July 2021 Newsletter

President's Message

By Wayne Taylor, Mozley, Finlayson & Loggins, LLP

Dear Fellows:

I am excited for the College as we and the rest of the country emerge from the coronavirus pandemic. Kudos to Sheri Pastor for her fantastic leadership during this past year. Under Sheri’s stewardship, the College continued to hold seminars on cutting edge issues, notably coverage for coronavirus business interruption claims. Although he will not be forgotten, we say goodbye to Michael Aylward for his service as a member of the Board of Regents and Officer. Michael is the last original member of the Board of Regents from when the College first was created in 2012. Mike Huddleston has become the College’s President-Elect and Deb Varner was elected Secretary-Treasurer.

As I became active in the College, my main involvement was participation on the Membership Committee. As the College’s Fellows age and begin heading into retirement, my priority is to identify the top coverage and bad faith attorneys with experience ranging from 15 to 20 years. It is imperative that we bring these younger attorneys into the College to ensure our continued successes. I am counting on each of you to identify this next generation of Fellows and submit their names to the Membership Committee, which is chaired by Lisa Pake and KT Talieh.

Due to the pandemic, the College’s 2021 Annual Conference usually held in May will take place from September 22 to 24, 2021 in Chicago. The Annual Conference co-chairs, Spence Taylor and John Bonnie, and vice-chairs, Laura Hanson and Tracy Saxe, are hard at work ensuring another incredible program. We also are hoping to hold the next insurance coverage symposium in Nashville, Tennessee, in conjunction with Vanderbilt Law School sometime next winter. Steve Pate is leading the charge to plan the symposium.

I am proud of the College’s flexibility as it negotiated the pandemic. We have some great programs planned during the coming year, and I hope each of you will take advantage of the many opportunities the College offers. I hope to see all of you in September at the Annual Conference.

Meet the New President: Wayne Taylor

Wayne Taylor has been installed as the tenth president of the American College of Coverage Counsel (ACCC). Wayne is a partner at Mozley, Finlayson & Loggins, LLP in Atlanta. He has a national practice representing insurers, primarily in complex insurance coverage and bad faith matters. He currently serves on the firm's Management Committee and chairs the Firm Development Group, the firm’s marketing committee. 

Wayne has handled substantial property loss claims throughout the U.S. including a number of claims related to major catastrophes such as September 11, 2001, the 2004 Florida hurricanes, Hurricane Katrina, Hurricane Ike, the 2010 Oklahoma tornados, the 2011 Alabama tornados, Superstorm Sandy in 2012, Hurricane Matthew, Hurricane Irma, and Hurricane Sally. Wayne also serves as national coverage counsel for an insurer in connection with its COVID-19 coverage matters. Recent engagements include a claim of more than $16 million in New York and two hurricane related claims totaling more than $100 million in Florida. 

Wayne's strategic focus for his year as President is identifying and recruiting Fellows who have recently reached the 15-year milestone. His goal is to engage the next generation of leaders in the College. As our Fellows look forward to returning to in-person meetings, Wayne is working to schedule the next insurance law symposium at Vanderbilt University in early 2022. 

Wayne was a recipient of the 2016 Thomas F. Segalla Service Award, which recognizes dedication and service to the College. The award is named after the first president of the College. Recipients demonstrate creativity, visibility, and persistence, three characteristics that embody Segalla’s approach to his practice, volunteerism, and leadership in the practice of law. Wayne was recognized as a charter Fellow and for his work as Co-Chair of the Membership Committee (on which he served from 2015-2018). Wayne co-chaired the 2015 Annual Conference Committee and began his Board service in the 2017-2018 bar year. He was appointed to the Executive Committee for 2018-2019, and was then elected as Secretary-Treasurer for 2019-2020. In that capacity, he chaired the Finance Committee and was the liaison to the Annual Conference Committee. As president-elect of the college, Wayne chaired the Strategic Planning Committee.

Wayne is the Secretary of the Windstorm Insurance Network. He is a WIND Fellow, umpire-certified by Windstorm, and teaches umpire certification and re-certification courses. In 2018, he received the Windstorm Presidential Recognition Award. Wayne is a Fellow of the Litigation Counsel of America. He has been recognized as a Georgia “Super Lawyer” in Insurance Coverage by Super Lawyers Magazine every year since 2014, and he was named one of the Top 100 Lawyers in Georgia in 2019 and 2020. Mr. Taylor also has been recognized by Best Lawyers of America for Insurance Coverage Litigation every year since 2016, a list based entirely on peer review. He was named an Attorney to Watch in 2018 by Attorney at Law Magazine.

Wayne serves on the Executive Board of the American Jewish Committee’s Atlanta Regional Board, a global advocate for the well-being of the Jewish people and the advancement of democratic values. He previously served as Vice President of the organization, focusing on international relations.

Outside of work, Wayne and his wife of almost 36 years, Nora, enjoy hiking, planning many vacations around the activity. Wayne and Nora have two children: daughter Marissa, and son Adam. Recent hikes include Grecian islands (Santorini, Naxos, and Tinos), Peru (including Machu Picchu), and Yosemite. A highlight of their hiking adventures is the Tour du Mont Blanc, a 115-mile hike over 10 days around the Mont Blanc massif, passing through parts of Switzerland, Italy, and France.

Wayne & Nora Taylor

Meet the New Board

By Michael F. Aylward, Morrison Mahoney LLP

Two new members were named to the Board of Regents at our annual meeting in May along with Debra Varner, who was elevated from the Executive Committee to serve as the ACCC’s new Secretary-Treasurer.

Michael Hamilton Brenda Wallrichs Debra Varner

Michael Hamilton, Board of Regents (2021-2024)

Mike was born and raised outside of Quakertown, PA, a small (at the time) town about an hour north of Philadelphia. He graduated from Penn State University with a degree in Administration of Justice and, after a stint at Mobil Oil following college, got his JD from the Dickinson School of Law of the Pennsylvania State University (Go Nittany Lions!) 

