Here’s an interesting story today about the Massachusetts Attorney General challenging the rate increases that have been approved for the state’s homeowners’ insurer of last resort, the FAIR plan. The problem is one that is riling coastal homeowners’ insurance markets up and down the eastern seaboard, namely the rate increases being imposed by insurers – and in particular state mandated insurers of last resort for homeowners who cannot obtain insurance in the private market – on coastal properties so as to account for hurricane risks. I have talked before about the real question with regard to what rate increases the FAIR plan should be allowed to impose, and the consumer and sometimes political opposition to what would otherwise appear to be appropriate increases by the FAIR plan and similar plans. The issue that it presents is to a large extent a question of the degree to which we should be comfortable letting the market set the rates, or even the availability, of insurance for such homes, or whether the market for such coverage should be distorted by state regulated insurers and the pressure on them to charge less than may be correct from an actuarial perspective.
While one might initially be inclined to view the Attorney General’s response to the rate increases by the FAIR plan as being exactly this type of political pressure to distort the rates away from what a private carrier would charge for the same coverage, it is not that easy to immediately dismiss his assertions that there are problems with the hurricane models used to support the rate increases, at least without further independent investigation of that charge. Having saved a collapsing health insurer from dissolution some years ago, he has a certain credibility on these issues. And as a lawyer, and in particular an insurance coverage specialist, I am happy to consider a challenge to an insurer’s decision that can be decided on the basis of a careful analysis of an insurer’s underlying factual reasoning and evidence, which is all the Attorney General seems to be asking for.

Here is a nice post on whether claim reserves are discoverable in insurance coverage or bad faith litigation, with some case law on the topic as well. The discovery of claim reserve information is one of those issues that is a consistent point of dispute from one coverage or bad faith action to the next. In fact, given how much it comes up, it is kind of amazing the amount of time and money spent – some would say wasted – in insurance coverage and bad faith litigation over discovery issues such as this one. Some of that, it is fair to say, is driven by the fact that insureds and claimants in such lawsuits are often convinced there is some document somewhere in the insurer’s files that is the key that will unlock the entire case, and are determined as a result to obtain every single piece of paper possessed by the insurer that they can grab hold of. In truth, there almost never is such a key stone document, and even when there is, you can be pretty certain it isn’t going to be found in the claim reserves or in similar information, such as reinsurance documents, that are likewise routinely the source of a tug of war over production and discovery in coverage and bad faith litigation.
But the other part of the problem is that what we may really need is some sort of federal rules of evidence, insurance coverage and bad faith subsection (hopefully then adopted by the states as well as part of their own evidence codes, in states like Massachusetts that don’t automatically follow the federal rules of evidence), that synthesizes all the case law on these types of issues that arise repetitively in coverage or bad faith litigation, and sets down a rule once and for all on them. In this tidy little daydream for a Friday morning, we could then all stop relitigating the same discovery points over and over again, frequently with little more than a change of judge and forum from the last time we argued over them.

I have talked elsewhere, including here and here, about the extent to which market forces can be expected to protect against conflicted decision makers in ERISA benefits litigation, and my preference for the position of courts such as the First Circuit, who recognize the central role such forces should play in devising the appropriate legal regime that should govern this situation and these types of cases. Many, obviously, do not agree, and believe that the long term marketplace effect of bad conduct can’t possibly have enough effect to deter bad actors, and it appears that the judges of the Ninth Circuit agree with this line of thinking. To those, I raise the question of whether being entirely thrown out of the market because of long term misconduct in handling employee benefit claims, as this article discusses, would be enough evidence that the market will punish the bad and reward the good, at least over time. It would, at a minimum, be ironic if the largest state in the Ninth Circuit proceeded in the manner discussed in the article and provided graphic evidence of a marketplace punishment for misconduct of this type, on the heels of the Ninth Circuit itself finding that something else is instead needed to deter such conduct.

