Duane Morris LLP is pleased to announce that Tomas M. Thompson and Mark A. Bradford have joined the firm’s Trial Practice Group as partners in the firm’s Chicago office. Thompson and Bradford, who join from DLA Piper, follow the addition in the firm’s Chicago office of partners Mark D. Belongia and Lisa T. Scruggs, associate David B. Shafer and associate Brian L. Dougherty.
San Francisco Partner Paul Killion Receives National Legal Writing Award
Duane Morris is pleased to announce that partner Paul J. Killion of the firm’s San Francisco office will receive a Burton Award for Legal Achievement at a gala ceremony to be held on June 9, 2014, at the Library of Congress in Washington, D.C. This honor is given to only 30 authors selected from entries from the nation’s 1,000 largest law firms.
Killion was selected as a 2014 Distinguished Legal Writing Award winner for an article he wrote about how to use Internet sources in legal writing. “Warning: The Internet May Contain Traces of Nuts (Or, When and How to Cite to Internet Sources)” appeared in California Litigation: The Journal of the Litigation Section, State Bar of California, last spring.
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What I Tell You is Privileged and Protected From Discovery (Even if You Embrace It and Reiterate It to Your Insured)
Insurers often rely upon coverage counsel to advise them of their duties and obligations with respect to claims for coverage by their insureds and then take that advice and communicate it in whole or in part to their insureds. The expectation is that the advice of counsel is privileged even if it is thereafter embraced by the insurer and communicated to the insured. But is it? No, said a trial court in West Virginia, where an insured sought from coverage counsel for the insurer opinion letters the counsel had written to the insurer on similar claims (i.e., claims not involved in the litigation between the insured and the insurer). Continue reading “What I Tell You is Privileged and Protected From Discovery (Even if You Embrace It and Reiterate It to Your Insured)”
Duane Morris Partner Cyndie Chang to Present at the ABA Tort Trial and Insurance Practice Section’s Spring Conference
Duane Morris’ Cyndie M. Chang, a partner in the firm’s Los Angeles office, will be speaking at the American Bar Association (ABA) Tort Trial and Insurance Practice Section’s spring conference, “Resolution of Property Insurance Claims in the Modern Age-Appraisal, Mediation and Arbitration,” which will be held on April 24-26, 2014, at the Park Hyatt Aviara in Carlsbad, California. Ms. Chang will participate in a panel discussion on “Mock Mediation of a Property Insurance Claim: Focusing on Preparation as the Key to Success” on Thursday, April 24, from 2:00 p.m. to 4:00 p.m.
New York Appeals Court Reverses Itself in K2 Investment Group Decision; Reaffirms Earlier Ruling in Servidone
In a decision notable for several reasons, the New York State Court of Appeals—the state’s highest court—reversed itself in K2 Investment Group, LLC v. American Guarantee & Liability Insurance Co. [21 NY3d 384 (2014)] and reaffirmed its earlier ruling in Servidone Construction Corp. v. Security Insurance Company of Hartford [64 NY2d 419 (1985)].
In doing so, the court reestablished the rule it pronounced in Servidone when it held that a liability insurer who determines not to provide a defense to its insured may still contest its duty to indemnify on the basis of an exclusion to coverage.
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The California Supreme Court Lets Stand The Federal Ins. v. MBL Cumis Decision
On November 26, 2013, the California Supreme Court denied MBL’s petition for review from the Court of Appeal’s recent decision in Federal Ins. Co. v. MBL (2013) 219 Cal.App.4th 29. In addition, the Supreme Court also denied eight different requests to depublish the decision filed by parties aligned with the insured.
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The California Supreme Court Clarifies How To Give Up Causes of Action To Preserve Appealability
The California Supreme Court issued an important decision last week that potentially impacts all California litigation, including insurance coverage litigation. In Kurwa v. Kislinger, __Cal.4th __ (October 3, 2013) (Supreme Court No. S201619), the Supreme Court held it is not possible to create an appealable final judgment by dismissing remaining causes of action without prejudice and tolling the applicable statute of limitations. This resolves an important split in California appellate courts on the one final judgment rule. The issue commonly arises when parties attempt to move a case into the appellate court after the trial court has resolved the key issues, but some causes of action remain.
Controlling Cumis – California Court Confirms that Right to Independent Counsel Can be Terminated by Withdrawing ROR
The Second District Court of Appeal has issued an important new opinion that adds to this year’s series of California appellate decisions on when an insurer owes its policyholder a duty to pay for independent defense counsel, in Swanson v. State Farm General Ins. Co., ___ Cal. App.4th ___ (2013). In Swanson, the Court of Appeal found that an insurer that had issued to its policyholder a reservation of the right to deny coverage that gave rise to the type of conflict that creates a right to independent counsel under California Civil Code section 2860 (“Cumis counsel”) could end that duty by withdrawing that portion of the reservation of rights that created the right to have the insurer pay for such counsel. Continue reading “Controlling Cumis – California Court Confirms that Right to Independent Counsel Can be Terminated by Withdrawing ROR”
NY Court of Appeals Revisits Controversial K2 Decision
The New York State Court of Appeals (New York’s highest court) has agreed to hear re-argument on K2 Investment Group LLC v. American Guarantee & Liability Insurance Company, 2013 N.Y. LEXIS 1461 (N.Y. June 11, 2013). In K2, the Court held that a liability insurer that declined to provide a defense to its insured on the basis that the liability alleged was not covered might waive all policy defenses if it was later held that a defense should have been supplied.
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In Pair of Cases, 5th Circuit Enforces 30-Day Notice Requirement in Pollution Exclusion Buy-Back Clauses; No Prejudice Need be Shown
In two separate cases – one under Texas law and one under Louisiana law – the Fifth Circuit has reinforced the principle that a 30-day notice provision in a pollution exclusion buy-back clause is strictly enforceable, and an insurer does not need to demonstrate prejudice to deny coverage. In these cases, the Court found that this outcome was consistent with the Court’s prior decision in Matador Petroleum Corp. v. St. Paul Surplus Lines Ins. Co., 174 F.3d 653 (5th Cir. 1999), and the Court found that this principle of enforceability was not changed by subsequent notice-prejudice cases.