This report analyzes 210 insurance-related class actions filed in or removed to federal court in 2016. In many respects, the results are predictable. The greatest percentage of the insurance-related class actions involve coverage or claims handling decisions, although there were a few interesting pockets of recurring class claims, such as inflated drug prices and cost of insurance (‘‘COI’’) increases for life insurance policies. The predominant forum choices were on the American coasts, California and Florida being the preferred locations. One notable result was the frequency of voluntary dismissals by the plaintif fand individual settlements reached with the named plaintif fonly. It can only be surmised that either these cases never were intended to be consummated as class actions or that impediments arose after filing that prevented a cost-effective resolution on a class-wide basis.
It is hard to believe that Rancosky v. Washington National Ins. Co., No. 28 WAP 2016, 2017 Pa. LEXIS 2286 (Pa. Sept. 28, 2017) is the Pennsylvania Supreme Court’s first foray into the proof required for statutory insurer bad faith claims, particularly since it has been over twenty-five years since the Pennsylvania legislature created the private cause of action. 42 Pa. Cons. Stat. § 8371. It was the Pennsylvania Superior Court that first articulated the elements of statutory bad faith in Terletsky v. Prudential Property & Cas. Co., 649 A.2d 680 (Pa. Super. 1994), appeal denied, 659 A.2d 560 (Pa. 1995). Under Terletsky, a plaintiff claiming bad faith must prove by clear and convincing evidence that: 1) the insurer did not have a reasonable basis for denying policy benefits; and 2) that the insurer knew or recklessly disregarded the lack of reasonable basis for denying the benefits. 649 A.2d at 688. Continue reading The Supreme Court of Pennsylvania Shores Up Nature of Intent Required for Statutory Bad Faith Claims against Insurers
Claims against insurers under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) occupy a unique place in its jurisprudence. Insurance is highly regulated, and many other recovery avenues exist in Pennsylvania for aggrieved insureds, such as breach of contract and bad faith. Usually, insurance claims are tethered to contract law, since the insured-insurer relationship and duties are governed by the insurance policy. Courts should be reluctant to ignore contractual principles when a UTPCPL claim arises out of a policy.
Generally, deceptive insurance solicitations are actionable under the UTPCPL, while post-inception policy-related claims are not. Toy v. Metropolitan Life Insurance Co. exemplifies this point. Toy involved an insurance salesman’s pre-issuance misrepresentations about the investment qualities of a life insurance policy. The insured asserted both bad faith and UTPCPL claims. The Pennsylvania Supreme Court affirmed dismissal of the statutory bad faith claim, concluding that bad faith did not cover an “insurer engaged in unfair or deceptive practices in soliciting the purchase of a policy.” By contrast, the court allowed the UTPCPL deceptive sales practices claim to proceed. Under Toy, claims that arise out of solicitation-related deception can give rise to a UTPCPL claim, such as misrepresentations during the sale of the policy, while bad faith and breach of contract theories apply following policy inception.
Does an excess insurer have an absolute right to veto a settlement under a policy’s “no action” and “no voluntary payments” clauses? The Ninth Circuit has predicted that, under California law, the answer is no. In a March 21, 2017 decision, the Ninth Circuit affirmed a district court’s $6,080,568 judgment in favor of an insured in a breach of contract and bad faith lawsuit against its excess general liability insurer arising from an underlying patent infringement dispute. (Teleflex Med. Inc., v. National Union Fire Ins. Co. of Pittsburgh, PA., No 14-563666, 9th Cir., 2017 U.S. App. LEXIS 4996.)
