Some Needed Insurance in the Law Office

Posted on November 11, 2015 03:51 by Steve Crislip

We often joke that we lawyers knew more black letter law upon graduation from law school, or at the Bar Exam, than at any other time in our careers.  It is always that pesky change that affects what we know.  The statutory and the common law and the rules all change almost daily.  Maybe that is where the phrase “practicing law” came from because you have to constantly practice dealing with changes in order to survive as a lawyer.  In 1967 U.K. Prime Minister Harold Wilson said:  “He who rejects change is the architect of decay.”

In this changing environment, we all learned the basics of risk arising from the practice of law and most offices have comprehensive general liability policies for our offices and equipment and Lawyers’ Professional Liability (“LPL”) for negligence, errors or omissions with regard to client work.  While LPL is not required, most prudent lawyers do not want to risk their personal assets for such expected risk exposure.

Think now of the changes in your practice in just the most recent years.  Electronics have replaced the traditional pen and paper approach.  These changes then placed great emphasis on the protection of health and other private records that are now being used in electronic form.  You and your clients are now exposed to large costs and penalties if some of these records got loose in the process.  Well, the fact of the matter is that information in that form does get loose, probably far more so than when it was locked in your office in a file folder in a drawer. 

Let’s just look at this month’s news feed:

  • Office of Personnel Management said hackers stole 5.6 million fingerprints it had on file.  (All across the federal agencies)
  • Hackers stole federal personnel data on 21.5 million people including their social security numbers.
  • Excellus Blue Cross Blue Shield had 7 million files breached and its subsidiary Lifetime Healthcare Cos. had about 3.5 million exposed with all their personal and medical data.
  • 15 million T-Mobile customer records (including encrypted information) were stolen via Experian’s site.
  • 6400 American Bankers Association e-mails and passwords stolen and posted online.
  • Sony, Target, Anthem and Home Depot as just a few of the Fortune 500 to be breached in the past year.

So, if happened on this scale recently, it is likely that someone wanting something from your files has already done so, or will.   A law firm would be a great place to get sensitive and valuable proprietary materials, and a lot easier to hack than those listed above.  That just deals with the people trying to get in and obtain the information.  Add to that the inadvertent lost laptop with lots of medical data, etc., and you have plenty of risk and exposure from these changes in the practice.

So how well are you protected for this change and this new and unexpected risk?  You might have coverage if a client sues you, but then only for covered items and after your deductible under your LPL policy.  But the real cost of these types of breaches or data losses comes earlier from the immediate things not covered like:

  • Computer experts to discover all details and rebuild the hack;
  • Public relations costs;
  • Loss of reputation and business income losses;
  • Damages to injured parties, not necessarily your clients;
  • Notification costs;
  • Government investigations;
  • Employee claims.

The insurance industry responded quickly and began selling stand-alone cyber insurance policies.  Yet, it seems that few firms have such policies despite these being available from many sources with various types of protection at business acceptable cost.   Debra Cassens Weiss, reporting for the ABA Journal, noted a 2015 survey of 880 lawyers which had only 11 percent (of those responding) with cyber liability policies in place.  Significant numbers of those in this Bloomberg BNA’s Big Law Business survey did report that their firms had experienced computer viruses or hacking incidents.  Contrast all this with 80% of surveyed General Counsel of companies saying cyber security is their number one concern in 2015.  There is a human factors element involved with the law firms here also.  Lawyers do not want to reveal that their esteemed firm has been breached, and many also just do not know that they have been breached.

Dan Bressler in a recent Law Firm Risk Blog noted data from Mandiant which finds that 80 of the 100 biggest law firms in the U.S. have been hacked since 2011.  That being said, I believe the smaller your practice the easier it will be to be breached.

It does not appear this risk is a “Y2K” kind of issue that might not happen.  Just think of what you might need if all your files were breached.  Identifying who, what, when and where could cost a bunch.  How to fix it and how to notify all who had records with you would be a problem.  It would therefore appear reasonable to have such cyber insurance coverage and team up with experts to (1) help prevent the loss and (2) have all these resources on call if a firm laptop, for example, with class action medical files just disappears and the health care penalties have kicked in.

This blog was originally posted November 4 on Lawyering for Lawyers. Click here to read the original entry. 

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What follows is a blog post by me on June 25, 2009.  I can't resist reposting it because the 2015 Insurance Bad Faith and Extra-Contractual Liability Seminar is nine days away.  The Program Chair this year is the below-mentioned Chris Martin.  And the below-mentioned Bill Kobokovich will hold forth on "Handling Multi-Claimant and Multi-Insured Bad Faith Exposures."  (And, of course, Tony Zelle succeded me as Chair of the Insurance Law Committee.)  What is old is new again.  And I predict another synergistic and dynamic experience.  I'll see you there.  Meanwhile, here's that blog post, vintage 2009:   

"Were you at the bad faith seminar in Boston last week? Wasn’t it great? Historically, the Insurance Law Committee has done this program every other year. People who do bad faith litigation, or handle that kind of claim, really look forward to it. In my opinion, there was no disappointment this year. Congratulations to the program chair and vice chair, Tony Zelle and Bill Kobokovich.

