IN THIS ISSUE

Immediate Past President’s Message - Year End Review Meet ACCC's New President Annual Meeting Summary  Member Spot-Lights Committee Updates Call for Volunteers

Regional Meet Ups Review Meet New Fellows Call for Fellows Nominations Law Symposium Preview In Memoriam: - Mike Huddleston - John Tollefson

ALI Comes to Terms with First Party Bad Faith Law New Listing of Major Appeals Added to Website Fellow News & Articles Welcome New Fellows ACCC Upcoming Events

Immediate Past President's Message - Year End Review

By Debra Tedeschi Varner Varner & Van Volkenburg, PLLC, Clarksburg, WV Dear Fellows: It is hard to believe how quickly this year has passed. Serving as the President of the College has been filled with a pleasurable whirlwind of events, colleague interaction, new friendships, professional advancements, and educational experiences.   The Insurance Law Symposium was held at the University of Pennsylvania Carey School of Law. In excess of 100 participants attended the event. Thank you to Mike Hamilton and Jo-Ann Lytle, Co-Chairs of the Committee, for a job well done! Professor and Honorary Fellow Tom Baker worked diligently to make the event happen. His tireless efforts were evident by the success of the event.  The next Insurance Law Symposium will take place November 15, 2024, in connection with the University of Minnesota School of Law. Fellows Laura Hanson and Chris Yetka will serve as co-chairs for the event, joined by Honorary Fellow Dan Schwarz. Artificial Intelligence will be the focus of the symposium. Mark your calendars and plan to attend this cutting-edge symposium. The Annual Meeting took place at the Intercontinental in Chicago May 8-10, 2024. Barbara O’Donnell and Suzan Charlton served as chairs for the meeting, joined by Mike Kiernan and Rikke Dierssen-Morice, who will serve as the chairs for the 2025 Annual Meeting. There were 183 attendees at the Annual Meeting, with 27 new Fellows being inducted into the College. Congratulations to all! Thank you for the hard work of the Annual Meeting Committee and the speakers. This truly phenomenal meeting could not have happened without your efforts.   During the business meeting last year, I emphasized that pop-up meetings, committee participation and growth would continue to be the focus for 2023-2024. The work of Mark Gravely and Lisa Weixelman as Pop-Up Committee Chairs has been stellar by any measure. Since June 2023, the ACCC has held 11 pop-ups with 345 participants. Well done! Committee participation also grew this past year. More members joined and participated in committees than in any other year. We will continue to focus on growth, with committees scheduling monthly meetings and advancing speakers for pop-ups, as well as the Annual Meeting. Continued and active participation is encouraged for all Fellows. Many dedicated Fellows served as committee chairs this past year. Some will continue to serve next year, and others will retire from their position. Thank you to all the many Fellows who provided their leadership to the important committees of the college.   The Membership Committee, led by new board member, Lisa Pake and Vince Morgan, along with committee members, Helen Michael, John Bonnie, Laura Hanson, and Angela Elbert (Liaison) vetted 55 potential Fellows this year. This committee is one of the hardest working committees of the college. Thanks to its effort, membership currently stands as follows: 370 Fellows, 28 Emeritus Fellows and 21 Honorary Fellows, with 20 in the pipeline.    Marty Pentz and Andy Downs, Co-Chairs of the Outreach and Regional Meetings Committee organized regional meetings in Atlanta, Boston, Chicago, Dallas, Houston, Los Angeles/Southern California, the Pacific Northwest, San Francisco, Southern Florida and Washington, D.C. Designed to keep Fellows engaged between annual meetings, this year some of the meet ups were joined by potential Fellows, giving them an opportunity to interact with Fellows and learn more about the College and its mission in a relaxed atmosphere. This setting provides a great opportunity for recruiting new Fellows.    Mike Huddleston, Immediate Past President, passed away unexpectedly earlier this month. Serving with Mike was fantastic. He will be missed. Let’s face it…. Mike was just cool!!! Top notch lawyer, jazz musician, civil war history buff, Mike did it all in life and in the College. Coming up the ranks behind Mike was inspiring and intimidating at the same time. Mostly, however, it was fun. Mike joined the board in 2016. He served as the Secretary-Treasurer in FY 2020-2021. His previous roles included Communications Committee Co-Chair, Financial Committee Chair, Nominations Committee Chair, Executive Committee Member, Vice Chair and President, as well as a speaker for multiple ACCC annual conferences and insurance law symposiums. In addition, Mike spearheaded the Student Writing Competition in 2023. He was also a member of multiple committees, including Cyber & Computer Crime, Extracontractual & Bad Faith, Membership, Outreach & Regional Meetings, and Professional Liability. Thank you for your contributions to the college, your leadership, and your friendship. Your leadership efforts, like the leadership efforts of those who served before you, continue to drive the college. Rest in peace my friend.     Marty Pentz, Andy Downs and Helen Michael will also be rotating off the board this year. Marty and Andy joined the board in 2018 and have been dedicated members of the Finance Committee. Helen also joined the board in 2018. Helen has been a dedicated member of the hard-working Membership Committee and has previously served on the Finance Committee. Thank you for your service and dedication. We look forward to your continued active participation in the college.   I would be remiss if I did not thank Carol Montoya and Pearl Ford-Fyffe. The college would not run as smoothly as it does without the work of Carol, Pearl and their entire team. Thank you for keeping all of us straight, which is likely not an easy task.   As I rotate into the role of Immediate Past President, the college will be in good hands with Angela Elbert moving into the President’s role, Steve Pate moving into the role of President-Elect and KT Talieh having been elected to serve as the next Secretary-Treasurer. Each of these leaders will continue to work diligently to keep the college the preeminent organization of coverage lawyers.  Through the work of many, the college continues to grow and prosper. During my tenure, I received so much great help from so many people. I hope that I have not failed to name anyone. My appreciation to each and every one who participated in making this year a success is heartfelt and sincere. Thus, I close with a blanket all-encompassing thank you to all! It has been an honor to have served as your President this past year. Warm regards,  Deb

