December 2020 NewsletterPresident's MessageBy Sheri Pastor, McCarter & English, LLP
Dear Fellows: During the holidays, finding special, meaningful—if not perfect—gifts becomes a priority. After all, as Pablo Picasso reminded, “The meaning of life is to find your gift. The purpose of life is to give it away.” ACCC members, like immediate past president Michael Aylward, excel at gift giving. When pandemic-related coverage litigation started, Mike spearheaded efforts to provide information on emerging issues that might shape its development. He assembled ACCC lawyers and law school faculty to present at Boston College Law School in July, and University of California at Hastings College of Law in November. He is also organizing a webinar at Seton Hall School of Law. Hundreds registered and attended these complimentary programs, including students, alumni, outside counsel, in-house lawyers, insurance claims executives and other business representatives. As Boston College law professor Patricia McCoy aptly observed: “Everyone has high stakes in the pandemic coverage cases: from small businesses trying to stay afloat to the difficulties to insurers of covering correlated risks. The resulting precedents will reverberate through insurance law for years to come.” According to Winston Churchill: “We make a living by what we get. We make a life by what we give.” Many thanks to Mike and all involved for the valuable gifts to our ACCC fellows and the law school and business communities you have helped educate. Happy Holidays & Happy New Year! Sheri COVID-19 Oral Arguments & Case RulingsCollected by Robert Allen, The Allen Law Groupand Mike Huddleston, Munsch Hardt Kopf & Harr, PC
The ACCC will begin profiling recently made and upcoming oral arguments of cases involving important insurance coverage issues. Fellows are encouraged to pass on information to Carol Montoya at [email protected] and Pearl Ford-Fyffe at [email protected] for posting of the case information on the web page and the inclusion in upcoming newsletters. Recently Argued Cases of Interest: Texas Supreme Court and the Fifth Circuit to Rule on the Texas Stowers Doctrine: As the iconic Texas Stowers Doctrine (holding liability insurers liable for negligently failing to settle cases within their policy limits) approaches its 100thanniversary, new situations arise that continue to test the boundaries of the established criteria for invoking the doctrine. Earlier this year, two cases—one federal and one state—winnowed their way up the appellate ladder and were argued to their respective courts. In this regard, the audio link to the 5th Circuit oral argument in American Guarantee v ACE American, an excess-primary Stowers case, which among other issues focuses on whether an in-trial settlement demand met the elements of the Stowers doctrine can be found here. The Texas Supreme Court’s oral argument in In Re Farmers Texas, which analyzes whether the Stowers Doctrine is invoked in the context of an over-the-limits settlement, partially funded by the insured, which was allegedly required because the insurer’s allegedly negligently failed to accept an earlier demand within the policy limits. Montana Supreme Court to Rule on All Sums v. Pro-Rata and the Sudden and Accidental Pollution Exclusion The Montana Supreme Court heard oral arguments on November 20, 2020 on an insurer’s appeal of a $100 million asbestos coverage case in which the State of Montana is currently the prevailing party (National Indemnity Company v. State of Montana). All Sums versus Pro-Rata and the Sudden and Accidental Pollution Exclusion are at issue. Click here for the YouTube link to the argument. The United Policyholders Brief, written by Lorie Masters and others at Hunton Andrews Kurth LLP, can be found here. The brief supplemented the state’s case by presenting key arguments on the drafting history of both the allocation and pollution exclusion issues. Texas Supreme Court to Rule on Procedure and Bad Faith Discovery in Uninsured/Underinsured Motorist Coverage Cases. The Texas Supreme Court is considering the manner in which uninsured/underinsured motorist cases are litigated and at what point in time an insurer’s claims handling becomes relevant for purposes of asserting extracontractual causes of action. Click here to watch the Texas Supreme Court oral argument for In re State Farm Mutual Automobile Insurance Co. and Terecina Shahan; consolidated for argument with In re State Farm Mutual Automobile Insurance Co. and Todd Joseph Dauper. In these underinsured insurance disputes, the issues are (1) whether a policyholder must prove they are entitled to underinsured motorist benefits in order to sue for violation of Insurance Code’s prompt settlement provision; (2) whether prompt payment violations are separate from a policyholder’s entitlement to underinsured benefits; and (3) whether a trial court abused its discretion by not severing and abating the Insurance Code claims before deciding the underinsured-motorist benefits issues. Click here to watch the Texas Supreme Court oral argument for In re USAA General Indemnity Co. In this UM/UIM case, the issues are (1) whether the trial court erred by concluding a second trial to determine underinsured-motorist coverage was necessary; (2) whether the policyholder is barred by collateral estoppel from litigating negligence and damages in a second trial; and (3) whether USAA is entitled to mandamus relief from bad faith discovery requests. Upcoming Oral Arguments of Note Indiana Supreme Court to Review Court of Appeals Denial of Coverage for Bitcoin Ransom Payments Made to a Hacker on December 10, 2020 The Indiana Supreme Court will analyze whether a crime insurer must cover Bitcoin ransom payments made to a hacker to restore access to its computer systems. Click here for the Indiana Supreme Court Oral Arguments. Delaware Supreme Court to Hear Oral Arguments on a Multi-Issue D&O Coverage Case on December 16, 2020 On December 16, the Delaware Supreme Court will hear arguments in RSUI Indemnity Co.'s challenge of a trial court's judgment that it must pay its $10 million excess directors and officers policy limit to help fund $222 million in settlements that Dole Food Co. and its CEO struck to resolve a pair of stockholder suits over a 2013 take-private deal. The link to the Delaware Supreme Court oral arguments is here. RSUI Indemnity Co. v. Murdock Ninth Circuit will Hear Oral Arguments in a Case Addressing Removal and Remand of Insurance Cases to and from Federal Court on February 3, 2020 This appeal is about when, in a diversity case, an insured may be entitled to a remand pursuant to the federal Dec Relief statute, 28 U.S.C. § 2201, which allows discretion if it applies. If it applies, the District Court is to apply the 9th-Circuit’s so-called Brillhart–Dizolstandards. Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942); Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998). In this case, the issues concerned both the application of those standards to this case and also whether a “conditional” bad faith claim by the insured meant the Dec Relief statute does not apply. The link to the Ninth Circuit Oral Arguments is here. Case Name: Argonaut Ins. Co. v. St. Francis Medical Center, et al Case Number: 19-17314 Will Insurers Invoke the “War Exclusion” to Deny Coverage for Losses from Ransomware?By Walter J. Andrews, Lorelie S. Masters, and Yaniel Abreu
