Bad Faith Cases:

Ethical Issues for Defense Counsel

Frederick N. Egler, Jr.

I.

Introduction

As claims against insurers for extracontractual liability become the rule rather than the exception, defense counsel must increase their awareness of ethical problems that involve bad faith claims. Most ethical questions implicated in bad faith cases relate to duties and liabilities of counsel retained by an insurer to represent the insured. Those issues typically fall into three categories: conflicting interests, treatment of confidential information, and liability. Each has seen considerable litigation in recent years, arising in large part out of the explosion of claims for bad faith and other extracontractual liability.[1]

II.

Conflicts of Interest.

Most of the actual and potential conflicts presented in the bad faith context arise from the so-called “tripartite relationship” in which insurance defense counsel routinely represents two clients: the insurer and the insured. The courts have long recognized the propriety of this arrangement, as a general rule. The understanding is that counsel has a duty of loyalty to and an attorney-client relationship with the insured.[2] The question of whether appointed defense counsel also has an attorney-client relationship with the insurer is more controversial. Some cases hold that both insurer and insured are clients of the lawyer,[3] and others that the existence of an attorney-client relationship with the insurer is a question to be determined based upon the facts of each case.[4] The Model Rules of Professional Conduct generally prohibit a lawyer from accepting compensation for legal representation from one other than the client unless (i) the client consents, (ii) there is no interference with the exercise of the lawyer’s professional judgment, and (iii) client confidentiality is preserved.[5]

One of the most intractable conflict of interests problems for appointed defense counsel occurs in the context of settlement. For example, defense counsel is retained to defend a claim, the value of which appears to exceed policy limits. Just prior to trial, the plaintiff makes a settlement demand within policy limits. If the insured wants the case to be settled but the insurer refuses to do so defense counsel is caught in the middle. Some cases hold that when a conflict arises between insurer and insured over settlement strategy, the insurer must provide new counsel for the insured at the insurer’s expense.[6] This rule does not necessarily solve defense counsel’s dilemma, however, particularly if the insurer declines to appoint new counsel. Some courts have determined that in this situation defense counsel must inform both clients of any settlement offer in order to enable them to make a fully informed decision as to what needs to be done to protect their interests, but should not advise either on the propriety of settlement.[7] This approach has been severely criticized as failing to allow the attorney to fulfill either the duty of the insurer to defend the case or counsel’s own ethical duty to advise the client.[8]

The conflict is exacerbated when the insured, upon being advised of the settlement potential, takes a position directly in conflict with the wishes of the insurer. It has been held that an insured may revoke consent to the insurer’s right to control the defense when their interests are in obvious conflict.[9] If the insurer refuses to settle when the insured is insisting upon it, defense counsel’s obligations are defined not by the insurance policy, but by the lawyer’s ethical obligations to the client.[10] Defense counsel may be required to withdraw from representation of the insured under these circumstances.[11] That, however, is fraught with peril for defense counsel. Courts have determined that a breach of the insurance contract by the insured may justify the insurer’s refusal to perform, but may not justify withdrawal by defense counsel.[12] In one Texas case, counsel withdrew and ultimately was subject to malpractice liability when a default judgment was entered against the insured.[13] To avoid potential malpractice liability, defense counsel faced with the obligation to withdraw should give ample notice to the insured and seek court permission prior to withdrawal.[14]

Occasionally conflicts can also arise from the converse of the situation presented by an opportunity to settle within policy limits. A separate line of cases springs from suits that are settled or tried by the insurer, through defense counsel, in spite of the insured’s desire that they be handled in some other way. Absent a policy provision requiring the insured’s consent, however, the cases have declined to hold the insurer or counsel liable to the insured for claims arising from these undesired results.[15]

Issues of coverage also present possible conflict problems. A recurring fact situation is a complaint that alleges both covered and non-covered claims. If the insured’s defense to both the covered and non-covered claims depends upon the same set of facts, this may obviate any conflict.[16] A more common situation occurs when the facts as alleged require the insurer to provide a defense, but coverage for the underlying claim is in doubt. Typically in this situation the insured will be asked to sign a non-waiver agreement, by which defense of the case by the insurer will continue with the understanding that it may later contest coverage. In this situation defense counsel should avoid drafting the agreement, submitting the agreement to the insured to sign or advising the insured to consent. The insurer may, alternatively, simply sent out a “reservation of rights letter,” unilaterally reserving its ability to later deny coverage.

