First Circuit holds that policyholder did not breach cooperation clause when time insurer gave it to respond had not run out when insurer disclaimed coverage

 

Following an arson fire in 2021 that destroyed a building owned by BAS Holding Corporation on the Brockton Fairgrounds, Philadelphia Insurance Company undertook an investigation that focused on whether the building was vacant, which would limit coverage.  

As part of its investigation Philadelphia issued multiple document requests to BAS.  BAS cooperated fully and responded with over 700 documents.

On June 16, 2021, Philadelphia sought to take an Examination Under Oath, or EUO, of BAS.  Rather than naming a particular witness, it asked BAS to designate someone who could answer questions about eight enumerated topics.  

On August 3, 2021, BAS presented Susan Rodrigues as its designee to testify at the EUO.  She answered most questions, and if she did not know an answer to a question she agreed to research the issue and provide an answer at a later date.

During her testimony Rodrigues identified six people who might be able to provide additional information, including five maintenance workers and George Carney, the president and owner of BAS, who Rodrigues indicated might be knowledgeable about the sale of the building to BAS in 1999 and what the building had been used for other than storage since it was built in 1931.  

The day after Rodrigues testified, Philadelphia requested EUOs of the six people she had identified, and specifically noticed the EUO of Carney for August 19, 2021.  BAS replied the same day with an email stating that it would respond to Philadelphia's request in a separate correspondence. Philadelphia claims that reply was a refusal to produce Carney for an EUO.

A few days later, BAS responded more fully, asserting that the request for six additional EUOs was improper and stating that it would consider the request if Philadelphia set forth a factual basis for it.  Philadelphia asserted this communication was a second refusal to produce Carney for an EUO.  

On August 10, Philadelphia responded that it had no obligation to provide BAS with an explanation of why a further EUO was reasonably necessary.  It stated that it was permitted to take the EUO of Carney because he owns and manages BAS.  It asked that BAS confirm within the next two weeks that Carney would appear at the EUO scheduled for August 19, and to contact Philadelphia if that date would not work in order to arrange for a new date.  

Three days later, on August 13, well before the two weeks given by Philadelphia to BAS to respond,  Philadelphia denied BAS's claim for refusing its request for EUOs.  

Philadelphia then filed suit in federal court, seeking a declaration that the building was not covered under the policy, that its loss was excluded by the policy's vacancy provision, and that BAS breached the requirement that it cooperate with the EUO.

The United States District Court for the District of Massachusetts granted summary judgment to Philadelphia on the ground that BAS failed to cooperate by not providing Carney for the EUO.  BAS appealed to the United States Court of Appeals for the First Circuit.  The United States Court of Appeals for the First Circuit reversed, as the evidence "unequivocally" showed that BAS never willfully and inexcusably refused to submit to an EUO.  

The First Circuit noted that under Massachusetts law attendance at reasonably requested EUOs is a condition precedent for insurance coverage.  An insurer may disclaim coverage when faced with a "willful, unexcused refusal to submit to an examination under oath, without proof of actual prejudice."  

The court held that "there is no way" to read as a willful refusal the August 4 email in which BAS's attorney stated that he would respond at a later date to the request for the six additional EUO's. 

The court held that the next email, objecting to Philadelphia's request for the EUOs and stating that BAS would consider the request if Philadelphia would identify why they were reasonably required to do so, also could not be held as a willful and unexcused refusal.  

In the August 10 email from Philadelphia, the insurer provided additional information to BAS and asked for a response within the next two weeks.  Less than 72 hours later, Philadelphia denied the claim in part on the ground that BAS had refused to appear for the additional EUOs. 

Philadelphia also complained that Rodrigues had appeared for the first EUO.  The court held that she was a not unreasonable choice to testify on the topics listed by Philadelphia.  She handled all of the insurance for BAS, and was the operations coordinator for the Brockton Fair.  As part of that role she oversaw the use and maintenance of the fair and buildings throughout the year.  Her testimony showed that she was knowledgeable on most of the issues raised by Philadelphia.  