As a partner in the Global Insurance Services Group of Goldberg Segalla's Philadelphia office, Mike handles high-exposure insurance coverage claims, mainly focused in the areas of environmental, professional liability, construction defect, and business torts/advertising injury claims. Mike is also an avid soccer fan and played in several adult soccer leagues before his knees gave way. 

Mike states “My interest in the ACCC traces back to the influence of our firm's named partner, Tom Segalla, who was a founding member of the ACCC and served as its first President. Through the original vision of Tom and others, the ACCC has become the premier organization for the advancement of education and practical solutions in coverage and extracontractual law, and I look forward to continuing to further those goals by serving on the Board.”

Brenda Wallrichs, Board of Regents (2021-2024)

Brenda grew up in Waterloo, IA. During a high school civics class, she participated in a mock trial where she successfully defended her client against trumped up charges of stealing soft drinks from a vending machine. Thus was launched an illustrious career as a lawyer for the defense.

Brenda obtained her B.A. from Drake University in Des Moines and then her law degree from the University of Iowa. Brenda is a partner with the Lederer Weston & Craig law firm in Des Moines, where for the past three decades she has specialized in the defense of insurance coverage, personal injury, and product liability claims. Brenda handles a broad spectrum of insurance coverage disputes ranging from professional malpractice to construction defect to first-party property damage coverage claims and issues and everything in between.

During the pandemic, Brenda and her husband purchased a small boat with which the Wallrichs family has cruised the inland waters of the Hawkeye State.

Brenda is excited to serve on the ACCC Board of Regents. She views the ACCC as the one preeminent, nationwide organization where coverage attorneys from both sides of the aisle can come together, work collectively to educate each other on developing and emerging areas of coverage law, and enjoy each other’s camaraderie. 

Debra Varner, Secretary-Treasurer (2021-2022)

Deb grew up in northern New Jersey, just outside of New York City. From the time that she was in the third grade she knew that she would go to law school. That did not mean, however, that she wanted to actively practice law. Deb had an incredibly close bond with her maternal grandfather, Al. Growing up, Deb and her grandfather would bake desserts on Friday and go grocery shopping on Sunday. Deb’s reward was always a fresh bagel. To this day, toasted bagels and melted cheese are one of her favorite (and odder) breakfasts.

Al encouraged Deb to get an accounting degree and to go to law school with the goal of joining the FBI. Deb followed the agreed path but, after getting her twin degrees, came to the unhappy realization that neither would protect her from harmful bullets and that you must pass a rigorous fitness exam at Quantico before coming a G-person. With the FBI plan on the shelf, Deb instead joined a firm as a tax attorney, which by the usual circuitous path led her to insurance law.

Deb is an avid golfer, traveler, and college sports fan. She and her husband Jim are among the most well-respected insurance lawyers in West Virginia. To this day, her favorite case is the dispute over whether an insurance policy covered the hole-in-one (prize indemnity coverage) at the Greenbrier PGA Tour Event a few years ago.

Deb is honored to serve as the Secretary-Treasurer of the ACCC. She views the ACCC as the best of the best in the insurance world. Her goal is to continue the momentum of the ACCC in being at the forefront on the industry and in the value to its members.

9th Annual Meeting Will Be In-Person, Chicago, September 22-24 

Please plan on attending this year’s Annual Meeting, which we are pleased to announce will be held in-person in Chicago. No camera or microphone settings required! The meeting will begin with a reception Wednesday evening, September 22, 2021, and conclude shortly after noon on Friday, September 24. This year’s meeting will be held at the historic InterContinental Chicago on the bustling Magnificent Mile. 

Twelve CLE panels will address an array of timely topics, including

  • Coverage issues from Hal: Risk Management and Insurance for AI Systems and Robotics
  • Reinfection: Examining Judicial Traits and Estimating Outcomes as COVID-19 Cases Gain Appellate Review
  • Coverage Counsel as Witness: The Fine Line Between “Claims Handling” and “Legal Advice”
  • Litigating the Duty to Indemnify
  • The Illusory Coverage Doctrine: Going Beyond the “Plain Language” of the Policy

There will also be a bonus, non-CLE session, Technology for Coverage Geeks: Effective Use of Technology in Coverage and Bad Faith Litigation.

In addition to informative programming, the meeting will be an opportunity to catch up with other Fellows, overeat, and dust off long-unused social skills as the world reopens to live, human interaction! There will be time for group-arranged dinners after Wednesday night’s reception; we will get together for a served lunch on Thursday; and a there will be reception and dinner Thursday night.

Registration for the 2021 Annual Meeting is available on the website . Scroll to the bottom of the page for the blue registration link. Reservations at the Chicago InterContinental can also be made via the same web page. The link for the hotel’s group reservation page is located just below the Annual Meeting registration link. The group rate of $229 per night is available August 30 or until the room block is sold out.

Mark your calendar, get registered and book your hotel room today. We look forward to seeing you in Chicago in September!

The COVID-19 Pandemic Litigation in Perspective

Compiled by Michael Aylward, Morrison Mahoney LLP

The first COVID-19 insurance coverage ruling was issued by a state judge in Michigan in July 2020. The outcome was surprising to some; the medium to all. The news of Judge Joyce Draganchuk’s decision granting summary judgment to Gavrildes Management’s property insurer was not conveyed by a letter opinion or a Memorandum Decision. In a year where so many norms were upended by the pandemic, the Circuit Court’s ruling went viral by means of a YouTube video.

Since the pandemic prompted governmental shut-down orders across the United States, 2,000 lawsuits have been filed by businesses seeking coverage for business interruption losses. Remarkably, over 400 of those cases have been the subject of dispositive motions in the year since Gavrildes appeared on YouTube. By contrast, it took nearly 50 years for the same number of rulings to be decided construing the pollution exclusion in the CGL policy.

Many of us have worked through mass coverage litigation engendered by dangerous products or natural disasters, but none of us have ever seen such a phenomenal surge of suits being filed and decided in such a compressed period.

In the hope of getting some historical perspective on what sets apart the COVID-19 pandemic from other catastrophic sources of coverage litigation, we reached out to some ACCC Fellows for their insights. Here is what they had to say.

