the number of filings of COVID-19 coverage actions continue to increase, we thought it would be useful to review these cases for our insurer readership so they can better understand the issues and themes that are emerging from the various allegations and requests for relief.

To our knowledge, eight COVID-19 coverage actions have been filed in six different states: Louisiana, Texas, Illinois, Oklahoma, California, and Florida. Coverage is sought for business income losses under property insurance forms, some of which allegedly provide Business Interruption, Interruption by Civil Authority, Limitations of Ingress/Egress, and Extra Expense coverages. We provide links to the complaints in each action at the end of this article.[i]

Two of the eight actions were filed in federal court, while the remaining six were filed in state courts. Billy Goat Tavern, filed in federal district court in Illinois by a local restaurant chain, also seeks relief on behalf of a proposed class of all Illinois businesses offering food or beverage for on-premises consumption that were insured by the same insurer under the same all-risk form and were denied coverage for their COVID-19 related business loss claim.

The plaintiffs in six of the pending actions are restaurants/bars. One of those six lawsuits was also filed on behalf of theater owners. The two Oklahoma lawsuits were brought by Native American Tribe Nations for losses sustained by “multiple commercial businesses and services.” In both of those complaints, the Nations seek to preempt any attempt to remove the lawsuits to federal court, stating that they “expressly disavow any federal claim or question as being part” of their lawsuits, and that the “claims are based in contract and insurance laws under Oklahoma law.”

Six of the complaints alleged that various governmental orders impacted their businesses. One of those seems to be seeking coverage for COVID-19 related losses incurred both prior to and after the issuance of the relevant government order.

Several of the complaints contain no allegations that the insureds tendered claims to their insurers in advance of filing their lawsuits. In other cases, the carriers’ denials of tendered claims have given rise to statutory and common law bad faith allegations. For example, in Big Onion, the plaintiffs alleged that the insurer “issued blanket denials to Plaintiffs for any losses related to Closure Orders –often within hours of receiving Plaintiffs’ claims— without first conducting any meaningful coverage investigation, let alone a ‘reasonable investigation based on all available information” as required by Illinois law.” The Big Onion plaintiffs also cited a memorandum from the CEO of the insurer that had been circulated to its “agency partners” prior to some of the claims being tendered, “acknowledging that states, such as Illinois, had ‘taken steps to limit operations of certain businesses,’ but prospectively concluding that [the insurer’s] policies would likely not provide coverage for losses due to a ‘governmental imposed shutdown due to COVID-19 (coronavirus).’”

In Hair Goals Club, the plaintiff alleged that the insurer’s claim denial violated Texas Insurance Code section 541.061, Misrepresentation of Insurance Policy, as well as other Insurance Code sections concerning the Prompt Payment of Claims. The plaintiff also asserted a claim for breach of the common law duty of good faith and fair dealing, and alleged that the insurer’s acts were done “knowingly,” as that term is defined in the Texas Insurance Code. In addition to seeking coverage for losses under the policy, the plaintiff seeks attorney’s fees and interest, calculated at the statutory amount of 18% per annum. The plaintiff also asked the court to order production of the insurer’s claim file and communication with agents, adjusters, and other concerning the claim.

In some lawsuits, the plaintiffs seem to allege that the absence of an exclusion for a particular cause of loss means that the loss is covered. In Cajun Conti, for example, the plaintiffs seek a declaration that “because the policy provided by Lloyd’s does not contain an exclusion for a viral pandemic, the policy provides coverage to plaintiffs for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from Coronavirus contamination.” In French Laundry, the plaintiffs ask the court to declare that the relevant governmental order “triggers coverage because the policy does not include an exclusion for a viral pandemic and actually extends coverage for loss or damage due to virus.” See also Prime Time (“Loss of business Income and operating expenses is specifically covered under the policy, and governmental suspension as a result of COVID-19 is not specifically excluded.”)

None of the plaintiffs seems to allege that insured premises have been contaminated by COVID-19. The plaintiffs in Cajun Conti, however, have asked for a declaration that “the policy provides business income coverage in the event that the coronavirus has contaminated the insured premises,” and the plaintiffs in Big Onion alleged that the insurer’s “conclusory” statement in its denial letter that the actual or alleged presence of the coronavirus does not constitute direct physical loss “is contrary to the law in Illinois.” The plaintiff stated that “Illinois courts have consistently held that the presence of a dangerous substance in a property constitutes ‘physical loss or damage.’” In French Laundry, the plaintiffs alleged that COVID-19 “is physically impacting public and private property, and physical spaces in cities around the world and in the United States. Any effort by [the insurers] to deny the reality that the virus causes physical loss or damage would constitute a false and potentially fraudulent misrepresentation that could endanger policyholders and the public.”

In early April, an additional four coverage actions were filed in IndianaFloridaTexas, and Illinois. The Indiana and Florida suits were filed in state court, while the Texas and Illinois cases were filed in federal district courts. The policyholders seek coverage for business losses under policies providing business interruption, business income, extra expense, civil authority, and/or ingress/egress coverage. Statutory or common law bad faith claims were made in three of the four lawsuits.

In all four cases, the insured provided notice of a claim to the insurer. Two of those claims were denied. In one case, the carrier responded that it was investigating the claim under a full reservation of rights. In another case, the carrier had not denied the claim prior to the filing of the lawsuit. 