Incidents of ransomware are becoming increasingly common. Ransomware generally involves malicious software that infects computer systems and displays messages demanding a fee or ransom, in exchange for returning data or freeing the system to work again. Perpetrators can infect devices through, for example, deceptive links in email messages. Ransomware is affecting a broad range of victims—from major corporations to local governments. Recently, the City of Baltimore was the victim of a major ransomware attack. Unidentified hackers infiltrated Baltimore’s computer system using a cyber-tool named EternalBlue, developed originally by the U.S. National Security Agency (NSA) to identify vulnerabilities in computer systems. However, the NSA lost control of EternalBlue and, since 2017, cybercriminals have used it to infiltrate computer systems and demand payment in exchange for relinquishing control. In Baltimore, the hackers froze the City’s email system and disrupted real estate transactions and utility billing systems, among many other things. The hackers reportedly demanded roughly $100,000 in Bitcoin to restore Baltimore’s system. While some of the perpetrators of these attacks go unidentified, state actors have been behind some of these cyberattacks. NotPetya is an example of a broad-based cyberattack that the United States has publicly attributed to the Russian military.1 While it has been reported as an attack intended to disrupt Ukraine’s financial system, the NotPetya malware compromised computer systems worldwide. It infected systems with a virus that rendered computer data effectively useless. The companies affected reported that their computers froze, employees could not access emails or files on the company’s network and other software programs crashed. To add insult to injury, unlike other ransomware attacks such as the one against the City of Baltimore, the effects of NotPetya were irreversible in some instances. In other words, paying a ransom to the perpetrators to reverse the harm caused by the virus was not an option.2 NotPetya reportedly affected companies such as Merck & Co., conglomerate Maersk, FedEx’s European subsidiary TNT Express, French construction company Saint-Gobain, and British consumer goods company Reckitt Benckiser. The question for policyholders is whether insurers will cover damages arising out of these incidents.3 In the case of NotPetya, for instance, insurers of some of the victims invoked the “war exclusion” to deny coverage. Specifically, Merck, one of the largest pharmaceutical companies in the world, said some of its insurers denied claims related to NotPetya under property insurance policies. The insurers denied coverage principally based on the war exclusion. Whether insurers will routinely invoke the war exclusion to deny coverage for ransomware incidents comparable to NotPetya and the attack on the City of Baltimore is important—especially since these incidents will likely become increasingly common. Indeed, in a September 16, 2020 press release, the U.S. Department of Justice announced charges against two Iranian nationals for a coordinated cyber intrusion campaign, sometimes at the behest of the Iranian government, targeting computers in the United States, Europe, and the Middle East. Because state actors will likely continue to engage in cyberattacks, insurers increasingly will look to disclaim coverage in reliance on war exclusions that, generally, exclude coverage for damages:4 Caused by or resulting from . . . hostile or warlike action in time of peace or war, including action in hindering, combating or defending against an actual, impending or expected attack by any: (i) government or sovereign power (de jure or de facto);
(ii) military, naval or air force; or
(iii) agent or authority of any party specified in i or ii above.
If insurers continue to raise the war exclusion to eliminate coverage for ransomware incidents, courts may be forced to rule on the scope of the exclusion.5 To successfully invoke the exclusion, insurers will have to show that the war exclusion applies. In other words, they must establish that the ransomware incident at issue was a hostile or warlike action, as courts have interpreted those terms in the context of the war exclusion. Based on existing precedent, we do not think insurers can make that showing. Traditionally, courts have applied war exclusions to attacks that the ordinary person would consider an act of war by nation states or state actors or in the words of the Ninth Circuit, “de jure or de facto sovereigns.” The analysis involves considering factors such as whether the attackers wore uniforms, whether they used physical weapons, whether there was a governmental declaration of war and even whether medals for heroic acts were awarded. See Daniel James Everett, The “War” on Terrorism: Do War Exclusions Prevent Insurance Coverage for Losses Due to Acts of Terrorism?, 54 Ala. L. Rev. 175, 185 (2002) (in determining whether an act constitutes “war,” courts consider factors such as “whether the combatants wore uniforms, the nature and type of weaponry used, the actual organization of the operation, the act causing the loss, whether congressional appropriations were made . . . and declarations by the Judge Advocate General initiating court-martial jurisdiction in cases arising from the conflict.”) (internal citations omitted). More recent court decisions have relied on an assessment of facts about whether a foreign government sponsored the attack. In Pan American World Airways v. Aetna Casualty & Surety Co., 505 F.2d 989 (2d Cir. 1974), the court was asked to resolve a coverage dispute between Pan American World Airways, Inc. (Pan Am) and its insurers. Pan Am sought to recover damages from its insurers after a terrorist group hijacked one of its airplanes. The insurers argued that the war exclusion applied to preclude coverage. After considering the existing case law, the court determined that “war is a course of hostility engaged in by entities that have at least significant attributes of sovereignty.” Id. at 1012. Based principally on that interpretation of the term “war,” the court reasoned that the war exclusions were inapplicable because the hijackers “were the agents of a radical political group, rather than a sovereign government.” Id. at 1015. The court accordingly affirmed the ruling by the district court that the insurers “failed to meet their burden of proving that the cause of the loss was fairly within the intended scope of any of the [war] exclusions.” Id. at 998. Other courts have generally followed Pan Am. Similar to Pan Am, the U.S. Court of Appeals in Ninth Circuit ruled in Universal Cable Prods., LLC v. Atlantic Specialty Ins. Co., No. 17-56672, 2019 WL 3049034, at *10 (9th Cir. July 12, 2019 that “‘war’ has a special meaning in the insurance industry requiring hostilities between de jure and de facto governments.” In Universal, the court considered whether the insured’s television-production policy covered losses from moving production of its show out of Jerusalem following an attack by Hamas. The policy contained three war-related exclusions. At the outset, the court explained that the burden is “on the insurer to establish that the claim is specifically excluded.” Id. at *6. In interpreting the application of the exclusions, the court focused on the insurance industry’s custom and practice, which “limits exclusions for ‘war’ to hostilities between de jure or de facto sovereigns.” Id. at *11. The Universal Cable court also analyzed the history of Hamas and Palestine-Israel relations. It found that, “[a]fter considering the factual and historical record and the executive branch’s position, we conclude Hamas is not a de jure or a de facto sovereign.6 Thus, Hamas’ conduct . . . cannot be defined as ‘war’ for the purposes of interpreting this policy.” Id.at *13. Further, the court relied on Couch’s insurance treatise, which notes that “warlike operations” do not “include intentional violence against civilians by political groups.”7 In the court’s view, Hamas is such a political group. Id. at *15 (internal citations omitted). Based on this reasoning, the court held that the insurer “breached its contract when it denied coverage by defining Hamas’ conduct as ‘war’ and ‘warlike action by a military force.’” Id. at *16. The holding in Universal is consistent with Pan Am, as both cases require hostility between sovereign states for the war exclusion to apply. Aside from the case law on the application of the war exclusion, based on well-established legal principles, coverage litigation on the application of the exclusion should be an uphill battle for insurers. Indeed, as discussed above, the burden is on the insurers to show that the exclusion applies. Exclusions, of course, are construed narrowly, and the insurer has the burden to show that its interpretation of the exclusion (and any policy language) is the only reasonable one. Insurers, thus, will have to show that the ransomware incident is within the clear language of the war exclusion. Making that showing will be difficult given the high burden insurers must meet to show these exclusions apply to preclude coverage and given the universal rule resolving ambiguities against the insurance-company drafter and in favor of coverage. For instance, in Church Mut. Ins. Co. v. U.S. Liab. Ins. Co., 347 F. Supp. 2d 880, 884 (S.D. Cal. 2004), the court explained that “an exclusion or limitation on coverage must be clearly stated and will be strictly construed against the insurer. If an exclusion ambiguously lends itself to two or more reasonable constructions, the ambiguity will be resolved against the insurer and in favor of coverage.” See also Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 677 (3d Cir. 2016) (“Courts must interpret an insurance policy as one, harmonious document and resolve ambiguities in favor of coverage.”). Essentially, insurers must show that the language of the exclusion is unambiguous and that the policyholder should have reasonably expected the war exclusion to eliminate coverage for the specific facts raised in the ransomware incidents in question, and they must persuade the court that these complex, wide-ranging cybersecurity events fit entirely within the narrow scope through which the court must view the application of exclusionary clauses. See, e.g., E. Fla. Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673, 678 (Fla. 3d DCA 2005) (Once the insured triggers the insuring agreement, “the burden shifts to the insurer to prove an exclusion applies[.]”); Travelers Cas. & Sur. Co. v. Super. Ct., 75 Cal. Rptr. 2d 54, 62 (Cal. App. 6th Dist. 1998) (“It is also axiomatic that the insurer has the burden of proving that an otherwise covered claim is barred by a policy exclusion.”); and Ment Bros. Iron Works Co., Inc. v. Interstate Fire & Cas. Co., 702 F.3d 118, 121 (2d Cir. 2012) (“[A]n insurer bears the burden of proving that an exclusion applies.”). Furthermore, based on existing case law, unless a sovereign government accepts responsibility for the incident, insurers will have difficulty winning at the summary judgment stage because whether a sovereign state causes the loss appears to be material to the application of the war exclusion. This, of course, is subject to insurers modifying war exclusions to make sovereignty irrelevant. In light of the established precedent and developing case law, however, we think insurers have a tough road ahead under the war exclusion when applied to conflicts that do not involve traditional warfare. NotPetya and the attack on the City of Baltimore will not be the last adverse cybersecurity events that will affect policyholders. We think it is early days for these types of incidents, which in the future will certainly vary in size and scope. As we have seen from NotPetya and the City of Baltimore, incidents of ransomware can stall your operations and cause damage worth millions of dollars. Accordingly, it is important for policyholders to understand how to prepare for and respond to recalcitrant insurers, as well as to take precautionary steps to preempt a denial of coverage based on the war exclusion. A policyholder facing a claim denial based on the war exclusion should remind its insurer of the established case law and legal principles that the insurer will need to overcome in order to establish that the exclusion bars coverage. Beyond that, policyholders can also influence the interpretation of the war exclusion by negotiating its precise language with the insurer. This approach will also serve to document exactly what type of loss the parties intended the exclusion to capture. Walter J. Andrews is a partner with Hunton Andrews Kurth LLP and the head of the firm’s insurance coverage practice. Lorelie S. Masters is a partner with the firm’s insurance coverage practice in Washington and a founder and past President of the American College of Coverage Counsel. Yaniel Abreu is an associate with the firm’s insurance coverage practice in Miami. 1 Russia denies its involvement. 2 It is important to note that simply because a company may have the option to pay a ransom does not mean that it should or can be paid. Indeed, on October 1, 2020, the US Treasury Department’s Office of Foreign Assets Control warned that ransom payments to perpetrators may violate OFAC regulations, which would expose the payer to penalties. This is another factor for policyholders to consider when seeking legal advice in connection with ransomware attacks. 3 We will publish a more in-depth, historical analysis of the potential application of the war exclusion to cybersecurity incidents in an article that will be published in The Risk Report in 2021. 4 We use this version of the war exclusion for purposes of this article, but the language of war exclusions may vary depending on the specific form used by the insurer. Accordingly, it is important for policyholders to understand the scope of the war exclusion in their own policies. 5 As an example, Merck sued its insurers in response to the insurers invoking the war exclusion to deny coverage for damages from NotPetya. Merck sustained damages reportedly totaling approximately $700 million. Because damages from cybersecurity incidents can be substantial, the resolution of Merck’s lawsuit may have significant implications for other policyholders. 6 Indeed, the court explained that “[t]he executive branch has never recognized Gaza as a state or Hamas as a de jure or de facto sovereign. Instead . . . the Secretary of State has consistently designated Hamas as a Foreign Terrorist Organization since 1997.” Id. at *13. In reaching its conclusion that Hamas was not a state actor, the court further noted that “Hamas’ conduct consisted of intentional violence against civilians–conduct which is far closer to [covered] acts of terror than ‘warlike action by a military force.’” Id. at *15. 7 “‘War’ is defined ‘as the employment of force between governments or entities essentially like governments, at least de facto’ . . . ‘War is a course of hostility engaged in by entities that have at least significant attributes of sovereignty.’” § 152:3. Definition of War, 10A Couch on Ins. § 152:3 (3d ed. 2017). The ACCC Claims Roundtable: What Is on the Horizon for D&O Disputes?Each quarter, we like to gather some of our best and brightest Fellows and explore what is new and interesting in their area of insurance law. As we near the end of 2021, our editors assembled a panel of D&O experts to assess pressing questions, such as identifying the likely causes of the recent hardening of insurance markets; whether the COVID-19 virus will result in claims against companies or their directors; and the major pending D&O appeals and issues that are likely to dominate this area of the law in 2021. What follows is an interview that we conducted on November 30 with four renowned D&O specialists: Mary McCutcheon (Farella, Braun & Martel — ACCC past president); Seth Lamden (Neal, Gerber & Eisenberg — past chair of ACCC D&O Committee); Mike Manire (Manire Galla Curley — past chair of ACCC D&O Committee) and John Mumford (Hancock, Daniel & Johnson — chair of ACCC D&O Committee).
