Employment practices liability insurance and wage-and-hour claims

When we started our law firm 22 years ago, a colleague gave me some very sage advice (which I guess came from bad experience):  Get your accounting straight from day one, and keep it straight.  To this day, whenever a fellow professional asks me about going out on his or her own, I give the same advice. But, having handled more than my share of employment practices insurance claims, I now add the following: Get your payroll legally straight from day one, and keep it straight.

Wage-and-hour lawsuits are not fun for employers.  Statistics show that plaintiffs’ lawyers are filing federal Fair Labor Standards Act lawsuits at the rate of about 9000 per year in federal court.  Some states (like New Jersey and New York) even expand liability for wage-and-hour violations beyond the company itself, to shareholders, officers, or directors. Scary stuff.

Now let me brighten your day even further. If you think your liability insurance company will protect you from wage-and-hour suits, you may have to think again.  Talbots, the women’s clothing retailer, recently learned that the hard way in a lawsuit captioned The Talbots, Inc. v. AIG Specialty Insurance Company, Civil Action No. 17-11107-RGS (D. Mass. Sep. 29., 2017).

Here’s what happened. Two former Talbots employees sued under California Labor Law, contending, among other things, that Talbots had failed to pay proper overtime. Talbots submitted the claim to AIG, which had sold Talbots a “Management Liability for Private Policies Companies” policy. The policy included both Directors & Officers liability coverage and Employment Practices Liability coverage. AIG denied the claim, and a federal court has now upheld the denial.

The D & O coverage contained an exclusion for claims based upon employment practices.  The idea, of course, was to encourage the corporate policyholder to buy separate employment practices liability coverage for additional premium, which Talbots did.  But, unfortunately, the EPL coverage excluded claims for violations of the Fair Labor Standards Act, or “similar state law” relating to the failure to pay proper wages for overtime pay.

Talbots tried several different arguments to get around the exclusions, but none of them worked. Talbots argued, for instance, that if the claim was excluded from the D & O coverage because it was an “employment practice,” how could AIG legitimately deny the claim under the EPL coverage, because it was not an “employment practice”?

The court, in a footnote, wrote: “This argument is completely beside the point. The D & O Coverage Section contains a broad exclusion for any claims arising out of employment practices, presumably because there is a separate section of the policy (the EPL Section) which deals with employment practices violations and defines with specificity what forms of violations are covered under the policy.”  So, no coverage under the D & O section because it excludes all employment practices…but the EPL coverage only applies to some employment practices (and not wage-and-hour claims).

As the British pop singer Bat for Lashes (a/k/a Natasha Khan) asks, “What’s a girl to do?” Well, if you’re unfortunate enough to be sued under state labor law for violation of overtime rules, and you learn that your EPL policy contains a “violation of FLSA or similar state law” exclusion, all may not be lost. Read the provisions of the state law very carefully.  The carrier must prove that the specific section of the state statute under which the plaintiff is suing is “similar” to an analogous FLSA section, not simply that both laws generally address wage-and-hour issues.  Also, most EPL forms contain coverage for misrepresentations made to employees.  Check to see whether plaintiffs’ counsel has alleged (as is common) that employees were told that they were “exempt” from overtime requirements when they actually weren’t exempt.  That may be enough to trigger coverage.

Of course, an ounce of prevention is worth a pound of cure. Consult with your broker before claims happen.  You might be able to buy an endorsement that gives you at least some protection on the wage-and-hour front, for example.  My friend Rob Sobel, Senior Vice-President at the excellent insurance brokerage Cook Maran in Fair Lawn, NJ, says:  “Not all insurance companies offer wage and hour coverage. In those insurance markets that do, the limit of liability is generally $100,000. The limit can be found either memorialized in the standard policy language or can be added by endorsement.”

Clients often ask me why they bothered to buy insurance at all, since claims that they thought would be covered are swallowed up by a bewildering array of exclusions and limitations. Insurance companies (and some judges) love to say that policyholders have a duty to read their policies, but really, unless you have a lot of experience in deciphering insurance-speak, the policies might as well be written in Sanskrit. Talbots is a major, publicly-traded company, and I doubt whether it will have any trouble weathering the wage-and-hour suit discussed above, even without insurance. But for middle-market companies or smaller businesses, gaps in coverage can be catastrophic. And no, this is not where I say “You should have your entire coverage program reviewed by an experienced professional, i.e., me.” This is where I say that, when it comes to insurance, the best thing you can do is prevent claims from ever happening in the first place. With respect to employment and labor law, consult with a good employment attorney and make sure that you’re following all relevant payroll regulations, that your employment manual is up to date, and that your managers have been trained in how to prevent unnecessary employment lawsuits from happening.

Is Lloyd’s of London a racketeering enterprise?

I have a fair amount of experience in litigating coverage disputes under Lloyd’s of London policies. Let’s just say that, because of the labyrinthine structure of the organization (if it IS an “organization”), pursuing coverage under Lloyd’s policies can be like trying to nail Jell-O to a wall.

You can’t just sue “Lloyd’s of London,” for one thing, because Lloyd’s of London itself isn’t an insurance company; it’s an insurance “market.” It’s kind of like getting sick on food you buy from a stall at a farmer’s market. You have to sue the people who own the stall that actually sold you the bad food, not the “market,” which often isn’t a living, breathing legal entity.  Then there’s the joy of settling a claim under a Lloyd’s policy for let’s say $500,000, and having your adversary tell you that you’ll only be receiving $50,000, because 90% of the syndicates who underwrote your policy have gone belly-up. And taking testimony from people who work for the syndicates can be fairly confrontational in a charming, cockney kind of way.  I think I may hold the record for the shortest deposition of a Lloyd’s claims person ever, which I took over the phone. It was 25 years ago, but as I recall, the guy gave me a hard time about spelling his name for the transcript, and then indicated obliquely but pretty strongly what I could do with my client’s insurance claim. I told him I was in no mood to play games, so if this was the way he intended to conduct himself, he should leave and let me talk to someone who took the process seriously. He accepted my offer to have him vacate the premises, and, amazingly, the next witness was overwhelmingly cooperative. (I think defense counsel, worried about sanctions, told Witness No. 2 to behave.  But my BigLaw boss was unhappy anyway.  He thought I should’ve stuck to my script with the first guy. That’s part of the reason I’ve owned a small firm for the past 22 years.)