There were many high points of the seminar. One of the best was a panel discussion on litigating “institutional bad faith.” The panel consisted of the aforementioned Bill Kobokovich (Travelers), Chris Martin (Martin Disiere, et al) and Richard Fabian (RiverStone). A lot of people told me how much they learned from the panel. The really cool part was that Chris had just gotten a defense verdict, in an institutional bad faith case against Bill’s company, the week before. And, get this; the senior partner of the plaintiff law firm that lost the case was in the audience there in Boston. I don’t believe he submitted any questions to the panel. : )

In any event, I felt the whole program had an outstanding “vibe.” The education, networking and collegiality were synergistic, creating a dynamic atmosphere. Did you feel the same way? To me, the atmosphere in a seminar can make all the difference in the world.

I don’t see how anyone who handles bad faith matters can miss the Insurance Law Committee’s semi-annual seminar." Click here to register for the DRI Insurance Bad Faith and Extra-Contractual Liability Seminar in Chicago, June 17–19. 


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Insurance for Lawyers

Posted on June 2, 2015 03:57 by Steve Crislip

We advise, defend, and prosecute insurance-related claims regularly. Lawyers sometimes do not pay close enough attention to their own coverages, however.  You should have a basic system to review and check all your coverages on a regular basis.  We were trained as lawyers, not business owners.

Recently an Illinois Supreme Court case (Ill. State Bar Ass’n Mutual Ins. Co. v. Law Office of Tyzzolino & Terpinas, 2015 BL 44614, Ill. 117096, 2/20/15, released 3/31/15) invalidated the firm’s professional liability policy for all the lawyers when one of the lawyers falsely denied knowing of any circumstances that might led to a malpractice claim. The court took away the coverage of the other lawyers and denied them the “innocent insured” doctrine.  Frequently claims against a firm arise out of the acts of a “lone wolf” doing things unknown to the others.  Here, the application process was flawed by just one lawyer not being truthful.  I have often said in law practice, you really do become your brother’s and sister’s keeper.

To maintain a modern practice, you should protect yourself with coverage. Often without regard to facts or legal basis, claims get made.  Of course, mistakes often happen.  You do not want to risk your likelihood and your assets by not having adequate coverage, whether it is general liability, employment practices, errors and omissions, or cyber insurance.

With regard to the legal malpractice coverage part, speakers at the National Legal Malpractice Conference in Washington, D.C. recently emphasized that timing is everything.  With claims made and reported coverage, the covered act needs to have occurred during the policy period and the claim reported within the period.  So, you need to know if a “claim” has been made to one of your lawyers and need to know how and when to report it.  You need to see your policy and make sure you have timely reported, with the required specificity.  In my view, that requires some looking and asking in a firm and the establishment of a culture where concealment is not tolerated.

I can see staff, or your outside agents or brokers, handling some of your insurance requirements.  With the important professional liability coverage, I suggest you need knowledgeable lawyers and a required overview of the other lawyers.  I find lawyers to be an independent lot who often chaff at oversight of them.  The issues are too important to leave to a laissez faire approach. You really need a strong loss prevention culture in your firm, regardless of its size.  Part of that is the oversight on coverage and the individual accountability of reporting a claim to others in the firm.  The individual lawyers who gloss over a claim feeling there was no merit to it, or hope it will go away can bring down the house of others. As they said at the end of the annual conference, “Communicate with your carrier and report everything.”  Expensive coverage is better than no insurance.”

This blog was originally posted on Lawyering for Lawyers blog on June 1. Click here to read the original entry. 


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I have previously reported on the Vermont Supreme Court’s strict adherence to the Economic Loss Rule (ELR), and noted that some observers might find this surprising, since the  Vermont Supreme Court is generally regarded as “liberal” and sympathetic to claimants/victims/plaintiffs.  Yet the Court has repeatedly denied tort-based recovery to claimants, citing the ELR.  The Court’s adoption and adherence to the ELR goes back as far as 1998.  In Paquette v. Deere & Co., 168 Vt. 258, 719 A.2d 410 (1998), the Court rejected the negligence claim of owners of a defective motor home.  The plaintiffs there had not suffered any physical injury, but claimed that they had suffered economic damages – recoverable in tort, according to them – because of the defective and unsafe nature of their mobile home.  The Court held that allowing a negligence claim in such circumstances would vastly expand tort liability and completely subsume warranty law into tort law.  And that adherence continues unabated in a series of decisions up to 2012.  In Long Trail House Condominium Assoc. v. Engelberth Construction, Inc., 2012 VT 80 (Sept. 28, 2012) the Court affirmed the complete dismissal of a condominium owners association’s defective construction claims against the building contractor, because their only claim was a negligence claim, which the Court found to be barred by the rule. 