ACCC: There has clearly been a hardening of the D&O market this year. Renewal premiums are up and new companies are having trouble getting coverage. What is going on? Mike Manire: This is a market correction that has been long overdue. The soft market that we had for years had made it very difficult to increase premiums, and the insurers’ loss ratios have gotten much worse. Meanwhile, the coverage has been broadened over the years and you are getting more and more claims that are covered. Some of this may also be spurred on by concerns about the COVID-19 pandemic, but these conditions were already there before the pandemic. It has just gotten to the point where carriers were pulling out of the market or limiting coverage and refusing to write certain risks for what had become a really ugly book of business. Mary McCutcheon: Many of our clients are just completely beside themselves. Premiums are going up, limits are going down, and emerging companies are having trouble getting coverage. The cases are getting more expensive to settle, too. It is almost as if the plaintiffs’ lawyers see this as a competitive sport: If one case settled for X, the plaintiff's lawyers are determined that the next case will settle for X plus. Manire: The losses are definitely getting bigger. I don’t know if the total number of claims is bigger, but the costs of defense and the rates being charged by defense counsel is definitely higher. There are also a lot more derivative settlements that are driving costs up. We are seeing more and more settlements where companies are actually recovering a significant amount of money from their D&O insurers as a result of derivative claims that have been filed against their directors and officers. Seth Lamden: There have been some of the largest securities settlements ever in the last couple years and big settlements seem to be on the rise. There are also fewer publicly traded companies that can be targets than in the past. What we’re seeking in the market is a growing unwillingness on the part of underwriters to provide high limits and they’re also imposing higher retentions. ACCC: Are insurers trying to reduce the scope of coverage? Manire: As Seth mentioned, some insurers are requiring larger retentions. More exclusions are also a possibility. Mainly though, the focus is on underwriting—there are some risks like IPOs that carriers just do not want to write anymore because the results have been so bad. ACCC: What about COVID-19? Are there going to be D&O claims arising out of the pandemic? Lamden: Because of the increase in event-driven stock claims, I initially thought that COVID was going to be a significant D&O issue and that there would be a lot of claims alleging mismanagement and breaches of fiduciary duty relating to the pandemic, but that hasn’t happened so far. That may be because the stock market just keeps going up. Maybe there is going to be market disruption in early 2021 as the impacts of the pandemic continue to shake out that will generate some claim activity, but we have not really seen that yet. Manire: I think it's a longer tail issue. As companies deal with the impact of COVID and they make their public disclosures, they may slip up here and there and understate the impact of the virus on the company's revenues that will drive their stock price down and generate some claims. There are also a lot of bankruptcies happening that will probably turn into D&O claims. ACCC: Mike, you made the point that derivative settlements are a particular problem. What is it about derivatives that makes them more complicated and expensive? Manire: The derivative claims got their start years ago with the stock option manipulation claims. Over the years, however, along with the increase in Side A coverage claims, there have been more and more cases where the company receives a lot of cash from the D&O policies as part of the settlement. McCutcheon: And what’s complicating matters is the rise of event-driven derivative litigation. In the past, the derivative suit typically was a follow-on to a securities claim, so you only saw then when there had been a stock drop. When the securities case settled, the ABC coverage would be paid and was considered part of the benefit to the company that justified the derivative plaintiffs’ fee. Now, plaintiffs file derivative lawsuits even in the absence of a stock drop (e.g., for cyber breaches, #MeToo claims, lack of diversity). To justify their fees, plaintiffs’ counsel have to bring in cash from the Side A coverage, as Mike mentioned. ACCC: Several of you have commented on the difficulty that emerging companies are facing in getting D&O coverage. Are companies exploring alternative means of risk transfer much like we’ve seen with captive programs or securitization of risk? Lamden: The only thing that I’ve heard about was Tesla, where Elon Musk offered to personally back some sort of captive arrangement or enhanced indemnity that would take the place of Side A coverage. Personally, I would be incredibly reluctant—if I were serving on a Board—to rely on anything other than traditional D&O insurance. McCutcheon: Some of our clients explored other options fairly seriously, but the barrier to many alternatives is the question of whether company money can it be used to pay a Side A claim. Under Delaware law, a company cannot indemnify a director or officer in a derivative action. If you set up a captive, how do you put that together so that it is not company money? ACCC: What are the major appeals that lawyers in your field are waiting for? Manire: My favorite, of course, is Arch Insurance v. Murdock that’s going to be heard this month by the Delaware Supreme Court. It includes the issue of whether Delaware law should be the law that applies to a D&O policy that was issued in California to a Delaware corporation that was headquartered in California, just because the insured was incorporated in Delaware. That's one that is going to be very significant. It is not clear if the court will decide the case on a narrow basis and fail to address other important issues. Recent decisions from the Delaware Supreme Court have been more carrier favorable, so there's some optimism that the court is going to be a little bit more sympathetic to the insurers’ position. Lamden: If place of incorporation is the only connection that's required in order to have Delaware law apply, there are some coverage issues that policyholders will try to litigate in Delaware. For example, there's no public policy in Delaware precluding coverage for punitive damages or fraud. The ability to rely upon Delaware law could be a big boon for policyholders. ACCC: As we head towards 2021, are there emerging or important issues that you see arising? Manire: Bankruptcies are staring to pile up and I expect to see some imaginative efforts by bankruptcy trustees to access D&O insurance that should raise more coverage issues. One is going to be the insured v. insured exclusion, which has been a live issue for a long time. Is a claim brought by bankruptcy trustee a claim on behalf of the company against a director or officer and therefore excluded? Mumford: The uptick in bankruptcies is going to drive a lot of looking around for coverage. And we may yet see COVID claims. Some plaintiffs’ lawyers may feel uncomfortable filing COVID suits in the current environment, but that does not mean that it may happen down the road. Arguments may yet be made that companies should have responded more quickly or differently with respect to their business operations and continuity. There may also be arguments that companies should have gotten coverage for pandemic losses, especially if the current surge of pro-insurer business income rulings begins to even out and courts start finding coverage for COVID losses. Lamden: One issue that doesn’t seem to be going away are disputes regarding whether certain types of D&O losses are insurable. There are a number of jurisdictions that have still not weighed in on so-called uninsurable restitution. ACCC: Mary, as our past President, you get the last word. McCutcheon: It's an extension of what we were talking about earlier. As D&O coverage gets too expensive, there will be pressure on companies to carry lower ABC limits but keep their Side A limits intact for Board protection. As you know, Side A doesn't get used unless there is a bankruptcy event or a derivative claim. It will be interesting to see if and how companies try to monetize their Side A coverage to pay claims. ACCC: On behalf of the College, thank you all for sharing these insights with us. Best wishes for the holidays and let’s hope for a better 2021! Denial of $2,000 Uninsured Motorist Property Claim Triggers Mississippi Appellate Decision Rejecting Attorney/Client Privilege for Insurer’s In-House CounselTravelers Prop. Cas. Co. of America v. 100 Renaissance, LLC,2020 WL 6342790 (Miss. Oct. 29, 2020) By Ned Currie, Currie, Johnson & Myers, P.A.