As in earlier complaints, the insureds in three of the new actions appear to contend that the absence of a virus exclusion means that the claims are covered. In the SCGM matter, the insureds seek coverage under a Pandemic Event Endorsement, which is triggered by the occurrence of certain enumerated diseases. Although the insurer did not deny the insured’s claim, the insured filed suit and asserted a claim for “Breach of Contract-Anticipatory Breach/Repudiation” based on a statement by an alleged “agent” of the insurer to the insured’s broker, stating that COVID-19 is not a named disease on the endorsement. The insured also asserted a common law bad faith claim, based on an alleged “internal, high-level directive to automatically deny all pandemic-related business interruption claims,” as well as a claim for “Gross Negligence and/or Malice.”

In Mace Marine, the insured asked the court to rule that COVID-19 contamination constitutes direct physical loss or damage to property, and asserted a bad faith claim based on the insurer’s alleged “general business practice of willful, wanton, immoral, unlawful, malicious and/or deceptive claims handling practices.” In Sandy Point Dental, the insured based a statutory bad faith claim on allegations that the carrier denied coverage without conducting a reasonable investigation and failed to provide reasonable and accurate explanations for the denial of the claim.

In addition, what may have been the first COVID-19 wrongful death lawsuit was filed in Illinois state court on April 6 by the estate of a Walmart employee who died from coronavirus. Walmart Inc. and the owner of the shopping center where the store was located were named as defendants. The plaintiff asserted claims for negligence and willful and wanton misconduct based on, among other things, the alleged failure to cleanse and sterilize the store, failure to implement, promote, and enforce social distancing guidelines, and failure to provide the decedent with personal protective equipment. 

[i] List of Complaints in COVID-19 Coverage Cases

Barbara Lane Snowden DBA Hair Goals Club v. Twin Cities Fire Ins. Co.

French Laundry Partners v. Hartford Fire Ins. Co.

Cajun Conti LLC v. Certain Underwriters at Lloyd’s of London

Onion Tavern Group, LLC, et al. v. Society Insurance, Inc.,

Chickasaw Nation Department of Commerce v. Lexington Insurance Company, et. al

Choctaw Nation of Oklahoma v. Lexington Insurance Company, et. al

Billy Goat Tavern v. Society Insurance

Prime Time Sports Bar v. Certain Underwriters at Lloyd’s London 

Managing Crisis: The COVID-19 Pandemic and an Insurer’s Duty of Good Faith “Statutory Claims Handling Guidelines Remain in Effect!” 

By Rick Hammond, HeplerBroom, LLC*

Rick Hammond


Numerous state governors have issued “shelter in place” orders that effectively close all “nonessential businesses,” i.e., those companies that are not in a critical infrastructure industry as defined by the Department of Homeland Security, such as insurance and pharmaceutical companies, healthcare providers and food suppliers. The White House also issued an updated Coronavirus Guideline to essential businesses that states, “If you work, you have a special responsibility to maintain your normal work schedule.” In some cases, essential business are also required to offer separate hours of operation for vulnerable populations. 

With respect to the insurance industry, insurers are on the verge of being inundated with claim filings of historic proportions. It is projected that the bulk of these claims will relate to property insurance and the loss of business income associated with the large-scale disruption of global supply chains, interruptions of business operations, major events being cancelled, construction projects halted, and fallout from government-imposed closure orders. In tandem with increased claim volume, insurers have received notifications from a number of state regulatory agencies demanding that they comply with additional and more stringent claims handling requirements, and requiring insurers to submit advisory coverage opinions relating to COVID-19, before a claim is even filed. 

Requirement for Advisory Opinions 

Preliminary coverage opinions can expose a carrier to a breach of contract or bad faith allegation if their actual opinion on a specific claim differs from an earlier advisory opinion. Thus, even most courts will refuse to issue advisory opinions for the same reason, i.e., because each case differs! Nonetheless, the New York Department of Financial Services recently issued such a notice to insurers operating in that state: 

Given the potential impact of COVID-19 on business losses, particularly concentrated effects in local communities, DFS considers Insurers' obligations to policyholders a heightened priority. In the interest of the timely and equitable fulfillment of insurance contracts, Insurers must explain to policyholders the benefits under their polices and the protections provided in connection with COVID-19. Any Insurer that writes none of the business described herein should notify DFS in a statement signed by an officer or other authorized representative of the Insurer in lieu of complying with the provisions below.

  • First, each Insurer should provide to DFS the volume of business interruption coverage, civil authority coverage, contingent business interruption coverage and supply chain coverage the Insurer wrote that has not lapsed as of the date of this letter, which should be expressed in amounts of direct premium, policy types and numbers of policies written of each type.
  • Second, each Insurer should examine the policies it has issued and explain the coverage each policy offers in regard to COVID-19 - both presently and as the situation could develop to change the policyholder's status (i.e., is there any potential for coverage as a result of COVID-19).
  • For each policy type, Insurers should prepare such information in a clear and concise explanation of benefits that is suitable for policyholder review. Insurers should then send such explanation to each of their policyholders of the applicable policy types. Insurers should also send copies of all such explanations to DFS, along with a representation that the explanations have been provided to the Insurer's policyholder.
  • The explanation to policyholders should include all relevant information, including, without limitation:
    • What type of commercial property insurance or otherwise related insurance policy does the insured hold?
  • Does the insured's policy provide “business interruption” coverage? If so, provide the “covered perils” under such policy. Please also indicate whether the policy contains a requirement for “physical damage or loss” and explain whether contamination related to a pandemic may constitute “physical damage or loss.” Please describe what type of damage or loss is sufficient for coverage under the policy. 
  • Does the insured's policy provide “civil authority” coverage? If so, please describe what type of damage or loss is sufficient for coverage under the policy. Please also describe any relevant limitations under the policy. Please explain whether a civil authority prohibiting or impairing the policyholder's access to its covered property in connection with COVID-19 is sufficient for coverage under the policy.
  • Does the insured's policy provide “contingent business interruption” coverage? If so, please describe what type of damage or loss is sufficient for coverage under the policy. Please provide the “covered perils” under such policy. Please also indicate whether the policy contains a requirement for “physical damage or loss” and explain whether contamination related to a pandemic may constitute “physical damage or loss.” 
  • Does the insured's policy provide “supply chain” coverage? If so, is such coverage limited to named products or services from a named supplier or company? Please also indicate whether the policy contains a requirement for “physical damage or loss” and explain whether contamination related to a pandemic may constitute “physical damage or loss.” 
  • For each instance of coverage described above, please provide the applicable waiting period under the insured's policy. Please also indicate whether the amount of time coverage remains in effect once becomes active for a given incident.