That brings us to the recent decision in Lincoln Adventures, LLC v. Certain Underwriters of Lloyd’s of London, 2017 U.S. Dist. LEXIS 136684 (D.N.J. Aug. 23, 2017), a class action in which a group of business policyholders contend that Lloyd’s underwriters, and the brokers who place Lloyd’s policies (including major brokers like Marsh, Aon and Willis), have been less than honest with the public, and have essentially engaged in a sort of illegal hidden kickback scheme.  I want to emphasize here that the allegations have not been proven, and the case is still ongoing. But a recent decision in the case is worth reading, simply for the extensive description of what Lloyd’s is and how it operates.

The Court wrote, for example:

“Lloyd’s of London itself is not an insurance company. Rather, it describes itself as the ‘World’s Specialist Insurance Market’ whose members – insurance companies, limited partnerships, individuals, and other entities – form syndicates, including Defendants, which underwrite insurance policies. Each syndicate maintains and staffs a physical office or stall on the premises of the Lloyd’s Market at Lloyd’s headquarters in London. Syndicates do not sell insurance directly to customers; rather, customers access the Lloyd’s Market through authorized broking firms or other intermediaries of which Lloyd’s approves… Lloyd’s represents to its customers that the Lloyd’s market is competitive. As of January 7, 2016, the Lloyd’s website stated that its syndicates ‘compete for business, thus offering choice, flexibility and continuing innovation.’”

The idea that the Lloyd’s market is “competitive” is the potential problem. According to the plaintiffs, Lloyd’s really isn’t competitive at all: “Plaintiffs contend the Lloyd’s Brokers and coverholders contribute to and conceal the anti-competitive nature of the Lloyd’s Market in exchange for commissions that they do not disclose to their clients. In the Lloyd’s Market, broker compensation can account for nearly 40% of the insurance premiums, and these costs are passed onto insureds. Indeed, according to Defendants’ data, on average, brokerage and commission payments during the relevant time frame were 22% in the Lloyd’s Market, compared to 12% in the United States property and casualty market. According to Plaintiffs, the syndicates can only pass on the costs of these commissions and fees because of the anti-competitive nature of the market.”  (A “coverholder” is an insurance intermediary authorized to enter into insurance policies to be underwritten by a particular Lloyd’s syndicate.)

Based on these fairly detailed allegations, the Court ruled that the suit can go forward, despite defendants’ efforts to have it dismissed. The stakes are high, because the plaintiffs have included a claim for violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1961 et seq., which allows for the recovery of treble damages and attorneys’ fees.

I’ve been resolving insurance claims on the policyholder side for 30 years. So, naturally, I’ve met a lot of insurance brokers and agents over the years, and a lot of them are personal friends.  (Except for the select few I’ve had to sue for messing up my clients’ coverage, but that’s another story…)  They’re in a tough spot.  On the one hand, they’re in the business of selling insurance at competitive rates, so they have to maintain their relationships with the carriers.  On the other hand, they’re expected to advocate for their policyholder-clients, both with respect to premium rates and with respect to disputed claims.  The courts tell us, in fact, that “insurance intermediaries…must act in a fiduciary capacity to the client because of the increasing complexity of the insurance industry and the specialized knowledge required to understand all of its intricacies….Brokers …hold themselves out as having more knowledge than members of the public with regard to the insurance policies and coverage they procure…A broker is not an ‘order taker’ who is responsible only for completing forms and accepting commissions.”  Aden v. Fortsh, 169 N.J. 64, 776 A.2d 792, 803 (2001).

I was also interested in the fact that, in the Lincoln Adventures case, plaintiff’s counsel cited (and the court picked up upon) statements made by Lloyd’s and the defendant brokers on their websites, about the supposedly competitive quotes available through the Lloyd’s market. Social media and websites often provide truckloads of ammunition for savvy lawyers in court. When the marketing department and the legal department aren’t on the same (web) page, look out.

It’ll be interesting to see whether the plaintiffs can prove their case, which, in any event, serves as an excellent warning to insurance professionals of the requirement of transparency in dealing with their clients.

Forum selection clauses in insurance policies

My wife has been pestering me to get out of an unused gym membership for some time.  See, as a lawyer, I probably shouldn’t admit this, but I neglected to read the small print in the contract. It said that, unless I canceled in writing, the contract would automatically renew for one-year terms (kind of like the dreaded Lexis and Westlaw contracts), and if I wanted to cancel, I had to follow a certain procedure. Which I have done. Multiple times. But they’re not getting the message, so I will now need to waste time actually going to the health club to straighten things out. It’s on my to do list, but I don’t know when it will happen.

The pesky “fine print” in contracts can cause many problems, and sometimes those problems go beyond mere annoyance. One thing for you to be aware of, if you’re in risk management: Lately, more and more insurance policies are including “choice of forum” clauses that are extremely unfavorable to policyholders. Busy courts, looking to clear their dockets, are inclined to enforce such clauses, no matter how unfair that seems.

I thought of this recently, when I read a decision from the Western District of Pennsylvania involving Dick’s Sporting Goods.  Dick’s allegedly sold an inflatable exercise ball to an unlucky customer named Donald Royce, in Pennsylvania. According to Royce, when he attempted to use the ball, it collapsed, and he was seriously injured. (Ouch.  I’ve been eyeing my own exercise ball suspiciously after reading this case.) He brought suit against Dick’s in Philadelphia County Court.

Dick’s was an additional insured under a products liability insurance policy sold by the “People’s Insurance Company of China” (PICC). Unfortunately for Dick’s, the policy contained a forum selection clause, reading in part: “All disputes under this insurance arising between the Insured and the Company shall be settled through friendly negotiations. Where the two parties fail to reach an agreement after negotiations, such dispute shall be submitted to arbitration or to court for legal action. Unless otherwise agreed, such arbitration or legal action shall be carried out in the place where the defendant is domiciled.”  (Emphasis mine.)