In reaching its decision, the Ninth Circuit confirmed the California rule set forth in Diamond Heights Homeowners Ass’n v. Nat’l Am. Ins. Co. (1991) 227 Cal. App. 3d 563, which provides that an excess insurer has three options when presented with a proposed settlement of a covered claim that has met the approval of the insured and the primary insurer: (1) approve the proposed settlement, (2) reject it and take over the defense, or (3) reject it, decline to take over the defense, and face a potential lawsuit by the insured seeking contribution toward the settlement
Is talc the elusive “next big thing” long sought by the plaintiffs’ bar? Recent verdicts against cosmetic talc defendants, including Johnson & Johnson (“J & J”), suggest that talc litigation, at a minimum, is a material threat to talc defendants and the insurance industry. In 2016, J & J and other defendants suffered three large verdicts for exposure to its baby powder in St. Louis, Mo.: $72M, $70M and $55M. All three verdicts, in a jurisdiction considered favorable to asbestos plaintiffs, included substantial punitive damages. The plaintiffs in each of these cases alleged that exposure to talc contained in J&J’s baby powder caused them to contract ovarian cancer. Also in 2016, a Los Angeles jury awarded $18M to a plaintiff who sued a cosmetic talc defendant alleging exposure to cosmetic talc cause the plaintiff to contract mesothelioma.
Assuming talc litigation is not going away any time soon, several questions are raised. Are all talc claims the same? What is the relationship between talc and asbestos, if any? What defendants are at risk in the talc litigation? What are the insurance implications of talc claims, and are they alike or different from asbestos and other long-tail coverage claims? Continue reading Talc Litigation and Insurance Implications
Duane Morris is pleased to announce that several of the firm’s attorneys will be presenting at the American Bar Association (ABA) Section of Litigation’s Insurance Coverage Litigation Committee CLE Seminar, to be held on March 1-4, 2017, in Tucson, Arizona. Duane Morris is a silver-level sponsor of the program and partners Terrance Evans, Dominica Anderson and Ray Wong will all present at the seminar.
For more information about the seminar, please visit the American Bar Association website.
By Dominica C. Anderson and Lauren M. Case
Significantly, this year multiple large verdicts have been awarded against companies making and selling talcum products in cases where plaintiffs allege related cancer following use of talcum powder products.
Most recently, on October 27 a Missouri jury awarded a woman who developed ovarian cancer more than $70 million in compensatory and punitive damage related to her prolonged use of talcum powder made and sold by Johnson & Johnson, and Imerys Talc America Inc., which mines the talc. (Deborah Giannecchini v. Johnson & Johnson, et al., No. 14422-CC09012-01, Mo. 22nd Jud. Cir.) The damages award follows two separate verdicts against Johnson & Johnson this year in the same Missouri court of $72 million and $55 million.
Additionally, in California just last month, following a six-week jury trial, a Los Angeles jury returned a $18.07 million verdict against talc supplier Whittaker Clark & Daniels for its alleged role in causing California political figure, Philip Depoian’s, mesothelioma. (Philip John depoian and Julie Pastor Depoian vs. American International Industries, et al., Los Angeles Superior Court, No. BC607192.) Mesothelioma is a form of cancer primarily associated with work place exposure to asbestos. Depoian’s attorneys argued that Depoian was exposed to asbestos in talc products at a barber shop where his father worked, and through his own use of products including Old Spice, Clubman, Kings Men, and Mennen Shave Talc. Asbestos and talc are natural silicate minerals often mined in the same deposits. The parties reached a confidential settlement on October 26, 2016 before the second phase for punitive damages was set to resume.
With many new cases filed in 2016, talc litigation is on the rise. 2016 saw so many new talc-related actions filed in the district courts that last month, the United States Judicial Panel on Multidistrict Litigation filed a transfer order to centralize pretrial proceedings in 11 actions in the district courts to the District of New Jersey. (In re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, MDL No. 2738, 2016 U.S. Dist. LEXIS 138403 (J.P.M.L. October 5, 2016.) The Panel noted that it was aware of forty-three potential “tag-along” actions pending in twenty-three districts. All but three of the 54 total actions (transferred actions and the potential tag-along actions) were filed in 2016.
All of the actions share common factual questions arising out of the allegations that use of Johnson & Johnson talcum powder products can cause ovarian or uterine cancer in women. The majority of the actions filed to date are personal injury or wrongful death actions. Two actions are consumer class actions brought on behalf of putative classes of women who allege defendants deceptively marketed talcum powder products for use without disclosing talc’s carcinogenic properties.