 Demands for Insurers to Waive Policy Exclusions

In addition to the recent spate of regulatory mandates on insurers, there are ongoing legislative efforts seeking to require insurers to waive legitimate policy exclusions, and to cover pandemic-related claims where coverage does not exist. For example, HB 589 (Ohio) states that all existing insurance policies that provide coverage for loss of use and occupancy and business interruption shall be construed to include coverage for business interruption due to global virus transmission or pandemic during Ohio’s state of emergency, which was declared on March 9, 2020. If passed, the bill would apply to businesses located in Ohio that employ 100 or fewer full-time employees.

Massachusetts introduced similar legislation in Bill No. SD.2888, which applies to companies that employ 150 or fewer full-time employees. While the Ohio bill does not expressly address the treatment of virus exclusions or the requirement that there be “direct physical loss or damage” to covered property, the Massachusetts bill is very clear on that point: “no insurer in the commonwealth may deny a claim for the loss of use and occupancy and business interruption on account of (i) COVID-19 being a virus (even if the relevant insurance policy excludes losses resulting from viruses); or (ii) there being no physical damage to the property of the insured or to any other relevant property.” 

The Massachusetts bill also provides that “[f]or the avoidance of doubt, this act is subject to Chapter 176D of the General Laws.” Chapter 176D concerns Unfair Methods of Competition, and Unfair and Deceptive Acts and Practices in the Business of Insurance. By including this reference, the Massachusetts legislature is sending a very clear warning to insurers that the bill, if enacted into law, must be complied with fairly and in good faith. 

Lastly, the Wisconsin Office of the Commissioner of Insurance recently ordered (“at no extra cost to policyholders”) that: 

  1. Insurers cannot deny a claim under a personal auto policy solely because the insured was engaged in delivery of food on behalf of a restaurant, until restaurants resume normal operations.

(2) GL Carriers must notify restaurant-insureds that hired and non-owned auto coverage is available and, if requested, must provide this coverage.

Interestingly, there was no mention by the Wisconsin Commissioner about any premiums that the insurance company is out of, i.e., whether the carrier should be entitled to collect back-premiums for being required to provide commercial coverage for future claims under a personal lines policy.

* * * * *

Under that backdrop, this article will discuss the various minefields that insurers must navigate during the COVID-19 pandemic in order to stay on the right side of good faith claims handling and avoid undue allegations of bad faith.

Reasonable Insurer’s Test During a Pandemic

An onslaught of insurance claims of an extraordinary magnitude will likely result from the COVID-19 pandemic, taxing the industry’s resources and challenge its efforts to reach timely coverage determinations and adjustments, especially if there is an ongoing need for social distancing. Under normal circumstances, if an insurer takes an unreasonable amount of time to investigate a claim and reach a coverage decision, there will be allegations of bad faith delay made against the carrier. However, the COVID-19 crisis is not a “normal circumstance.” Therefore, the question becomes – what is “reasonable conduct” when examining whether an insurer acted in good faith while at the same time being besieged with an inordinate number of claims? Seemingly, the short answer is, “it depends.” Most courts have held that whether an insurer’s conduct is unreasonable or vexatious is generally a question of fact, not dependent upon any single factor or attitude, length of time, amount of money or situation of the policyholder. Thus, each case must be decided on its own facts. 

In addition, it should not be overlooked that there are numerous instances where a good faith claims investigation requires face-to-face contact. Many of these investigatory tasks now must be curtailed, modified or delayed due to “social distancing” recommendations. Does any resultant delay caused by a need for social distancing create an exposure for bad faith? Moreover, lest not forget that policyholders also have obligations that they must fulfill as a precondition to coverage and that might be delayed for similar reasons. For example, most property policies state:

Duties In The Event Of Loss or Damage

a. You must see that the following are done in the event of loss or damage to Covered Property:

  1. Notify the police if a law may have been broken.
  1. Give us prompt notice of the loss or damage. Include a description of the property involved.
  1. As soon as possible, give us a description of how, when and where the loss or damage occurred. 
  1. Take all reasonable steps to protect the Covered Property from further damage, and keep a record of your expenses necessary to protect the Covered Property, for consideration in the settlement of the claim. This will not increase the Limit of Insurance. However, we will not pay for any subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss. Also, if feasible, set the damaged property aside and in the best possible order for examination.
  1. At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed.
  1. As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records. Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records.
  1. Send us a signed, sworn proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.
  1. Cooperate with us in the investigation or settlement of the claim.
b. We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured's books and records. In the event of an examination, an insured's answers must be signed.

That said, courts rarely punish a policyholder because of an undue delay in complying with these duties and, in fact, many courts give leniency to an insured if it corrects the breach of duty. Conversely, however, as of this writing no legislative bills nor regulatory notices have been issued that seeks to relax an insurer’s obligations to conduct a prompt investigation or disposition of claims or to lessen the penalties they suffer for any failure to do so, because of the pandemic.