Joyce Wang Scott DeVries David Goodwin Andy Downs
Neil Selman John Mathias Daniel Litchfield Tim Burns

ACCC: How do you compare or contrast the COVID-19 insurance litigation with other earlier mass insurance litigation arising out of new types of liability (CERCLA), dangerous products (asbestos, DES, breast implants) or natural disasters (Katrina, Sandy)?

Joyce Wang (Carlson, Calladine & Peterson LLP, San Francisco): The difference I see is the sheer numerosity of lawsuits, and the decisiveness of the courts. I attribute the volume of dismissals based just on the pleadings in part to the strength of the merits for insurers, but also to a reluctance on the part of the courts to shift the economic burden of the pandemic to the insurance industry as a whole. It seems likely that once we have some good appellate decisions, many of these cases will start to resolve. But you never know whether the appellate courts will provide clear guidance, or just confuse things further! 

Scott DeVries (Hunton Andrews Kurth LLP, San Francisco): Unlike COVID cases which stem from a single event in March of 2020 (akin to 9/11 and hurricane cases), CERCLA coverage cases flowed from environmental claims which arose as EPA, state agencies and plaintiffs filed suit, a series of events taking place over the course of a decade. The COVID compressed event led to a compressed decision path.

Andy Downs (Bullivant Houser Bailey PC, San Francisco): CERCLA, asbestos, etc. happened gradually over time, so the litigation happened gradually (by today’s standards) too. For the natural disasters the claims were more policyholder-specific and took time after the disaster to develop.  

David Goodwin (Covington & Burling LLP, San Francisco): There have been many waves of mass insurance coverage action filings in the 35-plus years in which I have represented policyholders. The first was asbestos, in which the major asbestos manufacturers, represented by a handful of top-flight litigation firms, filed a handful of insurance coverage cases, most notably, the massive Consolidated Asbestos Insurance Coverage Cases in San Francisco. The asbestos coverage cases were followed by environmental insurance coverage actions starting in the mid-1980s. They began slowly and in large part were filed and defended by the same experienced law firms and lawyers who had worked on the asbestos coverage cases. The third wave followed 1990s-era natural disasters, such as the Northridge Earthquake, which mostly involved small claims in which the major policyholder and insurer firms had comparatively small roles and the claims were resolved in cookie-cutter fashion. Then there was the 9/11 coverage litigation, in which the major coverage firms had a lead role and the damage claims were massive, but those cases mostly came and went in five or six years. The fifth wave of coverage actions arose out of the hurricanes and other severe weather conditions 10 or 15 years ago, such as Katrina, Ike, and Sandy, where there was a combination of major coverage litigation and individuals who had lost their houses or property. 

COVID-19 is different from all of those. For the first time, the plaintiffs’ class action law firms jumped right into the fray and thought they could file class action lawsuits and make a lot of money, only to discover that insurance coverage is complicated, their purported clients had low-end policies with broad exclusions, and the insurance industry was willing to pay for some of the leading firms in the country – firms that were too expensive for most coverage actions -- to fend them off. It was not until six or eight months into the pandemic that we began to see lawsuits filed on behalf of major American businesses, represented by the leading policyholder firms, on the plaintiffs’ side. Many of those cases are still in the very early stages.

Neil Selman (Selman Breitman LLP, Los Angeles): This wave of litigation seems closer to Sandy, Katina, and 9/11 -- events that arose suddenly and created an onslaught of litigation with court’s opining really in close temporal proximity to each other and the issues seemed focused. With pollution and asbestos, there was a much longer range of time parameters and multiple issues arose including bankruptcies, trigger, and allocation.

Tim Burns (Burns Bowen Bair LLP, Madison WI):  In terms of magnitude, we’re seeing a problem that is much greater than we’ve seen in the past.  It impacts businesses across the board, not just a significant subset. COVID-19 also presents a much stronger case for coverage than asbestos and environmental, but it is coming  up at a time when our federal courts are far different from what they were in the late-70s/early-80s (asbestos) and the mid-80s to early early-90s (environmental). Many of our federal courts continue to mouth the same context-centered, policyholder-favorable rules of insurance-policy interpretation that were developed by our state courts in the 1950s and 1960s, and then in stunning irony proceed to ignore those rules. We’re seeing the federal judicial equivalence of jury nullification in many instances. It remains to be seen whether the many poorly reasoned rulings granting motions to dismiss make it through the gauntlet of what hopefully will be more penetrating appellate analysis.  

John Mathias (Jenner & Block, Chicago): The insurer side bar is much better organized, strategic, and well represented than it was in the early days of asbestos and environmental coverage litigation. The policyholder side bar is much more fragmented than it was back then, when a few of the very top firms led the way in obtaining “against all odds” favorable outcomes, especially with “all sums” and “continuous trigger” rulings in asbestos cases. It’s almost like a complete role reversal now. There is, however, an eerie similarity with first decisions favoring insurers in the environmental and COVID spaces. We’ll see what happens next.

Daniel Litchfield (Litchfield Cavo LLP, Chicago): COVID first party litigation has been similar to the pollution coverage litigation in some ways. For example, there is a threshold, “planet-killer” issue – direct physical loss or damage. Most of the initial success with this issue has been in federal courts. I recall substantial early success in the pollution coverage cases with the “as damages” argument. There were successes in federal district courts and some federal appellate courts. But that argument did not fare well in the state supreme courts, wiping out the positive effect of the federal decisions. I do not predict that the same story arc will happen with the direct physical loss argument, but up to this point, things seem parallel. COVID first party coverage litigation is substantially different from the pollution cases in that it features many class action complaints. No class actions have been certified as of yet, but the risk is there. I recall no class action litigation in the pollution coverage litigation.

ACCC: There seems to have been a real snowball effect in the rulings from the U.S. District Courts. How much of this is due to so many cases being decided in the same short period of time in a way that never happened with issues like the pollution exclusion or triggers of coverage?

DeVries: The federal courts were largely on the sideline of the environmental cases whether by absence of diversity, or because they had tools to avoid dealing with what are state law issues. When isolated cases were filed in federal court, it was not uncommon for those courts to kick them back to state court. By contrast, the one insurer nature of the COVID cases has given rise to diversity, and the Karussos doctrine is no longer available, leaving the federal court with a ready option to avoid dealing with cases they fear could swamp their docket and interfere with their handling of what they consider to be more interesting cases. 