A recent opinion of the Mississippi Supreme Court may open the door to aggressive efforts to depose the in-house attorneys at insurance companies who often guide claims handing decisions. While the decision is under reconsideration and may be reversed, its implications are chilling. 100 Renaissance, owner of an upscale shopping mall, filed an uninsured motorist claim for $2,134.00 with Travelers after a hit and run driver struck a flagpole on the insured premises. The insured’s legal counsel sent the Travelers adjuster a letter outlining why the claim was covered under Mississippi’s uninsured motorist statute. In response, the adjuster signed and sent a denial letter providing an analysis why the claim was not covered. Travelers denied the claim on grounds that, to be covered, the damage had to be sustained by an auto covered under the policy, not a flagpole. The insured filed a bad faith suit and took the deposition of the claims adjuster. The claims adjuster expressed no understanding of Mississippi uninsured motorist statute, notwithstanding references to the statute and uninsured motorist law in her denial letter. The claims adjuster divulged that she sent the letter from the insured’s legal counsel to Travelers’ in-house counsel. In-house counsel responded in an email providing his legal analysis of the claim. Otherwise, the adjuster could not explain why the claim was denied. (Her testimony provided multiple strong inferences that in-house counsel drafted the denial letter and the adjuster simply signed her name to it.) When Travelers filed a motion for summary judgment, policyholder counsel noticed intent to take the deposition of in-house counsel who communicated with the adjuster. Travelers, asserting attorney/client privilege, filed an interlocutory appeal to the Mississippi Supreme Court after the trial court entered an order holding that the deposition could go forward. In an opinion affirming the lower court, the Mississippi Supreme Court ruled 7-2 that in-house counsel “most likely” drafted the letter, was not giving legal advice to the adjuster and therefore not acting as legal counsel, and solely possessed the knowledge why the claim was denied. Although the advice of counsel defense was not asserted, the Court held that the privilege was waived when Travelers placed into issue the in-house counsel’s advice containing reasons for the claim denial., citing the Arizona Supreme Court’s decision n State Farm Mutual Automobile Ins. Co. v. Lee, 13 P.3d 1169 (Ariz. 2000). Travelers has since filed a petition for rehearing and amici have weighed in, pointing out that cases from the other jurisdictions relied upon by the majority actually do not support the Court’s holding. Travelers also makes essentially what is a public policy argument, agreeing with the dissenting opinion that the decision will have a chilling effect on the administration of insurance claims when insurers need legal advice. Until the Court rules on the petition for rehearing, this is not a final decision. Although this case deals with insurer in-house counsel, if upheld, outside insurer coverage counsel in Mississippi likely will change the scope, approach and handling of coverage assignments, such as taking the same precautions in states where the privilege is not recognized if counsel undertake any adjusting function. While not going that far, the majority decision did cite cases from other jurisdictions referencing adjusting functions performed by coverage counsel. When Is A Lawyer Not A Lawyer?By Neil Posner, Much Shelist, P.C. and John Bonnie, Weinberg, Wheeler, Hudgins, Gunn & Dial (co-chairs of the ACCC’s Professionalism and Ethics Committee)
A question that often arises in our cases is whether policyholders are entitled to discover their insurer’s claim file. Insurers often seek to protect such files from discovery by asserting that they were prepared by counsel and, therefore, are subject to the attorney-client privilege and/or the attorney-work-product doctrine. This, in turn, raises an interesting question, namely: was the insurer’s counsel acting in her capacity as a lawyer, or not? These questions have taken on heightened significance during the present COVID-19 virus pandemic, as insurers increasingly turn to outside counsel to assist them in responding to policyholder claims for coverage Much has been written on this topic—in the courts, in law journals, and in treatises. Accordingly, this article by necessity can only scratch the surface. The answer to this question is easy to answer when an insurer retains counsel after the insurer has made the decision to deny the claim. At that point, the insurer has a more reasonable basis to anticipate litigation. Under such a situation, the insurer’s communications with legal counsel (but not the facts communicated; facts are always discoverable) almost certainly will be protected from discovery under the applicable attorney-client privilege, and the lawyer’s work product, mental impressions, and litigation strategy most likely will be protected under the attorney-work-product doctrine. If, however, legal counsel is brought in before the decision is made to deny the claim, what result then? The answer to that question most likely will depend on the specific facts and circumstances of the particular matter, and the jurisdiction in which the question is to be answered. In general, courts appear to favor the production of documents generated in the investigation of a claim conducted in the insurer’s ordinary course of business. As one Treatise has explained: Under the approach taken by some courts, it is presumed that a document or thing prepared before a final decision was reached on an insured’s claim, and which constitutes part of the factual inquiry into or evaluation of that claim, was prepared in the ordinary and routine course of the insurer’s business of claim determination and not for litigation preparation. Pete Rinaldi’s Fast Foods, Inc. v. Great Am. Ins. Cos., 123 F.R.D. 198 (M.D.N.C. 1988); Connecticut Indem. Co. v. Carrier Haulers, Inc., 197 F.R.D. 564 (W.D.N.C. 2000); Stout v. Ill. Farmers Ins. Co., 150 F.R.D. 594 (S.D. Ind. 1993), order aff’d 852 F. Supp. 704 (S.D. Ind. 1994); AKH Co., Inc. v. Universal Underwriters Ins. Co., 300 F.R.D. 684 (D. Kan. 2014). Anticipation of litigation is presumed unreasonable before a final decision is reached on the claim, Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655 (S.D. Ind. 19941); AKH, supra, and documents produced after the denial are presumed to have been prepared in anticipation of litigation. Harper, supra. 10Fed. Proc., L. Ed. § 26:177 (Nov. 2020 update). Thus, facts matter. For example, in the case of Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869 (5th Cir. 1991), the U.S. Court of Appeals for the Fifth Circuit held that the attorney-work-product doctrine protected documents prepared by the insurer’s attorneys while they were investigating a fire that destroyed the insureds’ home. The insurer hired the attorneys within one week of the insurer learning that one of the insureds signed a confession that he intentionally set fire to the house. (The other insured claimed to be the “innocent spouse” and sued the insurer over its denial.) Once the insurer learned of the confession, it had a sound basis to question the claim and, from the date they were hired, the attorneys reasonably could anticipate litigation. The Dunncase turned on specific facts, but not all pre-denial investigations present such clear facts. Thus, some courts have held that just because it is inevitable that some disgruntled insureds will sue upon receipt of a denial does not mean that all of an insurer’s pre-denial activities are “in anticipation of litigation.” See, e.g., Slaving v. Great Am. Ins. Co., 83 F. Supp. 3d 789 (N.D. Ill. 2015). Thus, lawyers cannot always assume that when engaging in pre-denial investigative work on behalf of an insurer that their work will be protected from discovery. Nor should policyholders assume that such work will not be protected. In all such cases, facts will matter. ACCC Fellows Contribute Articles to ABA Retrospective on ALI Restatement CompendiumTwo and a half years after the American Law Institute gave final approval to the first ever Restatement of Law, Liability Insurance, The Brief, the quarterly publication of the ABA’s Tort, Trial and Insurance Practice Section, has published a collection of commentaries addressing the continuing controversy and possible significance of several salient sections of the ALI Restatement, including four articles by ACCC Fellows:
Delaware Adopts Larger Settlement RuleThis article was originally published by Wiley Rein LLP in the January 2020 issue of Executive Summary. In a matter of first impression, the Delaware Superior Court has adopted the “larger settlement rule” to govern allocation of settlement amounts where (i) a settlement resolves, at least in part, insured claims; (ii) the parties cannot agree as to the allocation of amounts attributable to covered versus non-covered claims; and (iii) the policy’s allocation provision does not prescribe a specific allocation method. Arch Ins. Co. v. Murdock, No. N16C-01-104 (Del. Super. Ct. Jan. 17, 2020). Six excess insurers sought a declaratory judgment disclaiming coverage for two settlements due to alleged breaches of D&O policies by an insured corporation and insured director. The Delaware Superior Court issued an initial decision, finding that both settlements constituted “Loss” under the policies, but leaving open issues relating to subrogation, allocation, and exhaustion. The Delaware Superior Court later heard argument on the allocation issue – in particular, on what allocation standard applies to the policies. The director argued that the court should adopt the so-called “larger settlement rule” when determining how any indemnifiable loss encompassed by the settlements should be allocated between covered and uncovered loss. Under the larger settlement rule, the director argued, the entire amount of both settlements would be recoverable unless the insurers could establish that some uncovered liability increased the amount of the settlements. The insurers argued that the larger settlement rule did not apply because the allocation provision in the primary policy expressly required an allocation between covered and uncovered loss. The allocation provision provided, in relevant part, that if insureds who are afforded coverage for the claim incur loss jointly with others who are not afforded coverage for the claim, or incur amounts both covered and uncovered under the policy, “then the Insureds and the Insurer agree to use their best efforts to determine a fair and proper allocation of covered Loss.” The court ultimately determined that the allocation provision was “unhelpful,” as it spoke only to situations where the insurer and insured work together using “best efforts” to arrive at “a fair and proper allocation of covered Loss.” The court held that the situation at hand – where the parties failed to agree on an allocation – requires the application of the larger settlement rule, which the court opined directed that “allocation is appropriate only if, and only to the extent that, the defense or settlement costs of the litigation were, by virtue of the wrongful acts of the uninsured parties, higher than they would have been had only the insured parties been defended or settled.” The court concluded that any type of pro rata or relative exposure allocation would be contrary to the policies’ language, which affords coverage for all Loss that the insureds become legally obligated to pay, and thus implies complete indemnity for Loss regardless of who else might be at fault for similar actions. The court further found that the allocation provision’s directive to “take into account the relative legal and financial exposures of the insureds in connection with the defense and/or settlement of the Claim” supported the economic rationale of the larger settlement rule to protect the expectations of an insured when it purchases coverage under an insurance policy. The court thus adopted the larger settlement rule and deferred resolution of factual issues and the burden of proof regarding allocation for a future conference.
Meghan Magruder, a partner in the Atlanta office of King & Spalding, is a Regent of the College and member of the Board’s Executive Committee. She has announced her retirement as of December 31, 2020 and the Board recently voted to confer Emeritus status on her. College president Sheri Pastor recently interviewed Meghan about her career in law and the new adventures her retirement will bring. How did you come to specialize in coverage law? I started my career in private practice in Boston in 1984 after a judicial clerkship. At that time, my firm offered the choice of a litigation department or corporate department. I loved advocacy after my summer associate rotation, so I joined the litigation department. We handled every type of dispute from product liability to employment to securities matters, and contract disputes of all kinds. No one specialized at that time and all the senior partners handled a variety of litigation. I loved how each case was an opportunity to learn something new. I was promoted to the partnership in 1990 and at that time I decided that the secret to being called upon by clients as a young woman partner might be to specialize in an area that none of the other partners were handling. I decided to learn environmental litigation since environmental disputes were increasingly litigated and were often large multi-defendant matters. I had been involved in many mass tort cases at that point in my career and the move from toxic torts to environmental litigation was not difficult. I went to lots of conferences and studied the regulations and became known as an expert in my firm. No other partners were doing this work, so I was able to build a team and a client base. In 1998, my firm wanted to expand its litigation department in Washington, DC, so I took the opportunity to be even closer to the center of environmental litigation and regulation and moved to the DC office. At that time, I already had started to help clients get insurance to cover environmental costs. When I got to DC, I spent time learning more about insurance coverage. As environmental cases evolved more and more into mediated resolutions, I saw increases in insurance disputes being litigated and the opportunity to continue the advocacy and trial work that I loved. My practice moved into insurance work and into coverage for all types of cases and involving all types of policies. In 2005, I had the opportunity to move to Atlanta and continue building our coverage practice. Now, after 36 years of trial work and having built an amazing team of talented lawyers, I am ready to step aside and leave this wonderful career to try something new. What are some of the cases that you enjoyed most over your career? The cases that were the most meaningful to me were those in which you could really see how the recovery of insurance made a difference in people’s lives. My clients were businesses and matters for smaller businesses with which I worked were especially rewarding. Getting insurance to help keep those businesses running and allowing them to keep employees working after hurricanes or explosions or floods or other catastrophic events made this work so important. Those were the cases that I enjoyed the most. What is next for you? I will retire from King & Spalding at the end of December and plan to take a few months to enjoy taking life a bit slower, stopping to smell the flowers, listen to music, and read books just for enjoyment. My husband and I have a small farm and I look forward to spending more time with him in our gardens and taking care of the chickens, goats, horses, and cats and dogs. I plan to spend time at the beach with our children and really focus on spiritual and physical health for a few months. During that time, I plan to look into opportunities to work in public service or with a nonprofit organization. I serve on several nonprofit boards, including Georgia Legal Services, and I would like to spend more time handling pro bono matters.