The court held that given the sequence and content of the email communications and Rodrigues's testimony, it is "impossible" to find that BAS willfully and without excuse refused to present Carney for an EUO.  The First Circuit distinguished those facts from cases where coverage was disclaimed after multiple failed attempts to schedule an EUO, after an EUO was missed, or weeks after an unproduction EUO was completed.  The court held that BAS's conduct bore no resemblance to the behavior of the insureds in those cases.  

Massachusetts Lawyers Weekly quoted me in an article about this case here.  

JDSupra discusses the effect on insurance claims of the tort reform measures that just became law in Florida

 

Although in this blog I generally stick to Massachusetts topics, this article from JDSupra on the new Florida tort reform measures should be of interest to anyone who practices in the insurance bad faith field.  

Here's one of my posts from a few years ago that touches on insurance litigation in Florida.  

What ChatGPT says about exclusions in insurance policies, and why I'm not worried the app will put me out of a job any time soon

 

So many people are talking about ChatGPT -- the artificial intelligence content creator -- that awareness of it has trickled down even to us attorneys, well-known to be late adopters of all technology.  I thought I'd give it a try.  I signed up for ChatGPT (which took several attempts, none of which were my fault, and included one message that I would have to wait because traffic was heavy -- not a great sign for the cuttingest-edge tech), and I input this question:

In Massachusetts what should you do if your insurance carrier says that an exclusion applies to a claim against you?

ChatGPT generated this response:

If your insurance carrier says that an exclusion applies to a claim against you in Massachusetts, you have several options:

1.     Review the policy: Make sure you understand the specific exclusion and its terms. You may want to review the policy documents and any relevant laws or regulations.

2.     Negotiate with the other party: If you believe that the exclusion should not apply, you may try to negotiate with the other party to reach a settlement.

3.     Hire an attorney: If you are unable to resolve the issue with the other party, you may want to consider hiring an attorney who specializes in insurance law. An attorney can help you understand your rights and options and represent you in negotiations or in court.

4.     File a complaint with the Massachusetts Division of Insurance: If you are dissatisfied with the insurance company's decision, you may file a complaint with the Massachusetts Division of Insurance. This agency can investigate the matter and take appropriate action, such as ordering the insurance company to pay a claim or imposing fines.

If the exclusion is valid and the claim is not covered under your policy, you may be personally responsible for paying any damages or legal costs associated with the claim. In this situation, it's important to consider your options and to consult with an attorney if necessary.

While this response has some okay isolated statements, overall I would rate it: malpractice.  I’ll take it point by point:

1.     Review the policy: Make sure you understand the specific exclusion and its terms. You may want to review the policy documents and any relevant laws or regulations.

This may work for the simplest exclusions, but even then I wouldn’t bet on it.  If you have a homeowner’s policy that excludes – let me make up a good one here – “damages arising out of the ownership of dinosaurs,” and you have a pet dinosaur that eats your plumbing, resulting in water damage, it might seem obvious that the exclusion excludes coverage. Right?

Well, not necessarily.  What part of the policy lists the exclusion?  If the exclusion is within your property coverage – which covers damage to your own house – it might apply.  But if it’s in your liability coverage – which covers injuries or property damage you cause to someone else – it might not apply. 

Even if the exclusion is in the relevant portion of the policy, are their any exceptions to the exclusion?  Or any limitations to it?  Or has it been removed altogether?  Your policy may have thirty different forms and endorsements, and language affecting the exclusion may be in a different endorsement than the exclusion itself.

And what about the courts?  Have they interpreted the exclusion?  What have they concluded?

If you have been told that an exclusion applies, don’t try to figure it out yourself.  Consult an attorney who specializes in insurance coverage issues. 

2.   Negotiate with the other party: If you believe that the exclusion should not apply, you may try to negotiate with the other party to reach a settlement.

WRONG.  This would only be correct if the “other party” is the insurance company – but typically the other party is the party who is suing you, for which you are seeking insurance coverage.  If you believe the exclusion does not apply, you need to deal with the insurance company on coverage, not settle with the other party.  Again, hire an attorney.

3.  Hire an attorney: If you are unable to resolve the issue with the other party, you may want to consider hiring an attorney who specializes in insurance law. An attorney can help you understand your rights and options and represent you in negotiations or in court.

This is good advice, except for the order.  Hire an attorney first. 