Is a Hasty Investigation Unreasonable?

If the facts of a policyholder’s loss and the law and policy are clear, is it unreasonable or bad faith for an insurer to make a quick decision to deny coverage? What if the denial of coverage was correctly based on the policy’s terms and conditions? A case on point was recently filed in the Northern District of Illinois. 

In Big Onion Tavern Group, LLC, et al. v. Society Insurance, Inc., No. 1:20-cv-02005 (N.D. Ill. March 27, 2020), the plaintiffs include over a dozen owners and operators of Chicago area restaurants and movie theaters that were allegedly forced, by orders from the State of Illinois, to cease their operations as part of the State’s efforts to slow the spread of the COVID-19 virus. The plaintiffs assert that Society Insurance failed to honor its obligations under their commercial businessowners insurance policies that included business interruption coverage for losses caused by a necessary suspension of their operations.

According to Society’s denial letter that was attached as an exhibit to the complaint, the insureds’ claim was denied because there was no covered cause of loss, i.e., no “Direct Physical Loss” suffered by the plaintiffs that was necessary to trigger coverage, under the terms of the policy. Society’s denial letter further contends that a slowdown in business due to the public's fear of the coronavirus, or a suspension of business because a governmental authority (i.e., the governor or the mayor) has ordered or recommended all or certain types of businesses to close is not a direct physical loss. 

Society also stated that the policy’s Civil Authority provision requires that a Covered Cause of Loss cause damage to property other than the property at the described premises, and that access to the area immediately surrounding the damaged property be prohibited by a civil authority. For those reasons, Society concluded that there is no coverage because:  

  • The Coronavirus is not a Covered Cause of Loss;
  • A civil authority has not prohibited access to the insured’s business because of a Covered Cause of Loss that caused damage to a premises other than the described premises; and 
  • The actual or alleged presence of the coronavirus is not a Covered Cause of Loss.

The plaintiffs contend, however, that Society issued blanket denials of coverage to plaintiffs for any losses related to the closure orders — often within hours of receiving plaintiffs’ claims — without first conducting any meaningful investigation. In that regard, Society’s denial letter reflects that it was issued three days after the loss was reported. The insureds also allege that, upon receipt of the claims, Society “immediately denied the claims (either verbally or through cursory emails) without conducting any investigation, let alone a ‘reasonable investigation based on all available information’ as required under Illinois law.” 

Further, the plaintiffs claim that Society prospectively concluded that Society’s policies would likely not provide coverage for losses due to a governmental-imposed shutdown due to COVID-19, when the insurer circulated a memorandum to its agency partners, before the plaintiffs even submitted their claims to Society. That memorandum -- “This is how various coverages would likely respond to COVID-19 claims” states: 


Business Income coverage: Whether it be a full shutdown of business, a partial suspension of operations or an alteration in business operations that remain open, Business Income coverage must be due to a suspension caused by direct physical loss of or damage to covered property at the described premises. The loss or damage must be caused by or result from a Covered Cause of Loss

Extra Expense coverage also requires the same coverage triggers. In general, a quarantine of any size, or brought about by a governmental action without a Covered Cause of Loss, would likely not trigger Business Income or Extra Expense coverages under our policies.

Civil Authority coverage: Civil Authority additional coverage pays for actual loss of Business Income and Extra Expense caused by an action of civil authority that prohibits access to the described premises when a Covered Cause of Loss causes damage to property other than property at the described premises. A widespread governmental imposed shutdown due to COVID-19 (coronavirus) would likely not trigger the additional coverage of Civil Authority.

The plaintiffs allege that Society’s policies did not include an exclusion for loss caused by a virus and that this led the plaintiffs to expect that the insurance included coverage for property damage and business interruption losses caused by viruses like COVID-19. Alleging that Society could have issued policies with a virus exclusion, but chose not to do so, the plaintiffs claim that Society is now “try[ing] to limit its exposure on the back-end through its erroneous assertion that the presence of the coronavirus is not ‘physical loss’ and therefore is not a covered cause of loss under its policies.”

Because of prior pandemic outbreaks, many property policies now contain specific exclusions for damage arising from viral or bacterial related losses. For those carriers that have incorporated the following Insurance Services Office’s (ISO) language into their commercial property policies, their exposure to Coronavirus related claims will likely be limited: 


This endorsement modifies insurance provided under the following:



  1. The exclusion set forth in Paragraph B. applies to all coverage under all forms and endorsements that comprise this Coverage Part or Policy, including but not limited to forms or endorsements that cover property damage to buildings or personal property and forms or endorsements that cover business income, extra expense or action of civil authority. 

B. We will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease. However, this exclusion does not apply to loss or damage caused by or resulting from “fungus”, wet rot or dry rot. Such loss or damage is addressed in a separate exclusion in this Coverage Part or Policy.

C. With respect to any loss or damage subject to the exclusion in Paragraph B., such exclusion supersedes any exclusion relating to “pollutants”. 

D. The following provisions in this Coverage Part or Policy are hereby amended to remove reference to bacteria:

  1. Exclusion of “Fungus”, Wet Rot, Dry Rot And Bacteria; and
  2. Additional Coverage – Limited Coverage for “Fungus”, Wet Rot, Dry Rot And Bacteria, including any endorsement increasing the scope or amount of coverage.

E. The terms of the exclusion in Paragraph B., or the inapplicability of this exclusion to a particular loss, do not serve to create coverage for any loss that would otherwise be excluded under this Coverage Part or Policy. 

CP 01 40 07 06 © ISO Properties, Inc., 2006.