Goodwin: A federal court ruling on an insurance coverage issue and 25 cents will get you a quarter. The key question is how the state appellate courts rule. It’s safe to predict that there will be differing rulings from state to state.

Burns: I’ll take my hat off to insurers for what appears to be a highly-coordinated and well-thought-out strategy that turned a logically, linguistically, and historically weak coverage defense into an avalanche of initial victories. The snowball has come roaring down one side of what hopefully is a box canyon (fortunately still leaving several tall trees in its wake). With any luck, the insurers will face the same fate as Sisyphus as they approach the top of the other side.

Downs: Not much. The difference here is there actually is a very well developed body of law regarding what is and is not a direct physical loss. The only people who should be surprised at the outcome are the plaintiff lawyers who would not qualify for ACCC membership and who didn’t regularly do property insurance work. Not knowing history, they were doomed to repeat it.

Mathias: Maybe federal court judges feel that they can act like state Supreme Court justices without being overly concerned with conflicting state lower court precedents or time honored rules of insurance contract construction. There is no federal common law of contract or insurance, but our federal courts often seem to think like there is. State court judges, on the other hand, are much closer to the ground and more inclined to “follow the rules” when construing insurance contracts on an individual basis.

Litchfield: I’m unsure of how much the compressed time period has affected the outcome of the dismissal motions. It probably has not hurt, if only because the gross number of favorable decisions has grown to be so large.

ACCC: How do you account for the relative success of insurers in federal court and the comparative unwillingness of state courts to grant an early dismissal of these cases? 

Mathias: I would reframe the question this way: “What accounts for the comparative willingness of federal court judges to grant early dismissal of these cases?” Again, I think that state courts are more willing to dig into the idiosyncrasies of each case and to follow time honored rules of insurance contract construction than are federal courts for the most part. The terms and conditions of insurance policies should be given their plain and ordinary meaning as commonly understood by everyday people. Consumers should not be required to retain counsel to examine case precedents in order to understand what these terms and conditions “really” mean. 

Downs: In most state courts, judges are extremely reluctant to grant motions to dismiss or sustain demurrers (in old style states like California). Even if they have rules which mirror the federal courts, the Iqbal approach to those motions has little traction in state court. Plus federal judges have the clerk resources and time to dig more deeply into these issues than does the typical state court trial judge. 

DeVries: You can point to several reasons. First, a large number of the cases were brought by plaintiffs’ class action lawyers who, while they may excel at what they do, are not coverage lawyers. Second, many of the cases which they brought were limited to government orders and did not allege actual damage. Third, Federal courts are using a heightened pleading standard to aggressively manage their docket, while state courts are using their more relaxed pleading standards which are designed to provide sufficient notice of a claim. And fourth, it became very easy for federal courts to simply defer to other federal courts, regardless of the facts, policy language or applicable state law. 

Selman: Federal courts are just more willing to dispose of cases than are state courts. 

Goodwin: I think it’s a matter of lack of expertise. Federal judges have mixed dockets, heavily criminal, and when they deal with civil law, it’s frequently federal law, like securities or antitrust or patent disputes, and when it’s state law, it’s more often than not torts. It is much harder for a federal judge to develop expertise in complex issues of state commercial law. In contrast, at least in larger cities, state courts typically have complex claims courts where the judges become experts in commercial law and, often, are highly experienced in managing large insurance coverage disputes. Plus, for a federal judge with a crowded docket where criminal cases have priority and trials have been delayed because of the pandemic, it’s much easier to copy what some other federal judge did and let the court of appeals sort it out, then to devote time and resources to an independent review of what, for the judge, is likely a novel issue. 

Litchfield: Many state trial judges are elected, and many of the motions were ripe for decision during the past election season. The elected state judges were in some cases very open about the need to get some money into the community to help local citizens. Some states do not support the Iqbal/Twombly federal pleading standard. State judges often have little support – especially no clerks – and this could have hurt their ability to wade through the substantial filings that were made.

ACCC: How do you foresee the COVID insurance litigation evolving during the next two years? 

Devries: State courts will ultimately weigh in and apply their law and standards which may result in a very different landscape than we are seeing now. While some early circuit court decisions may find for insurers, later ones, with the benefit of state court decisions, will be required to apply state law. At the end of the day, there likely will be a diverse range of decisions in much the same way there was in the earlier coverage battles.

Goodwin: We will start to get some appellate decisions, likely on ISO forms in the initial round, possibly starting this summer and more by the Spring of 2022. By the end of next year, we should have a much better idea of how the claims will come out.

Downs: That depends on what happens with the early appeals, and particularly the state court appeals. If we end up with a split in the law where a minority of states find coverage while the majority do not find coverage, we’ll see a shift in the new litigation volume to the pro-coverage states. There are a lot of very sophisticated policyholders who are sitting back and waiting to see what happens. My sense is that the insurance industry will win most of the appeals, particularly in federal court. We do see some policyholders seeking to certify issues to state supreme courts, although the state supreme courts don’t appear to be in a hurry to add these cases to their dockets.  

Mathias: Since insurance policies are contracts governed by state law, I believe that state court precedents will slowly emerge as controlling over prior federal rulings. Once that happens, as it just did in the Court of Common Pleas of Allegheny County Pennsylvania in Grant Street Tavern v. Erie, the shoe will eventually wind up on the other foot!

Selman: When the appellate courts start issuing rulings, things will get real. With so many cases in federal court, it will bubble up to the Circuit Courts of Appeal. Just like asbestos, however, even though there may be some disparity in how the federal appeals are resolved there, since state court issues are involved, it’s likely not a U.S. Supreme Court issue. I do expect that some Circuit Courts will ask their state supreme courts for guidance, however. 