I think you can see where this is going. The negotiations between Dick’s and PICC weren’t so “friendly,” and the policy was sold through a PICC branch located in Suzhou, China, west of Shanghai.  According to Trip Advisor, there are many interesting things to do in Suzhou (see link here), but Dick’s felt that litigating an insurance claim probably wasn’t one of them, and argued to the Court that the forum selection clause was unfair and shouldn’t be enforced, since all the facts relating to the claim took place in Pennsylvania, which is pretty far from mainland China.

Bon voyage to your claim, said the Court, writing: “[Dick’s] did not meet its burden of showing that the destination forum, China, is seriously inconvenient for the trial of the action. Beyond the obvious fact that China is on the other side of the globe from Western Pennsylvania, [Dick’s] did not demonstrate why litigation in China would be seriously inconvenient. The…insurance contract designated Dick’s Sporting Goods International Limited, a Hong Kong Limited Liability Company, as an ‘other insured.’ While no further information on the extent of [Dick’s] Chinese business activities is before the Court, [Dick’s] has a Chinese corporate presence via a Hong Kong business entity. Thus it is not ‘seriously inconvenient’ for [Dick’s] to bring this action in China.”

Personally, I don’t really think the Court needed to go beyond the “obvious fact.”  Most of the relevant witnesses and evidence are in Pennsylvania.  But, of course, I’m not wearing a black robe.

So what does this all mean for you?  Well, while your insurance policy may not require you to litigate coverage disputes in China, it may contain other types of nasty forum-selection or choice of law clauses. Lately, for example, we’ve been seeing more and more insurance policies that require the policyholder to arbitrate coverage disputes.  That can be costly, and it removes the threat of a jury trial from the insurance company.  To give a real world example, not long ago, we represented a manufacturing company against a major insurance company in a dispute over a retrospective rating program. The relevant agreement, unfortunately, required arbitration before a panel of three insurance executives. While we succeeded on some claims, the damages award was nowhere near what we thought was appropriate, and the cost of paying three arbitrators was extreme.

The law is full of fiction. (I was going to use a different word, but I’ll settle for “fiction.”) Included in that fiction is the idea that policyholders are responsible for reading and understanding their insurance policies. Insurance policies are often an impenetrable thicket of incomprehensible jargon, and contain many hidden loopholes. Since even experienced judges in different states often disagree on what the terms in insurance policies mean, it’s sort of ridiculous to suggest that normal policyholders are on a level playing field, and that all they need to do is read their policies to know how the contract works. But, in any contract you’re dealing with, including an insurance policy, you should always be on the lookout for “choice of forum” or arbitration clauses requiring you to litigate coverage disputes in an unfavorable place or faraway land. If you see such a provision, try to negotiate out, or try to find another carrier who will sell you similar coverage without the forum selection cause. (By the way, it’s not too hard to imagine a theory of professional liability against insurance brokers for not advising their clients of draconian forum selection clauses.)

Also keep in mind that being an “additional insured” may not offer you the level of protection you think it does.  But that’s a topic for another day.

New Developments in Insurance Broker Liability

We had a broker liability case not long ago involving a manufacturing facility on the banks of the Hudson River that got wiped out by Sandy.  The client had no flood coverage.  We argued that, under the particular circumstances of the case, the broker had an obligation to price the market for flood coverage, and to advise the client of available limits.  The case eventually settled for a significant amount. (It helps to have a good testifying expert on your side.  An “expert” is someone who wasn’t there, but for a price, will gladly tell you what happened.  Kidding, kidding.)

Our adversary in that case (a friend) has been lamenting to us the fact that we settled before the recent unreported New Jersey Appellate Division decision in C.S. Osborne v. Charter Oak Fire Ins. Co., which you can read here.  As described by our friends at the insurance defense firm White and Williams here, the C.S. Osborne Court held that “absent a special relationship, a carrier or its agents has no common law duty to advise an insured concerning the possible need for higher policy limits upon renewal of a policy.”  Under the facts of C.S. Osborne, no such “special relationship” existed.  (Chris Leise, a top-notch defense lawyer with whom I’ve spoken at insurance law seminars in the past, was lead counsel for the broker in C.S. Osborne.  You can read Chris’s bio here.)

Of course, no one knows what in the hell a “special relationship” means, including the judges who say or write it. Candlelight dinners? Long walks along the beach while holding hands? Taking Zumba classes together?

Let’s briefly consider the facts in C.S. Osborne and try to figure out why no “special relationship” existed.  C.S. Osborne is a company that makes hand tools.  The company has its headquarters and a manufacturing facility in Harrison, New Jersey, on the banks of the mighty Passaic River. They also have a facility in St. Louis.

C.S. Osborne’s insurance broker, Bollinger, placed the company’s commercial insurance program. The policy generally excluded water loss, but included $1 million of flood coverage. Bollinger’s March 2012 renewal proposal specifically stated: “Higher limits or sub-limits may be available so please advise us if you are interested in higher limits options so that we may secure quotations for your consideration.”  (I think the Court probably could have decided the case in the broker’s favor based on this statement alone, without an extended discussion of the law.)

Nobody called the broker to ask for an increase in limits, and, in October 2012, Sandy hit. There wasn’t enough flood insurance to cover the loss, and, this being America, C.S. Osborne sued the broker.

C.S. Osborne argued that the broker had a “special relationship” with C.S. Osborne, and therefore a higher level of duty, because it been handling C.S. Osborne’s account for 11 years. A broker representative had toured the Harrison facility at least twice, and there was correspondence indicating that the broker, after assessing C.S. Osborne’s risk profile, had recommended terrorism coverage and products recall coverage, as well as other types of coverage, for the company.

Also, Bollinger’s account manager often socialized with C.S. Osborne’s President at monthly board meetings of the local cemetery. (I want to party with these guys!)

Not enough, said the Court. But, in so doing, the Court completely dodged the issue of what would constitute the requisite “special relationship” that would heighten the broker’s duty, stating only: “Bollinger never told plaintiff anything that would reasonably cause plaintiff to rely on his quotes as recommendations for the proper amount of insurance coverage,” and “[a]n insurance broker is not an insurance consultant; if plaintiff wanted an insurance consultant, it could have retained one.”

