Thursday, March 26, 2020

First Circuit affirms judgment that insurer acted in bad faith in shutting down investigation that would have made insured's liability clear

Last summer I posted about Capitol Specialty Ins. Co. v. Higgins, in which the United States District Court for the District of Massachusetts held that an insurer, Capitol Specialty Insurance Corp., had acted in bad faith and was liable for treble damages when it failed to investigate fully and settle a claim by Kailee Higgins, a minor who worked at a strip club owned by policyholder PJD. Higgins alleged that she was injured in a drunk driving accident after drinking at the club. 

The United States Court of Appeals for the First Circuit has now affirmed that decision in all respects except for the determination of  prejudgment interest.  __ F.3d __ (1st Cir. 2020), 2020 WL 1164681.

Capitol tendered its policy limit after attorney's fees it had paid. PJD and Higgins then entered into a consent judgment for $7.5 million.  They agreed that Centerfolds would pay Higgins $50,000 and assign its claims against Capitol to Higgins.

Higgins then sued Capitol for bad faith settlement practices under Mass. Gen. Laws chs. 93A and 176D on her own behalf and as assignee of PJD's claim against Capitol.  The United States District Court ruled in Higgins' favor on her own claim, assessed actual damages of $1.8 million against Capitol, and trebled actual damages to $5.4 million.

Both parties appealed.  Higgins argued that the District Court should have adopted the $7.5 million consent settlement amount as actual damages and that it failed to rule on the claims against Capitol assigned to her by PJD.

Capitol appealed the findings against it, the calculation of actual damages, and the award of prejudgment interest on treble damages rather than actual damages.

The First Circuit first addressed the question of actual (or single) damages.  It noted that under Mass. Gen. Laws ch. 93A the amount of actual damages is the amount of a judgment.  The court affirmed the District Court's finding that the consent judgment was not a judgment within the meaning of the statute.  Higgins argued that the consent judgment should be the basis for damages because it was reasonable and non-collusive. The First Circuit held that the District Court had found, in using the phrase "not an arm's length transaction," that the $7.5 million judgment was sufficiently collusive as to preclude it from being a judgment within the meaning of the statute.

Massachusetts Lawyers Weekly  quoted me on that aspect of the case.   As I pointed out there, allowing parties to call a settlement a "consent judgment" and then making the settlement amount the basis for 93A damages would result in consent judgments that are farther and farther from the actual value of the case. After all, when they have agreed that the claimant will not collect the judgment from the policyholder, the policyholder has nothing to lose by agreeing to whatever figure the claimant suggests.  The larger the number, the more the claimant will recover from the insurer if they prove a 93A violation.

The First Circuit next rejected Higgins' claim that she was entitled to additional damages from the claim against Capitol assigned to her by PJD.  "Given that Capitol met its duty to defend and that, as to indemnity, Capitol offered the policy limit to Higgins, we are doubtful the insurer violated a duty to PJD."

The First Circuit also held that there was no evidence of any monetary loss as to the assigned claim, which is required under Mass. Gen. Laws ch. 93A §11.  Higgins argued that Capitol's actions caused PJD monetary loss by exposing it to a judgment in excess of the policy limit, causing an erosion of the policy limit to attorneys' fees, causing it to pay $50,000 in exchange for the covenant not to sue, and causing it to incur fees and expenses to its personal counsel while defending the court action.

The First Circuit rejected those arguments.  There was no evidence that Capitol could settle the claim within the policy limit.  The erosion of funds for attorney's fees was actually less than Capitol should have spent in investigating the claim.  Capitol's actions did not cause PJD to pay the $50,000 in settlement or the necessity of personal counsel because its exposure was above the policy limit. 

The First Circuit then addressed Capitol's argument that the District Court had erred in holding that it failed to conduct a reasonable investigation, in violation of  Mass. Gen. Laws ch. 176D.  Capitol had shut down its investigation after minimal and inadequate work had been done on it, when its own investigator had told it more work needed to be done, its attorney immediately realized there was a good likelihood of liability, and it should have known that there was a good likelihood of liability.  

For those reasons, the First Circuit  affirmed the District Court's finding that Capitol's action's had been willful, knowing and in bad faith, making it liable for multiple damages.

Finally, the First Circuit agreed that the District Court had erred when it calculated prejudgment interest on the trebled damages rather than single damages.  The court held that if there had been a judgment, prejudgment interest would have applied to the entire amount.  With no judgment, it applied only to single damages.

Saturday, March 7, 2020

Summer camp insurance and coronavirus

I received an email from a sleepaway camp where I'm considering sending my younger daughter this summer.  The camp advised families to strongly consider purchasing camp insurance because of the potential impact of coronavirus.