In addition to allegations for breach of contract, the plaintiffs in Big Onion Tavern Group, LLC, et al. v. Society Insurance, Inc. seek statutory penalties under the Illinois Insurance Code, 215 ILCS 5/155 based on among other things, Society’s alleged coverage disclaimers issued “without conducting reasonable investigations based on all available information.” It is important to note, however, that Illinois courts have stated on numerous occasions that a claim for violation of Section 155 is not available in the absence of coverage under the policy, i.e., “where the policy is not triggered, there can be no finding that the insurer acted vexatious and unreasonably in denying the claim.” Rhone v. First Am. Title Ins. Co., 401 Ill. App. 3d 802, 815 (1st Dist. 2010). In other words, a defendant cannot be liable for section 155 relief where no benefits are owed. Martin v. Illinois Farmers Ins., 318 Ill. App. 3d 751, 764 (1st Dist. 2000) (internal citations omitted). 

Therefore, if Society is successful in proving that coverage was properly denied, the plaintiffs’ allegations of vexatious conduct against the insurer should seemingly be dismissed, unless the trial or appellate court elects to use this case as a basis to consider making new law in Illinois, as is the case in a few other states. 

For example, in Coventry Associates v. American States Insurance Co., 136 Wash. 2d 269 (1998),the insurer conceded that it conducted a bad faith investigation into a loss. Nonetheless, the trial court granted summary judgment for the insurer on the coverage question and granted its motion to dismiss the bad faith claim. The court of appeals affirmed, but the Washington Supreme Court reversed. 

The court reasoned that under Washington law, insurers have not only a general duty of good faith, but also a specific duty to act with reasonable promptness in investigating and communicating with their insureds following notice of a claim and tender of defense. The court further reasoned that the duty of good faith is broad, all-encompassing and not limited to an insurer's duty to pay, settle or defend.

The implied covenant of good faith and fair dealing in the policy should necessarily require the insurer to conduct any necessary investigation in a timely fashion and to conduct a reasonable investigation before denying coverage. In the event the insurer fails in either regard, it will have breached the covenant and, therefore, the policy.

Similarly, note the court’s holding in Zilisch v. State Farm Mut. Auto. Ins. Co., 196, Ariz. 234 (2000): “if an insurer acts unreasonably in the manner in which it processes a claim, it will be held liable for bad faith without regard to its ultimate merits.” Id at 236. Also, see LeRette v. American Medical Security, Inc., 705 N.W.2d 41, 48-49 (Neb. 2005). The court reasoned that where facts supporting a bad faith claim differ from those supporting a breach of contract claim, an insured need not prevail on the breach of contract claim in order to prevail on the bad faith claim. Nor does ultimate payment of the claim defeat a bad faith claim. Finally, note the court’s holding in Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 609 (2006): 

[N]othing in the case law… requires that the tortious conduct be accompanied by a breach of the contract, even though most, if not all, of the cases have as a factual background the insurance company’s refusal to pay. We do not believe an action for punitive damages from tortious conduct is precluded when the company eventually pays, if bad faith delay and aggravating conduct is present.” Robinson v. N. Carolina Farm Bureau Ins. Co., 86 N.C. App. 44, 49-50 (1987). Thus, even if an insurance company rightly denies an insured’s claim, and therefore does not breach its contract, as here, the insurance company nevertheless must employ good business practices which are neither unfair nor deceptive.

Only a small number of states have established a cause of action for bad faith in the absence of coverage. Therefore, insurers should exercise caution, particularly in those states, before reaching a hasty coverage decision where evidence might suggest a less than thorough claims investigation prior to a rightful denial of a coverage. 

Statutory Claims Handling Guidelines are not Relaxed During a National Emergency 

Some courts have held that statutory claims handling guidelines, including timeliness requirements, remain in effect during worst-case scenarios. For example, under Louisiana law, insurers have “an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant.” La. R.S. 22:1220. They risk statutory penalties of up to two times the damage incurred if claims are not paid within 60 days of receipt of a valid proof of loss. Notably, these penalties can be imposed even absent a finding of bad faith, and there is no exception in the law if the insurer’s resources are taxed. 

Notably, in Maloney Cinque, LLC v. Pacific Ins. Co., 89 So.3d 12 (La. App. 4th Cir. 2012), plaintiffs owned several truck stops in the New Orleans area that were damaged as a result of Hurricane Katrina. Settlement of the claim was delayed by Pacific’s calculation of a coinsurance penalty as well as scheduling difficulties. Allegedly, Pacific not only failed to timely pay the claim, it failed to timely pay the undisputed damages. The plaintiffs filed suit, arguing that while the claim was ultimately paid, it was not paid timely as required by law.  

After trial in May 2010, the district court entered judgement in favor of the plaintiffs (with the exception of attorney fees), ultimately issuing a written opinion awarding $2,386,354.50 in statutory late payment penalties alone. It applied, and later discounted the coinsurance provision. On appeal, and after a rehearing on the coinsurance issue, the court found that the coinsurance provision was inapplicable because the insurer had breached the insurance contract by delaying payment. The appellate court recast the judgement against the insurer as follows: (1) $290,903 for extra expense damages and a penalty of $72,725.75 for late payment of extra expense damages; (2) a penalty of $151,580.50 for late wind-damage payments; (3) $782,241.75 in lost profits and $ $1,173,362.62 in penalties for late payment; (4) a penalty of $50,000 for late payment of claimed business income. Notably, the insurer was not found to have acted in bad faith but it was still punished to the tune of $1,447,668.87 for its delays.