That last statement, for which the Court cited no authority, is particularly puzzling. Most major brokerages tell clients that they’re in the risk management business, and help clients identify risks and place necessary coverage. Bollinger has recently been purchased by Arthur J. Gallagher Insurance Services, for example, and the AJG website reads in part: “Gallagher’s Casualty Practice team is focused on developing and delivering the unique professional and general liability solutions you need, including primary and excess insurance coverage, to help you grow your business. It is a comprehensive evaluation of your risk exposure and a snapshot of your total cost of risk.  Most brokers consider liability coverage to be part of a standard package. Gallagher’s team of professionals understands that your situation demands a tailored solution to handle any unique needs.”  (Emphasis added.)

Where does this leave us in terms of figuring out the standard of conduct that brokers must meet? Nowhere, really. If you’re on the brokerage side, though, you’d probably be better off having the client check a box stating that the client has reviewed the limits, and considers them adequate. (If you’re a broker, you should also be doing this for high-exposure risks, like flood and cyber-liability.) If you’re on the policyholder side, it’s very important to understand what your broker will and will not do, and to review your contractual relationship with the broker to make sure that you’re entirely comfortable with it. If you’re relying on the broker to be your outside risk manager (as many small and middle market companies do), the agreement should spell that out, so that if limits are inadequate or other problems occur, you may have recourse.

But really, the law aside, you know your business best, and should always take a proactive role in reviewing the basics of your insurance coverage program to make sure whether the coverage makes sense for you.

Demands for insurance policy limits in a serious liability case

Earlier this month, I was asked by Elizabeth Lorell, an excellent defense lawyer, to speak at a CLE conference sponsored by her law firm.  (You can read Elizabeth’s bio here.) The audience consisted of other defense lawyers, and insurance company claims representatives.  In other words, I was basically a snake at a mongoose convention.

The group wanted the policyholder’s perspective on demands for policy limits in liability cases, a situation we often see when there are relatively low limits and high potential liability. The key case in New Jersey, of course, is Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474 (1974), which you can access here.

Rova is a horrible situation to read about. Back in the sixties, a 27-year-old guy (McLaughlin) took a header off a diving board at a resort and was rendered a total quad because, unbeknownst to him, the water was only about three feet deep.  That’s bad enough, but the insurance company’s response made things worse.  Rova Farms (the resort owner) had a $50,000 primary liability policy.  The carrier offered only $12,500 to settle the personal injury lawsuit (that’s amazing), and refused to move off that number.  The carrier apparently intended to argue, with no evidence whatsoever, that McLaughlin must have been imbibing heavily before his tragic dive, and that would somehow result in a defense verdict.  It didn’t.  The jury came back with $225,000 (big money back then), and the carrier was eventually held liable for the entire amount of the loss, including the amount in excess of policy limits.

Following Rova, it’s been standard practice for plaintiff’s lawyers (and coverage counsel) to send letters to carriers demanding limits payouts. Maybe I shouldn’t be saying this as an attorney who represents policyholders, but a Rova letter does not, in and of itself, create “open limits” exposure for the carrier. The key is whether the carrier has exercised good faith business judgment in deciding whether to take a case to trial, or not. That is to say, has the carrier evaluated the case as though no excess coverage existed, and as though the interests of the carrier and the policyholder were identical? The Rova Court defined a good-faith evaluation as including “consideration of the anticipated range of a verdict, should it be adverse; the strengths and weaknesses of all of the evidence to be presented on either side so far as known; the history of the particular geographic area in cases of similar nature; and the relative appearance, persuasiveness, and likely appeal of the claimant, the insured, and the witnesses at trial.”

In this digital age, there’s no justification for a claims department to stake out a “no pay” or low pay position without having conducted focus groups and basic jury research to determine the likelihood of an adverse verdict. And, in any coverage litigation, the lawyer for the policyholder should be actively asking for all evidence of the carrier’s assessment of liability.

There’s an interesting side issue in the Rova case, that appears in the concurring opinion of Justice Clifford. Because of allegations in the underlying complaint that the behavior of the policyholder (Rova Farms) had been wanton and reckless, the carrier advised the policyholder to obtain independent counsel, with respect to allegations in the complaint that might not be covered because they went beyond mere negligence. Once independent counsel became involved, he pressed the carrier to settle the case within limits, knowing (but not disclosing) that his client would contribute $25,000 if the carrier paid in its full limits of $50,000, and that $75,000 would settle the case. Independent counsel did not tell the carrier that he had the $25,000 commitment from the policyholder, because he was afraid that the carrier would then not pay in its limits to get the case settled. The Court held that his suspicion was well-founded, and that the lawyer’s behavior was proper and ethical. But I note the following statement from Justice Clifford: “[The carrier] chose to treat its insured’s personal attorney as an adversary and failed to initiate a cooperative and bipartisan approach to settle.”

Insurance carriers should always remember that independent counsel can be an invaluable resource. This is a fresh set of eyes looking at the case, who can give an honest of the potential for liability, which the carrier should take very seriously.  The carrier and independent counsel are in fact natural allies, trying to drive the plaintiff’s number into a reasonable range.

In any event, the lesson for policyholders is clear: If you think that the potential exists for verdict in excess of policy limits, show the carrier why, and create an objective paper trail that can later be used in coverage litigation. For carriers, the lesson is equally clear: if you’re going to gamble with your policyholder’s money, you’d better be sure that your claim file reflects an honest and thorough evaluation of the facts and potential liability.

Rova should be required reading for anyone involved in the liability insurance claims handling process.

By the way, as I was writing this, I learned that a Massachusetts appeals court recently shed some additional light on the “open limits” issue.  Caira v. Zurich American Ins. Co. (which you can read here) involved a car wreck.  David Madigan-Fried was driving a car he’d rented while working for his employer, Groom Construction Company.  Michael Caira was injured in the accident.  Caira offered to settle with Groom’s primary carrier, Zurich, for the $1 million primary limit, but said he wouldn’t release Madigan-Fried or Groom, since he intended to pursue damages over $1 million.  He’d agree, however, to go after the excess damages from Groom’s excess carriers only, and not from Madigan-Fried personally or from Groom itself.