I took a look at the policy being offered for that camp and another one my daughter will attend.  Although they vary in some of the details, the pertinent coverages are the same.  The insurer will reimburse me for camp fees if:

1)  My daughter cannot attend camp because she is sick.
2)  My daughter cannot attend camp because she is personally quarantined.

The policies do not provide for a return of fees if the camps are closed because of coronavirus.

I have reached out to a couple of camp directors to ask whether fees will be returned by the camp itself if camp is cancelled.  The response I'm getting is that they have never had to deal with a situation like this before and they are looking into it.

Some thoughts and takeaways:

1)   Sleepaway camp is the best. Attending and working at them were bright spots in my life, and my younger daughter has loved hers as well.  (My older daughter . . .  let's just say every camp is not right for every kid.)

2)  Before deciding on whether to purchase camp insurance for your child, read the policy that is offered.  If it's like the ones that I have seen, your calculation should not be based on how likely you think that it is that the camp will close.  It should be based on how likely you think it is that the camp will remain open but your child will not be able to attend because he or she is personally sick or quarantined.

3)  I'm not trying to join in the coronavirus fear-mongering.  Whether or not camps close or stay open may well have more to do with the perception of the dangers of coronavirus than the actuality of how dangerous it is.

4)  Obligatory reminder: wash your hands.

Tuesday, January 21, 2020

Invitation: On February 4 I'll be speaking at a panel on insurance issues in professional liability claims

On February 4, 2020, from 7:30 to 9 AM I will be addressing insurance issues in malpractice claims on a panel titled "What To Do When You’ve Made a Mistake,  or a Client Thinks You Have: Malpractice Actions, BBO Complaints, and Professional Liability Insurance."

The panel is sponsored by the Business Lawyers Network, and there is no charge to attend.  It will take place at the Gould Street Café, 160 Gould Street in Needham.  Registration information is below.  

Here's the complete information:

Top           Topic:   What To Do When You’ve Made a Mistake,  or a Client Thinks You Have: Malpractice Actions, BBO Complaints, and Professional Liability Insurance 

 Place:   Café at 160 Gould St., Needham, MA

 OVERVIEW:   We all want each one of our clients to be thrilled with our representation of them.  Unfortunately, sometimes attorneys make mistakes  -- and sometimes clients are unsatisfied with even the best possible outcome.  Joe Berman, General Counsel to the Massachusetts Board of Bar Overseers, and Nina Kallen, a solo practitioner specializing in insurance coverage litigation, will discuss what lawyers should do when faced with a malpractice action or BBO complaint.  How can you safeguard and make the most of coverage under your professional liability policy?  What can you expect from a BBO proceeding?  What is the interplay among fee disputes, malpractice actions, and BBO claims?   

 It is not necessary to print tickets.


Joe Berman is the General Counsel to the Board of Bar Overseers, a position he has held since May, 2017.  As General Counsel, Joe advises the BBO on enforcement of the Massachusetts Rules of Professional Responsibility.  Prior to his current position, Joe was in private practice with several firms.  His work focused on commercial litigation, including the defense of lawyers in civil malpractice and BBO claims.  He has also worked as a mediator and arbitrator.

Nina Kallen, a member of BLN, is a solo practitioner who specializes in insurance coverage and bad faith litigation.  She also drafts dispositive motions and appellate briefs on a subcontract basis for other attorneys in all areas of civil litigation.  She has represented parties in malpractice litigation and fee disputes both directly and in her subcontract practice.  You can learn more about her on her website,

 UP NEXT: March 11th presentation on different corporate structures for legal practices

ABOUT BLN:   Business Lawyers Network (BLN) comprises lawyers concentrating in complementary disciplines such as corporate, securities, commercial contracts, government contracts, secured lending, taxes, litigation, import/export, immigration, real estate, environmental, patents, trademarks, licensing, etc. Non-lawyer business professionals are also welcome, but the topic and focus of discussion will be on lawyers and the legal profession.

Friday, January 3, 2020

Emerging technology in the liability insurance industry

Adam Berardi of White & Williams has written a fascinating article at on how liability insurers are using new technology to assess risk and adjust losses, as well as how new competitors are using technology to make revolutionary changes to the industry. 

Tuesday, December 31, 2019

US Bankruptcy Court denies approval of settlement transferring claimant's rights against debtor's insurer to debtor; also, Florida insurance law is insane

On February 2011, David DeVeau was in a car accident in Florida in which Ashly Rierson suffered devastating injuries.  DeVeau was insured by Progressive Select Insurance Company, apparently under a Florida policy that did not include bodily injury coverage.  Rierson sued DeVeau in Florida.  Progressive defended the lawsuit under a reservation of rights.  A jury found in DeVeau's favor in 2018, but that verdict was vacated on appeal.  The case is scheduled for retrial in 2020.