Meet ACCC's New President Angela Elbert Neal Gerber & Eisenberg LLP, Chicago, IL By Mary Craig Calkins, Blank Rome LLP, Los Angeles, CA Our ACCC celebrated its 11th Anniversary in Chicago in May, and ushered in its newest President, Angela Elbert of Neal Gerber & Eisenberg. In anticipation of this newsletter, Mary Craig Calkins (MCC) “sat down” with the College’s newest President remotely, and talked about Angela’s background, her practice, what led her to our very special area of the law, and her plans for the 2024-2025 year. Angela, you are the College’s 12th President. Although many of us know you well, tell us what led you to become a lawyer? I was a history major at a small liberal arts school, Hanover College in Indiana, which is the oldest private college in that state. Woody Harrelson is a former Hanover grad! My likely next choices were teaching history or law school, and I elected the latter after conducting an internship with a local judge, Hon. Ted R. Todd, who shared that the Law is an honorable profession and never boring. [MCC: He got that right, especially consider the amazing and diverse cases that we all enjoy.]  You grew up in Louisville, Kentucky, received your JD from Indiana University School of Law in 1996, and started practicing in Chicago. What convinced you to become a policyholder-side coverage lawyer and who are your mentors? I was drawn into the world of insurance coverage for policyholders after starting at Neal Gerber & Eisenberg in Chicago as a second year lawyer, when I met and worked with John Vishneski, a fellow ACCC Fellow. His passion and enthusiasm for his work was contagious. I really enjoyed my early cases with John representing Illinois Tool Works in environmental and asbestos coverage cases. Jill Berkeley was also a fabulous mentor for over a decade, and really opened so many previously closed doors for me and others to walk through. More recently, I have really enjoyed my work representing Imerys in bankruptcy as special insurance and indemnification counsel. I’ve never looked back. Tell us about your first job as a lawyer.   I worked briefly for another law firm in my first year, doing mostly insurance defense work. My first deposition was in a dog bite case representing a homeowner with two biting dogs. The deponent was the plaintiff who watched his yorkie eaten by the dogs after having two of his own fingers bitten off while trying to protect his dog. Following the deposition, I suggested that policy limits might be an appropriate settlement offer for the matter. [MCC: I am betting that is not the last time you suggested a policy limits settlement offer might be appropriate!!] What are some of the notable cases that you enjoyed the most over your years as a policyholder-side coverage lawyer? My first big client was a “bet the company” case for a privately owned window company based out of Missouri. I worked closely with Fellows at Covington, including Suzan Charlton, and still represent that company today. In another matter, I spent close to a week outside of the presence of the judge picking a jury for a coverage trial in state court in Hartford, CT, only to find out after the jury was chosen that the judge had decided the case on summary judgment! You are chair of your firm’s Insurance Policyholder practice group and a member of your firm’s Executive Committee and have held positions such as national Chair of the Step Up Women’s Network, which helps teenaged girls in Chicago, New York and Los Angeles prepare for college and careers. Tell us what else you do in all of your “spare” time? I love to travel, spend time with my family (husband Marc who also is a superb now retired coverage lawyer and sons Rob and Eric), hike, read, listen to live music of all kinds, and go to the theater. We most recently traveled internationally to the Galapagos Islands, Quito, Curacao and Lisbon, and have an upcoming trip to Ireland planned for the summer. I absolutely loved hiking Angel’s Landing in Zion National Park and the Inca Trail at Machu Picchu.