Zurich said, nah. Release the insureds too, or no deal.  But Caira insisted his damages were over $3 million, and refused to provide the global release.  After much wrangling, the underlying case eventually settled for $900,000 – Zurich’s remaining policy limit of $770,000 plus $130,000 contributed by an excess carrier.  As part of the settlement, Caira retained his right to sue Zurich for alleged bad faith.  Caira’s theory was essentially that Zurich had a good-faith obligation to facilitate his ability to collect full damages from the excess carriers, despite contributing its policy limit.

Go away, said the appeals court, writing:  “An insurer who acts in good faith to protect the interests of its insured from additional liability will not be deemed to have committed an unfair settlement practice…. An insurer need not forsake its demand for a release in order to enable a claimant to collect additional damages, either from the insureds themselves or from an excess insurance policy.”

So, Zurich avoided excess liability (“open limits”) by placing the interests of its policyholders first and foremost.

Allocation of insurance coverage for mass torts

I was lucky enough to be invited to speak at a CLE conference in New York last week on the subject of mass torts.  (Full disclosure:  I was on the wedding “B list.”  My good friend Jeff Pollock, a fantastic policyholder-side lawyer, had to cancel at the last minute because of professional commitments, and I got parachuted in.  That’s OK, I have no pride…)

Our panel dealt with insurance coverage issues (naturally), and I was joined by Judge Victor Ashrafi, an excellent judge who previously served on the trial bench and the Appellate Division here in New Jersey, and who now has an ADR practice; Cheryl Vollweiler, a top-flight coverage lawyer who represents insurance companies and who was nice to me despite the fact that I represent policyholders and am therefore obviously misguided; and Chris Placitella, one of the best plaintiffs’ lawyers around.

One of the questions posed by the program organizers to our panel was: “Does coverage necessarily mean payment?”   Everyone’s a comedian these days.

Let’s recap one part of my discussion, about allocation (a/k/a where valid claims go to die).  After the lawyers have their fun, most complex insurance disputes come down to the issue of how losses will be allocated across triggered policies.

Here in New Jersey, before the Supreme Court got involved in 1994, allocation was pretty simple. If you had a bunch of triggered policies, the policyholder simply picked one as the primary source of recovery, and then that carrier worked out allocation with the other carriers — only after the policyholder was protected. Naturally, the insurance industry didn’t like that very much, because it made life too easy for policyholders. So they battled to change it, and, in 1993, the New Jersey Supreme Court handed down the landmark allocation decision in Owens-Illinois v. United Ins. Co., 138 N.J. 437 (1994), which, in a laudable effort to make things “simple” and “just,” created a panoply of issues that didn’t exist under the old “pick and choose” method. Basically, under Owens-Illinois, you add up all of the limits of the triggered policies, which become the denominator in a fraction. To figure out how much loss gets allocated to a particular policy year, you add up the policy limits for that year, and make it the numerator in the equation. That fraction is the answer to your question. Simple, right?

Except it’s not. For one thing, what happens if an insurance company says “no pay,” forces you to fight a protracted battle on coverage issues, and then, only after coverage is established, tries to create an allocation that’s unfavorable to you? Let’s say, for example, that the carrier takes an expansive view of policy years that have been “triggered,” in an effort to pass as much of the loss onto you as possible. Owens-Illinois says that for triggered years in which you can’t find your old policies, or made a conscious decision to self-insure, you get stuck with the liability allocated to that year. (It also says that the triggered period ends when no coverage is reasonably available for a particular type of loss. For asbestos, that would be in the mid-1980s when asbestos exclusions started to appear.)

Owens-Illinois specifically says: “Insurers whose policies are triggered by an injury during a policy period must respond to any claims presented to them and, if they deny full coverage, must initiate proceedings to determine the portion allocable for defense and indemnity costs.”  To me, that means that if the insurance company denies outright, and does not commence the required allocation proceeding, then that insurance company should be liable for the entire loss if coverage is proven. That’s precisely the argument I made years ago in Universal-Rundle Corp. v. Commercial Union Ins. Co., 319 N.J. Super. 223 (App. Div. 1999), an environmental coverage case in which I also managed to destroy bad faith law in New Jersey (but that’s another story).  The trial court agreed with me. After all, Owens-Illinois says what it says. But the appeals court essentially said: “Yeah, it says that, but it can’t possibly mean that.” In other words, insurance companies can deny coverage, and then, only after being proven wrong, substantially limit their liability through allocation proceedings. And now, thanks to the recent decision in Honeywell, which I previously discussed here, you may not even be able to get your attorneys’ fees back.  Ugh.

Of course, the problem doesn’t end there.  Owens was later supplemented by the decision in Carter-Wallace v. Admiral Ins. Co., 154 N.J. 312 (1998), which involved the allocation of loss to excess policies. In fact, the Carter-Wallace decision was a fight between excess carriers, and the New Jersey Supreme Court said on the first page of the opinion: “This appeal…requires us to determine how the responsibility of an excess insurer is measured in the context of environmental damage with a continuous trigger of liability over many years.”

What happens, though, in a case in which excess layers won’t be reached? I have an asbestos coverage case in the office right now involving precisely that issue. Our client, a manufacturing company, suffered the unfortunate fate of somehow winding up on a plaintiffs’ lawyers list, even though there’s never been any proof that any plaintiff was exposed to asbestos-containing products having anything to do with the company. Defense costs have been incurred, primarily in connection with filing successful motions to dismiss. There have been no judgments against the client, and only a few small settlements (done for business reasons). The primary insurance company’s corporate designee admitted under oath that there was no possibility that excess coverage would ever be reached. But the insurance company nevertheless insisted that all policies, no matter how high up, had to be included in the insurance allocation. The purpose, of course, was to drop the insurance company’s exposure to the bare minimum, because in later years, my client bought substantial excess coverage, as did many companies.

I told the court, that can’t be right. Look at the specific language of Carter-Wallace. It says that it only applies in cases where excess policies are triggered.

Yeah…nah, said the judge, making me feel like My Cousin Vinny in this scene.  So, all of the policies, no matter how high up, got thrown into the allocation, and my client, to use sophisticated legal terminology, got the short end of the stick.