With these significant filings and verdicts, will coverage litigation follow? Will Talc be the new asbestos??
Duane Morris is pleased to announce that Cyndie M. Chang, was honored by the Asian Pacific American Women Lawyers Association for being the first female managing partner of a major Los Angeles area firm. Cyndie M. Chang, managing partner of Duane Morris’ Los Angeles office, litigates complex business and commercial disputes involving contracts, unfair competition, trademark, trade secrets, products liability, broker disputes, entertainment and real estate law.
Ms. Chang was recognized by the Daily Journal as one of the 2014 Top 100 Women Lawyers in California. Best Lawyers Magazine, Spring Edition 2016, profiled Ms. Chang as one of 15 women in the legal profession leading the charge for achievements in the practice and policy, on both local and national levels. The Recorder named Ms. Chang a “2013 Lawyer on the Fast Track.” Ms. Chang was also named in the Lawyers of Color Inaugural Hot List, which honored 100 early-to-mid-career minority attorneys for excellence in the legal profession. In addition, Ms. Chang was named among the National Asian Pacific American Bar Association (“NAPABA”) 2010 “Best Lawyers under 40,” awarded to 20 lawyers across the country. Continue reading Duane Morris Los Angeles Managing Partner Cyndie M. Chang Honored by the APAWLA
By Thomas R. Newman
The covenant of good faith and fair dealing that is implied by law in every liability insurance policy requires the insurer to concern itself with the interests and welfare of the insured as well as its own interests and welfare, and in so doing “the insurer at the very least must itself consider and determine whether or not a settlement offer is in the best interest of the insured.” Garner v. American Mut. Liability Ins. Co., 31 Cal. App. 3d 843, 847-848, 107 Cal. Rptr. 604, 607 (3d Dist 1973). If it is, as where liability is clear and the injuries or damages are likely to result in a judgment in excess of the policy limits, some courts have held that the insurer has an affirmative duty to initiate settlement negotiations. Goheagan v. American Vehicle Ins. Co., 107 So. 3d 433, 438 (Fla. Dist. Ct. App. 1012); Noonan v. Vermont Mut. Ins. Co., 761 F. Supp. 2d 1330 (M.D. Fla. 2010)(Florida law); SRM, Inc. v. Great Am. Ins. Co., 798 F.3d 1322, 1323 (10th Cir. 2015)(Oklahoma law)(“a primary insurer owes its insured a duty to initiate settlement negotiations with a third-party claimant if the insured’s liability to the claimant is clear and the insured likely will be held liable for more than its insurance will cover”).
Does the parent and controlling shareholder of an insured corporation have standing to seek declaratory relief as to the insured’s insurance coverage? Under California law, the answer is no. In a March 30, 2016 decision, ordered published April 28, 2016, Division Two of the California Court of Appeal for the First District held that a parent corporation that is not an insured under the insurance contract is not a “person interested under a written instrument” for purposes of California’s declaratory relief statute, Code of Civil Procedure section 1060. (See D. Cummins Corp. v. Untied States Fid. and Guar. Co., __Cal.App.4th__ (Cal. Court of Appeal, First Dist. No. A142985, 4/28/2016).)
The Holding Company in the case was the controlling owner of an insured facing asbestos claims, but the Holding Company was not an additional insured or otherwise in privity with the insurer. Nonetheless, the Holding Company argued it had a “practical interest in the proper interpretation of Cummins Corp.’s insurance policies given its relationship to, and its central role in the pursuit of those insurance assets.” (Slip Opn. p. 7.) The Court of Appeal found the argument “not persuasive.” (Id.) “While Holding Co. may, as it says, have a ‘practical interest’ in the success of Cummins Corp.’s litigation with the insurers by virtue of its relationship with the corporation, it has not shown how that indirect interest—no matter how enthusiastic it may be [citation omitted]—translates into ‘a legally cognizable theory of declaratory relief.’” (Id.) It is only the insured itself that has “a direct interest in the interpretation of the policies in question” for purposes of Section 1060. (Id.)