What are your plans for your year as President of the College, 2024-2025? I plan to lead the College toward welcoming many new members. I am excited for the upcoming Symposium to be held at the University of Minnesota on November 15, 2024, which is themed around Artificial Intelligence. We are also welcoming many new leaders into various roles, which will bring some fresh and new energy and perspective to the College that has so many outstanding Fellows.  And to wrap this up, what is the best advice you can give about practicing in the ubiquitous area of insurance coverage? The caliber and sophistication of counsel and clients on both sides of the “v.” have grown more and more impressive. As a result, it has necessitated that everyone “up their game.”

12th Annual Meeting Review By Annual Meeting Committee Co-Chairs:

Suzan Charlton Covington & Burling LLP, Washington, D.C.

Barbara O'Donnell McAngus Goudelock & Courie, Boston, MA

The 12th Annual Meeting of the American College of Coverage Counsel was a success by any measure, given the “excellent” rating for the overall program from 85% of survey respondents and unanimous characterization of the timeliness of the topics, the impressive roster of speakers, the enjoyable opportunities to connect with friends from around the country while welcoming new Fellows to their first meeting, and record attendance (191) at the lovely InterContinental Hotel on Chicago’s Magnificent Mile.    On a somber note, Deb Varner opened the conference by dedicating it to the College’s immediate past president, Mike Huddleston, given his sudden passing on May 5. During a heartwarming tribute held before Wednesday’s reception with a photo montage prepared by Mike Aylward, Fellows shared stories about Mike and John Tollefson to take comfort in one another and their memories.   Demonstrating the results of months of advance planning and coordination, our stellar faculty, comprised of highly regarded policyholder and insurer’s counsel from around the county, kept the audience engaged from start to finish with the following lineup of cutting-edge topics and supporting program materials:   Day 1: · The Use (and Mis-Use) of Experts in Insurance Litigation (John Harding, Lara Cassidy, and Stephen Johnson, Consultant and Expert Witness) · What Could Possibly Wrong Go?: Generative AI, Liability, and Insurance (Seth Tucker, Jean Lawlor, Carolyn Rosenberg, and Jeff Bowen) · Reimbursement 25 Years Post-Buss v Superior Court (Bob Allen, Mary Borja, Allen Van Etten, and Chris Mosley) · Erosion of the Insurer Attorney/Client Privilege in Bad Faith Discovery Wars (Ned Currie and Lorelie Masters) · Leading the Charge: Jury Submissions and Instructions in Insurance Coverage and Bad Faith Cases (Chris Martin, Alex Potente and William Chriss) · Wrongful Conviction Liability Coverage in the 2020s (William Beck, William Bulfer and Karen Dixon) · Cutting Edge Conflicts Surrounding the Duty to Defend (John Shugrue, Jeffrey Stempel, Emily Garrison, and Monica Sullivan)   Day 2: · Which Side are We On? Practical and Ethical Considerations When Insurer-Side Firms Represent Policyholder Clients (Richard Malone, Amy Johnson, Neil Posner and Alycen Moss) · Reps & Warranties Insurance: When RWI Policies Cover a Seller’s Breach, and When They Don’t (Vince Morgan and Stacy Broman) · Shelter from the Storm: Finding Insurance for Climate Risks (Gina Clausen Lozier, Heather Sanderson and Robert Walsh) · Honorable Disengagements and Dishonorable Engagements: Reinsurance and Ad Hoc Arbitrations (Peter Rosen, JAMS, Paula Litt and James Fitzgerald)   The program was approved for 8.50/10.20 CLE credit hours of CLE credits, including 1.75/2.10 hours of Ethics credits. (based on 60-min./50-min. states) Support from our valued sponsors helped us keep registration costs low ($625 early bird and $675 regular) with attendees also able to enjoy spending time together at our sponsored receptions, breakfast buffets (with Friday morning committee meetings), refreshments breaks, and Thursday’s group luncheon/business meeting and dinner/awards session: ·      KCIC (Welcome Reception) ·      BDO (General Reception) ·      Jeff Kichaven Commercial Mediation (Dinner) ·      American Arbitration Association ·      JAMS ·      Judicate West ·      Pace ·      Schulfwolf Mediation ·      Stout   As with prior years, the post-event survey yielded suggestions for future topics, so we’ll be ready to hit the ground running when the planning process for next year’s meeting (May 7-9, 2025 at the InterContinental Chicago) kicks off in a few months.   2024 Annual Meeting Planning Committee: Suzan Charlton, Covington & Burling LLP – Co-chair Barbara O’Donnell, McAngus Goudelock & Courie – Co-chair Mike Kiernan, Traub Lieberman – Vice Co-chair Rikke Dierssen-Morice, Blank Rome - Vice Co-chair   2025 Annual Meeting Planning Committee: Mike Kiernan, Traub Lieberman –Co-chair Rikke Morice, Blank Rome - Co-chair Karen Dixon, Skarzynski Marick & Black LLP – Vice Co-Chair Mike Levine, Hunton Andrews Kurth LLP – Vice Co-Chair