Why am I giving you all these negative waves (to quote Oddball in “Kelly’s Heroes”)? Just keeping it real. Insurance companies have unlimited resources, and at the end of the day, when you win on liability (and you probably will), the little gremlins like allocation are likely to make you wonder why you ever went through the exercise in the first place. My advice is to redouble your efforts on loss control before problems happen. If you find yourself in a dispute with your insurance company, try to get to an allocation settlement table as soon as possible. Be proactive by hiring someone experienced in the economics of insurance (Justice O’Hern’s words in Owens-Illinois) to prepare proposed allocations for your carrier. Remember, as far as your bottom line goes, a less-than-optimal settlement usually is far better than fighting a two-front war, one against underlying plaintiffs’ counsel, and one against your insurance company’s (anti) coverage litigators.

Ambiguity in insurance policies

It’s hard to believe that it’s been over four years since Superstorm Sandy hit New Jersey. Back then, figuring that discretion was the better part of valor, I gathered up my family and drove out to Pennsylvania to wait out the storm. (I still take abuse for that tactic from one of my neighbors, who insists it wasn’t a “manly” thing to do. I think he’s being sexist.) As it turned out, I was very lucky and the storm didn’t damage my home or my office. We were, however, essentially out of business for three weeks. I remember sitting in my hotel room and thinking that, if the electricity didn’t get turned on in New Jersey soon, we soon might be out of business.  (Many thanks to my good friend Dave Oberdick, an excellent lawyer, who bought me a few Pennsylvania beers one day to help me cope.)

Because I’m not the sharpest tool in the shed, I neglected to consider that we do a lot of insurance coverage work here. When we got back to the office, the telephone started ringing, and didn’t stop for a long time. In fact, some of our Sandy cases are just now moving toward a conclusion.  It’s amazing how long it’s all taken.

One of the iconic Sandy images involved a crane collapse in New York City at a 74-story skyscraper that was under construction. (Alas, we didn’t handle that one.) The building owner was a named insured on a program of builders’ risk insurance in the amount of $700 million, which was the total estimated cost of the project. The carrier denied coverage for the crane collapse (of course), and, this being America, coverage litigation ensued. The question in the coverage case (Lend-Lease (US) Const. LMB Inc. v. Zurich American Ins. Co.)  was whether the policy covered damages resulting from the weather-related harm to the crane. A main issue was the potential applicability of an exclusion in the policy for “tools, machinery, plant and equipment”.

The policy provided coverage for damage to “temporary works” that were “incidental to” the project. The New York Court of Appeals (New York’s highest court) found that the crane qualified, because the crane was supposed to be removed when the project was over, and the installation and disassembly of the crane were “incidental” to the construction.  So far, so good. But the Court still had to deal with the contractor’s tools exclusion, which the carrier argued applied to the crane.  The policyholders (fairly) argued, how can that exclusion apply, when the crane is a covered “temporary work” under the policy? That would be using an ambiguous exclusion to make the coverage for “temporary work” illusory, which is an insurance law no-no.

Pshaw, said the Court: “An insurance policy is not illusory if it provides coverage for some acts [subject to] a potentially wide exclusion.” Here, said the Court, the “temporary works” coverage wasn’t illusory at all, because it provided coverage for other stuff, like fences.  (Which would be great, except the policyholders weren’t seeking coverage for damage to fences…)

Here’s the interesting part.  In the opinion, the Court recited the principles of insurance law with respect to whether or not insurance policy provisions are “ambiguous,” so that they have to be construed in favor of the policyholder. The Court wrote, for example: “Where the policy may be reasonably interpreted in two conflicting manners, its terms are ambiguous, and any ambiguity must be construed in favor of the insured and against the insurer.”

Then, with respect to the contractor’s tools exclusion, the court noted that two justices in an intermediate appellate court had “concluded that the application of the contractor’s tools exclusion effectively would defeat all of the coverage granted in the first instance by the policy’s temporary works provision, and that such exclusion therefore is unenforceable as a matter of public policy.”  (Emphasis mine.)

So I ask you, the reader:  If several highly-qualified appellate-level judges construe an insurance policy provision in diametrically opposed ways, then isn’t that provision by definition “ambiguous”?  (Don’t expect an answer to that one from any Court.)

Businesses sometimes ask me to review their insurance coverage program and tell them whether they’re protected against loss. I generally tell them that they’re looking at the problem incorrectly. An insurance policy is not, in many instances, protection against loss. An insurance policy simply creates the right to sue an insurance company if something goes wrong — and the outcome of that coverage suit is usually uncertain. This case is another example of that unfortunate fact. So: Never let the insurance tail wag the dog. Make sure you’re doing everything you can to prevent loss in the first place.

You can read the decision here.  And you can watch the argument in the New York Court of Appeals here.

Limitations periods and notice provisions in insurance policies

When I was a kid in Maplewood, New Jersey, our next-door neighbor was a feisty Irish widow named Anne Byrne.  (She was related to our former Governor, Brendan Byrne, but I forget how.)  When I would do something stupid, which usually involved putting some kind of ball through one of her windows, she would grab me by the ear, look me in the eye and ask: “When are you going to learn to use your head for something other than a hat rack?”  (This was back in the days before safe spaces.)

I still occasionally do dumb things (okay, if you ask my wife, more than occasionally), but 30 years of practicing insurance law have taught me that one of the dumber things we can do is lose insurance coverage by failing to comply with policy conditions. A trio of very recent cases will illustrate my point.

Ryan v. Liberty Mutual, from the federal district court here in New Jersey, is a Sandy case.   The homeowners’ insurance policy contained a one-year suit limitation. The carrier denied coverage, primarily because of a flood exclusion, but agreed to pay a small amount for non-flood-related damages. The partial denial letter was sent on November 30, 2012, and apparently received by no later than December 10, 2012.

For a lengthy period of time, the policyholders engaged in negotiations with the carrier to try to get the carrier to revisit the claim. During this period, the policyholders promised to send additional information to the carrier supporting their claim, but never did so.