Litchfield: The real key will be what happens in the state supreme courts. Another real key will be whether any classes are certified. My hope for my clients is that the state supreme courts rule with the majority position and effectively put these cases out of commission except for a small number of outliers. I also see a small number of cases evolving to trial. This will import risk for the insurers, particularly for jury trials. No doubt some insurers will not prevail at trial. I suspect that as the state supreme courts rule and the law becomes more settled in key states, insurers will begin to price and settle some cases. This happened in the pollution coverage cases after a period of time. These settlements will likely be in states where the presence of the virus is considered direct physical loss and their pricing will focus on second layer issues, including fact issues.

Burns: I think we’ll be at an equally inconclusive stage in this battle two years from now. Victories and losses on both sides, but a long war ahead.The troops won’t be home for the holidays.

“The Enemy of my Enemy is my Friend”: How Does That Work in the Tripartite Relationship?

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)

Neil Posner John Bonnie

In third-party liability cases, the insurer and the insured often share a common interest: defeating or minimizing the claimant’s claim. They also often share an “uncommon” interest: namely, whether the underlying claim is covered at all and, if so, to what extent. These competing interests have considerable potential to create conflicts of interest for defense counsel and coverage counsel alike.

From the standpoint of defense counsel, she is obligated to provide a competent and diligent defense to liability for the insured defendant. Insurer’s coverage counsel, on the other hand, is obligated to determine whether the liability is fully or wholly insured, or entirely uninsured. Insured’s coverage counsel needs to protect the insured from uninsured liability, which may involve keeping the insurer involved in the underlying case. In order to keep the insurer informed, certain information often needs to be shared between insured’s defense counsel and insurer, raising a question as to loss of privilege if any of that information would be subject to the attorney-client privilege and/or the work-product doctrine.

In U.S. v. Ghavami, 882 F. Supp. 2d 532 (S.D.N.Y. 2012), the court provided the general principles regarding the scope of “common interest” or “joint defense” arrangements, stating that “[i]t is well-established that voluntary disclosure of confidential material to a third party generally results in forfeiture of any applicable attorney-client privilege.” The court went on to explain that an exception to this principle is “when the privilege holder and the third party share a common legal interest” and that the “ ‘common interest’ doctrine precludes a waiver of the underlying privilege concerning confidential communications between the parties made in the course of an ongoing common enterprise and intended to further the enterprise, irrespective of whether an actual litigation is in progress.” Thus, “the common interest doctrine permits the disclosure of a privileged communication without waiver of the privilege provided the party claiming an exception to waiver demonstrates that the parties communicating: (1) have a common legal, rather than commercial, interest; and (2) the disclosures are made in the course of formulating a common legal strategy.” 

It should be obvious that when two parties are represented by the same attorney, establishing the common interest should not be difficult. But when the parties are represented by different counsel—as is the case with insurers and insureds wrestling with questions of the availability of coverage under the policy—can the common-interest doctrine still apply? The Ghavami court says it can:

At its core, the common interest doctrine applies when multiple persons are represented by the same attorney. In that situation, communications made to the shared attorney to establish a defense strategy remain privileged as to the rest of the world. However, the doctrine is not limited to such situations. The weight of authority is that the common interest doctrine does extend at least to situations where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel. That is, the doctrine applies where parties are represented by separate counsel but engage in a common legal enterprise.

Id. at 538, quoting Denney v. Jenkens & Gilchrist, 362 F. Supp. 2d 407, 415 (S.D.N.Y. 2004). The party seeking protection of the doctrine must show:

that (1) there was an agreement between individuals, not necessarily in writing, “embodying a cooperative and common enterprise towards an identical legal strategy;” (2) the disputed communication “was given in confidence and that the client reasonably understood it to be so given;” and (3) a joint strategy among the individuals is apparent.

Id. at 538, quoting Barcomb v. Sabo, No. 07-CV-877, 2009 WL 5214878, at *3 (N.D.N.Y. Dec. 28, 2009).

So, there has to be an agreement to share information, and the agreement doesn’t have to be in writing. Accordingly, if we assume for the sake of this discussion that insurer and insured have entered into such an agreement and have checked the necessary boxes, can the insurer later use that shared information—obtained for the joint purpose of defeating the claimant’s claim in the underlying case—in connection with the dispute over coverage? The case law on is the subject shows a split.

Insurers sometimes seek disclosure of privileged information that, although pertinent to defense issues (about which insurers certainly have an interest), may have an impact on coverage. They may argue that the common interest of the insurer and the insured supersedes any privilege that might otherwise protect such information. The Illinois Supreme Court agreed with that argument in Waste Management, Inc. v. International Surplus Lines Insurance Company, 579 N.E.2d 322 (1991). Other courts have raised concerns, however. For example, in Farmers Insurance Company v. Vagnozzi, 675 P.2d 703, 708 (1983), the Arizona Supreme Court held that where there is a conflict between the insurer and the insured with respect to coverage, defense counsel may not disclose information that would compromise the insured’s coverage rights.

This brings us to the opening question: how does the common interest between insurer and insured (“the enemy of my enemy is my friend”) play out in the tripartite relationship, especially when information shared pursuant to the common-interest doctrine when the later may be used by the insurer in the coverage dispute? We submit that there is no easy answer to this question. Rather, we hope that his article will begin a discussion among ACCC Fellows that may yield workable solutions.

Life During the Pandemic Revisited

Compiled by Michael Aylward, Morrison Mahoney LLP and Mary Craig Calkins, Blank Rome LLP

Last Summer, the ACCC editors gathered together a baker’s dozen of our members to discuss how the COVID-19 pandemic was affecting their personal and professional lives. The interview, which appeared in our September 2020 issue, revealed courage, resilience, and uncertainty. Now, as mass vaccinations raise the prospect of life getting back to normal, we reconvened our group to see how attitudes had changed over the past year and what our hopes are for the future.

Angela Elbert Chris Mosley Michael Hamilton Christine Haskett
Thomas Alleman Mary Craig Calkins Alex Henlin
Tom Hanekamp

ACCC: How do you think that “being in the office” will look and feel different once we ae all given the ok to work in the office?

Angela Elbert (Neal, Gerber & Eisenberg LLP, Chicago): I’m guessing that initially there will be lots of high-fiving and hugging old friends and colleagues, then back to normal within six to nine months.