* * * * *

Insurers operate under a continuing duty of good faith and fair dealing, even during extraordinary circumstances such as disasters and national emergencies. In Sher v. Lafayette, 988 So.2d 186 (La. 2008), plaintiff’s filed a claim for property damage to his five-unit apartment building after Hurricane Katrina and was only partially paid. Lafayette determined that most of the buildings damage was due to poor maintenance, disrepair, and flooding. They paid the plaintiff a total of $2,755.08 sometime after a November 2005 inspection. Plaintiff sued Lafayette and among the charges in the complaint was a count for bad faith; i.e., Louisiana law requires payment of a claim within 30 days where an insured provides satisfactory proof of loss to the insurer.

The jury returned a verdict against Lafayette and awarded plaintiff $553,615.00, and $184,538.00 of the judgment was for Lafayette’s breach of their statutory duty of good faith for failing to pay promptly. The jury found Plaintiff’s contention that the loss was reported to Lafayette in the first two weeks of September 2005 more believable than Lafayette’s contention that they first received notice of the loss in October of 2005. What is important to note, however, is that the appellate court did not view the insurer’s taxed resources as a basis to relax the statutory requirement for the insurer to initiate loss adjustment within the required 30 days. 


Bad faith suits against insurers arising out of the COVID-19 pandemic will probably run the gamut, i.e., allegations that the insurance company was too quick to deny coverage, or took too long to investigate a claim and reach a coverage decision. To strengthen its defense in this area, insurers should emphasize to their claims staff the importance of: 

  • Maintaining a well-documented claims file that outlines the steps of an investigation and which explains the basis for any delays; 
  • Conducting a reasonable, good faith and prompt investigation;
  • Ensuring that “red flags” used to justify a lengthy investigation are material and relevant to the circumstances of the claim;
  • Adhering to the contractual and regulatory timelines for reaching a coverage decision on a claim; and 
  • Ensuring that all coverage rights are properly reserved and that communication with the insured is maintained during the course of an investigation.

*Note: The author would like to thank and acknowledge the contribution and assistance of HeplerBroom associate attorneys, Robert G. Hartzer and William E. Parrish, who were instrumental in the research and preparation of this article.

Member Spotlight: Doug Houser  

Doug Houser, one of the nation’s preeminent bad faith lawyers, has announced plans to retire. What does a great lawyer do for a second act, after 60 years with one law firm and a 137-6 record trying bad faith cases (a court record rivaled only by the Harlem Globetrotters). To answer these and other questions, ACCC President Michael Aylward sat down with Doug to talk about his life in the law and plans for the future.

ACCC: Doug, I know that you’re a native Oregonian, but is it true that your family was among the first settlers of Oregon?

Houser: My great-grandfather came to Oregon in 1843 on the Oregon Trail. He was a 13-year-old orphan from Germany who spoke no English. He arrived in New York with little but a violin and a letter to an uncle who was in the beer business in St. Louis. By the time he got to St. Louis, his uncle had moved on. So he was sitting on the banks of the Mississippi River near a camp fire, listening to a man with a fiddle. My great-grandfather got out his violin and started playing, too. One of the wagon masters came over and invited him to travel to Oregon for free if he’d provide entertainment along the way. And so that's how he got to Oregon.

ACCC: What steered you to a career in the law?

Houser: My mother’s brother had gone to law school during the Depression before he became a newspaper publisher in Oregon. He encouraged me and every teacher that I had told me that I was going to become a lawyer. I wanted to go to Stanford. I got accepted and got a full tuition scholarship, but that still meant I was going to have to work my way through school. So, I took it upon myself to write a letter to the Stanford Law School and they told me that they were a national law school and that only 10-15% of their students had been undergraduates at Stanford. That told me that I’d have to get really good grades to get into Stanford Law and that probably wouldn’t happen if I was working every night at the Cardinal Laundry, which was the job that I’d already lined up. At the recommendation of a family friend (Mark Hatfield), I ended up applying to and attending Willamette University, which turned out to be the perfect situation for me. After that, I went to the Stanford Law School.

ACCC: So what did you do after Stanford? Did you go to work for Hatfield?

Houser: No, I did a stint in the Army as a typist in a Civil Affairs Unit. I was really fortunate in the commanders that I worked for. One went on to become the chief judge in the Ninth Circuit and the other was the presiding judge in Multnomah County for years.

ACCC: So what was your first job as a lawyer?

Houser: I took a job with an 8-person law firm in Portland, where I’ve been since 1960. Our best and biggest client was First National Bank, which was the biggest bank in Oregon at the time, and I did a lot of bank work. I was working for a partner named Rupert Bullivant, who was a remarkable lawyer. He did some insurance coverage work and through him I got to go to the Roundtable that property underwriters used to hold very month in San Francisco. Our office wrote a lot of the forms and endorsements for property insurance and special coverages. He was the expert in that and when he moved on to other kinds of work, I ended up doing more insurance work.

A big break came in the 1960s when my cousin Phil Knight, who had been at the Business School two years behind me at Stanford, quit his job as an accountant to follow his dream of creating a track shoe company with his old coach at the University of Oregon. So, I incorporated Nike and served on their Board of Directors for the next 50 years. I was also their outside general counsel for years, but I said no to going in-house. I turned down what turned out to be an awful lot of money, but I wanted to continue doing the things that I love. I wanted lots of clients, not just one. I like to try lawsuits and you can't do that and be general counsel. 

ACCC: What was your first big insurance coverage case, Doug?