2024 Thomas F. Segalla Award Recipient Martin Pentz Foley Hoag LLP, Boston, MA with Tom Segalla and Debra Varner

2024 Thomas F. Segalla Award Recipient Lisa Pake Haar & Woods, LLP, St. Louis, MO with Tom Segalla and Debra Varner

Inaugural Edward Currie Founder's Award Recipient Thomas F. Segalla Goldberg Segalla LLP, Buffalo, NY with Debra Varner, Steve Pate and Ned Currie

2023-2024 New Fellows and Board Officers

Thank You to our 2024 Annual Meeting Sponsors:

Member Spotlights: CGL/Excess Liability Insurance Committee Co-Chairs By Michael Aylward, Morrison Mahoney LLP.

John T. Harding McAngus, Goudelock & Courie, Boston, MA Seth Lamden Blank Rome LLP, Chicago, IL

The CGL/Excess Liability Insurance Committee is one of the oldest and largest ACCC committees. Since 2023, it has been helmed by John Harding and Seth Lamden. In addition to panels that it organizes for the ACCC Annual Meeting and periodic pop-up calls, the committee holds periodic membership calls to discuss recent developments and posts recent case law links on its web page. To join, contact John Harding or Seth Lamden. John Harding is a graduate of Duke University and received his legal training at Harvard Law School. He is presently a partner in the Boston office of McAngus Goudelock & Courie, where he represents liability insurers.  He is the immediate past chair of the Insurance and Reinsurance Committee of the International Association of Defense Counsel. Seth Lamden received a B.A. from Brandeis University and his J.D. from the University of Illinois Chicago School of Law. He is presently a partner in the Chicago office of Blank Rome. For the past twenty-five years, he has represented policyholders in insurance coverage disputes. He is a past chair of the Insurance Coverage Litigation Committee of the Tort, Trial & Insurance Practice Section of the American Bar Association. Former ACCC President Michael Aylward zoomed in with John and Seth in late April to discuss their plans for the committee and preparation for May’s Annual Meeting in Chicago. ACCC: Let’s start off by hearing a little bit about your background and what drew you to the American College of Coverage Counsel?   Harding: I have been litigating complex insurance coverage disputes since 1989, including CGL, excess claims and some reinsurance.  Along the way, I had met a large number of ACCC Fellows, so I was very interested in joining. It’s obviously a group of the premier coverage attorneys in America, and I also really enjoy the opportunity to engage in back-and-forth discussions with policyholder counsel.    Lamden:  I’ve been practicing policyholder coverage law since 1999. Like John, I had also met a lot of members of the College in my practice so when the opportunity arose, I was eager to join. I have found that the ACCC gives a great opportunity for high-level discourse about cutting edge coverage issues with attorneys on the other side of the aisle in a non-confrontational setting, and that has been really rewarding to me.     ACCC: You both just finished terms in major leadership positions in very different organizations. How does that experience inform your service here for the ACCC?   Lamden: Like the College, the ICLC was really dedicated towards sharing information amongst sophisticated insurance practitioners and giving them an opportunity to come together to network and socialize.    Harding:  Although my IADC committee only had insurer side lawyers, the work is similar in terms of the nuts and bolts of organizing committee calls and presentations and encouraging members to get to know each other and share information.   ACCC:  You’ve both been in the thick of the coverage wars long enough to see the cycles of insurance coverage claims as we move from long tail to privacy to cyber and so on. What do you see as the emerging claims areas that will be engaging your committee members?   Harding: I think certainly one that we're going to see more of in the future is the whole PFAS world. Seth and I just did a program on this topic, and I had done at similar talk with Mike Hamilton and Joann Lytle at the College’s U Penn symposium last Fall. What I find interesting is that even though PFAS claims present a lot of the same issues that were in dispute in the environmental coverage cases, the PFAS policyholders are slower to bring DJs.  