Angela Elbert’s husband (and ACCC Fellow). Mark Rosenthal
in his work from home space

Chris Mosley (Sherman & Howard L.L.C., Denver): I think the law firm office experience will mirror the general societal experience – a little apprehension at the beginning because it will be weird being back, followed by a quick transition to what we previously understood as normal.

Michael Hamilton (Goldberg Segalla, Philadelphia): There are clearly going to be some changes and maybe some permanent changes. We may have less face-to-face meetings and more hearings over the phone or on Zoom. The one thing the pandemic has taught us is that we can practice law in a virtual environment in some ways that are efficient.

Christine Haskett (Covington & Burling LLP, San Francisco): We’ve learned that it is possible to be productive and do excellent client work from home. There is going to be resistance to requiring everybody to be in the office five days a week and firms are probably going to have to be flexible about it.

Tom Alleman (Dykema Gossett, PLLC, Dallas): Our staff is now in the office two to three days a week and lawyers are being encouraged to come in on a regular basis. A lot of us have gotten used to being at home as much as in the office and will continue to do that. I don’t know that we’ll all go back all the time – ever.

Mary Craig Calkins (Blank Rome LLP, Los Angeles): I’ve heard anecdotally of a firm that said if their associates are not interested in working five days a week, maybe that is not the right firm for them. That is not the way that Black Rome is going.

Alex Henlin (Sulloway and Hollis P.L.L.C., Concord, NH): My firm has office operations in suburban Boston, Providence, Rhode Island, and Concord, New Hampshire, and we are fully reopened. There’s not a mandate that all attorneys return and if people want to work a little more of a split schedule, there will probably be some accommodation for that.

Tom Hanekamp (Aronberg Goldgehn Davis & Garmisa, Chicago): I live in an apartment in Chicago with two dogs and a spouse, so I’ve been in the office most of the past year. I don’t know when my colleagues will be returning, but I can’t wait to get them back because it’s quiet!

Haskett: One thing that I won’t miss are early morning conference calls. With this pandemic, time zones have gone completely out the window. I have had more 6:00 am and 7:00 am calls in the last year than in my entire career combined, and I think it’s because people on the East Coast or in London or whatever, they feel like well, if you’re working from home, there’s no reason you can’t be on the phone at 6:00 am.

ACCC: Do you think that you may continue to work at home even after it is safe to be back in the office?

Hanekamp: I could see 75 percent of our lawyers adopting some kind of flexible schedule like that.

Haskett: And I’m definitely going to work from home some days if these 6:00 am calls continue.

Calkins: I am finding that there’s no demarcation when you work at home. It’s hard to balance work and your personal life when you’re at home all the time and your computer is right there.

Working from home gave Mary Craig Calkins more time to tend to her patio garden and her new puppy Ruthie, named after Ruth Bader Ginsberg

ACCC: Platforms like Zoom have made it easier to team up with lawyers in other offices around the country. Is that going to be a template for case handling going forward?

Mosley: It may be. The keys are going to be embracing the technology and creating and managing expectations among team members as to the use of remote meetings.

Alleman: I think that it will. I think that we are going to see courts using videoconferences for routine hearings and more mediations by Zoom.

Haskett: I had a bench trial in San Francisco last month where the judge gave us the option of appearing live or remotely. We said, yes, we’d love to do this in person. So, our side showed up in person with our witness, and the other side and all of their witnesses chose to be on Zoom. I want to try all my cases like that! 

Mosley: I think Zoom and Teams are here to stay. They allow in person meetings without the cost of inconvenience of travel. I also think that remote depositions are here to stay for the same reason. It looks like some judges are getting to like remote hearings for routine conferences.

ACCC: One thing that insurance clients have liked about the pandemic has been not having to get on airplanes to go to mediations. Do you think that will continue?

Henlin: A year into this digital platform, we’re finding what works and what doesn’t. My own experience with digital mediations is that they don’t work.

Calkins: The trouble with virtual mediation from the policyholder’s side is that it allows somebody to take a hard line and they don’t have to catch a plane, so they don’t have to make a final offer to try to bring things home. The other thing that worries me is that if we aren’t doing hearings and mediations in person, we aren’t getting to know each other as well. One of the best things about the ACCC is the opportunity that it gives us to know a lot of people nationally, and that helps us address our cases. And if we’re not able to travel, we don’t have that same level of knowledge or of familiarity, or even trust, for the other side to try to make things work.

Alleman: It’s also making it harder for our younger people to develop because there are fewer trials happening or opportunities for business development. All of us have a story about starting out handling small cases and that’s how you learn: by being unsupervised and doing from the ground. And now there aren’t those opportunities. It’s also made it harder for young lawyers to develop business of their own. It’s easy to keep in touch by Zoom when you’ve established a connection with someone, but it’s much harder to make those initial calls.

ACCC: A recent ABA report concluded that the pandemic has had a disproportionate impact on women in the work force and may have a lasting impact on the progress of women lawyers in law firms. What are you seeing in your own firms?

Haskett: It is true, and it is shocking to me that in 2021 it is still something that is falling on the shoulders of women. I do not understand why this should not be as much of an issue for fathers as it is for mothers in this day and age.

Calkins: I’ve had one associate who had to take a leave of absence because of that and is only coming back part-time because of those issues. The new ABA report raises a lot of concerns about what will happen to the progress of women who aren’t in the office. If a woman has primary childcare responsibility and isn’t the office, will those opportunities go to folks who are present as opposed to those who are not? According to the ABA report, twice as many women have not been able to come back work full-time.

Mosley: Kids in school should stop being an issue soon as schools re-open but the childcare issues will be more problematic. My sense is that issue will resolve over time – perhaps once the school year starts. But firms will need to be accommodating during that transitional period.

ACCC: What is it like managing a practice group where some people are in the office and some people are still at home?

Calkins: Our firm is recommending that if people want to only go into the office two or three days a week, their team members should be on the same schedule. One of the important things about being in the office is the education and mentoring of young attorneys. You can’t do that if one of them elects to come in on a day that the other person is not there.

Hanekamp: We have regular team meetings via Zoom with our associates but it’s not the same as being in the office together, and I don’t think it will ever be the same as me being in their office or their being in my office working.