Well, this is an interesting report, and though I am not quite sure exactly what to make of it, it falls within the general rubric of this blog. As Robert Ambrogi sums the reporting and blogging on this story up here, a law firm has been hit with an eighteen million dollar malpractice verdict based on the failure of a health plan; the amount of the verdict is premised on the amount of unpaid claims outstanding under the plan. Of interest to me is the side carnival, which is the defendant law firm apparently claiming that its professional liability insurer committed bad faith by failing to settle the claim within the one million dollar limits of the firm’s professional liability insurance. Anytime anyone suffers a verdict in excess of their insurance coverage, it is reasonable to look first to whether the insurer should have seen that coming and settled the case before a verdict could be taken on the case that would expose the insured to the possibility of having to pay damages greater than the amount of the existent insurance coverage. But though the law on whether an insurer can be liable for bad faith failure to settle within the policy limits under such a scenario varies from jurisdiction to jurisdiction, there are some questions that always have to be answered to consider whether the insurer should have settled the case and avoided the risk of such an excess judgment. These include whether the insurer should have seen that the case was worth the policy limits in settlement, or should have foreseen the risk of a judgment exceeding the policy limits if the case was tried to a verdict.
Beyond that, in a case such as this one where presumably the hard numbers of the loss were always obvious and so you could always know that there was a risk a verdict would exceed the insurance coverage, is that enough to require the insurer to settle the action? Probably not, since in deciding whether to settle the action or instead risk an excess verdict in that situation, one normally still has to consider how likely the case is to end up with such a large verdict. For instance, should the law really require an insurer to settle, rather than allow a trial, just because the claimed damages are sky high, if the likelihood of those damages being recovered is minimal? The likelihood of losing or winning at trial obviously always factors into the settlement negotiations of any experienced lawyer or other negotiator.
And for that matter, there is the question of why the case did not settle before a verdict came in. Was it because the plaintiff’s demands were too high, or was it instead because the insurer wouldn’t respond to an appropriate demand? And what role did the insured play in the matter? Did the insured always press for settlement within the limits of the coverage, and work towards it, or was a settlement within the policy limits just something the insured requested in a token manner prior to the verdict, so as to place itself in a position to sue the insurer if things went south at trial?
There are more questions in these types of cases than one can shake a stick at, and the fun of such cases is sorting out the answers.

Insurance coverage could learn a bit from the law of ERISA, particularly from the concept of structural conflicts of interest that is so much in play in ERISA litigation at the moment. In the world of insurance coverage litigation, insurers almost invariably stand in exactly the position that ERISA decisions view as a structural conflict: they both decide the claims for coverage and pay the claims if there is coverage. And yet we don’t talk in insurance coverage about such conflicts, and this issue is never the animating principle behind judicial decisions over whether or not a policy covers a particular loss. Instead, insurance coverage law borrows from contract law, and courts purport to be applying contract principles to decide these types of cases.
But the truth of the matter is that many rules of insurance policy interpretation and many rules governing the obligations of insurers and insureds simply don’t fit comfortably within a contract law framework. Some of those rules and obligations, however, could be better understood if viewed through the prism of a structural conflict of interest analysis.
For instance, several decisions over the last few years have addressed whether an insurer has the right to be reimbursed by its insured for defense costs incurred on uncovered claims, as discussed here. Some courts allow it, with the thinking being that the insurer did not contract to provide a defense to uncovered claims, but instead only for potentially covered claims, and therefore the insurer should be paid back moneys spent on defending uncovered claims. Yet allowing reimbursement isn’t logical if the question is examined from the point of view of traditional contract law. As David Rossmiller pointed out here, the policies don’t include an actual contractual term to this effect. Moreover, it has long been, depending on the jurisdiction involved, either an accepted norm or an outright legal rule that the insurer must pay for the defense of the entire case even if only one of many claims in the lawsuit might be covered, and under any traditional approach to contract law, such a long held mutual understanding of the contracting parties would be understood to be part of the contract’s terms. Thus, I am skeptical that reimbursement makes any sense under a contract regime, which insurance coverage decisions generally purport to be part of. At a minimum, the answer to whether reimbursement should be allowed under these circumstances certainly isn’t clear from the point of view of pure contract interpretation, given that an almost equal number of courts don’t allow reimbursement as allow it, as discussed in this article.
But it may be that contract law in its traditional form simply isn’t the right framework for understanding this issue, and that instead what we want to do in this situation should instead depend on the outcome that is fairer to both parties to the contract, the insurer and the insured. And the way to figure that out may be to borrow from the law of ERISA the concept of the structural conflict of interest and apply it, and see what we end up with. If the powerful role that the insurer holds as both payor of the loss and initial decision maker on the claim affects this issue, than perhaps it is not fair to interpret the policy to allow such reimbursement, but if it does not have that effect, then perhaps it is appropriate to allow such reimbursement given that the contract terms themselves do not settle the question. Now, in most of these reimbursement cases, the insurer has agreed to pay for the defense of the insured against claims – often ones that are very expensive to defend against – that simply are not covered. An insurer that does so obviously has not made its decision due to any sort of conflict it might face as both the payor of the loss and the decision maker, because it has elected to do something in the insured’s favor, and not in its own: namely, defend the insured against a claim that is not even covered. Why would an insurer acting out a conflict do that, one would have to ask, and the short answer is that it wouldn’t. Since the insurer was not acting out of a conflict of interest, there is no reason not to simply limit the insured to what it paid for, namely the defense of covered claims, leading to a corresponding obligation to repay the insurer the money spent defending the insured against uncovered claims.
And thus a structural conflict of interest analysis sheds some light on the result that should be reached in a situation in which the terms of the policy itself, and the doctrines of contract law, can’t tell us what the outcome should be.