Insurance is obviously a big component within the MDL proceedings down in South Carolina, but other cases have been slower to emerge. At the same time, PFAS is so pervasive that you can expect a lot of creativity from the policyholder bar in how they present these cases. This will, in turn, no doubt result in coverage disputes.   Lamden: I agree that PFAS is a hot one. Other emerging risks could include microplastics claims, as well as more claims arising out of climate change and Coverage B privacy issues. At the same time, some of the traditional CGL claims that we’ve seen over the years like construction defects and sexual abuse are not going away.   ACCC: You two are both highly intelligent lawyers who could have gone into other areas of the law. Why insurance?   Harding: I think that insurance appealed to the old English major in me. Whether its Joyce or Shakespeare, textual analysis is really critical. What I find particularly interesting is how the contract issues intersect with a nearly infinite variety of claims, including a lot of risks that no one was really aware of or appreciated when the policies were issued.   Lamden:  I started off as an environmental lawyer, so I got into coverage work helping clients pursue insurance recoveries for environmental liabilities arising out of manufactured gas plants. What I’ve really enjoyed is the process of getting to know and understand the problems that different industries face and applying my knowledge of their insurance policies to help them resolve those problems. Also, like John, I’m a grammarian at heart and I really enjoy spending time with contract language and applying it to unique coverage issues.   Harding:  I find that there's always something new. I'm sure many people that don't practice in this area assume that it must be boring and repetitive, but the truth is every claim has its unique facts.  ACCC: One of the unusual aspects of our College is that every member is an expert about insurance. How, as the chairs of the CGL/Excess committee, are you going to find ways to raise their knowledge and engagement in this area?   Lamden: There is real value in hearing College members talk about their cases and share their experiences and war stories. We want to get our committee members talking to each other and learning about what's going on in the trenches, which is always fascinating to me.   Harding: We will also be looking for more advanced ways of thinking about issues that are in other respects familiar. For instance, Steve Johnson, Lara Cassidy and I are going to be doing a panel in Chicago on the use of experts.  Everyone in the room knows the fundamentals of using experts, so then how do you take a subject matter that is known and bring it to a more advanced level? I think that's what we're looking to do with the CGL/excess committee.   ACCC: Yours is already one of the bigger committees in the College. Do you have any ideas or thoughts in terms of how to attract new members or increase their engagement in the committee?   Harding: I think one way to increase participation is to get members to join our quarterly Zoom calls. A lot of people participate in those calls, and they are a great means of learning new things and sharing information. We will also be organizing pop up calls and some other types of presentations between the Annual Meeting and the Fall Symposium to give members a chance to get actively involved.   ACCC: What do the two of you do in your spare time, if you have any?   Lamden: I compete as a powerlifter and so I spend a lot of time training for that. When I'm not doing that, I'm often playing or collecting vinyl records.   Harding: I’m now at an age where my kids are grown so my wife and I are traveling a lot more. We’re also enjoying the lives of our children, including our first granddaughter who just joined the family.   ACCC: And that leads to my, my final question. When the person sitting next to you on an airplane, asks what you do for a living, what is your pat answer?   Lamden: I always say, “I sue insurance companies.”   Harding: I bet they hire you!

