Tuesday, July 19, 2016

US District Court for District of Massachusetts allows default judgment after defendant insured served by publication

After Juan Molina was killed in a construction site accident, his estate brought a wrongful death claim against multiple defendants including Santos Remodeling, Inc., a landscaping company. 

Santos was insured by Amguard Insurance Company.  The Amguard policy excludes bodily injury to an employee of the insured arising out of and in the course of employment. 

In a declaratory judgment action against Santos, Amguard alleged that Santos breached its duties under the policy because it never notified Amguard of Molina's death and has not cooperated in Amguard's defense of the claim.  Amguard alleged that is has been prejudiced by those failures both in its investigation of coverage and in its defense of the claim.

Molina's estate was also named as a defendant in the declaratory judgment action.  (Typically all parties to an underlying case should be parties in a dj action.)  The estate moved to dismiss for improper venue.  That motion was granted, so that the only remaining defendant was Santos.

Amguard's motion to serve Santos by publication was granted.  Amguard published a notice of the litigation in the local paper.  When Santos did not answer the complaint, Amguard moved for a default judgment.  That motion was allowed in Amguard Insurance Company v. Santos Remodeling, Inc., 2016 WL 424961 (D. Mass.) (unpublished). 

It's hard for me to understand why Molina's estate sought to be dismissed from the case instead of litigating on the merits.  Santos is likely judgment-proof, so any recovery against it must come from the insurer.   Maybe the estate felt that the insurer's facts were so strong, either on coverage or defense, that it was not worth fighting for coverage.  Maybe other defendants in the underlying matter have sufficient coverage that Molina's coverage is irrelevant.  (But if so, where are the carriers for the codefendants -- surely they would want to share liability with other defendants?) 

Tuesday, July 12, 2016

U.S. District Court denies insurer's request to remove arbitrator prior to arbitration award being issued

The following case is a straightforward decision on the law of arbitration, but it provides a glimpse into the world of reinsurance as well as the mergers, acquisitions, demergers and sales of insurance entities. 

John Hancock Life Insurance Company entered into an agreement with Employers Reassurance Corporation  by which John Hancock would transfer to Employers a percentage of its retention of liability under some of its policies.  The transfer agreement included an arbitration clause that provided that in the event of a dispute each party would appoint one arbitrator and those two arbitrators would select a third. 

John Hancock initiated arbitration to resolve a dispute regarding Employers' right to increase the reinsurance premiums charged under the agreement.  Employers selected Denis Loring as its appointed arbitrator.

John Hancock alleged that the appointment of Loring violated the agreement's prohibition on the appointment of arbitrators who were past or present employees of John Hancock or its affiliates because Loring had worked for one of its affiliates.  Employers asserted that the appointment was consistent with the agreement because Loring ceased working for the affiliate before it became affiliated with John Hancock, and the affiliate is no longer affiliated with John Hancock.  (The name of the affiliate is John Hancock Mutual Life Insurance Company -- not to be confused with John Hancock Life Insurance Company, the plaintiff in this case.) 

In John Hancock Life Insurance Company (U.S.A.) v. Employers Reassurance Corporation, 2016 WL 3460316 (D. Mass.) (unpublished), the United States District Court for the District of Massachusetts held that the Federal Arbitration Act does not authorize a court to remove an arbitrator before a final arbitration award has been issued.

Friday, July 8, 2016

A great insurance event (a month later)

Last month I was privileged to attend a fantastic networking event at the Insurance Library in Boston, where I caught up with scattered colleagues and met local giants in the insurance field including current and former commissioners of the Massachusetts Division of Insurance, the publisher of The Standard, a weekly insurance journal, long-time teachers of insurance certification classes, and others.  

Agency Checklists, one of my favorite blogs, posted about it here along with a description of some of the services offered by the Insurance Library.   

Thursday, June 23, 2016

First Circuit certifies to SJC question of whether insurer must pay attorney's fees for insured's counterclaim

This case may signal a significant development in insurance coverage law -- so significant that it almost overshadows the overwhelming chutzpah of the underlying plaintiff.  (But, as they say, innocent until etc.)  (The traditional definition of chutzpah:  A man kills his parents, then throws himself on the mercy of the court because he is an orphan.) 