What do you look forward to most now? More relaxed time with family and friends. No more time sheets! Also, I helped my mother move into a senior living apartment this year and I am really looking forward to spending more time just helping her and spending time with her. What, if anything, will you miss about your former practice? Definitely working with my clients and my team. I love counseling on strategy and digging into case law to develop arguments that support my clients to help them succeed. I love working with my talented team. I love the excitement of going to court, and even taking depositions. The intense pace and the challenge of every single day. The comradery of my wonderful partners. I will miss so much. But I am also excited about my new beginning and new challenges. Tell us about your background and your family. My mother and father were both university professors. My father’s field was the history of art, and my mother taught landscape architecture and environmental design. I have three amazing sisters; one has a PhD in nursing and is on the faculty of a major nursing school, one is the assistant director of a museum, and one is the director of sustainability for a university. My husband is an architect and also taught architectural history at Virginia Tech and Georgia Tech before his retirement. We have been married for 36 years. Our daughter lives in Brooklyn and is the principal of a middle school, and our son is completing a degree in automotive technology and is pursuing a career in the automotive industry. Any last words for our ACCC Fellows? Thank you so much for giving me this opportunity, Sheri. I will miss the wonderful friends I have in ACCC and the wonderful events and sharing of learning that the College offers. The College provides such an incredible benefit in allowing us the ability to develop friendships. For me, friendships with my colleagues representing insurance companies has been so important. We talk, we debate, we have fun together. It makes it so much more pleasant to work together to resolve disputes when you have the base of true friendship and respect. I think the ACCC offers this opportunity more than any other professional organization in which I have been a member. I hope all of the fellows will take advantage of attending all of the meetings and symposia to take advantage of these opportunities. Best wishes to all of my ACCC friends. You can find me starting January 1 at [email protected]! Delaware Adopts Larger Settlement RuleBy Anna Schaffner, Wiley Stephen Pate This article was originally published by Wiley Rein LLP in the January 2020 issue of Executive Summary. In a matter of first impression, the Delaware Superior Court has adopted the “larger settlement rule” to govern allocation of settlement amounts where (i) a settlement resolves, at least in part, insured claims; (ii) the parties cannot agree as to the allocation of amounts attributable to covered versus non-covered claims; and (iii) the policy’s allocation provision does not prescribe a specific allocation method. Arch Ins. Co. v. Murdock, No. N16C-01-104 (Del. Super. Ct. Jan. 17, 2020). Six excess insurers sought a declaratory judgment disclaiming coverage for two settlements due to alleged breaches of D&O policies by an insured corporation and insured director. The Delaware Superior Court issued an initial decision, finding that both settlements constituted “Loss” under the policies, but leaving open issues relating to subrogation, allocation, and exhaustion. The Delaware Superior Court later heard argument on the allocation issue – in particular, on what allocation standard applies to the policies. The director argued that the court should adopt the so-called “larger settlement rule” when determining how any indemnifiable loss encompassed by the settlements should be allocated between covered and uncovered loss. Under the larger settlement rule, the director argued, the entire amount of both settlements would be recoverable unless the insurers could establish that some uncovered liability increased the amount of the settlements. The insurers argued that the larger settlement rule did not apply because the allocation provision in the primary policy expressly required an allocation between covered and uncovered loss. The allocation provision provided, in relevant part, that if insureds who are afforded coverage for the claim incur loss jointly with others who are not afforded coverage for the claim, or incur amounts both covered and uncovered under the policy, “then the Insureds and the Insurer agree to use their best efforts to determine a fair and proper allocation of covered Loss.” The court ultimately determined that the allocation provision was “unhelpful,” as it spoke only to situations where the insurer and insured work together using “best efforts” to arrive at “a fair and proper allocation of covered Loss.” The court held that the situation at hand – where the parties failed to agree on an allocation – requires the application of the larger settlement rule, which the court opined directed that “allocation is appropriate only if, and only to the extent that, the defense or settlement costs of the litigation were, by virtue of the wrongful acts of the uninsured parties, higher than they would have been had only the insured parties been defended or settled.” The court concluded that any type of pro rata or relative exposure allocation would be contrary to the policies’ language, which affords coverage for all Loss that the insureds become legally obligated to pay, and thus implies complete indemnity for Loss regardless of who else might be at fault for similar actions. The court further found that the allocation provision’s directive to “take into account the relative legal and financial exposures of the insureds in connection with the defense and/or settlement of the Claim” supported the economic rationale of the larger settlement rule to protect the expectations of an insured when it purchases coverage under an insurance policy. The court thus adopted the larger settlement rule and deferred resolution of factual issues and the burden of proof regarding allocation for a future conference. AND THE WINNER IS: Gray v. Zurich!
Back in April, the ACCC began a competition to identify the most important insurance coverage or bad faith ruling in the modern era. With the aid of a dozen of the College’s Honorary Fellows, we assembled a list of 100 significant rulings from 1929 (G.A. Stowers Furniture) to 2019 (Pitzer College and Universal Cable). Over the succeeding eight months, Fellows were asked to select the most influential ruling within groups of years. By the end of August, that list was winnowed down to 32 cases that were then matched against each other over the next three months.
