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November 2017

Submitted by: Beth McMillan



Expanding Claims Against Insurance Brokers and Agents


As most people involved with the insurance industry have observed over the past five to ten years, claims against brokers and agents are on the rise and there is no indication these types of claims will decrease in the near future.  One of the primary defenses posited in many cases has been that the agent or broker does not have a duty, let alone a fiduciary duty, to advise a plaintiff about the specific types or limits of insurance coverage to obtain absent a showing of some special request or special trust placed by the plaintiff in the broker or agent.  This defense argument is being eroded by the continuing quest of brokers and agents to expand their market share and to advertise about their abilities to service their clients.    The more they advertise their unique abilities to place the right coverage, the more they open themselves up to claims that they are professionals or trusted advisories who owe their customers a heightened duty.


An even more alarming trend, however, is the growing number of claims against brokers or agents when the carrier does not pay the full limits of a policy after they have adjusted the claim.   These claims often appear when plaintiffs’ counsel are primarily targeting the carrier for breach of contract and bad faith claims, but also bring in the insurance agent or agency as a co-defendant to defeat diversity jurisdiction so that the case cannot be removed to Federal Court.  The negligence theory asserted against the agent is that he failed to advise the plaintiff that the carrier may not pay out the maximum amount of coverage or that he did not obtain a policy that would guarantee full payment of the policy limits.  Thus, when an adjuster evaluates a claim and fails to offer the maximum amount of coverage, plaintiffs’ counsel will assert claims against the agent for failing to obtain a guaranteed amount of policy limits.


Although these types of claims appear to be patently deficient and not likely to survive a motion to dismiss, there are some courts that are allowing these types of claims to gain traction.  Just recently, plaintiffs filed suit in South Carolina state court against a carrier for breach of contract and bad faith in failing to pay the total replacement cost of their home after it burned down in a fire.  Plaintiffs’ counsel also filed a claim against the agent for negligence, negligent misrepresentation, and breach of fiduciary duties, among other claims, for advising them that he had obtained full replacement coverage for their home.  Defendants removed the case to Federal Court arguing the plaintiff had brought in the agent as a sham defendant to defeat diversity jurisdiction.  On the plaintiffs’ motion to remand, the Federal judge rejected the agent’s arguments that the he did not owe any duty to guarantee the amount of coverage that would ultimately be paid on a claim. The court held that although there may not be a general duty on insurance agents to procure a policy that guarantees the insurer will pay to the insurance limit, there is, in some circumstances, a duty to procure a policy in which the insurer guarantees it will do so if the agent undertook to procure such a policy on behalf of the insured.


This decision is cause for concern about the ever evolving and expanding nature of what is accepted by the courts as the duties owed by a broker or agent to a customer.  Attorneys who represent brokers and agents need to be on the alert for these types of claims and be prepared to argue against the expansion of the duties owed by brokers and agents to their customers.  





 By: Lee Hall


I recently had the opportunity attend the Fall 2017 Keeneland meet with the CEO and General Counsel of a regional healthcare system and posed the same question to both:  What keeps you up at night?  They responded immediately, and in unison:  “Mass (fill in the blank).”   Fires, shootings, sexual misconduct, events that involve a large number of potential patients or victims pose a unique challenge, from a patient care, public relations, insurance coverage, and cost standpoint.   The following day, Steven Paddock killed 58 and injured 490 concertgoers in a mass shooting spree in Las Vegas.  Consistent with the concerns expressed by the CEO two days earlier, all of the businesses nearby face the same issues:  victims’ medical care, public relations, costs, and ongoing operations.  Most business are set up to deal with a single shooting, a single incident of disease, a single incident of sexual misconduct, but when a large number of people are affected, the impact on the organization can be crippling. 


The last five years have seen record high mass shootings.  2016 saw a record 366 shootings, surpassing the 333 mass shootings in 2015 and the 227 recorded shootings in 2014.  Most of the mass shootings have resulted in some form of civil litigation in an effort to recover compensation for the victims.  Because the perpetrator generally has few assets, counsel explore alternative targets.


 After the Columbine massacre, parents brought 17 lawsuits against the school district, law enforcement officials and parents of the shooters.  Similarly, after the shootings at Virginia Tech, families brought suit against the administration.  The jury returned a verdict in favor of the plaintiffs, though it was subsequently overturned on appeal. Similar suits have been filed against school districts in Marysville (18 million dollar recovery), Springfield, Bremerton (1.2 million), New Mexico (2 million) and numerous others.  A jury awarded $46 million in compensatory and punitive damages against Kraft Nabisco and its security firm after two women were shot in a plant in Philadelphia in 2002.  Similarly, counsel recently filed suit against UPS and Allied Universal, its security company, for the death of 28 employees in a San Francisco shooting in July. 