Houser: In 1962, there was a big windstorm on Columbus Day with 110 mile-per-hour winds that did a lot of damage in the Portland area. A local company named Fred Meyer lost electricity and all their refrigerated products were lost. We had a coverage dispute over the scope of the off-premises electrical outage coverage. It's the only time to this day that I got mentioned as the losing lawyer in the national insurance press for a case that I lost. At the time I felt like my career had been ruined. Actually, it was a big break for me and changed my career. As it turns out, clients thought of me as a “big case” lawyer. In any event, we later rewrote the policy, and it has withstood numerous tests since. 

ACCC: How did you acquire a reputation to handle cases nationally? 

Houser: Two things, probably. First, an extensive collection of cases published in an article that my partner Ron Clark and I wrote entitled, “The Insurance Company’s Right To Be Wrong.” The article was translated into French and chosen as the best insurance article of the year in the 1980s.

Secondly, I think that clients liked the idea that I was willing to try cases that other people were not. I would frequently take cases where someone else had lost summary judgment and the company decided that they wanted to change counsel and I'd get a call asking whether I’d like to try this case in Texas or New York or Louisiana or wherever. I have tried cases in 21 different states. I've always been optimistic and didn’t mind taking over other people’s cases just before trial. I’ve tried 137 insurance cases with punitive damages, and most of those were bad faith claims. We only lost six, but thanks to appeals, we only paid money three times. I have just one more of those to finish, and then I can retire. 

ACCC: Do any of those cases really stand out in your memory? 

Houser: They were all fun, even the ones that I lost. It’s funny, but the one that I really remember was one that I lost back in 1968. Maybe you really remember the ones that you lost most of all. 

It was a case involving defective construction of airport office buildings in Seattle. The case was tried in federal court in Los Angeles and lasted over a month. The key witness for my client was the vice president of property claims. The plaintiff's counsel had done a very good job in my client's deposition in pinning him down and getting him to state under oath that there were no memoranda or other documents on the key issue in the case. However, during the fourth week of trial, he decided that he would tell the truth. I thought he had told the truth the whole way. I had no idea, but he told the judge that there was a memo and he had saved it. He admitted that he had lied to me, he had lied to the other lawyer, and he had lied to the judge. The jury was out for two days and had a lot of questions, but the only issue was how bad it was going to be. By the time the jury came back, my client had already left two days before and “retired” from his insurance company position. I was all alone for two days at counsel table waiting to learn how large the verdict would be. The jury came back with a $9 million verdict, which was an awful lot of money back in 1968. 

After the trial was over, the judge invited all trial counsel to interview the jurors. I figured I'd go and just be a fly on the wall to listen and maybe learn something. When the elevator opened, I saw the foreperson, who was a very attractive woman who I thought had been flirting with the plaintiff all through the trial. But when the elevator doors opened, she pushed the plaintiff and his lawyer aside and ran up to me and put her arms around me and said, “We're so sorry. We all thought that you were wonderful, but your client was awful.” I only had one question for her: “Did you consider any other amount?” She said that the rest of the jury wanted to award $25 million, but she got them to knock it down to $9 million. It proved to me that I couldn't really read a jury. The person I had thought was against me all along was the only one for me. If you can survive, sometimes a loss is really actually a win. 

ACCC: You've been practicing law for nearly 60 years. What's the biggest change you've seen in how insurance coverage cases get tried or adjusted?

Houser: I think the biggest change is that all too often those cases don't get tried. A lot of people in the insurance industry are intimated by bad faith claims that are automatically brought now in many jurisdictions. If the plaintiff survives summary judgment, too many carriers are willing to give up. Sadly, if they don't give up and they lose, their experience is that they may very well be fired. A lot of my clients had stiffer backbones earlier on, but they are no longer in the business. 

ACCC: Has there been a change in the relationship between insurance coverage counsel and their clients? 

Houser: I've been blessed with several clients that I’ve worked with for 30 or 40 years. Of course, when I started, there were more than 30,000 insurance companies, and we would represent 200 or 300 every year. Today, there are only about 3,000 carriers doing business in America. There’s certainly been a lot of consolidation in the insurance industry during that time. Nowadays, a lot of insurers are more interested in the economics of litigation and what it costs to defend than they are in getting the best lawyers to carry out the true intention of the parties. 

ACCC: Any plans for retirement? 

Houser: Oh, I plan to play a little more golf, read a few more books. I'm active in the community in a lot of ways, and I'll continue to do some pro bono stuff and work for nonprofits that are meaningful to me. 

ACCC: Any regrets with respect to things that you had hoped to do but never got around to? 

Houser: I don't have a regret at all. I loved every damn day of it. I've never had a sick day in my life. I've been blessed in a lot of ways. And I've had wonderful partners. 

The other thing that has been hugely important to me has been being married for 60 years to a woman who really understood that I loved what I did. Lucy is a retired Episcopalian minister. She loved what she did too. She'd listen to my closing arguments, and I'd listen to her sermons. We’ve made a good team. 

Not only were my family and my partners supportive, but one of the things that really made it so much fun, have been the organizations that I belonged to and the people that I got to meet. Some of the best friends that I've made in my life have been lawyers in this field. We were all lucky to be lawyers at that time. There can't have been a better period of time to practice law than the years after World War II. 

ACCC: Doug, we all wish you well. 

Houser: Thanks. I’m going to stay on as an emeritus member of the College, so I hope to make it to a few more meetings in the future.

Committee Spotlight: Extracontractual and Bad-Faith Claims

The Extracontractual and Bad-Faith Claims Committee is co-chaired by Bob Allen and David Anderson. The committee seeks to utilize the College’s resources and network to create a forum to analyze and discuss extracontractual and bad faith issues especially cutting-edge litigation at the highest level. They want to be involved in the planning of programs to profile committee members and to participate in ACCC Dialogues. The co-chairs plan to continue to increase articles and case notes posted to the committee page on the ACCC website. 