By the start of December, the original list of 100 was narrowed to four semi-finalists: Gray v. Zurich Insurance (expanding scope of duty to defend), Gruenberg v. Aetna Ins. Co. (bad faith cause of action available in first-party claims as well), San Diego Federal Credit Union v. Cumis Ins. Society (creating right to independent counsel where a conflict of interest might affect the insured’s defense) and State Farm v. Campbell (setting due process standards to protect against excessive punitive damage awards).
In the final weeks, there was a surprising preponderance of California cases which, depending on your bias, was due either to heavy “homer” voting by California Fellows or the central role that California courts have played over the years in creating new standards for interpreting and applying insurance policies. As Professor Ken Abraham observed, the number might not be surprising given that “California was and is a pretty litigious state with a large population, an enormous economy, and a body of law that was attractive to policyholders selecting a forum for litigating their claims, as well as a Supreme Court that was very active during the years in question. It is no surprise to me that so many well-known and important cases come from California.”
In the end, the winner was Gray v. Zurich, one of the oldest cases in the competition and, ironically, the winner of the first round back in April. The Fellow with the highest point total at the end of the competition is Alex Henlin of the Sulloway & Hollis firm in New Hampshire, followed closely by Neil Selman, Rich Traub, Mary McCutcheon, Andy Downs, Mike Hamilton, and Bryan Weiss. Alex will be honored for his intense coverage nerdiness at our 2021 Annual Meeting, where he will be presented with an inscribed copy of Randy Maniloff’s indispensable General Liability Insurance Law: Key Issues in Every State.
Although Gray had solid support from our California Fellows (one referred to it as “the Bible”), members from around the country attested to its influence on how courts have expanded the duty to defend. As Rich Traub observed, Gray “has caused more consternation to insurers (and money) than any other decision I can think of (other than possibly triple trigger in environmental cases).” As Professor Leo Martinez put it: “Over time, it has proven to be a standard by which other cases are measured.” Gray v. Zurich broke “new ground in three significant areas: the intentional acts exclusion, the doctrine of reasonable expectations, and the duty to defend. . . . [T]he confluence of these principles with extensions of each in a single case was unprecedented.”
As Neil Selman observed: “Gray v. Zurich set new standards for the duty to defend, and impacted courts nationwide. It stressed the need to examine the facts alleged in the pleading, and not the theory of recovery, and mandated that insurers look to the “potential” of liability under the policy in determining the applicability of the duty to defend. But, forgetting that, it seems that a good way to determine the importance of a case is by the number of times it is cited by counsel in an attempt to forcefully argue for their position. By this standard, no one can doubt that in the insurance coverage domain, Gray has no competition, both within California and on a national basis, and letters and briefs filed by my policyholder colleagues prove the point.”
Bob Jerry at the University of Missouri Law School in Kansas City took a more empirical view of the important of Gray. “Of the eight cases in the “elite 8,” only two have been cited by other courts more often. One is the SCOTUS decision in State Farm Mutual Automobile Ins. Co. v. Campbell, which has been cited almost twice as often as Gray, is the subject of almost five times the number of discussions in secondary materials, and has a per-year citation rate more than five times the rate as Gray. Campbell, however, is not an insurance law case; it is a Fourteenth Amendment due process case involving punitive damages that happens to have an insurance company as the defendant. The case is certainly important, and it may be that Campbell is “the most consequential insurance company ruling” of the last 50 years, but this does not make Campbell the “most consequential insurance ruling.” Bank of the West has been cited by courts almost 400 times more often than Gray and has an annual citation rate nearly 2.5 times higher. But two headnotes in Bank of the West involving relatively simple and straightforward generalizations about insurance contract interpretation account for over half of Bank of the West’s citations. Thus, Bank of the West may be the most convenient source of citations for a discussion that happens in almost every coverage case (i.e., “what are the rules of interpretation?”), but this does not make the case the “most influential.” Buss has a higher average citation rate, but because the issues discussed in Buss are narrower, it is unlikely to have the enduring importance properly attributed to Gray.”
True to his nature, Walter Andrews took a pithier view “Like gray-haired insurance lawyers, seminal insurance cases, like Gray v. Zurich, seemingly improve with age. The decision, like many of us, is over 50 years old and has gained almost mythical status in how lawyers cite it. Will the ACCC one day achieve the same mythical status?”
SEEKING BEST OF 2020 CASE REVIEWS
Many firms publish a review of the leading cases of the year gone by early in the New Year. If you have a 2020 in Review summary that you’d like to share with your Fellows, please send it to us so that we can post it on the ACCC web site.
2021 Annual Conference: New Date & Call for Speakers
After careful consideration of the effects of the pandemic on work, travel, and the health of our Fellows, the timing of vaccine distribution, and the great desire to gather in person, we have rescheduled our 2021 Annual Conference for September 22-24. Our venue will remain the same (the InterContinental Chicago, Chicago, IL), as will our itinerary: an evening cocktail reception on Wednesday, September 22, with panel sessions occurring all day Thursday, September 23 and the morning of Friday, September 24. Call for Speakers This change in date affords us the opportunity to extend the deadline for panel proposals. We are looking for instructive and informative panel proposals on varied topics for the 2021 Meeting, which may include (but do not need to be limited to) recent developments and/or trends in first- and third-party coverage matters (including extracontractual exposures), practical pre-trial and trial tips and techniques in coverage cases, and the navigation of ethical issues in a coverage practice. The College had several presentations on COVID-19 related coverage issues at its 2020 Annual Meeting and several webinars. If you propose a panel on this topic, different or distinct perspectives on the topic are encouraged. Panels must be diverse and evenly balanced from the standpoint of 1) presenter coverage practice (both policyholder and carrier), 2) gender/gender identity, 3) race/national origin/ethnicity, sexual orientation, or disability. Only Fellows of the College may be speakers, with the exception of judges or professors. Proposals which identify a full slate of presenters by name and revealing the required expectation of diversity are requested, although we can assist as necessary in filling speaker vacancies. If a panel proposal is selected, the panel will be required to submit a paper addressing the subject matter of the presentation in order to qualify the program for CLE credit. The submission deadline is 5:00 pm ET, Friday, February 12, 2021. Click here to submit a proposal.
Welcome New Fellows!Jean Paul AssouadKutak Rock LLP
Kansas City, MO
Rikke Dierssen-Morice Maslon
Minneapolis, MN
Joe Ramirez Holland & Hart LLP
Greenwood Village, CO
Alfred Warrington Clyde & Co, US LLP
Miami, FL
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