Attorneys have become more creative in determining who to sue.  Parents of children killed in Newtown, for example, brought suit against gun manufacturer Remington, challenging its claim of legislative immunity.  They also included firearm distributors and retailers as defendants.  Although the case was dismissed, it is currently on appeal before the Connecticut Supreme Court nearly 5 years after the shooting.   Plaintiffs in Aurora brought suit against Cinemark, the premises owner and theatre operator.  The claims against Cinemark were also dismissed at the trial court level based upon the lack of foreseeability. 


In response to the Pulse Nightclub in Orlando, Florida, claimants did not sue the nightclub or its owners, but instead elected to sue the wife and the employer of the shooter for failing to disclose the shooter’s mental health issues.  Plaintiffs have recently amended their complaints to name Google, YouTube, Facebook and Twitter as defendants on the theory that social media platforms offered terrorist organizations an opportunity to recruit and train new members, all with the social media hosts’ knowledge.  The first plaintiff has filed suit in the Las Vegas shooting on October 11, naming Paddock, MGM, the owner of Mandalay Bar, Live Nation Entertainment, Inc. and Slide Fire Solutions, LP, a company that manufactures bump stock devices to convert semi-automatic into fully automatic weapons.  Counsel have similarly filed suit against the building owners and managers of a Power Ultra Lounge nightclub in Little Rock, Arkansas, where 28 people were shot on July 1, 2017.    


Even where there is no recovery, the emotional and physical toll on the communities, organizations and families involved are impossibly challenging.  The Newtown school was demolished and rebuilt in a new area of the property four years after the shooting; the Cinemark theatre remained closed for nearly 6 months following the attack. 

The emerging theories and increasing number of claims raise almost immediate coverage issues.  Coverage issues range from the fairly straightforward issues, such as whether there is an occurrence, the applicability of the criminal actions exclusion, the assault and battery exclusions, the intentional injury exclusion, the terrorism exclusion to more unique issues such as the and issues regarding the number of occurrences to more challenging issues, such as the interpretation of “terrorist” as defined by a liability policy.  Terrorist, for example, can be groups or individuals with a demonstrated link to an extremist organization, but could also be the increasingly common solo actor who swears his allegiance to an organization in the moments before death, or more recently, a person who leaves no manifesto and has no known affiliation with any organization.    


In addition, liability policies do not address first party coverage issues and business interruption losses that follow the downtime after mass shootings.  In Aurora, for example, the theater was closed for nearly six months following the incident.  Most speculate that the Mandalay Bay suite where Paddock staged his attack will never be used again.  Moreover, many business interruption policies do not respond unless the event results in damage to a building or the contents.  While there may be superficial damage to some of the buildings, the damage could be easily repaired long before the building is in a position to reopen from an emotional or public relations standpoint. 


Coverage issues associated with worker’s compensation issues are also thorny.   While most states provide that workers compensation is an exclusive means for recovery for workplace injuries, there are numerous exceptions for management misconduct, management knowledge of specific risks, claims of dual capacity, and intentional misconduct. 


The insurance market has responded by offering programs specifically targeted to active shooter or workplace violence risks.  While each program is unique, they have common features.  Most provide elements of both first and third party coverages.  The liability coverage acts as primary coverage for workplace violence/active shooter/deadly weapon events.  The first party coverage provides business interruption and extra expense coverage.  Some also provide remediation expenses and coverage for public relations consultants.     


Many programs feature coverage for expenses related to hiring additional staff, counseling, crisis management, burial and body returns, forensic analysis and extra security measures.  Many also provide benefits for employees and victims such as counseling, psychiatric care, rehabilitation expenses and emergency medical care.  Many of these programs also include broad definitions of weapons to include firearms and explosive devices, knives, medical instruments and corrosive substances.  While the programs overlap with some aspects of a CGL policy, they provide a comprehensive approach to managing the overall health of the insured in the days and weeks following an attack. 





By now, every experienced defense lawyer has been introduced to “The Reptile” strategy at trial. The authors of these tactics advertise that by appealing to the concept of safety and protection from danger, Plaintiff’s lawyers can convince a jury to award outstanding verdicts in their favor, because doing so keeps the jurors and the community safe from harm by eliminating dangerous or unsafe conduct or actors. These methods are being taught by plaintiffs’ lawyers and jury consultants to plaintiffs’ lawyers in trial advocacy courses around the country.  