4.     File a complaint with the Massachusetts Division of Insurance: If you are dissatisfied with the insurance company's decision, you may file a complaint with the Massachusetts Division of Insurance. This agency can investigate the matter and take appropriate action, such as ordering the insurance company to pay a claim or imposing fines.

This is technically true.  I have known people to have good results requesting the assistance of the Division of Insurance, more often with health insurance than with liability insurance.  If you file a complaint with the Division and it catches the attention of a staffer who decides that they agree you have been wronged, they may make a phone call or send a letter that will intimidate the insurer into backing down.  But the Division will not get involved in a dispute over the meaning of an insurance exclusion that is best left to the  courts.  Also, be aware that the Division will not work with a policyholder who is represented by counsel.  You can go to the Division and later, if you’re not satisfied with the results there, hire an attorney.  But you can’t do it the other way around. 

If the exclusion is valid and the claim is not covered under your policy, you may be personally responsible for paying any damages or legal costs associated with the claim. In this situation, it's important to consider your options and to consult with an attorney if necessary.

Agreed. 

My verdict:  The results from ChatGPT are significantly worse than you would get from a Google search -- which will generally lead you to coverage attorneys -- and may cause you to lose rights under your policy or pay a claim that should be covered by insurance.  

SJC holds that under plain language of pollution policy there is no coverage for costs incurred to prevent business interruption after pollution event

 

Ken's Foods, Inc. operates a manufacturing facility in Georgia.  In 2018 its wastewater treatment system malfunctioned and wastewater flowed into a Georgia tributary.  Ken's Foods cleaned up and contained the pollution, incurring about $1 million in costs.

Ken's Foods also implemented a temporary wastewater treatment system that allowed it to continue its operations without interruption.  It spent over $2 million on these measures, including governmental fines, which allowed it to avoid a suspension of operations that otherwise would have cost it over $10 million per month in expenses and lost profits.  

Ken's Foods sought coverage under a pollution liability policy issued to it by Steadfast Insurance Company.  Steadfast paid costs incurred in cleaning up the wastewater discharge and denied coverage for the costs incurred to avoid suspending operations.  

    Policy provisions

Coverage C of the Steadfast policy covered the costs of remediating contamination and legal claims arising from a pollution event, including "emergency expenses," that is, "costs, charges and expenses incurred to avoid an actual imminent and substantial endangerment to the public health or welfare or the environment."  

Coverage H of the policy covered loss of business income resulting from a pollution event that caused a "suspension of operations," which was defined as "necessary partial or complete suspension of operations at the covered location as a direct result of a cleanup required by a governmental authority."  The policy provided that Steadfast was responsible for such losses from four days after a notification of a suspension until Ken's Foods could resume operations.  Under this coverage, Ken's Foods was required to mitigate loss of business income, complete cleanup, and resume operations as soon as practicable in the event of a suspension of operations. 

    Certified question

Ken's Foods sued Steadfast in federal court.  The United States Court of Appeals for the First Circuit certified the question to the Supreme Judicial Court of Massachusetts: "To what extent, if any, does Massachusetts recognize a common-law duty for insurers to cover costs incurred by an insured party to prevent imminent covered loss, even if those costs are not covered by the policy?"  

    No coverage under the express terms of the policy

In Ken's Foods, Inc. v. Steadfast Insurance Co., the SJC responded today (January 6, 2023; published opinion not available yet) that costs incurred by Ken's Foods to prevent a suspension of operations were not recoverable under the policy, because there was no suspension of operations. Rather, Ken's Foods avoided a partial or complete suspension by implementing process changes and negotiating pollution allowances and accompanying fines with the county authority.  "These very measures showed that a partial or complete shutdown was not 'necessary,' albeit due to the creative response of Ken's Foods and the flexibility of government regulators."  

The court held that the mitigation of loss provision of Coverage H was inapplicable.  That provision also required a suspension of operations, which did not occur.  The provision did not require Ken's Foods to prevent an imminent suspension of operations or require reimbursement of such costs.  

    No coverage under common law

As a question of first impression in Massachusetts, the court held that Ken's Food did not have a common law right to reimbursement for the costs incurred to prevent a suspension of operations.  The court noted that this there is a division of opinion among other jurisdictions on this question.