Meanwhile, in 2011 Progressive had filed a declaratory judgment action in Florida seeking a declaration that it had no duty to defend or indemnify DeVeau. DeVeau asserted in that action that he had bodily injury coverage under the policy.  Progressive filed a motion under a Florida statute that permits an insurer that prevails in a coverage action to recover attorneys' fees and costs in equal amounts from the losing party and the losing party's attorney.

Let that sink in.  

In 2015, DeVeau and Progressive executed a stipulation and mutual release under which DeVeau released and discharged Progressive of all liability arising under the policy it issued to DeVeau, the declaratory judgment action, and the duty to defend DeVeau in the personal injury claim.  DeVeau withdrew his defense in the coverage action and assented to entry of declaratory judgment in favor or Progressive.

A few months later, DeVeau filed a Chapter 7 bankruptcy petition in Massachusetts.  Rierson filed an adversary proceeding asserting that her claim against DeVeau was not dischargeable in bankruptcy.
The bankruptcy trustee commenced an adversary proceeding to avoid or set aside the release against Progressive as a fraudulent conveyance.

The bankruptcy trustee then negotiated a settlement with Progressive, for which it sought approval from the Bankruptcy Court.  Under the agreement, within 30 days of DeVeau receiving a discharge in bankruptcy, Progressive would pay the bankruptcy estate $825,000 and the bankruptcy trustee would transfer to Progressive all right, title and interest in all Progressive insurance policies issued to DeVeau.  All claims against Progressive relating to DeVeau's Progressive policy, including Rierson's claims, would be permanently enjoined.

Unsurprisingly, Rierson objected to the motion to approve the settlement.

In In re DeVeau, 2019 WL 7000066 (Bankruptcy Court, D. Mass), the United States Bankruptcy Court for the District of Massachusetts denied the motion to approve the settlement.  It first examined whether it should approve the sale of the policy free of clear of any interest of Rierson. Rierson argued that the bankruptcy estate did not own DeVeau's interest in the policy because he had released all rights under the policy before he filed for bankruptcy.  The court agreed with that argument.

The court next analyzed the request for an injunction that would permanently enjoin Rierson from prosecuting any claim against Progressive  related to DeVeau's policy.  The court denied the request as it was predicated on a sale free and clear of liens.  As there could be no sale of property that did not belong to the bankruptcy estate, there could be no injunction.

Finally, the court held that the agreement was not reasonable because under it the injunction on claims against Progressive would immediately go into effect but DeVeau would receive payment from Progressive only if he received a discharge in bankruptcy.

Friday, December 27, 2019

2019 amendments to ISO forms

Many insurers use standard insurance forms and endorsements issued by the Insurance Services Office, or ISO, which is subsidiary of a company called Verisk Analytics.  ISO recently made several changes to its forms and endorsements.  The law firm of Saxe Doernberger & Pita has described the changes here

As summarized in the Saxe blog post, the changes expand who is an additional insured, especially in the context of construction defect and liquor liability claims.  They also affect waiver of subrogation clauses. 

Tuesday, December 24, 2019

US District Court for District of Massachusetts holds that exception to exclusion does not create coverage barred by a different exclusion

On February 19, 2019, an employee of Performance Trans, Inc. ("PTI") drove a tanker truck off the road in New York.  The truck overturned and spilled 4,300 gallons of gasoline and diesel fuel.

PTI undertook an emergency response action to clean up the spill.  It sought coverage for its costs in doing so from its insurer, General Star Indemnity Company.  General Star disclaimed coverage on the basis of a total pollution exclusion.

Utica Mutual Insurance Company provided malpractice insurance to PTI's insurance broker.  It agreed to reimburse PTI for the cleanup costs in exchange for an assignment of PTI's rights against General Star.  The case proceeded to a declaratory judgment action.

The General Star policy included a Special Hazards and Fluids Limitation endorsement, which excluded coverage for "the unloading of drilling fluids from any auto, mobile equipment, machinery or equipment, whether unloading is the result of movement of property by a mechanical device, an accident, a spill or otherwise."  The exclusion contained an exception for unloading of the fluids caused by the upset or overturn of an auto.

Utica and PTI argued that the exception to the exclusion indicated that General Star agreed to provide coverage for unloading caused by the upset or overturn of an auto.

In Performance Trans., Inc. v. General Star Indemnity Co., __ F.Supp. 3d __, 2019 WL 6307227 (D. Mass.), the United States District Court for the District of Massachusetts disagreed.  "An exception to an exclusion does not affirmatively create coverage."  Rather, an exception merely prevents the exclusion itself from applying in specified circumstances.  (In a footnote the court noted that by their plain meaning the total pollution exclusion of the policy and the Special Hazards and Fuel Limitation endorsement can coexist, so that the exception to the latter exclusion is not superfluous or illusory.)