In the area of extracontractual and bad faith claims litigation, the committee is seeing very interesting decisions involving policy conditions, such as the cooperation clause, and whether an insurer suffers prejudice from violations of those conditions. Weather-related and disaster claims often involve allegations of insurer bad faith. Trials of bad faith claims are likely to include plaintiffs utilizing the reptile doctrine in an attempt to enhance their recoveries. 

The committee’s ongoing projects include: 

  • Proposing topic(s) for the Fall 2020 Law School Symposium
  • Making better use of the committee’s page on the ACCC website 
  • Planning an ACCC Dialogue on a cutting-edge extracontractual/bad faith issue
  • Contributing Bad Faith Overviews (which will make for an excellent summer associate project)
  • Identifying qualified candidates for nomination as Fellows

Committee members are participating in three presentations at the upcoming Annual Meeting:

  • Duty to Defend Bad Faith Issues (Bob Allen, Linda Dedman, Dave Godwin, and Dan Lichtfield)
  • Sorting out the Rules and Responsibilities of Primary and Excess Carriers in the Defense of Bet the Company Litigation (Mike Huddleston, Ernest Martin, Neil Rambin, and Rhonda Tobin)
  • Settlement and Assignment Following Breach of the Duty to Defend (William Ford, Wendy Feng, Jean Lawler, and Ellen Van Meir)

Efforts to populate the committee’s webpage with valuable content have included recent posts:

There are plenty of volunteer needs and opportunities to get involved with the committee. Ideas and participants are needed for presentations at Annual Meetings, Law School Symposiums, and ACCC Dialogues. Content to be posted/reposted on the committee page is needed, including contributions on Bad Faith Overviews of the various jurisdictions.

The co-chairs welcome anyone who would like to join the committee, especially if their practice includes the prosecution of or defense of extracontractual/bad faith claims and there is an interest in participating in one or more of the committee initiatives. New ideas are welcome as well. You can reach the committee at [email protected] to be added to the roster, which is about 60 strong.

Community Forums 

We have set up an online forum for Fellows to discuss and share information. Currently, there are two active forums:

COVID-19: Discuss how you and your firm are addressing issues; how clients are being affected; share relevant documents such as legal commentaries, published cases, proposed legislation and policy forms.

Just For Fun: Sick and tired of posting about viruses? Let's lighten it up a bit. Since you’re spending more time at home, you’re likely trying out some new things in the kitchen? Share your favorite dinner recipes or cocktails here. Have you been taking some time for those home improvements you were putting off? Getting out in the garden? Let’s lighten it up a bit and share. Photos welcome!

Fellows will receive email notifications as new topics are posted. If there is a particular topic/thread of interest, you can subscribe to it to receive notifications as new messages are posted to that topic.

Views expressed in posts, links, and files are not necessarily the views of the College or its constituency.

Click here for an overview of how to access the Forums. 

If you have any trouble accessing or have questions, please contact the office.

In Memoriam: Bob Naifeh

We are saddened to share the news of the passing of ACCC Fellow Robert N. Naifeh, Jr. on March 29 at the the age of 62. His life was cut short by COVID-19 coronavirus.

Bob was president and managing partner of Derryberry & Naifeh, LLP in Oklahoma City, OK. He was inducted into the College in 2015. He spent over 30 years advising and representing property and casualty insurers and policyholders on a variety of coverage issues under both commercial and personal lines policies.

Bob received his B.A. degree in Journalism in 1979 and his J.D. from Oklahoma City University School of Law in 1983. He began his law practice in 1983 with Pierce Couch Hendrickson Johnston & Baysinger, a long time Oklahoma City insurance defense firm, after working during law school as a legal intern with the firm. In 1989, he joined Derryberry, Quigley, Solomon & Blankenship (now Derryberry & Naifeh, LLP), becoming a partner in the law firm in 1992.

Our condolences to Bob’s family and friends. Click here for Bob’s full obituary.

ACCC LinkedIn Page

The expertise of ACCC members is proving particularly valuable in the uncharted waters of the COVID-19 crisis. Media articles including college members are being posted on our website and the ACCC’s public LinkedIn page. Joining the page and “liking” articles on it raises it in LinkedIn algorithms, which helps raise public awareness of the College and its members with clients and business contacts. LinkedIn is seeing increased use while everyone is working remotely. Please share ideas for timely media stories with the ACCC’s PR partners at Liberty Square Group (contract info below).

  1. To like the page, click here
  2. Log in to Linkedin. If you are already logged in you’ll land on the ACCC page. 
  3. On the top right of the page, under the banner picture you’ll see three grey dots. 
  4. Click on the dots and choose “follow” from the menu of options.
  5. Congratulations! You’re following the ACCC LinkedIn page 

Please make sure to use the “like” and “share” buttons to make sure others in your network see this content. 

If you have any questions please don’t hesitate to contact Judy Rakowsky at [email protected] or Amanda Cox at [email protected].

Welcome New Fellows!

Margo Brownell
Maslon LLP
Minneapolis, MN


Marilyn B. Fagelson
Murtha Cullina LLP
New Haven, CT 


Patrick J. Kenny
Armstrong Teasdale LLP
St. Louis, MO 


Richard B. Miller
Tom Petrus & Miller
Honolulu, HI 


Meghan C. Moore
Weisbrod Matteis & Copley
Fort Lauderdale, FL 


Alex Purvis
BradleyJackson, MS 


Terence M. Ridley
Wheeler Trigg O’Donnell LLP
Denver, CO 


Theodore “Ted” Smyth
Cranfill Sumner & Hartzog, LLP
Raleigh, NC