The SJC contained its ruling to the language of the policy and stated that it was not addressing whether there can ever be a common law right to reimbursement -- although under its analysis, there can never be such a right if not set forth in the policy. The court held that the plain, unambiguous language of the policy and the rules for policy interpretation, as  it had already discussed, did not provide for coverage for preventative costs.  

    "Asymmetry" of coverage does not change analysis

In a footnote the court addressed Ken's Foods' argument that the lack of a duty of an insurer to pay for preventive costs creates an asymmetry:  If Ken's Foods had not taken preventative measures, Steadfast would have argued that it had failed to mitigate damages as required by the policy.  The court held, "However this is an asymmetry created by the text of the contract itself."  It quoted Williston on Contracts:  "The question whether a bargain is smart or foolish, or economically inefficient or disastrous, is not ordinarily a legitimate subject of judicial inquiry."  

A video primer on insurance claims for damage to buildings

Welcome to my first video on insurance issues. In this one I discuss basic issues in real property insurance claims.  

Watch my recent webinar on Good Faith Claims Handling

On September 28, 2022 I gave a webinar on the topic Liability Insurance and Good Faith Claims Handling: What Every Massachusetts Attorney Should Know.  This was a joint program of two of my favorite institutions, the Insurance Library (currently holding a Silent Auction) and the Social Law Library.  You can access the video here.  

US District Court for District of Massachusetts holds that Vermont Mutual's post-judgment settlement offers that were less than verdict were in bad faith; puts it on notice for future conduct

    Fire in apartment and tenants' underlying lawsuit against landlord

Chester Robinson and Lorraine Hames were tenants in a multi-unit apartment building owned by Edward Toland and Cogavin Associates.  A fire forced them to move out.

The tenants sued the landlords in Superior Court for negligence, breach of covenant of quiet enjoyment and violation of Mass. Gen. Laws ch. 93A. Vermont Mutual Insurance Company defended the landlords under a reservation of rights. 

Exercising their option to choose counsel to be paid by the insurer when the insurer is defending under a reservation of rights, the landlords chose Emil Ward, an experienced landlord tenant lawyer, as their attorney. 

Underlying jury verdict and insurer's settlement offers that do not match the verdict

Ward regularly communicated with Vermont Mutual about the claim.  Throughout the litigation, Vermont Mutual made several settlement offers, but no offer exceeded $30,000.  Vermont Mutual believed that the landlords would prevail on the merits, based on Ward’s representations as to the strength of the defense.  Ward believed the tenants’ case was generally weak before and during trial, and was surprised when the jury verdict came back against the landlords in the amount $61,750 for negligence and about $20,000 for breach of the covenant of quiet enjoyment.  With prejudment interest the total award was more than $120,000.  The plaintiffs were also entitled to attorneys fees because of the quiet enjoyment claim.  Those fees exceeded $240,000. 

After trial but before the judge’s ruling on the 93A claim, Vermont Mutual raised its settlement offer to $112,016. 

At that point Ward predicted that the Superior Court would rule in favor of the tenants on the 93A claim.  He asked Vermont Mutual to make a larger settlement offer.  Vermont Mutual refused.  The court granted 93A damages to the tenants and entered an aggregate judgment of over $405,000. 

Ward requested settlement authority from Vermont Mutual in the amount of the judgment.  Vermont Mutual refused.

The landlords appealed the judgment.  

    Underlying settlement

While the appeal was pending, the landlords settled with the tenants for $380,000. Vermont Mutual did not participate in the settlement.

    Insurer's declaratory judgment action and counterclaims by landlords and tenants

Vermont Mutual filed a declaratory judgment lawsuit against the landlords and tenants in federal court. The tenants counterclaimed for breach of Mass. Gen. Laws chs. 93A and 176D, alleging that Vermont Mutual had failed to make a reasonable offer of settlement.  The landlords also counterclaimed, alleging that Vermont Mutual had breached its contract with them.