In Mount Vernon Fire Ins. Co. v. VisionAid, Inc., __ F.3d __, 2016 WL 3202961 (1st Cir.), the United States Court of Appeals for the First Circuit certified to the Supreme Judicial Court of Massachusetts the question of whether an insurer is required to litigate a counterclaim on behalf of an insured. 

Gary Sullivan sued his former employer, VisionAid, alleging that his termination was the product of illegal age discrimination. VisionAid's insurer, Mt. Vernon Fire Insurance Company, is defending VisionAid.

VisionAid asserts as a defense that it fired Sullivan because he misappropriated several hundred thousand dollars of corporate funds.  No real reason to italicize that, except:  He stole several hundred thousand dollars of corporate funds and then sued his employer for discrimination.  

Sullivan filed his age discrimination claim with the Massachusetts Commission Against Discrimination.  He initially demanded $400,000 to settle his claim.  He repeatedly reduced his demand until he was asking $5,000, before he eventually offered to walk away with no money at all if VisionAid would agree to sign a mutual release.  VisionAid refused to consent to a mutual release as it wanted to go after Sullivan for the allegedly stolen money. 

Sullivan voluntarily dismissed his MCAD claim.  A few months later he filed his claim for age discrimination and other causes of action in Massachusetts state court.  Mt. Vernon agreed to defend VisionAid "unless and until such time that it is determined that there is no coverage under the policy." 

VisionAid responded that it would exercise its right to choose its own attorney.  (When an insurer defends under a reservation of its right to later deny coverage, the insured can choose its own attorney.  That attorney is paid by the insurer.)  Mt. Vernon withdrew its reservation of rights and , because of this, indicated that the counsel it appointed would remain VisionAid's defense counsel.  It stated that it was not required to pay for the prosecution of VisionAid's counterclaim against Sullivan.  Mt. Vernon told VisionAid to hire (and pay for) its own lawyer if it wished to pursue the counterclaim.

Mt. Vernon then filed a suit for declaratory judgment seeking a decision on whether it was required to pay for the prosecution of VisionAid's proposed misappropriation counterclaim.  VisionAid counterclaimed that Mt. Vernon's duty to defend against Sullivan's lawsuit included the duty to prosecute the misappropriation counterclaim, and that VisionAid had the right to be represented by independent counsel for the entire Sullivan action at Mt. Vernon's expense.  VisionAid's theory was that the interests of it and Mt. Vernon were no longer aligned because Mt. Vernon had an interest in diminishing the value of the counterclaim or eliminating it because it was an impediment to settlement. 

The First Circuit certified to the SJC the following questions:

1.   Whether, and under what circumstances, an insurer may owe a duty to its insured to prosecute through insurance defense counsel the insured's counterclaims for damages where the insurance policy provides that the insurer has a "duty to defend any claim," i.e. "any proceeding initiated against the insured."

2.  Whether, and under what circumstances, an insurer may owe a duty to its insured to fund through insurance defense counsel the prosecution of the insured's counterclaims for damages, where the insurance contract requires the insurer to cover "defense costs" or the "reasonable and necessary legal fees and expenses incurred by [the insurer], or by any attorney designated by [the insurer] to defend [the insured], resulting from the investigation, adjustment, defense and appeal of a claim."

3.  Assuming the existence of a duty to prosecute the insured's counterclaims, in the event it is determined that an insurer has an interest in devaluing or otherwise impairing such counterclaim, does a conflict of interest arise that entitles the insured to control and/or appoint independent counsel to control the entire proceeding, including both the defense of any covered claims and the prosecution of the subject counterclaims?


Monday, June 6, 2016

Captive insurers

The American Bar Association has published a fascinating article on captive insurers and how some of them are used as vehicles for tax abuse.   

Thursday, June 2, 2016

Massachusetts Appeals Court holds insurer did not breach settlement duty where trial verdict resulted in excess judgment


Elsa Villanueva was injured when she was struck by a car owned and operated by Valerie Troiano.  Troiano was insured by Commerce. 


Commerce determined that Villanueva was more than fifty percent at fault in the accident (and therefore under the Massachusetts comparative negligence law Troiano was not liable) because she had stepped out from between two parked cars into a traffic lane, not into a crosswalk, on a dark, rainy morning, wearing dark clothing.  It offered $5,000 to settle the claim.


Troiano was not cited for the accident.  Villanueva, who had no memory of the accident, sued Troiano.