Now, in Walsh v. Cluba, the Court has arguably taken the ELR even further.  In Walsh, the Court applied the rule to bar the plaintiff’s negligence claim even though the claim involved  physical damage to real property.  Walsh was a commercial landlord.  Cluba was his tenant.  After signing the lease, Cluba formed the corporation Good Stuff, Inc., a retail company, and turned over possession of the leased premises to Good Stuff.  But Walsh never formalized the lease arrangement with Good Stuff – Cluba remained the tenant on the lease.  After Cluba and Good Stuff vacated the premises, Walsh sued Cluba under the lease (i.e., in contract) for unpaid rent, attorneys’ fees, and physical damage to the premises.  Walsh also sued Good Stuff in negligence (as noted, there was no lease/contract with Good Stuff) for the unpaid rent and for damaging the premises.  At the close of Walsh’s case at trial, the court granted Good Stuff’s motion for judgment as a matter of law, on the grounds that the Economic Loss Rule precluded Walsh’s tort claims against Good Stuff because the parties’ dispute was completely covered by Walsh’s and Cluba’s contractual relationship (i.e., the lease), which required Cluba to leave the premises in the same condition in which he took them.  Walsh argued that the ELR should not bar his negligence claims against Good Stuff because there was more than purely economic harm at issue – there was real physical damage to Walsh’s property.  The trial court was unpersuaded by this argument.  Walsh appealed. 

The Vermont Supreme Court was similarly unmoved by Walsh’s argument.  The Economic Loss Rule generally bars tort claims where the parties have a contractual relationship.  Even though Walsh had no lease (contract) with Good Stuff, the Vermont Supreme Court found that his claim for damages to the premises was governed exclusively by his lease with Cluba.  As he had below, Walsh argued that the ELR does not apply because there was physical damage.  The Vermont Supreme Court was unpersuaded and affirmed the trial court’s grant of judgment as a matter of law to Good Stuff.  The Court reasoned that the well-recognized “other property” exception to the ELR does not apply where there is a contract (i.e., the lease) that touches upon the “other property.”  In other words, the provision in the lease that required Cluba to return the premises to Walsh in the same condition as when they were leased, barred a separate negligence claim by Walsh for damage to his property.

A vigorous dissent argued that the existence of a lease (contract) between Walsh (the landlord) and Cluba (the tenant) should not preclude a tort claim by Walsh against a stranger to the contractual relationship (Good Stuff) where Good Stuff caused real physical damage to Walsh’s property.  Indeed, the dissent’s position seems to be that Walsh should have a tort claim not only against Good Stuff, but against Cluba, where Cluba and Good Stuff caused physical damage to Walsh’s property.

As the dissent argued, this decision by the Vermont Supreme Court is arguably much more than merely a reaffirmation of the Economic Loss Rule.  It is arguably a broad expansion of the rule; essentially a holding that the existence of a contract between A and B negates any independent tort duty by B not to damage A’s property. 

This is an interesting decision from the Vermont Supreme Court given that other state supreme courts have recently cut back on the application of the ELR. 

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The Sharon Academy v. Massachusetts Bay Insurance Company, et al., Vermont Superior Court, Docket No. 442-7-13 Wncv (Feb. 25, 2015).

Relevant Facts:

Student goes on a study-abroad program in India (“Program”) sponsored by a Vermont school (“School”). The program is run and managed by a coordinator (“Coordinator”), and has both U.S.-based and Indian national employees in India.  Shortly after arriving, the student claimed that she was sexually assaulted by one of the Indian national employees of the program. Eventually the student files a lawsuit against the school and the coordinator in Vermont (“Underlying lawsuit”).  The underlying lawsuit alleges that the school and the coordinator were negligent in hiring and supervising the Indian national who (allegedly) assaulted the student. The school refers the claim to its insurer (“Insurer”). The insurer denies coverage under both a primary CGL policy and an umbrella policy. The insurer contends that the alleged assault occurred in India, which is not within the “coverage territory” of the CGL policy. Therefore, there is no coverage under that policy or under the umbrella. The school then sues the insurer for breach of contract and bad faith and, in the alternative, sues its insurance broker for failing to procure coverage. The school moves for summary judgment against the insurer, requesting a determination that the underlying lawsuit is covered. The insurer cross-moves for:  1) a determination of no-coverage, 2) to strike the school’s bad faith claim, and 3) for a determination that if it is required to cover the underlying lawsuit, it can choose defense counsel, rather than having to retain defense counsel of the school’s choosing.  The court granted the school’s motion, finding that the underlying lawsuit is covered under both the CGL and umbrella policies; that the insurer breached the policy by refusing to defend; and that the insurer must reimburse the school for reasonable defense costs incurred to date. However, the court rules that the insurer can retain defense counsel of its own choosing.

Here is a brief review of the court’s decision:

The primary CGL policy:

The court begins by citing and quoting cases that stand for the long-standing principles that if the claims in the underlying suit might be covered by the policy, the insurer must provide a defense, and that any ambiguities in the policy will be construed in favor of coverage.