The professional liability defense lawyer must be aware of these tactics so that defense witnesses are not tricked into agreeing with these safety/danger concepts that lack specificity and any real relation to the applicable standard of care. In fact, the failure to address this strategy both in witness preparation and in pretrial motion practice is the real danger.


Defense practitioners should be on the lookout for authority – any authority – holding that these tactics are inadmissible. The West Virginia Supreme Court of Appeals recently provided the defense with another arrow in its quiver to use to attack Plaintiff’s deployment of these tactics at trial.


In Brown v. Berkeley Family Medicine, the court affirmed the trial court’s limitation on the use of certain terms used in common reptile strategies. Although court did not refer to the “reptile” at any point in the decision, it is clear that that is exactly what was at issue. Brown was a medical malpractice case involving alleged misdiagnosis leading to the patient’s death. The case was tried before a jury to a defense verdict.  The court in Brown affirmed the trial court’s decision to grant a motion in limine restricting the plaintiff from using common reptile strategies. Specifically, the defendant moved to prohibit the plaintiff “from arguing that jurors had the power to improve the personal and community safety of jury members by reaching a verdict that would reduce or eliminate allegedly dangerous or unsafe conduct.” The trial court actually denied the motion, but allowed the defense to raise the issue by way of objection at trial. 


During his opening, the plaintiff’s counsel compared the standard of care to a “rule.” Defense counsel objected and the court ruled that the standard of care must be described to the jury, by both parties, simply as the standard of care, not as “a rule.” Additionally, in response to another objection made by the defense, the plaintiff’s lawyer was cautioned by the court to refrain from using the term “danger” or “dangerous” to describe the decedent’s medical condition.


The Supreme Court of Appeals found that the trial court did not abuse its discretion by placing “limits on petitioner’s ability to present her case by arbitrarily selecting words and phrases petitioner’s counsel could not use, such as ‘rule,’ ‘danger,’ and ‘dangerous.’”  The court further held that “the circuit court did not err in prohibiting petitioner from using certain terms that were potentially confusing and misleading to jurors. Petitioner was not prejudiced and manifest injustice did not result from the circuit court’s ruling. Petitioner was afforded the opportunity to present her arguments and her case in a fair and impartial manner, free from arguably confusing or misleading inferences.” 


The case is Brown v. Berkeley Family Medicine Associates, No. 16-0572, 2017 W. Va. LEXIS 629 (Sep. 1, 2017)



JULY 2017


Service on a Non-Profit Board of Directors


"I don't know what your destiny will be, but one thing I do know: the only ones among you who will be really happy are those who have sought and found how to serve."         -        Albert Schweitzer


Service on a non-profit board of directors can be a transformative professional experience.  Although we all have the benefit of a law degree and the educational and experiential benefits that come with practicing law, board service requires us to learn and develop new skills – governance, fundraising, performance measurement and strategic planning among others.   


Board service builds strong leaders.  I often say that I got my law degree from UNC Chapel Hill and my PHD in leadership from StepUp Ministry, a non-profit in Raleigh, North Carolina, that helps low income people find employment, where I served as board chair for two years.  That experience changed my life, and I constantly encourage others towards board leadership. 


But lawyers who are board leaders must be careful not to take on the role of “board lawyer.”  Naturally, other board members will look to the lawyer on the board for legal advice, just as you would look at the accountant for financial advice and the insurance professional for insurance advice.  The lawyer on the board, however, faces liability exposure if she gives legal advice that the board then relies upon to take board action.


What exposure does the lawyer board face?  First, if there is a claim that implicates a directors and officers liability policy, the D&O policy covers may exclude coverage for professional malpractice of the board lawyer.  The board lawyer’s professional liability policy may then be implicated, and, depending on the insurer, the professional malpractice policy may limit coverage for advice that the lawyer has provided to the non-profit board.  Although a lawyer on a non-profit board is rarely compensated for his service, thereby making it difficult to bring a negligence misrepresentation claim against him, a professional malpractice claim could easily lie where it is shown that the lawyer had a fiduciary duty to the organization, provided legal advice and was negligence in doing so.