Some courts have held that the foregoing actions by the insurer automatically create a conflict of interests between insurer and insured.[17] Others, however, have held that permitting the insured to participate in, and consent to selection of defense counsel may cure the conflict.[18] In many cases, however, the mere fact of a coverage dispute between insurer and insured will not, in and of itself, place defense counsel in the position of representing conflicting interests. For example, when the insurer reserves the right to deny coverage based upon facts that are in dispute but will not be litigated in the underlying case (e.g., whether a driver had the owner’s permission to drive an insured vehicle), defense counsel is not in a position to adversely influence the resolution of the coverage question. Similarly, when it is alleged that the insured has failed to comply with policy conditions, such as in giving timely notice of a claim, no conflict should arise.

Some courts have been willing to analyze the problem on a case-by-case basis. In St. Paul Fire & Marine Insurance Co. v. Roach Brothers Co.,[19] the court held that the insurer was not required to pay for independent counsel hired by the insured. This was so even though the insurer had advised the insured that, because of a conflict of interest, the insured might want to consider hiring independent counsel at the insured’s expense. The court held that because the insurer had not in fact handled the matter in such a way as to exploit the conflict of interest to its advantage, it was not required to pay for the insured’s independent counsel. The St.Paul Fire court has been criticized for its retrospective analysis. The majority rule seems to be that when the presence of a conflict triggers the potential for unfair advantage, the insurer is required to pay for retention of independent counsel by the insured[20]

As in the case of conflicts arising out of settlements, however, none of this analysis resolves the dilemma of a defense lawyer in a coverage-related conflict. But so long as litigation of the underlying case does not materially affect the resolution of the coverage issue, a majority of courts have held that appointed defense counsel does not act impermissibly in continuing to defend the insured.[21]

The coverage cases speak in terms of “independent” counsel without defining the term. Notwithstanding the provisions of the insurance contract giving the insurer the right to control the defense of a case, appointed defense counsel has an ethical obligation to exercise independent judgment in the defense of the insured. The Tennessee Supreme Court has stated that an insurer “cannot control the details of the attorney’s performance, dictate the strategy or tactics employed, or limit the attorney’s professional discretion with regard to the representation.”[22] Conversely, the Texas Supreme Court held that because defense counsel did have the obligation to exercise independent judgment, an insurer was not vicariously liable for counsel’s errors in judgment. [23]

While merely being paid by the insurer does not, in and of itself, compromise defense counsel’s independence, devices employed by insurers to reduce the cost of legal representation of their insureds have raised additional ethical issues for counsel. Although it has been done for many years, using staff counsel (salaried employees of an insurer) to defend insureds remains controversial. Opponents of this practice have contended that the status as an employee of the insurer so taints the lawyer’s judgment that it becomes impossible for that person to exercise professional judgment on behalf of the insured independent of the interests of the insurer. Despite these concerns, the vast majority of courts that have considered the issue have decided that staff counsel may defend an insured without violating any ethical rule.[24] Some courts, however, have held that employment by insurers of staff counsel constitutes the unauthorized practice of law.[25]

Many states place conditions on the use of salaried counsel by insurers, and many insurers voluntarily adhere to them. Thus, staff counsel are usually not employed to defend cases in which there is an issue of coverage or where there is a likelihood of a verdict in excess of policy limits.[26] Other authorities have required counsel to disclose to the insured, at the commencement of the representation, their status as a salaried employee of the insurer.[27]

One of the most controversial subjects in this area is the insurers use of guidelines that limit counsel’s discretion in an attempt to control expenses. Two courts have now held that counsel’s adherence to defense guidelines violated the duty to exercise independent judgment.[28] Numerous other courts have criticized the guidelines in dicta as placing defense counsel in an ethical dilemma.[29] Another open issue regarding the existence of the guidelines and the insurer’s requirement that counsel adhere to them is whether defense counsel has an obligation of disclosure to the insured. An ABA Ethics opinion states that a summary letter indicating that counsel will proceed at the insurer’s direction to defend the case in accordance with the terms of the contract is sufficient disclosure. This opinion is suspect, however, because it predates the explosion in guidelines usage by insurers.[30]

III.