There is a nice and complimentary write up of this blog at Workplace Prof Blog, one of my favorite sources for a wide range of information related to employee benefits, including ERISA, such as this post on a petition for writ of certiorari arising out of a recent Ninth Circuit ruling concerning the fiduciary obligations of the administrator of an employee deferred profit sharing plan. The petition is itself interesting reading, and is available here (thanks to the efforts of the Workplace Prof), and details what the petitioner views as a split among the circuits on two specific points concerning the law of ERISA. The first is whether a plan participant can sue a fiduciary for breaches of fiduciary duty that harmed only a subset of a plan’s participants and not the plan as a whole, while the second concerns the extent to which the administrator of a retirement plan can follow, or instead must decline to follow, a plan sponsor’s directive that is not prudent from an investment perspective.
Tough choices that these types of cases present, as to where to draw the line between the sponsor’s right to operate its plan and the protection that should be extended to the participants. Perhaps the question of whether the participant can protect herself within the structure of the plan, seperate from what the administrator or sponsor does, might act as a guide post on where that line should be drawn.

Lawyers today are specialists, as evidenced by the long list of single issue law blogs listed on the bottom left of this blog (for an explanation of that list, see here). And with specialization comes what I call “without a second thought” tools, which are approaches to practice that are second nature to those in a particular specialty but of little interest and infrequent relevance to those practicing most other specialties. A “without a second thought” tool is often the unarticulated backdrop behind a specialist’s decision to proceed on a case or represent a client in a specific way, one that influences the tactical decisions made on the more front and center issues in a case. At the same time, lawyers who practice in other areas may never even give that topic a second look.
For insurance coverage litigators, choice of law is exactly this type of “without a second thought” tool, subtly and consistently influencing other decisions on a coverage dispute, as this post here discusses, but one that, as a different post reminds us, is an issue that may seldom, if ever, be of relevance to lawyers litigating in other specialties.