The court notes that the policy includes a sexual molestation endorsement that includes the disputed “coverage territory” language. The sexual assault alleged in the underlying lawsuit describes injury that comes within the endorsement. The issue is whether the assault occurred within the “coverage territory.”  “Coverage Territory” in the endorsement is the United States, but also “all other parts of the world if the injury or damage arises out of the activities of a person whose home is in the U.S. but who is away for a short time on the insured’s business.” Thus, more specifically, the issue is whether the alleged assault arose out of the activities of a person whose home is in the U.S. but who was in India on the school’s business.  

Acknowledging that the “coverage territory” term of the policy has apparently not been litigated in Vermont and has been little-litigated elsewhere, the court concludes that there is coverage because the alleged sexual assault arose out of the student’s activities, and she lives in the U.S. but was in India for a short time on the school’s business.  

The court then rejects the insurer’s argument that the “coverage territory” definition above refers only to the alleged assaulter, i.e., the Indian national employee of the program.  The insurer argues that it was the assaulter’s, and only the assaulter’s, activities that specifically “caused” the alleged harm to the student, and that he, as an Indian national, is not within the coverage territory.  The insurer argues that, notwithstanding the allegations in the underlying lawsuit, the program's U.S.-based employees did not cause the student's harm.  The insurer argues that the phrase “arises out of” must be narrowly construed to mean “causation,” and that the assaulter – not the school, nor the program or its U.S.-based employees, nor the coordinator – is the only person who actually “caused” the student’s harm.  The court disagrees. It finds that the phrase “arises out of” is a broad term that includes much more than “causation.” The policy could have used the term “causation” instead of “arising out of,” but didn’t. The policy could have defined “arising out of,” but didn’t.

Because the court concludes that the student is a covered person, it does not address the school’s argument that its teachers/employees – who are alleged in the underlying lawsuit to have been negligent – are covered persons.

The umbrella policy:

The court notes that the umbrella policy contains two separate endorsements that exclude coverage for sexual molestation. But one of the endorsements (the 12/05 endorsement) contains an exception, which exception provides that the exclusion does not apply if there is coverage for sexual molestation in the underlying insurance (which, as explained above, the court found there was). The court rejects the insurer’s argument that only the endorsement without the exception (the 01/07 endorsement) should apply because that endorsement has a later date on it. The court finds that the two competing endorsements in the umbrella policy create an ambiguity that is to be construed against the insurer. The court rejects as unreasonable the insurer’s argument that the long string of numbers on the bottom of each page of the policy, including the two exclusionary endorsements, would inform the policyholder (the school) that the endorsement with the exception is overruled by the one without the exception because the latter one was added into the policy later. The court finds that the typical policyholder would not understand that an endorsement containing a string of numbers ending in “07” means that the endorsement is added later – and therefore invalidates – an endorsement containing a string of numbers ending in “05.”

Thus, the insurer must provide coverage for the school, and is in breach of the policy.

Defendant Coordinator:

The court agrees with the insurer that there is a fact dispute over whether the coordinator was an employee of the school, and therefore covered, versus whether she was an independent contractor. Therefore, the court denies summary judgment to the school on this issue.

The School’s Bad Faith Claim:

The court denies the insurer’s request that the school’s bad faith claim be stricken.  The court finds that the insurer’s behavior in this case could amount to bad faith. The court will allow the school to have discovery on this issue.

The School’s Defense Costs To Date:

The court agrees that, because the school was entitled to coverage all along, the insurer is liable to the school (but not to the coordinator – at least yet) for reasonable defense costs incurred to date.

Choice of Defense Counsel:

The court finds that although the insurer must provide a defense, it can do so with independent counsel of its own choosing, not the school’s existing, or preferred, defense counsel.  It relies on a 2011 Vermont superior court decision, Northern Ins. Co. v. Pratt, from another judge (now a Vermont federal judge) for this decision.  The Vermont Supreme Court has not yet addressed the issue of whether an insured can choose its own defense counsel, at the insurer’s expense, where there is a coverage conflict between the insured and the insurer.

Note that the court’s analysis under the CGL policy is different from the main argument that the school made. The school pointed out that the underlying complaint alleges that the school’s teachers/employees were negligent in hiring and supervising the Indian national who allegedly assaulted the student. The school argued that these persons were covered under the “coverage territory” definition in the policy because they were based in the U.S. Instead, the court found coverage based on the activities of the (allegedly assaulted) student in India. The school did cite to the court one case (Spears v. Nationwide) that construed this same “coverage territory” language in a situation where the insured’s employee was in the Ukraine and was the victim of an automobile accident there. In that case, the court found that the employee – the accident victim herself – was covered because the accident arose out of her activities. In this case the court did not cite Spears as support for its conclusion.  

Disclosure: the author of this article represents the insurance broker in this case.


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Nursing Home Staff Falsification of Records

Posted on February 18, 2015 03:32 by Alan R. Jampol

A frequent legal issue faced by nursing facilities is whether it had sufficient staff on hand to care for patients, and whether staff provided care as required by law. As a result, careful record keeping of patient care is necessary, and required, to ensure not only that care given is recorded, but to protect the facility from claims of negligence. Most nursing facilities require staff to not only take careful notes as treatment occurs, but to create weekly summaries of patients’ conditions and events. However, a problem arises when nursing staff are too busy to comply with this requirement. At times, the charting fails to occur at all, or worse, nursing staff create false records.