    Reckless acts, even if they breach ch. 93A, are occurrences

Vermont Mutual argued that because the Superior Court awarded damages for the landlords’ violation of ch. 93A, the fire was not an “accident” within the meaning of the policy.  Therefore, it had no duty to indemnify any damages related to the fire, because the harm that flowed from the landlords’ unfair and deceptive conduct was largely the same as the harm caused by their negligence and breach of covenant of quiet enjoyment.  Moreover, the Superior Court had ruled that the landlords’ violation of ch. 93A was willful or knowing, and therefore the damages were not caused by an occurrence.  

The United States District Court for the District of Massachusetts held in Vermont Mut. Ins.Co. v. Toland, 2022 WL 4481508 (D. Mass.) (unpublished) that an injury that ensues from a volitional act of an insured is still an accident within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain such harm will occur.  Thus, injuries caused by recklessness are covered as caused by an accident.

The court noted that in the context of ch. 93A reckless conduct is considered willful.  But that does not affect insurance coverage for reckless acts. 

    Insurer's post-judgment settlement offer was unreasonable

The court then examined whether Vermont Mutual breached its duty to make a reasonable offer of settlement.  The court held that the pre-trial settlement offers of $30,000 were not unreasonable.  The insurer could have plausibly believed that the policy did not cover some of the claims brought by the tenants, as there was evidence that the landlords’ conduct was intentional.  In addition, Vermont Mutual believed in good faith that the landlords would prevail at trial, based on Ward’s reports. 

The court held that Vermont Mutual’s offer after verdict but before the 93A ruling was unreasable.  A jury verdict makes liability reasonably (or even “pellucidly”) clear. It would have been reasonable for Vermont Mutual to make a substantial offer, discounting the jury verdict by the likelihood of success on appeal.  Here, the likelihood of a successful appeal was low.  Taking such factors into account, Vermont Mutual’s offer of $112,026 was too low. 

Insurer cannot base post-judgment settlement offer on its self-serving division of damages for covered claims from damages for non-covered claims

Vermont Mutual based its offer on its analysis of the “proportionate share of recoveries” – in other words, what percentage of the verdict pertained to a covered loss.  But, “because Vermont Mutual failed to intervene to allocate damages in the underlying action, it had the burden to establish allocation, and the Supreme Judicial Court has rejected the kind of speculative calculation made by Vermont Mutual – which was effectively an attempt to determine the particular  amount that happened to be in the juror’s minds as they returned the verdict.”   The federal court held that Vermont Mutual’s self-serving figures were not reasonable. 

Multiple damages not awarded, but Vermont Mutual put on notice for future claims

The court declined to award multiple damages on the 93A claim.  The tenants argued that multiple damages were warranted in light of what they claim is Vermont Mutual’s continuing practice of litigating hopeless positions in order to drive inadequate settlements.  The Court ruled that it did not have before it sufficient evidence to compel such a conclusion.  “Vermont Mutual is on notice, however that further such conduct could well warrant Chapter 93A sanctions.” 

Takeaways:

·       What constitutes a reasonable offer of settlement changes as the situation changes.  The court held that Vermont Mutual’s pretrial offers of $30,000 were not unreasonable, given the assessment of defense counsel that the plaintiffs’ claim was weak.  But once there was a jury verdict, liability was “pellucidly” clear, and Vermont Mutual was required to make an offer of settlement based on that understanding. 

·       After a jury verdict an insurer can’t swoop in and claim to know what amount of the verdict was for damages covered by the policy and what amount was for damages not covered by the policy.  The insurer has the burden of establishing allocation, and the proper procedure to do so is to intervene in the underlying trial.  Although not discussed in the decision, intervention would allow the insurer to request special verdict forms in which the jury would say what damages were awarded for what acts.  Otherwise, the insurer must engage in impermissible speculation (or have a later trial on allocation issues).  

        ·   Although the court chose not to award multiple damages under ch. 93A against Vermont Mutual, it had some harsh words for the company.  The court did not discuss what evidence the plaintiffs offered of Vermont Mutual’s alleged practice of litigating hopeless positions in order to drive inadequate settlements.  It merely held that the evidence was insufficient.  But it did put Vermont Mutual on notice that “further such conduct could well warrant Chapter 93A sanctions.”  The court appears to be inviting future litigants to cite this statement as a basis for multiple damages in future 93A claims against Vermont Mutual.  

    Massachusetts Lawyers Weekly quoted me in an article about this case, here.