Hamilton: I think the pandemic has made us more effective managing across offices but it’s harder in individual offices since the interaction with team members via video or phone call is just qualitatively different than walking down the hall of the office and stopping by and talking about an issue.

ACCC: How has the pandemic affected your interaction with clients?

Hanekamp: Personally, I miss the face-to-face interaction with my clients, but some of them really prefer to be at their desk, whether that’s at home or in their office, just because of the volume of the claims that they handle and all the calls and the emails that they get.

Haskett: My clients are more varied. In a sense, they are a lot like us. They miss the personal interaction and a lot of them are sick of being stuck at home and wouldn’t mind traveling again.

ACCC: Does anybody plan to dismantle their home office anytime soon? And what will you do with that space?

Hamilton: No! If I ever need a quiet space here at home, I retreat to this back room. I do like going to the office and interacting with people, but I also need my quiet space here at home.

Haskett: My space is the same; I just never planned on spending this much time at the desk, right? This is supposed to be the desk where I work for an hour or two in the evenings and a little bit on the weekends. It was never supposed to be eight hours a day.

A self portrait drawn by Christine Haskett’s daughter,
Nicola, during the pandemic

ACCC: What are you comfortable doing now that you are vaccinated that you wouldn’t have been willing to do when we spoke last August?

Hamilton: I’m more at ease visiting my elderly parents being fully vaccinated and knowing that they are also vaccinated now and not having to worry as much about social distancing as I did before.

Haskett: My parents live in England, so I haven’t been able to see them yet, but as soon as the quarantine restrictions get lifted, I plan to go visit them. That is not something I would have done before we were all vaccinated.

Hanekamp: I really thought after I got vaccinated that my life would go back to normal and that I’d be going out to restaurants and museums. But even knowing that I’m now protected, I’m still not 100 percent comfortable doing all of those things. There’s going to be a readjustment period that I really hadn’t expected. It going to take some time.

Hamilton: Ever since the pandemic began, we’ve been veering away when people get too close. It’s almost unconscious now and we may keep doing that same thing for a long period of time.

Haskett: On the other hand, we have had a lot fewer colds over the last year because of the way we’ve been behaving and washing hands and social distancing. Maybe we will adjust our behavior for that reason. 

ACCC: What is it that you still feel nervous about doing even after being fully vaccinated?

Henlin: I’ll volunteer air travel.

Alleman: Definitely air travel. My first trial is coming up in Hidalgo County which is a seven-hour drive from Dallas, but I remain concerned about flying. I just made my first trip to a supermarket in months and it was kind of overwhelming.

Calkins: Even on the street outside the dentist, there were people in masks, and then there was one guy that was walking right down the road without a mask or anything else and I think the concern is whether somebody is vaccinated or not—you  don’t know.

Mosley: I believe that you shouldn't live life scared. Obviously, we need to take sensible precautions, but living a cloistered life because one fears the dark is not living at all. In my view, the goal is to have the best life, not necessarily the longest life. 

ACCC: Have you picked up a new hobby during the pandemic or ready any good books?

Alleman: My wife and I have watched more football during the past year than we had watched in our entire marriage together. And walking around the neighborhood has been lovely. There is a quietness and a niceness to the routine of working from home where you take the commute out of the day. It consists of walking upstairs or down 15 steps—that’s the commute.

Elbert: A lot more time with my kids and a bit more sleep.

Mosley: For me, the experience was not doom and gloom but, rather, one that was partly sunny. I met someone new and had a chance to watch my children grow and flourish. I spent a lot of time at our home in the mountains and returned to the baseball field after a 35-year absence.

Henlin: There was a lot more family time. I’m still blessed with smaller children, so teaching them to ride a bike or develop confidence in doing that has been great. You could get home at night and still be able to ride around the neighborhood with them. But no, I didn’t read any books. It was a lot more of finding new movies, trying to keep people engaged, and lifting spirits.

ACCC: Mary, you memorably told us on our call last August that you and [your husband] Jon celebrated a special anniversary last year by going to a whole different room in your house that you hadn’t visited in months.

Calkins: Yes, and the living room still is empty and waiting for the next anniversary, which is August 2. I haven’t read books, but I have planted rose bushes all around my deck so that when ACCC friends come sit on our veranda, they’ll have rose bushes everywhere. Also, I was able to hug my son the other day without masks and without him holding his breath, so that was cool.

ACCC: At some point, are we going declare that the pandemic is officially over and party like it’s 1999, or will it never really be over?

Alleman: I don’t think that we are going to be partying like it’s 1999. I think it will be a very gradual, awkward, and sometimes difficult transition back for many of us.

Henlin: I think Tom is right. It’s going to be a long road back. I do tend to think it probably won’t be a decade. I don’t know that it will be 5 years. I have an Instagram feed that lately has featured photographs of people during the Spanish flu epidemic in 1919 and everyone is wearing masks. And by the 1930s, all that was gone. It may take a little bit of time to get there, but the arc is: this too shall pass.

Calkins: I think that we will adjust over time. But the number of people who have died and the number of people who became sick is jarring. The five‑year mark is probably more appropriate or more of a target than the 10‑year mark for getting back to normal. But the people with health issues or other others who can’t be vaccinated may stretch this out.

ACCC: Does anybody have a theme song for the pandemic?

Henlin: This incredibly inappropriate, but I go with the old Police standard, Don’t Stand So Close to Me.

Calkins: That’s great. I love that.

Elbert: I vote for REM’s It’s the End of the World as We Know It (And I Feel Fine).

Mosley: With apologies to John Sebastian and all the Kotter sweat hogs, how about Welcome Back?

ACCC: Well, if any of those theme songs get picked, you’ll be sure to read about in our next issue.

2021 Segalla Award Recipients

The Thomas F. Segalla Service Award recognizes dedication and service to the College. Award recipients must demonstrate Creativity, Visibility, and Persistence, three characteristics that embody Tom Segalla’s approach to his practice, volunteerism, and leadership in the practice of law. 

Recipients must be Fellows in good standing at the time of the award. There are two recipients each year: one who represents insurance companies and one who represents policyholders or plaintiffs in insurance coverage and extracontractual matters. 