Confidentiality

Rule 1.6(a) of the A.B.A. Model Rules of Professional Conduct is a general prohibition of a lawyer’s revelation of information relating to representation of a client. When the lawyer represents multiple clients, there is no confidentiality requirement as to communications intended to affect the clients’ common goal – such as defending the case.[31] The most obvious problem in this area arises when the insured provides information to defense counsel that, if passed on to the insurer, would prejudice the insured’s right to coverage. Defense counsel may not disclose such information to the insurer, even though acquired during the representation for which the insurer retains counsel.[32] Some courts have held that if such information is acquired, counsel must notify the insurer that he or she can no longer represent the insurer’s interest.[33]

The reverse of this situation, however, does not yield the same result. It is the general rule that the defense counsel must provide the insured with any information the insurer has imparted to counsel that would affect the insured’s judgment about the case. And, in Shapiro v. Allstate Insurance Co.,[34] the court flatly stated that the attorney-client privilege would not extend to any communication between the insurer and defense counsel, if the insured requested the information.

Counsel’s disclosure of confidences to the insurer can result in an estoppel against the insurer preventing it from denying coverage on the basis of the information so obtained.[35] The dual capacity of defense counsel may become important in the subsequent bad faith action, when the claimant or the insured seeks to depose the attorney or production of letters to the insurer reporting on the status and evaluation of the case. The general rule is that this information is not discoverable by the claimant in a subsequent bad faith action, even upon waiver by the insured of the privilege, since the claimant is a stranger to the attorney-client relationship.[36]

When the litigation is between the insured and the insurer, however, the materials are not only discoverable against an assertion of attorney-client privilege, but numerous courts uphold a discovery request against an objection grounded in attorney work-product. They hold that there is good cause to obtain the information in spite of the fact that it is the attorney’s work-product.[37] In a bad faith action, a Pennsylvania court recently overruled privilege objections to production of documents created by defense counsel during the underlying case on a waiver theory. [38] The court held that the insurer waived the privilege by “putting its state of mind at issue” in defending the bad faith case.

When counsel represents an entity, such as a corporation or insurance company, additional issues of confidentiality arise. Plenty of black-letter law supports the proposition that the attorney-client privilege attaches to communications with in-house counsel to the same extent as to communications with outside counsel.[39] However, counsel must initially confront the question of whether the communication was made to counsel as a lawyer and for the purpose of seeking legal advice. In-house lawyers frequently perform many functions that are not, strictly speaking, the practice of law. They may frequently communicate with their co-employees for reasons other than to provde legal advice. Many courts have held that such communications are not protected by the attorney-client privilege.[40] This problem becomes particularly acute when counsel are salaried employees of an insurer working in connection with the insurer’s claim department. Many courts have held communications with these attorneys are discoverable in bad faith cases, either on the theory that they were not actually acting as counsel, or that the nature of the bad faith claim puts the insurer’s state of mind at issue. [41] This judicial approach renders otherwise privileged communications discoverable. A recent Pennsylvania case imposed hundreds of thousands of dollars in sanctions on an insurer for withholding, under a claim of privilege, documents created by an in-house lawyer to whom the court referred as an “adjuster with a law degree.”[42]

Another issue of attorney-client confidentiality arises when counsel for the insurer communicates with an insurer’s former employees. Counsel encounter this fact situation frequently because of the high rate of turnover in many departments of insurance companies, particularly the claims department. Very few courts discuss the issue of whether communications between the insurer’s counsel and its former employees are privileged. The one recent case that has considered the question recognizes that the privilege exists, but limits it considerably.[43] The court held that statements by the attorney to the employee about the nature of the litigation, the testimony of other witnesses, and the significance of the former employee’s testimony to the case are not privileged.

The lesson of the foregoing principles is that counsel must be very careful to avoid communicating those facts to the insurer that might prejudice the insured’s position on coverage. In addition counsel must be scrupulously attentive to the obligation to keep the insured informed of developments in the case, as well as the insurer’s attitude toward settlement. Should counsel obtain prejudicial information from the insured, it is probably not necessary to withdraw unless it is necessary to disclose the information to the insurer in order to defend the case. Communications involving in-house lawyers and former employees require particular caution.

IV.

Liability

Defense counsel have been viewed as the possible target of a bad faith lawsuit by all three parties involved in third-party claims: claimant, insured, and insurer. Assertions by claimants against defense counsel have met with little success, primarily because courts have been unwilling to imply a duty by a lawyer to the client’s adversary. Thus, absent an allegation that defense counsel actually controlled the insurer’s business decisions[44] or fraudulently misrepresented the policy limits available for settlement,[45] courts have refused to hold defense counsel liable for breach of a duty of good faith and fair dealing to the claimant.[46]