Often times the duty of creating a weekly summary is assigned to the night shift nurses. Unfortunately, sometimes staff is too busy with patient care to complete their paperwork, which may result in a failure to draft a weekly summary. This results in a patient’s chart containing only entries for care, rather than a summary of the week’s events. The significance of this failure is that it evidences the nurse’s failure to meaningfully review and summarize the patient’s chart. Such a weekly review requires the nurse to take note of the overall care plan of a patient, and any issues or signs that might point to a need to amend the patient’s care plan.

Worse still is the case where a reviewing nurse fails to review and create a weekly summary, and creates a false summary without a legitimate review of the chart. This can result in improper treatment of a patient, as well as a failure in staff to recognize significant issues or stay abreast of recent changes. The weekly summary is an important tool to care givers, and in fact, those providing care of aware of its importance and necessity to providing appropriate care. And such, a failure to maintain a weekly summary or falsification of the summary can evidence of conscious disregard of patient’s needs and of the facility’s duties.

A larger problem occurs when nursing staff not only fail to maintain the weekly summary, but fail to make any treatment notes as required each time a patient is checked on and/or treated. Falsification in this regard can easily be proven, where nursing staff recorded as having provided treatment can be demonstrated through time cards to not have been on duty. Falsification can occur by staff, realizing their failures, and attempting to cover up for themselves. However, more and more frequently such falsification is being committed by administrators who fear costly lawsuits.

While California has a zero-tolerance stance on falsification of records, and such falsification of a medical record is a misdemeanor in California, staff is rarely charged because falsification can be difficult to prove and time consuming to identify. Nonetheless, nursing facilities need to take great care in ensuring its staff is properly maintaining patients’ records to protect against claims of negligence.

In taking a stance against falsification of records, facilities should be aware of the more frequent instances in which it occurs: 1) by overworked or short staffed employees lacking sufficient time to complete paperwork; and 2) to cover up bad outcomes and limit liability. The most important thing a nursing facility can do to help prevent these circumstances is ensure it has sufficient staff on hand to provide proper care to all its patients. Facilities should also hold training sessions to educate staff members regarding record keeping requirements and techniques, as well as falsification of records. Not only should staff be aware that falsification will not be tolerated and of its criminal consequences, but they should also be trained regarding how to recognize falsification by other staff members.

This blog was first posted on Jampol Zimet LLP Insurance Defense Blog. Click here to read the original entry. 

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Categories: Fraud | Insurance Law

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The Insurance Broker and Dual Agency

Posted on January 12, 2015 08:58 by Marc Zimet

 Insurance brokers and agents know that their respective roles entail unique responsibilities and duties to their clients. Correctly defining an individual as a broker or agent is essential to determining the proper scope of representation and duties owed to the client. This can be difficult where lines are blurred and legally, the determination will depend upon the facts, not how the parties label themselves. Furthermore, it is possible under certain circumstances for an individual to act as both agent and broker. In these cases care must be taken to ensure the broker is meeting its standard of care and ethical considerations are adhered to.

Generally speaking, agency relationships, such as those found in the agent and broker context, arise via contract. While an agency relationship may be oral, in the case of an insurance broker and agent, it should always be in writing to ensure a clear understanding between the parties is documented, as well as to comply with Business and Professions Code.

Typically, brokers are agents of the insurer when it comes to issuing policies, certificates of insurance, collecting premiums, etc. The role of the broker as an agent is generally provided for in the contract between the insurer and broker, as well as the specific circumstances under which the broker has the authority to act as agent.

However, problems may arise where the role of the intermediary is not so clear. For example, where the broker is an agent of the insured, if the insured directs the broker to obtain insurance from a specific insurance company, the broker is also considered to be an agent of the insurer. In situations such as these, the broker may become an agent of the insured for purposes of obtaining coverage, as well as an agent of the insurer for other purposes. Generally speaking, agents are fiduciaries of their principals, owing to their principal the duty of undivided loyalty. One would therefore assume that the dual agency would put the broker in a precarious situation, which is generally not permissible in the realm of agency law. However, in the insurance arena, this dual agency is not always a conflict for the broker.

In California, it has been held that the broker’s duties to the insured do not rise to the level of a fiduciary. A broker need only act with reasonable care. (Workmen’s Auto Insurance Company v. Guy Carpenter & Company, Inc.(2011) 194 Cal.App.4th 1468.) Therefore, in California at least, the broker acting as dual agent will not run afoul of principal-agency law. While the courts have declined to impose the fiduciary duty on brokers, the fact of the matter is that under normal circumstances a dual agency in the context of insurance will rarely see a conflict of interest such as that that the prohibition is intended to prevent. This is because the broker’s responsibilities to the insurer and insured are independent of each other. For example, the broker can easily procure insurance for the insured and collect the premium for the insurer without conflict. Once the broker has obtained coverage as requested by the insurer, the agency relationship between the broker and insured terminates, thereby permitting the broker to continue to collect premiums and issue certificates on behalf of the insurer without any potential for conflict.