With lawyers, how we view an opinion, and for that matter a blog post, frequently depends on the focus of our practices and the things that, as a result, we are looking for. I was reminded of this over the weekend when I came across this post on Appellate Law and Practice, a blog run by a self described group of federal law clerks and appellate lawyers who post about the recent decisions in the circuit courts of appeals that they cover. Being appellate practice oriented folk, a central aspect of their take on my recent posts about Janeiro and the contrary opinion, Abatie, out of the Ninth Circuit was to note that the two cases, and my posts on them, demonstrate a split in the circuits on the issues addressed in the two decisions.
Which was interesting because one of the things that jumped out at me right off the bat about the Ninth Circuit’s decision in Abatie, a decision I discussed in detail here and here, but did not previously comment on, is that in reading it, one can almost see the court and its clerks targeting a spot on the Supreme Court’s docket. From the detailed presentation of the interaction of the decision with current Supreme Court precedent, to the almost scholarly review of the various approaches of other circuits, it reads like an invitation to the Supreme Court to weigh in yet again on the standard of review and conflict of interest questions still open under current Supreme Court jurisprudence.

There was another important issue addressed in the First Circuit’s decision this month in Janeiro, one I had planned to address in a return post on the case, involving an issue dear to the hearts of anyone who sues plans, administrators or fiduciaries for a living, namely the right to recover attorneys’ fees in such a lawsuit. Before I could return to this point, however, I got sidetracked by my favorite decision of the month, Abatie v. Alta Health and Life Insurance. So I am returning to it now, before this point can get shunted to the side again by some other new development.
In Janeiro, you may recall, the defendant took a beating in the case, and the plaintiff, rightfully so under ERISA, sought to recover attorneys’ fees after prevailing on his claim. The First Circuit, addressing the district court’s decision not to award fees to the prevailing plaintiff, gave a nice, concise presentation of the law at this point in time in this circuit on this issue. Emphasizing that an award of attorneys’ fees in such cases is entirely discretionary, the court discussed the standards governing this determination in this circuit. In key part, the court declared:

ERISA provides that attorneys’ fees are available in the court’s discretion. . . . We begin by noting that in an ERISA case, a prevailing plaintiff does not, merely by prevailing, create a presumption that he or she is entitled to a fee-shifting award.. . . [T]his court has listed five factors that ordinarily should guide the district court’s analysis: (1) the degree of culpability or bad faith attributable to the losing party; (2) the depth of the losing party’s pocket, i.e., his or her capacity to pay an award; (3) the extent (if at all) to which such an award would deter other persons acting under similar circumstances; (4) the benefit (if any) that the successful suit confers on plan participants or beneficiaries generally; and (5) the relative merit of the parties’ positions. . . .This list is illustrative, not exhaustive[;]no single factor is dispositive; and indeed, not every factor in the list must be considered in every case.

The First Circuit approved of the district court’s analysis of this issue, and in so doing presented the model for how to address this issue. It is fact specific, and the way to argue it to the court, and for the court to in turn consider the issue, is to address what the actual facts of the matter show on that specific case with regard to each of the five factors (recognizing, of course, that the First Circuit specifically left open the possibility that there are still more factors that could possibly be considered, and that even some of the factors specifically identified by the court may have no relevance).

I tend to be a fan of facts, and of hard numbers, as they frequently paint a picture different than the one that would otherwise appear. This is no less true for the subject matter of this blog than for other subjects. Lawsuits and litigation, and the discussions about them, often focus on the spectacular or the rare. Insurance coverage is no different, as it is really the rare case that turns into a courtroom drama, a point I hinted at here, when I noted how relatively few coverage determinations are actually challenged in court and overturned. There has been much discussion in recent weeks about the Hurricane Katrina coverage litigation taking place in Mississippi, and in particular the hundreds of lawsuits still pending in the federal courts there. Yet in contrast, as this article reminds us, the vast majority of claims arising out of Hurricane Katrina have been settled amicably, with insurers paying out multiple billions of dollars in claims in Louisiana and Mississippi, and insureds reporting a high level of satisfaction with their insurers’ responses to the claims. The Insurance Information Institute reports that a year after the storm, approximately 95% of the Hurricane Katrina related claims in those two states have been resolved. Now, of course, the caveat is that we all know the old saying, that there are three kinds of lies – lies, dang lies and statistics – and thus we would need to see the underlying data – in particular the survey questions – to know how much credence to give this report, but I suspect the results being reported here bear a pretty good resemblance to reality.