On October 10, 2014, the policyholders filed suit. Naturally, the carrier moved for summary judgment based on the one-year limitations period, which the Court granted.  The policyholders argued that coverage had never been fully and finally denied, since negotiations were ongoing. Wrong, said the Court:   “The one-year statute of limitations in plaintiff’s homeowners policy began to run on October 29, 2012 – the date that Hurricane Sandy damaged plaintiff’s home – and was tolled from October 30, 2012 – the date plaintiffs made a claim for homeowners insurance benefits – until the date defendant declined liability…It is plain from the face of the [partial denial] letter that Defendant is denying Plaintiffs coverage for flood-related damage. The language used is clear and unequivocal, and would be interpreted by any reasonable reader as a denial of benefits. Accordingly, the statute of limitations began to run again on the date on which plaintiffs received the [partial denial] letter. After December 10, 2013, plaintiffs were barred from bringing suit.”

Ugh.

OneWest Bank v. Houston Casualty Co., from the Ninth Circuit Court of Appeals (recently in the news for political reasons), involved a suit against OneWest by Assured Guarantee Municipal Corporation. Assured contended that OneWest, as a loan servicer, had failed to mitigate or avoid losses on mortgage loans for which Assured had guaranteed the principal and interest payments. OneWest entered into settlement negotiations with Assured, and the parties prepared a term sheet reflecting the agreed-upon settlement terms. After agreeing upon the term sheet, but apparently before executing the final settlement documents, One West reported the loss to its professional liability carrier. The professional liability policy contained a standard condition prohibiting OneWest from “admitting or assuming any liability,” or “entering into any settlement agreement” without the carrier’s prior written consent. The Court concluded that “the term sheet provided all the relevant terms of a settlement agreement”…and “poof” went the insurance claim.

Ugh, again.

Minasian v. IDS Property Casualty Insurance Company, from the Second Circuit, involved a claim for burglary.  The policy required that notice of loss be given to the carrier “as soon as reasonably possible,” “immediately,” and “as soon as practicable.” The policyholders lost jewelry through a burglary, but didn’t notify their carrier until three months later. The carrier (naturally) denied coverage based upon late notice. The policyholders argued that they reasonably believed a police investigation was ongoing, and that the stolen jewelry might be located, and that they notified the insurance company promptly after learning that the police investigation was closed.

The Court held that, in light of the notification provisions in the policy, “such a belief cannot form a reasonable – and thus excusable – basis for notice delay.”

Ugh, a third time.

I have an old Travelers claims manual in my office.  At one point, it says:  “[There is a] requirement to meet the duty of good faith to the insured. The most positive way to do that is to look for coverage in our policies, and not to look for ways to deny coverage.” That’s a wonderful sentiment, but usually it’s not how the real world operates. Insurance policies are (intentionally) complex webs of exclusions, limitations, and arcane language, that are interpreted differently by different courts. If you submit a large claim to your carrier, the claims department is understandably going to comb through the policy looking for applicable exclusions. Don’t help them by failing to comply with the policy requirements about giving notice.

The Shortcomings of D&O Insurance

Here’s how a major insurance company (Travelers) describes D&O insurance: “Directors & Officers (D&O) Liability insurance helps cover defense costs and damages (awards and settlements) arising out of wrongful act allegations and lawsuits brought against an organization’s board of directors and/or officers. These types of claims have become increasingly common and directors and officers themselves could be held personally liable. To attract and retain qualified executives and board members it’s crucial to have Travelers Directors & Officers Liability insurance.”

Riiight…

The problem with D&O insurance is that, while it sounds wonderful in theory, it contains loopholes big enough to drive a tractor-trailer through.  Which is not to say that it isn’t essential.  It’s just that, if you ever need to make a claim under the coverage, you’ve already probably allowed things to go too far.  Think prevention.

A couple of recent federal cases dealing with the “insured v. insured” exclusion illustrate my point.

In a Ninth Circuit case, FDIC v. BancInsure, Security National Security Pacific Bank became insolvent, and the FDIC took over as receiver. The FDIC filed suit against Security Pacific’s former directors and officers, seeking to enforce coverage for losses from alleged negligence and breach of fiduciary duty. But the D & O Policy excluded coverage for suits brought “by, or on behalf of, or at the behest of” Security Pacific, or by “any successor, trustee, assignee or receiver.” The FDIC argued that it was not a “receiver” within the meaning of the exclusion, because, by statute, it had a “unique role” representing “multiple interests,” including the interests of shareholders. So, the FDIC argued, its lawsuit could essentially be considered a shareholders’ derivative action, and the insured-versus-insured exclusion contained an exception for such actions.

The Court said nice try, not buying. “The shareholder-derivative-suit exception does not render the insured-versus-insured exclusion ambiguous with respect to the FDIC as receiver merely because the FDIC also succeeded to the right of Security Pacific’s shareholders to bring a derivative action – which right (1) is secondary to the FDIC’s right to bring the same claims directly as Security Pacific’s receiver and (2) may be exercised only if the FDIC does not exercise its primary right to bring the claims directly.”

The interesting aspect of this case is that the policy separately excluded coverage for losses arriving arising from “any action or proceeding brought by or on behalf of any federal or state regulatory or supervisory agency or deposit insurance organization.” But the policy specifically deleted that exclusion by endorsement, which pretty clearly shows that suits brought by government regulators (like the FDIC) were supposed to be covered.  No problem, said the Court, we can reason our way around that one: “The regulatory endorsement deleted the regulatory exclusion but did not vary, waive, or extend any of the other terms of the D & O Policy, and thus did not alter the scope of the insured-versus-insured exclusion. As a result, the FDIC’s claims remain barred by the insured-versus-insured exclusion.” (Huh?)

Jerry’s Enterprises v. U.S. Specialty Insurance Co., out of the Eighth Circuit, involved a dispute over the valuation of shares in a grocery store chain (JEI). The founder’s daughter, Cheryl Sullivan, inherited 28.06% of the company, and her daughters Kelly and Monica received 2.4% and 1.2%, respectively. Sullivan (a former director of JEI) and her daughters later filed suit against JEI, alleging multiple acts of misconduct by JEI directors designed to lower the value of their shares. JEI settled, and sued its D&O carrier for defense costs and the amounts paid under the settlement agreement.  The Court found that the “insured- versus-insured” exclusion barred coverage for any lawsuit brought by a former director, and that Sullivan fell into that category.