While brokers may act in a dual agency capacity, care must still be taken to act with reasonable care and prudence, and a broker may still be liable to insureds for failing to meet this standard. 

This blog was originally posted on January 6. Click here to read the original entry. 


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Corporate policyholders/insureds who have been sued share a common interest with their liability insurers—successfully defending those lawsuits.  Yet insureds and insurers often disagree on the choice of defense counsel and how much the insurer must pay toward legal bills.  These disputes are costly and, in most instances, can be avoided.

Many primary commercial liability policies purchased by corporate policyholders not only impose a “duty to defend,” but also afford insurers the “right to defend.” This express “right” allows the insurer, rather than the insured, to select defense counsel.  Upon seeking a defense under that policy, the insured has relinquished its right to select defense counsel.  

There are two schools of thought regarding whether the assigned defense counsel owes duties only to one client (insured) or to two clients (insured and insurer). Many courts have adopted the two-client or “tripartite relationship” theory, under which insurer-selected counsel (commonly “insurance defense counsel”) has an attorney-client relationship with both insured and insurer.  Where the insurer has agreed to provide a defense to the insured under a reservation of rights, and that reservation raises a conflict of interest such that defense counsel in theory could face divided loyalties, courts have held that the insured is entitled to a defense through counsel of its choice (“independent counsel”).  Most courts hold that not every reservation of rights creates a conflict of interest.  Rather, a conflict of interest has been found where coverage turns on facts or issues to be determined in the underlying action such that the insurer-assigned defense attorney would face a conflict in deciding how to conduct the defense given the duty of loyalty owed to both clients.  

Other courts follow the one-client theory, under which insurance defense counsel represents only the policyholder, not the insurer.  Therefore, the attorney owes no duties to the insurer. Accordingly, in the states following the one-client rule, a reservation of rights cannot give rise to the insured’s right to select its own counsel.

Policyholders often take the position they can select their own counsel, who normally charge higher hourly rates than insurance defense counsel.  The typical arguments include:  (1) the two-client/tripartite relationship model applies, and the insurer’s reservation of rights creates a conflict allowing the insured to select counsel; (2) the insurer’s litigation management guidelines constrain insurance defense counsel from exercising independent professional judgment in the insured’s best interests; and (3) the litigation is particularly important to the insured.  Even when the insurer might acquiesce in the insured’s choice of counsel, disputes arise as to the difference between the insured-selected firm’s proposed rates and the rates the insurer typically pays for that type of case.  Some states have addressed this issue by statute (e.g., California Civil Code Section 2860, limiting hourly rates to those the insurer ordinarily pays) or by case law.  Often, the dispute is left to negotiation and either a compromise (typically by which fees are shared between insurer and insured) or an agreement to disagree, coupled with litigation or arbitration.

There are several solutions to this recurring problem that can eliminate or substantially minimize disputes.  First, the issue can be addressed at the policy negotiation stage.  An insured may insist on controlling the right to select counsel, which often is achieved through a policy endorsement allowing the insured to select counsel or even identifying specific lawyers who will defend lawsuits.  An insurer may protect against a dispute over its future defense cost exposure by including policy language specifying the maximum rates it will pay to defend lawsuits or that it will pay no more than the hourly rates it ordinarily pays in the jurisdiction where a case pends.

Second, insureds should better appreciate that leading property and casualty insurers afford their insureds a full, high quality, and professionally independent defense (regardless of whether of a reservation of rights is asserted).  This is expected of all counsel engaged by insurers.  Significantly, the Defense Research Institute (DRI) Recommended Guidelines for Insurers and Law Firms, which are followed in whole or in substantial part by many insurers, provide: “Nothing contained herein is intended to nor shall restrict Counsel’s independent exercise of professional judgment in rendering legal services for the Insured or otherwise interfere with any ethical directive governing the conduct of counsel.”  Elsewhere the guidelines provide that “in the event of disagreement [over litigation strategy], the final decision will remain the independent professional judgment of defense counsel.”  Whether expressed in an insurer’s guidelines, an engagement letter, or as a matter of practice and expectation, all carriers expect assigned counsel to uphold the ethical obligations they owe their client, the insured.  Further, an insurer may consider emphasizing this reality by agreeing it has no attorney-client relationship with assigned counsel.  See  Michael M. Marick and Karen M. Dixon, “The Insurer’s Contract ‘Right’ To Defend–The ‘Tripartite’ Relationship Reconsidered,” 39 Tort Trial & Ins. Prac. L. J. 1119 (2004) (absence of an agreement in fact to an attorney-client relationship obviates the two-client model, and thus an insured’s ability to select counsel in reservation of rights situations).