Defense counsel appointed by insurers have been held liable to the insured on a number of theories. Liability has ensued for failing to advise the insured of the need to inform the insured’s excess carrier of the lawsuit in order to preserve coverage, and for counsel’s own failure to notify the excess carrier.[47] Defense counsel have also been held liable for failing to protect the insured’s own claim, including a crossclaim, in the conduct of the defense.[48] A Delaware case, applying Pennsylvania law, held defense counsel liable for the cost of additional counsel employed by the insured due to the inadequacy of the defense provided by the insurer.[49]

Numerous courts allow malpractice suits by insurers against defense counsel, on the theory that counsel owes a duty of care to both the insurer and the insured.[50] One Pennsylvania federal district court case permitted joinder of defense counsel as a third-party defendant in a bad faith action by the insured against the insurer.[51] Insurers have also sought indemnity from appointed defense counsel for bad faith liability arising out of counsel’s handling of a claim.[52] In addition to liability for bad faith claims, insurers have also asserted claims against defense counsel for failing to settle a case when the attorney had the authority to do so.[53] Failure to communicate a settlement offer to the insurer can also be as a basis for imposing liability when a larger judgment results.[54]

A number of cases have considered the issue of whether defense counsel owes a duty to an excess or umbrella carrier when negligence or failure to settle results in liability in excess of the primary insurer’s policy limits. Some courts have rejected such a cause of action on the ground that it would interfere with counsel’s obligation of undivided loyalty to the insured.[55] The view is that the interests of the excess insurer and the insured may be in conflict. A New York court, however, upheld such a claim on the ground that the excess carrier was subrogated to the insured’s right to proceed against defense counsel.[56]

V.

Conclusion

Many of the cases involving attorney liability and misconduct clearly could have been avoided if counsel had kept both the insurer and insured informed of the progress of the case, including settlement discussions. Prompt and frequent communication with the client is essential, subject to the obligations of confidentiality discussed above. Many cases involve defense counsel who have an ongoing relationship with an insurer, but only an occasional relationship with the insured, leading them to favor the interests of the insurer over the insured. This is a danger that must constantly be monitored. With increasingly complex coverage questions and the advent of additional bad faith litigation, it will become increasingly difficult for defense counsel to maintain an attorney-client relationship with both the insurer and insured in all but the most routine cases.

ENDNOTES

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[1] Because of the extensive amount of material published on this subject, many other issues are beyond the scope of this paper, including: liability for negligence in providing advice to the insured or the insurer on coverage; attorney’s liability as “agent” of insurer, or vice versa; and duties of defense counsel to multiple insureds. For a comprehensive treatment of this subject, see Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, Ch. 29 (5th ed. 2000); Thomas F. Murray & Diane M. Bringus, Insurance Defense Counsel - Conflicts of Interests, 41 Fed’n Ins. & Corp. Couns. Q. 283 (1991).

[2] See generally, Restatement (Third) of the Law Governing Lawyers, Proposed Final Draft No.1 § 215, cmt. f (1996).

[3] E.g., Point Pleasant Canoe Rental v. Tincum Township, 110 F.R.D. 166 (E.D. Pa. 1986).

[4] Restatement, supra note 2.

[5] ABA Model Rules of Professional Conduct, Rule 1.8(f) (1983).

[6] E.g., Purdy v. Pacific Auto. Ins. Co., 203 Cal. Rptr. 524 (Ct. App. 1984); Hamilton v. State Farm Mut. Auto. Ins. Co., 511 P. 2d 1020, 1024 (Wash. Ct. App. 1973).

[7] E.g., Hartford Accid. & Indem. Co. v. Foster, 528 So. 2d 255 (Miss. 1988).

[8] Murray & Bringus, supra note 1, at 291.

[9] Lieberman v. Employers Ins. of Wausau, 419 A.2d 417 (N.J. 1980).

[10] ABA Formal Opin. 96-403 at 5-6 (1996) (Stating that withdrawal from representation of insurer and insured may be counsel’s only option in some cases).

[11] National Farmers Union Property & Cas. Co. v. O’Daniel, 329 F.2d 60 (9th Cir. 1964). See also State ex rel. National Union Ins. Co. v. District Court of Ninth J.D., 441 P.2d 305 (Mont.1968) (Defense counsel permitted to withdraw where insured’s personal attorney unduly interfered with his ability to defend case).

[12] Bialy v. Reeber, 283 N.Y.S. 2d 450 (Sup. Ct. 1967).

[13] Smith, Wright & Weed, P.C. v. Stone, 818 S.W.2d 926 (Tex. Ct. App.1991).

