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”).
Continue reading “Insurer’s Duty to Initiate Settlement Discussion”
The New York Court of Appeal on Tuesday, May 3, held that the Consolidated Edison pro rata allocation rule does not apply where the policies have prior insurance and non-cumulation clauses. The Court held that the pro rata rule in Consolidated Edison depends on policy language and that the prior insurance and non-cumulation clause is inconsistent with a pro rata approach. However, the Court did say that prior insurance and non-cumulation clauses would be enforced as anti-stacking clauses. Such enforcement could limit the amount of coverage available to a policyholder. The Court of Appeal also held that under the circumstances of the case, horizontal exhaustion would not apply.
To view this decision, please visit the New York Courts website.
By Sheila Raftery Wiggins
The Supreme Court of New Jersey – the highest court in New Jersey – held that the failure to comply with the notice provisions of the claims-made policy constitutes a breach of the policy, permitting the insurer to decline coverage to a sophisticated insured without demonstrating prejudice to the insurer caused by the delay.
We previously reported on where the Appellate Division ruled, in Templo Fuente de Vida Corp. and Fuente Properties, Inc., that for a claims-made policy, the policy holder is to provide notice of a claim: (1) during the same policy period in which the policyholder received the claim and (2) “as soon as practicable.” Otherwise, the claim may be denied because of late notice. The New Jersey Appellate Division determined that six months or more is not “as soon as practicable.” Continue reading “No Prejudice in New Jersey Needed to Bar Coverage to Sophisticated Insured for Delay in Notice Under Claims-Made Policy”
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 2–5, 2016, in Tucson, Arizona. Duane Morris is a sponsor of the program and partner Terrance J. Evans is serving as a seminar co-chair. In addition, partners Philip R. Matthews, Ray L. Wong, Lida Rodriguez-Taseff and Jessica E. La Londe and associate Audra L. Thompson will all be presenters at the seminar.
For more information about the seminar, please visit the Duane Morris website.
By Dominica C. Anderson and Daniel B. Heidtke
In a 6-0 decision issued on September 24, 2015, the Nevada Supreme Court held that the California rule first announced in San Diego Fed. Credit Union v. Cumis Ins. Soc’y, 162 Cal. App. 3d 358 (1984), and the analysis of the California Court of Appeal’s decision in Fed. Ins. Co. v. MBL, Inc., 160 Cal. Rptr. 3d 910, 920 (Ct. App. 2013), a case in which Duane Morris LLP represented the insurer, also applies in Nevada. With its decision in State Farm Mutual Automobile Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74, Case No. 64484 (2015), the Nevada Supreme Court held Nevada law requires an insurer to provide independent counsel for its insured when an actual conflict of interest arises between the insurer and the insured. Consistent with California law on the matter, the Court also held that a reservation of rights does not create a per se conflict of interest between insurer and insured. Continue reading “Nevada Supreme Court Holds That California Cumis Rule Applies In Nevada, But An Actual Conflict Is A Prerequisite For Independent Counsel”
Duane Morris partner Paul J. Killion of the firm’s San Francisco office has recently been appointed chair of the California State Bar’s Committee on Appellate Courts for the term commencing at the close of the 2015 State Bar Annual Meeting on October 11, 2015.
Killion is a Certified Appellate Specialist and practices in the area of complex civil litigation. He has argued or briefed over 100 appellate matters, including appeals, writs, petitions for review, merits briefing and amicus curiae briefing. He has handled a variety of litigation and appeals, including significant national experience in asbestos, pollution, toxic tort insurance coverage litigation and large personal injury claims. He has a broad range of appellate experience, with a particular focus on appeals from complex jury trials. Killion has appeared before all Districts of the California Courts of Appeal and before the California Supreme Court, as well as the Ninth and Tenth Circuits and the Supreme Courts of Washington and Oregon. He also represents clients as amici counsel in the California Supreme Court and Courts of Appeal.
Duane Morris is pleased to announce that Chambers USA has once again singled out the success of the firm’s Insurance practice group. Chambers and Partners’ annual survey of the American legal profession consistently ranks Duane Morris among national leaders in insurance law and in 2015 ranked the firm in its top five for representation of Insurers in Insurance Dispute Resolution. Chambers has praised the group as being “A full-service insurance practice that has unparalleled bench strength at the highest level of insurance work,” and that it “Possesses the expertise to assist on all coverage matters across a huge range of arenas, as well as reinsurance, bad faith and policy drafting advice.” Nationally, Chambers recognized practitioners Philip Matthews, Max Stern and Thomas Newman for their work and contributions and in California, Andrew Gordon, Ray Wong and Richard Seabolt have also been recognized.