Third, insureds and insurers should have an open-minded and transparent discussion on counsel selection immediately after a lawsuit has been filed.  Insurers may consider offering the insured several qualified firms from which to choose.  A “beauty contest” among potential law firms is often highly instructive.  Insurance defense firms often are selected by insureds, even in high exposure cases, both because of their capabilities and they will be paid fully by the insurer.  

Fourth, at the same time counsel is selected, insured and insurer should agree upon litigation management guidelines (including anticipated staffing and budgeting).  It is in the interest of all parties—insured, insurer, and attorneys—to reach a meeting of the minds at the outset of a lawsuit, which facilitates a cooperative and focused defense. Insureds approaching the discussion by taking the position that guidelines are not “binding” on their counsel miss the point.  Both by their language and implementation, leading insurers do not apply guidelines to constrain a lawyer’s ability to fully defend the insured.  Ongoing three-way communication throughout the life of a litigated matter will solve most billing and case management issues.

In sum, insureds and insurers can and should find common ground on how to properly defend high exposure lawsuits. There is no legitimate reason for insureds to be skeptical of an insurer’s counsel selection and litigation management protocols. An honest and open-minded dialogue from the beginning of a lawsuit, and throughout the litigation, should resolve most issues.  

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The V-8 Moment with Regard to Insurance

Posted on August 5, 2014 04:36 by Steve Crislip

Wow, I should have had professional liability coverage.  I remain amazed at how many lawyers forego such coverage. I do not understand that rationale since they would never risk their assets with an uninsured car or house.  Yet, they think this cost of doing business is too high or it somehow is not needed.

Even a totally bogus claim costs real money to defend.  It takes time and work to get these dismissed, with no return of the costs. Lawyers always seem surprised at the legal costs for such work when they send out similar bills each day.  Then if there is a meritorious claim or even a colorable claim, coverage is very much needed.

When I last looked only one state required legal malpractice coverage as a condition of licensing.  Many states annually require you to disclose whether or not you have such coverage for consumer knowledge. I wonder how many clients ever really check that, or if they even care.  If you err in their case, they will sue you regardless. Do not think they will not, just because you have no insurance.  You certainly do not want to explain to family members that they now need to take the bus, since your cars were attached to pay a malpractice judgment.  Just treat this like a business expense and get coverage, and get the right coverage.

You should shop for coverage with brokers and agents as well as Bar groups.  Be totally forthcoming in any applications so there is no reason for any carrier to later deny coverage. Price varies with the amount of risk you are willing to take by way of the deductible.  Sometimes that is just cost pricing with lower annual premiums for higher retention levels by you. Sometimes in order to get big policy limits for some specialty work, you are required to have a big deductible.  Bigger firms are used to that, but smaller firms must always be mindful of the amount of risk they can absorb and how much they can promptly pay for a defense.  Usually the deductibles are for both losses and for the defense of the claim.

At one time, professional liability policies were like your auto policy — occurrence based.  Were you insured when you had the wreck or act of malpractice, or not?  By the 1970’s, that type of coverage disappeared and all are usually claims-made, eliminating the open-ended coverage concerns.  So, now a lawyer needs to be covered when a claim is made and must therefore avoid any gaps in coverage.

Since claims can arise well after the act or occurrence, prior acts coverage was needed to cover such matters forward when changing carriers or policies.  A tail (extended reporting endorsement) or an endorsement for prior acts must be considered carefully when charging firms.  Someone either closing a firm or making a lateral move needs to consider this carefully.  See, “A Primer on Prior Acts Coverage,” Mark Bassingthwrighte, ALPS 411, May 27, 2014.

For example, working in a mid-size regional firm, it made no sense to take in a lateral lawyer and provide them with prior acts coverage under the firm’s policy.  There had been no quality control by the firm and there were totally unknown risks involved with the lateral’s prior work.  With a large deductible, it was just bad business to assume that liability.  Accordingly, all laterals were told to look to their prior carriers or firms for coverage up to the day that they just started at our new firm.  Going forward they were covered, even when they left, as long as our firm was viable and still covered.  A tail may be needed by them from their prior work, but if they were likewise leaving a viable ongoing firm with good coverage, maybe nothing was needed.

Complicated to some degree, but it is just a part of doing business as a lawyer.  You need certain things to practice and this certainly is one of them.  Just like paying the rent on the office, paying for the coverage in a timely manner, and getting the right coverage is kind of important.  Don’t be the person who thinks they will not be sued by their clients. 

Be advised that most are loss and claim deductibles for any expended fees and costs, as well as claims payouts.  Also, it is customary for you to have to pay your full deductible before any carrier pays anything.  So pick a deductible you can afford and then escrow the funds for it as soon as a claim surfaces.  By the way, give notice of claims promptly, again to avoid coverage issues.  See ALPS 411, Claims-Made Reporting Requirement, February 15, 2012.

This blog was originally posted on the Lawyering for Lawyers blog on August 5. Click here to read the original entry. 