[14] See State ex rel. Wilke v. Rush, 814 S.W.2d 687 (Mo. Ct. App.1991) (permitting withdrawal); Prestage v. Clark, 723 So. 2d 1086 (La. Ct. App. 1998) (lawyer did not breach duty to insured by withdrawing when insured was given adequate prior notice).

[15] Buchanan v. Buchanan, 160 Cal. Rptr. 577 (Ct. App. 1979) (insurer not required to accede to insured’s desire to concede liability because victim was relative of insured); Feliberty v. Damon, 527 N.E.2d 261 (N.Y. 1998) (insurer not liable to insured physician for adverse publicity arising out of settlement of malpractice claim).

[16] Pennbank v. St. Paul Fire & Marine Ins. Co., 699 F. Supp. 122, 126-27 (W.D. Pa. 1987); see also State Farm Fire & Cas. Co. v. Mabry, 497 S.E.2d 844 (Va. 1998)(insurer not estopped from contesting coverage in declaratory judgment action on grounds that shooting by insured was intentional merely because appointed counsel argued in underlying case that shooting was accidental).

[17] E.g., Fireman’s Fund Ins. Co. v. Waste Mgmt., 777 F.2d 366 (7th Cir. 1985).

[18] New York State Urban Dev. Corp. v. VSL Corp., 738 F.2d 61 (2d Cir. 1984).

[19] 639 F. Supp. 134, 139-40 (E.D. Pa. 1986).

[20] San Diego Fed. Credit Union v. Cumis Ins. Soc’y Inc., 208 Cal. Rptr. 494 (Ct. App. 1984); Nandorf, Inc. v. CNA Ins. Cos., 479 N.E. 2d 988 (Ill. App. Ct. 1985).

[21] E.g., Finley v. Home Ins. Co., 975 P.2d 1145 (Hawaii 1998); ACP Services Corp. v. St. Paul Fire & Marine Ins. Co., 637 N.Y.S.2d 566 (App. Div. 1996).

[22] In re Petition of Youngblood, 895 S.W.2d 322, 328 (Tenn. 1995).

[23] State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625 (Tex. 1998). This is the minority rule. A majority of courts hold that the insurer is vicariously liable for the acts of its appointed counsel. See, e.g., Snoot v. State Farm Mut. Auto. Ins. Co., 299 F.2d 525 (5th Cir. 1962); Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980).

[24] In re Petition of Youngblood, 895 S.W.2d 322, 324 (Tenn. 1995); Coscia v. Cunningham, 299 S.E.2d 880 (Ga. 1983); Kittay v. Allstate Ins. Co., 397 N.E.2d 200 (Ill. App. Ct. 1979; Strother v. Ohio Cas. Ins. Co., 28 Ohio L. Abs. 550, 14 Ohio Op. 139 (C.P.1939); New York State Bar Ass’n, Unlawful Practice of Law Comm., Op. 13, N.Y. State B.J. 289 (1971); ABA Comm. on Professional Ethics and Grievances, Formal Op. 282 (1950). The cases are collected exhaustively in Jeffrey W. Jackson & Roy Alan Cohen, Defending the Insured with Salaried Counsel: Legal & Ethical Considerations, 27 The Brief 38 (Winter 1998).

[25] E.g., Gardner v. North Carolina State Bar, 341 S.E.2d 517 (N.C. 1986).

[26] Kittay v. Allstate Ins. Co., 397 N.E. 2d 200 (Ill. App Ct. 1979). Some allow such representation on consent of both insurer and insured. E.g., California Standing Comm. on Professional Responsibility & Conduct, Formal Op. No. 1987-91.

[27] ABA Comm. on Ethics and Professional Responsibility Informal Ops. No. 1370 and 1402.

[28] Delmonte v. State Farm Fire & Cas. Co., 975 P.2d 1159 (Haw. 1999); In re Rules of Professional Conduct and Insurer Imposed Billing Rules and Procedures, 2 P.3d 806 (Mont. 2000).

[29] Dynamic Concepts, Inc. v. Truck Ins. Exchange, 71 Cal. Rptr.2d 882, 889 n.9 (Ct. App. 1998); State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625 (Tex. 1998); Frederick v. Unum Life Ins. Co. of Am., 180 F.R.D. 384 (D. Mont.1998).

[30] ABA Formal Opinion 96-403 (Aug. 2, 1996).

[31] Restatement (Third) of the Law Governing Lawyers, Proposed Final Draft No. 1 § 125 (1996); Mallen & Smith, supra note 1, § 29.8 at 245.

[32] ABA Informal Opinion 1402 (1977).