To avoid these risks, a lawyer serving on a non-profit board should do the following:

  1. When recruited for board membership, make it clear that you are not agreeing to serve as the board’s legal counsel, but rather, you intend to serve in the same capacity as all other board members;
  2. If the board asks that you serve as legal counsel, share this information with your law partners and your insurer – ensure that you have sufficient professional liability coverage for the engagement;
  3. Determine what, if any, conflicts may arise with your firm’s current or future clients; run conflicts checks as appropriate; and
  4. Recuse yourself from all board action, and wall yourself off, for any matter that could pose a professional conflict for you and your firm.

Service on a non-profit board is deeply meaningful.  It undoubtedly makes us better people, better citizens and better leaders.  Just approach the role with the understanding that other board members and non-profit staff will instinctively look to you for legal advice, and prepare appropriately.



APRIL 2017

Don’t Underestimate The Jurors Personal Bias, Or Overestimate Your Ability To Persuade Change

By: Clark Hudson:


All of us during jury selection are typically looking for a jury that will hopefully be sympathetic to our client’s defense.  During the voir dire process, we attempt to develop a rapport with the jury, gain some level of credibility, and to some extent pre-condition the jury on issues surrounding the claims and defenses involved in the trial.  If during the voir dire process we identify a juror’s potential bias that may be against our client’s case, the normal response is to strike that juror by either developing a challenge for cause, or using a peremptory challenge.  However, should we ever consider keeping that prospective juror in our panel, and try to persuade them from a stated bias through the evidence presented during trial?  As described more thoroughly below, my answer is NO!


Several years ago, I was involved in a jury trial where the defendant was accused of causing an injury to a minor plaintiff as a result of prescribing a therapy device following surgery.  The device was offered to most patients following surgery, but it was by no means mandatory.  The device was rented to the patient for $5 to $10 per day, with the patient being told to use the device as long as they felt it was beneficial.  The physician acknowledged during his deposition that the price point for the rental was intended to cover his costs for the device, the cost for his staff keeping them on hand and maintaining the devices and a profit for his business.  While the profit was not very large, the doctor’s position was that it was a service he was providing to his patients, for a fee. 


The minor patient alleged that she was injured as a result of her use of the device.  There were certainly issues of whether the injury was caused by reasonable use of the device.  However, there was no denying the fact the patient’s injury was indeed related to the therapy device.  One of the plaintiff’s counsel’s themes, therefore, was the doctor was placing profit over this patient’s welfare in prescribing the device.


The defense position was essentially that nothing in medicine is done for free.  When a doctor is providing services, those services (whether in consultation, in surgery or post-operatively) are performed so the doctor and his staff can make a living.  Similarly, if the doctor is renting equipment to his patients, the money paid for rental is likewise being used to cover the costs of the medical practice, and if there is any excess, it is profit for the medical practice.


During voir dire, the jury panel was questioned about whether any of them would have an issue with a doctor renting therapy equipment to his patients, and receiving a profit for that service.  Most of the prospective jurors appeared to have no issue with the circumstances; several indicated they would simply need to have more information. However, one particular juror who was an extremely well-educated and successful business man, stated that he may have an issue with the doctor making a profit when providing a service that was not fully explained to the patient, or to the patient’s parents.


The prospective juror’s background in business, and education level, made him extremely attractive for the defense.  In all other respects, he appeared as though he would have a conservative attitude in evaluating the plaintiff’s claims.  The only mark against the prospective juror was the fact the juror acknowledged he may have a problem with the undisclosed profit from the therapy equipment.


The decision was made to keep the juror on the panel for trial.  The belief was that the juror would understand after listening to all the evidence that all of the physician services that were billed, including the rental, were done so the physician and his staff can earn a living.  Further, while the rental equipment was a service to the physician’s patients, it was not a huge money maker.  Rather, the amount of the rental was done at a price point which would ensure the doctor was not losing money in providing the service.  In other words, we believed in the course of the trial that we could sway the juror’s mind on whether it was appropriate for the doctor to rent equipment to a patient while not disclosing that he may be making a profit from the rental. 


Needless to say, after weeks of trial, the juror’s perspective did not change.  In retrospect, we should never have expected that we could change the juror’s perspective while listening to a contested case in the courtroom.  Assuming the defense witnesses and defense arguments could change a juror’s perspective that had developed over a period of years was simply not a reasonable belief.


While the juror appeared to be ideal in every other circumstance, in retrospect, he had an innate bias on a key issue that we had identified in advance.  Rather than presuming your abilities of persuasion will be able to convince jurors that acknowledge a bias, the more prudent course is to challenge the prospective juror in hopes that you will end up with a replacement that does not have a pre-conceived bias on the issues involved in the litigation.




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