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A New York trial judge’s recent decision in Zurich American Insurance v. Sony Corporation of America has set the legal blogosphere aflutter with arguments and counter-arguments as to whether cyber liability and data breach claims fall within the “Personal and Advertising Injury Liability” coverage section (Coverage B) afforded by most commercial general liability (CGL) policies. A new set of data breach exclusionary endorsements, however, filed in many jurisdictions by Insurance Services Office, Inc. (ISO) and set to take effect this month, May 2014, appear poised to end the debate over CGL coverage for these types of claims. But will they?

The issue in Sony was whether the underlying consumer class action claims brought in connection with the 2011 data breach of Sony’s Playstation network sought damages because of “personal and advertising injury” under Coverage B. Zurich’s CGL policy in that case featured the typical definition of “personal and advertising injury”, which included “injury… arising out of… [o]ral or written publication, in any manner, of material that violates a person’s right of privacy.” The New York trial judge held that this definition requires “some kind of act or conduct by the policyholder in order for coverage to be present”. Because “there was no act or conduct perpetuated by Sony”, but rather third party “hackers breaking into that security system”, the court held that Zurich’s CGL policy did not afford coverage for the claims against Sony. 

Courts in other jurisdictions have arrived at the opposite conclusion regarding coverage for cyber liability and data breach claims under Coverage B. See e.g. Netscape Communications Corp. v. Federal Ins. Co., 343 Fed.Appx. 271 (9th Cir. 2009); Tamm v. Hartford Fire Ins. Co., 16 Mass.L.Rptr. 535, 2003 WL 21960374 (Mass. Super. Ct. 2003).

As a result, ISO initially responded by including in its April 2013 revisions to its CGL forms an optional endorsement labeled “Amendment Of Personal And Advertising Injury Definition” (CG 24 13 04 13). This endorsement removes “injury… arising out of… [o]ral or written publication, in any manner, of material that violates a person’s right of privacy” from the definition of “personal and advertising injury” all together. This removal effectively defeats coverage in most cases for cyber liability and data breach claims under Coverage B. The problem is that eliminating this language from the “personal and advertising injury” definition also defeats coverage for the more traditional type of privacy claims typically covered by a CGL policy.

In contrast, ISO’s new exclusionary endorsements set to take effect in May 2014 are more narrowly tailored to the cyber liability or data breach context. For example, one of the new mandatory endorsements labeled “Exclusion-- Access or Disclosure of Confidential or Personal Information and Data-Related Liability-- With Limited Bodily Injury Exception” (CG 21 06 05 14) applies specifically to Coverage B:

This insurance does not apply to:

Access Or Disclosure Of Confidential Or Personal Information

“Personal and advertising injury” arising out of any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial information, credit card information, health information or any other type of nonpublic information.

This exclusion applies even if damages are claimed for notification costs, credit monitoring expenses, forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of any access to or disclosure of any person's or organization's confidential or personal information.

This endorsement features a similar exclusion for coverage provided by the “Bodily Injury And Property Damage” section of the standard CGL form (Coverage A). By removing coverage for claims “arising out of any access to or disclosure of any person's or organization's confidential or personal information”, the new endorsement certainly seems to target coverage for cyber liability and data breach claims. 

Policyholders likely will argue that ISO’s inclusion of these new exclusionary endorsements demonstrate that the standard CGL form, without these exclusions, necessarily provide coverage for cyber liability and data breach claims. Otherwise, the argument will go, there is no need for these new exclusions. That type of argument has had mixed success in other contexts. For example, insureds have argued that the presence of the “your work” exclusion in CGL policies serves as a concession that defective construction work claims necessarily meet the “occurrence” and “property damage” requirements of Coverage A. Insurers that issue or have issued policies without these new “Access or Disclosure of Confidential or Personal Information and Data-Related Liability” endorsements may face this argument. 

Insurers that do issue policies with these new exclusionary endorsements will have to show that they apply to cyber liability and data breach claims. Although the exclusionary provisions are new, carriers can expect policyholders to raise familiar arguments to try to defeat them. 

For example, many liability policies contain exclusions for bodily injury claims arising out of sexual acts, conduct or abuse. Those exclusions certainly eliminate coverage for the direct perpetrator of the act or abuse. Some jurisdictions, however, have held that those exclusions may not apply to claims against indirect tortfeasors, such as employers or parents of the direct perpetrator, under various negligent hiring, retention or supervision theories. The policyholder argument for coverage lies in the theory that the plaintiff’s claim against the employer or parent was one for injury caused not by sexual abuse or conduct, but by negligent hiring, retention or supervision. Whether courts will apply that same reasoning to these new data breach exclusions, and whether it even makes sense to do so, remains to be seen.

ISO’s new exclusionary endorsements appear designed to end the debate over whether CGL policies cover cyber liability and data breach claims. Whether those endorsements have ended the debate, or simply sent it in a new direction, will be decided by the courts in the upcoming years.

Michael L. Young is a partner in the St. Louis, Missouri, office of HeplerBroom LLC. His practice focuses on insurance coverage and civil appellate matters. This post does not necessarily represent the views of HeplerBroom or its clients and is not intended to serve as legal advice or to establish an attorney-client relationship. 


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