[33] E.g., Parsons v. Continental Nat’l Am. Group, 550 P.2d 94 (Ariz. 1976); Employers Cas. Co. v. Tilley, 496 S.W.2d 552 (Tex. 1973).

[34] 44 F.R.D. 429 (E.D. Pa. 1968).

[35] Parsons, 550 P.2d 94.

[36] See Mallen & Smith, supra note 1, § 29.8 at 246, and cases cited therein.

[37] Id. at n.17. See also Truck Ins. Exchange v. St. Paul Fire & Marine Ins. Co., 66 F.R.D. 129 (E.D. Pa. 1975); LaRocca v. State Farm Mut. Auto. Ins., 47 F.R.D. 278 (W.D. Pa. 1969); Shapiro, 44 F.R.D. 429.

[38] The Birth Center v. St. Paul Cos., 727 A.2d 1144 (Pa. Super. 1999).

[39] The leading case so holding is Upjohn Co. v. United States, 449 U.S. 383 (1981). See also Bruce v. Christian, 113 F.R.D. 554, 560 (S.D.N.Y. 1987); Valente v. Pepsico Inc., 68 F.R.D. 361, 367 (D. Del. 1975).

[40] E.g., Radiant Burners, Inc. v. American Gas Assoc., 320 F.2d 314, 324 (7th Cir. 1963); F.C. Cycles Int’l. Inc. v. FILA Sport, 184 F.R.D. 64 (D. Md. 1998). But see Robertson v. Allstate Ins. Co., 1999 U.S. Dist. Lexis 2991 (E.D.Pa. 1999) (Communications made by in-house lawyer were for purposes of giving legal advice, not as “business agent” of insurer, and thus were privileged.).

[41] Marshall v. Nationwide Mut. Ins. Co., 1994 U.S. District LEXIS 7834 (E.D. Pa. 1994); In re Bergeson, 112 F.R.D. 692, 697 (D. Mont. 1986); Mission Nat’l Ins. Co. v. Lilly, 112 F.R.D. 160, 164 (D. Minn. 1986).

[42] General Refractories Co. v. Fireman’s Fund Ins. Co., April Term 1998, No. 1499 (Pa. C.P. Phila. Cty. 4/20/00 (Mem. Opn.).

[43] Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999).

[44] Id.; Jackson v. Kroll, Pomerantz & Cameron, 724 P.2d 717 (Mont. 1986); Gould v. Mutual Life Ins. Co., 683 P.2d 207 (Wash. Ct. App. 1984).

[45] Fire Ins. Exchange v. Bell, 634 N.E.2d 310 (Ind. 1994); Slotkin v. Citizens Cas. Co., 614 F.2d 301 (2d Cir. 1979), cert. denied, 449 U.S. 981 (1980).

[46] Scribner v. AIU Ins. Co., 647 A.2d 48 (Conn. Super. 1994).

[47] Safie Enterprises v. Nationwide Mut. Fire Ins. Co., 381 N.W.2d 747 (Mich. Ct. App. 1985).

[48] Strauss v. Fost, 507 A.2d 1189 (N.J. Super. 1986).

[49] Oliver B. Cannon & Son, Inc. v. Fidelity & Cas. Co., 484 F. Supp. 1375 (D. Del. 1980).

[50] See Mallen & Smith, supra note 1, § 29.12 at 290.

[51] Davis v. Associated Indem. Corp., 56 F. Supp. 541 (M.D. Pa. 1944). See also American Metal Fabricators Co. v. Goldman, 323 A.2d 891 (Pa. Super. 1974).

[52] Wolpaw v. General Accid. Ins. Co., 639 A.2d 338 (N.J. Super. 1994).

[53] Smiley v. Manchester Ins. & Indem. Co., 357 N.E.2d 118 (Ill. 1978); Firemen’s Fund Am. Ins. Co. v. Patterson & Lamberty, Inc., 528 S.W.2d 67 (Tex. Civ. App. 1975).

[54] St. Paul Fire & Marine Ins. Co. v. Speerstra, 666 P.2d 255 (Ore. Ct. App. 1983).

[55] American Employers’ Ins. Co. v. Medical Protective Co., 419 N.W.2d 447 (Mich. Ct. App. 1988); Continental Cas. Co. v. Pullman, Comley, Bradley & Reeves, 709 F. Supp. 44 (D. Conn. 1989).

[56] Great Atlantic Ins. Co. v. Weinstein, 509 N.Y.S.2d 325 (App. Div. 1986).

(Author’s bio) (Use same photo and bio as Fall 1999 issue, p. 2).