The problem for the carrier (and the Court) was that the policy also contained an allocation clause, which basically required the allocation of insurance coverage between covered and noncovered claims. JEI argued that neither of the daughters had been directors or officers of the company, so at least their part of the lawsuit should have been covered. Nah, said the Court: “Cheryl Sullivan was the driving force of the litigation. She…owned the vast majority of shares at issue in the underlying lawsuit, and she was the former director who repeatedly raised concerns about the valuation of shares to JEI’s Board of Directors.”  (Did the policy contain a “driving force” exclusion?)  In other words, stop bothering us with pesky facts.  We made our decision, and that’s that.

The JEI Court’s discussion of “judge world” is particularly entertaining. See, those of us who have done coverage work for any length of time know that there are parallel universes. One contains “judge world,” and the other contains the “real world.” Here’s the JEI Court’s discussion of the insurance-buying process in “judge world”: “JEI’s argument exhibits a fundamental misunderstanding of the insurance policy and our role in analyzing the policy’s language… JEI and US Specialty entered into an agreement in which they defined the terms of that agreement. It is our responsibility to give effect to that contracted language.”  (Emphasis added.)

That makes it sound as though the insurance company and the policyholder sat down together over a cup of joe and negotiated what the contract would say, and exactly how it would be applied. That, of course, is nonsense. Insurance policies consist largely of preprinted forms, or, at the least, language drafted by the insurance industry. There may be some limited ability for a policyholder to negotiate minor variations in policy language, but by and large, it’s a take-it-or leave-it proposition.

But enough of my ranting about how courts buy into what the claims department says about policies, as opposed to what the sales department says.  The bottom line is that D&O insurance is important, because it does provide protection against certain types of lawsuits (although, not all of the types of lawsuits that you would reasonably expect). Just keep in mind that your internal controls and procedures are far more important than your insurance. If you don’t analyze your risks carefully, and take aggressive steps to minimize them, you are putting yourself at the mercy of the claims departments of insurance companies.  And, for all of their advertising about avoiding mayhem and being a good neighbor, insurance companies are in the business of making the largest returns possible for their shareholders.  Poor loss control also puts you at the mercy of judges, many of whom (forgive me) don’t really understand how insurance works, and don’t really want to understand, because they’re way too busy.

Policy rescission because of misrepresentations on an insurance application

There’s an old joke about lawyers and clients.

A man is flying in a hot-air balloon and realizes he’s lost. He spots a guy down below. He lowers the balloon and shouts, “Excuse me, can you help me? I promised my friend I would meet him half an hour ago, but I don’t know where I am.”

The man below says: “Yes, you’re in a large red hot air balloon, hovering 30 feet above this field between 40 & 41 degrees latitude and about 74 degrees west longitude.”

“You must be an attorney,” says the balloonist.

“I am,” replies the man. “How did you know?”

“Well,” says the balloonist, “everything you have told me is technically correct, but it’s of absolutely no use to me and I still don’t know where I am.”

The man below says, “Ah, and I can tell from your reaction that you must be a client.”

“Well, yes,” replies the balloonist, “but how did you know?”

“Because,” says the man below, ” You’re in the same position as you were before we met, but somehow now it’s my fault.”

The point here (to the extent I have one) is that, once you have to rely on a litigator to clean up a mess you made, it may be too late.  But sometimes clients (even major corporate clients) do things thinking that they’re solving problems in the short term, and end up creating major long-term problems. That’s the situation in H.J. Heinz Co. v. Starr Surplus Lines Insurance Co., currently on appeal to the Third Circuit.

This case involves the rescission of a business insurance policy because of misrepresentations in the insurance application. (That’s a situation that you never want to be in.) According to the trial court decision, the risk manager for Heinz wanted to obtain a lower self-insured retention in the company’s product contamination insurance. Unfortunately, in an effort to accomplish his goal, he failed to disclose a substantial history of product contamination claims, including an incident in China involving baby cereal products that were contaminated with nitrite, resulting in a $12 million loss; another incident in China involving tuna-based baby food that was contaminated by mercury; an incident in the United States, in which a processing facility was found to be contaminated with listeria, resulting in a loss of $12.7 million; and other smaller losses, including one in Canada and two in New Zealand. The risk manager succeeded in obtaining a lower self-insured retention ($5 million, instead of $10 million or $20 million), but the problems began when the company was later sued for lead-tainted baby food.

The carrier, Starr, understandably raised the issue of intentional misrepresentation on the application, and the case was tried to an “advisory jury” on that issue for two days.  (20/20 hindsight is a wonderful thing, but I’m not sure why a policyholder would ever agree to an “advisory jury.” That sounds like being “almost pregnant.”)   Despite the bad facts, the jury came back with a verdict in Heinz’s favor, finding:

  1. Heinz had misrepresented material facts in the insurance application (bad finding for Heinz).
  1. Heinz had not deliberately omitted material information from the application (good finding for Heinz).
  1. Starr had waived its right to assert a rescission claim by agreeing to sell the policy despite actual knowledge of the incorrect information (good finding for Heinz). Apparently, Heinz had disclosed at least some of the complete and correct information in a prior policy application, and Starr’s underwriting file contained a newspaper article discussing the undisclosed product liability incidents.

Presented with the advisory jury’s findings, the trial judge essentially said, “Are you nuts?”  (In a bit of perhaps unintended humor, the judge stated that he departed from the advisory jury’s findings “only” on the answer to question 3, which of course was the question that, because of the judge’s reversal, led to the forfeiture of Heinz’s coverage.)

With respect to Heinz’s risk manager, the trial judge wrote: “His demeanor and evasiveness added to his loss of credibility. It was not credible that, as Global Insurance Director, he was without knowledge as to what information was required by the clear and unambiguous language of this standard Application form, commonly used in the industry.”

This is an interesting decision to read, in part because of the judge’s decision to negate a key finding by the advisory jury, but the bottom line is simple: Make sure your insurance applications are accurate. You may think you’re saving a few dollars now, but if a major claim rolls in, you could be in serious trouble. And no one needs a reported court decision floating around saying that he or she isn’t trustworthy.  Looks bad on a resume.

You can read the complete Heinz decision here.

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