Our selection committee for this year’s award included Tom Segalla, Angela Elbert, Doug McIntosh, Mike Huddleston, and Stacy Broman. The 2021 recipients were announced at the ACCC virtual annual meeting in May.

Our insurer-side recipient was John Bonnie of Weinberg Wheeler Hudgins Gunn & Dial in Atlanta, GA. John was recognized for his significant contributions to the College, including serving as co-chair of the 2021 Annual Conference, and co-vice chair of the 2020 ACCC Annual Conference. He helped to hand select a new conference venue and has focused on seeking and selecting high-quality panels with diverse speakers. In his role as co-chair of the Professionalism and Ethics Committee, he has spoken on numerous ethics programs over the years and has been a regular contributor of newsletter content on the issue of ethics.

Our insurer-side recipient was KT Talieh of Hunton Andrews Kurth in Washington, DC. KT was recognized for his diligent work as co-chair of the Membership Committee. He has been in that role since 2017, working with the committee to identify and vet candidates for the College, ensuring that we maintain the highest standards. He was recently appointed to the Board of Regents and has been a speaker for various College programs.

Law School Writing Competition Winners

Jory Berg Chase Babineaux

The ACCC is pleased to announce the winners of the 2021 annual law school writing competition. This year’s winner is Jory Berg of Chicago-Kent College of Law. Second place was awarded to Chase Babineaux of Georgia State University College of Law. Jory and Chase will be in attendance at the annual conference in September, ready to network with our Fellows.

The goal of the competition is to educate law students and encourage them to consider a career in insurance law. This year, competitors were challenged to prepare a memo analyzing available coverage (defense and indemnity) for a camp facing negligent hiring, training, and supervision claims when a counsellor engaged in a physical relationship with a camper and was at a party where campers allegedly sustained bodily injury.

Call for Strategic Planning Comments

We need your help. As we happily approach our 10th anniversary in 2022, we are convening a committee to address Strategic Planning efforts. Where do we want to go in the next decade? How do we remain the preeminent association of U.S. and Canadian lawyers? How do we want to grow and expand our voice? What additional steps can we take to improve relationships and the quality of the practice of insurance law? What factors come into play to increase our name recognition as the “Best of the Best”?

Please submit comments, recommendations, and topics for consideration to Carol Montoya at [email protected].

Member News

Stacy Broman Named Managing Partner of Meagher + Geer

Stacy Broman

Meagher + Geer has announced the appointment of Stacy Broman as the firm’s Managing Partner, effective July 1, 2021. Stacy is the first woman to serve as Managing Partner in the firm’s 92-year history. She joined Meagher + Geer in 1991 and has long been involved with firm management, having served on the firm’s Management Committee for the past 10 years. In addition to her new role as Managing Partner, Stacy will continue her full-time law practice focusing on complex commercial litigation where she defends insurers in insurance coverage and bad faith litigation and represents professionals in professional liability litigation.

Throughout her career, Stacy has earned numerous accolades, most recently receiving the 2020 Federation of Defense & Corporate Counsel Diversity Award through her work on the Barb Currie Scholarship, the Diversity Committee, the Admissions and the Membership Committees. She has been inducted as a Senior Fellow in the Litigation Counsel of America and was a member of the ACCC Board of Regents from 2015-2021. She is regularly named to the Minnesota Super Lawyers® list and the Best Lawyers® in America list. Stacy is active in her community and volunteers her time with Southern Minnesota Regional Legal Services as a member of The Campaign for Legal Aid.

Ned Currie Receive Multiple Honors

Ned Currie

The Mississippi Defense Lawyers Association presented Ned Currie of Currie Johnson & Myers, P.A. with the 2021 Defense Lawyer of the Year award; in 2016 the MDLA bestowed him with the Lifetime Achievement Award. Best Lawyers in America selected Ned as Mississippi’s 2021 “Lawyer of the Year” for Insurance Law. He received the same Best Lawyers distinction in 2012.

Do you have news to share? We’ll publish news of achievements, firm changes, awards, wins, etc. If you are quoted or published, send that as well. We are looking for content about our members to include in Member News, Article of the Month, and social media posts. Send your information to [email protected].

Call For Volunteers

Want to become more involved in the ACCC? Join a committee! We are actively seeking volunteers to join our committees:


CGL/Excess Liability Insurance 


Cyber Insurance and Computer Crime

D&O and Management Liability

Emerging Risks

Extracontractual and Bad-Faith Claims Litigation

First-Party Insurance


Professional Liability

Professionalism and Ethics

Regional Meetings 

Click here to volunteer.

Nominate a Fellow

The Membership Committee routinely vets prospective Fellows of the College. In order to maintain the prestige of membership, the only entry to the College is through a referral from a current member (someone who is NOT at the same firm as the nominee).

We are seeking nominations of qualified candidates who practice law in the U.S. and Canada. The Board of Regents recently approved the consideration of candidates from Bermuda as well.

Qualified candidates are lawyers engaged in the private practice of law, with a concentration primarily in the fields of insurance coverage, bad faith and/or extracontractual claims, licensed to practice law in the highest court of their respective states, and who have engaged substantially in the practice of insurance law for at least 15 consecutive years. Time spent as a judge or law clerk may be considered in determining whether the 15-year requirement has been satisfied.

Nominations can be sent to [email protected]. Please include the nominees name, basic contact information, and link to their firm bio. The Membership Committee will conduct an initial vetting, including contacting other Fellows for references, and will then send an application to the candidate as a next step. If a candidate is nominated and does not progress to the application stage, the nominator will be informed.

Welcome New Fellows!

Erika Bright
Wick Phillips
Dallas, TX

John A, Gibbons
Blank Rome
Washington, DC

Brian P. McDonough
McDonough Cohen & Maselek LLP
Boston, MA

Aaron L. Mitchell
Tollefson Bradley Mitchell & Melendi, LLP
Dallas, TX

Dorothea W. Regal
Hoguet Newman Regal & Kenney, LLP
New York, NY

Dan W. Webb
Webb Sanders & Williams, P.L.L.C.
Tupelo, MS