Shortly before trial, after several attempts Commerce was able to obtain a statement from Manuel Martinez, the only witness to the accident.  He told the Commerce investigator that Troiano was driving too fast and left fhe scene of the accident.  He also stated that he could not identify the gender of the driver because it was at night and still dark.  Commerce's investigator indicated that Martinez was a friend of Villanueva. 


Also shortly before trial Commerce received a medical report indicating that Villanueva had a permanent injury from the accident.  Villanueva rejected Commerce's offer of a high-low arbitration with a low of $5,000 and a high of $100,000. 


After Martinez appeared for a deposition Commerce offered the policy limit of $100,000.  Villanueva rejected that offer as well.


At trial, the jury awarded $414,500 to Villanueva.  It determined that Villanueva's comparative negligence was thirty-five percent in the accident.  Commerce immediately paid the policy limit of $100,000.


Villanueva then sued Commerce for unfair claims settlement practices.  After trial the judge granted Commerce judgment as a matter of law on the grounds that Villanueva did not present any expert testimony that Commerce breached its statutory duty, and that, on the facts and the law as presented at trial a reasonable fact finder could not find that Commerce had breached its statutory duty. 


On appeal, Villanueva argued that as soon as Commerce learned that Martinez faulted Troiano for the accident liability was reasonably clear and Commerce was required to make a reasonable offer of settlement.  Commerce's initial offer of $5,000 was unreasonable.  Villanueva also argued that the Commerce's subsequent pretrial offer of the $100,000 policy limit demonstrated that it knew that liability exceeded the policy limit and that its prior $5,000 was unreasonable. 


In Villanueva v. Commerce Ins. Co., 89 Mass. App. Ct. 1124 (2016) (unpublished), the Massachusetts Appeals Court affirmed the dismissal of the case against Commerce.  It held that Commerce's belief that Troiano would win on the merits of the underlying claim because Villanueva was more than fifty percent at fault was reasonable. 


Villanueva argued that the fact that Commerce set a reserve at $100,000 showed that it knew that the case should settle for that amount.  The judge disagreed, noting testimony by a witness for Commerce that the reserve represents a worst-case scenario for the insurer and is based only on a damages assessment without taking liability defenses into account. 


The court also held that the amount of the jury award in the underlying claim did not compel a finding that Commerce acted unreasonably. 


The court also affirmed the holding of the trial court that expert testimony was required to establish that Commerce breached its duty.   It held that although expert testimony may not be required in every case asserting a breach of duty to settle claims, it was needed in the present case. 

Tuesday, May 17, 2016

Mass. Appeals Court finds title attorney liable to title insurance company

Stewart Title Guaranty Company, a title insurer, retained Attorney Robert Kelley to issue title insurance policies to owners and lenders in connection with real estate transactions.


Stewart sued Kelley for negligence and sought indemnity with respect to several  closings.  In Stewart Title Guaranty Co. v. Kelley, 89 Mass. App. Ct. 1121, 2016 WL 1741537 (unpublished), the Massachusetts Appeals Court held that Kelley was liable for breaching the standard of care at least with respect to two of those closings. 


In the first, Kelley issued a title insurance policy even though the property was encumbered by a prior mortgage and two attachments that were recorded in the Plymouth Country Registry of Deeds.  Kelley's defense was that he hired a reputable title examiner for the title review.  The court adopted Stewart's argument that "while a shortcoming in the performance of the examiner may create rights of Kelley against the examiner, the examiner's good reputation is not a defense to an action for negligence by Stewart against Kelley." 


(That discussion illustrates the fact that indemnity clauses in contracts by which title insurers retain attorneys to issue title policies have the effect of transferring risk from the title policy to the attorney's malpractice policy.) 


The court also held that expert testimony was not required on the issues of negligence, because the claimed legal malpractice was so gross or obvious that laypeople could rely on their common knowledge or experience to recognize it from the facts.


In another closing, Kelley mailed sufficient funds to close out a previous line of credit with Citizens Bank so that a different mortgage would be the senior mortgage on the property.  His file did not contain a standard letter instructing the lender to close the line of credit.   Citizens did not close out the line of credit and the borrower thereafter withdrew additional funds, resulting in a loss to Stewart. 


The court held that Kelley's failure to send the letter or to keep a copy of it deprived Stewart of the material it needed to establish that the credit line was  closed and thereby to extinguish the Citizens claim. The court again held that no expert testimony was necessary to prove negligence in that instance.