Committee Updates:

D&O, Management and Professional Liability

Nancy R. Kornegay Trahan Kornegay Partners, Houston, TX

Joseph P. Monteleone Catamount Services LLC, Edison, NJ

Three chief goals of ours were to increase membership, to raise the Committee’s profile, and to elevate active participation by members in our committee—goals we largely accomplished. -We held regular membership meetings that were attended by 30+ members in most cases. -We also raised the profile of the DOMPL Committee by publishing D&O-related articles on the ACCC Membership website.   -Joe succeeded in getting a commitment from Kevin LaCroix to attend the May 2024 Conference in Chicago. We are thrilled Kevin will attend and see this as a threshold event to getting him more involved in the ACCC in the future.   We held our first D&O Committee meeting on July 26, 2023. Our second meeting was held on November 29, 2023. Our third and final meeting for this term was held on April 3, 2024. We held a pop-up dialogue on September 7, 2023 with Dan Bailey, Beverly Godbey, and Steve Gilford on the topic of Application Issues under D&O Policies. On December 20, 2023, we held a pop-up dialogue with Jim Cooper, Tom Hanekamp, and Kevin LaCroix as the moderator on the topic of McDonald’s and Meta Officer Liability—two recent, high-profile D&O cases. Our third pop-up dialogue was held on March 26, 2024. The topic for that pop-up was Continuing Major D&O Coverage Issues in 2024 and Beyond with Lisa Campisi, Gary Gassman, and Doug Richmond as our speakers and moderator, respectively. It was well attended (30+ attendees), and, based upon comments following the pop-up, well-received by attendees.    We thoroughly enjoyed our time as Co-Chairs of the DOMPL Committee and thank the College and Staff for their support and good cheer during our Committee service.

Extracontractual and Bad Faith Claims Litigation

Bob Allen The Allen Law Group, Dallas, TX

William Clayton Crawford Baker Sterchi Cowden & Rice LLC, Kansas City, MO

The Extracontractual and Bad Faith Litigation Committee is in good shape with many active members.   The Committee meets quarterly via zoom midday the second Tuesday of the first month each quarter. Meetings last 30 minutes, with topic planning for the Annual Meeting, Insurance Law Symposium and Pop-Up Dialogues as regular agenda items. At least ten minutes are reserved at the end for discussing latest developments in extracontractual/bad faith law in various jurisdictions. The committee membership is geographically diverse, and includes several Fellows with national practices, so issues discussed are cutting-edge. The Committee often has more than 25 Fellows in attendance.   The Committee works to sponsor a pop up each quarter and currently has one in development for the Restatement (Third) of Torts new section on first party insurance bad faith in June 2024. Many topics come from articles written and presentations prepared by ACCC Fellows for other publications and conferences. Recent Pop-Up Dialogues sponsored by the Committee have included: “How AI is Changing Claims Handling”, “Can Insurers’ Litigation Conduct Be Used to Prove Bad Faith”, and “Conflicts of Interest in Insurance Litigation: Where Do Courts Draw the Line?”   The Committee also proposes sessions and forms panels for ACCC Annual Meetings and Insurance Law Symposiums. Recent topics have included: “Recent Developments in Excess Judgment Liability”; “Bad Faith Case Study: Lessons Learned and Strategies for Invoking & Avoiding Bad Faith Liability”; “Insurer Bad Faith 2021 and Beyond: A Survey of Extra Contractual Law”, and “Where Things Stand; and Novel Issues and Emerging Trends in Bad Faith Litigation.”   The Extracontractual Committee page on the ACCC website chronicles recent decisions, articles and other developments. Fellows are encouraged to submit relevant content to ACCC Account Director, Pearl Ford-Fyffe for posting on the page.   The Committee leadership is transitioning to insurer-side Co-Chair Clay Crawford and policyholder-side Co-Chair Mark Boyle. The next meeting will be held on Tuesday July 9, 2024, at 3 pm ET. All Fellows are invited and encouraged to attend. Details are available on the ACCC website events list (Member login required to access).

Call For Volunteers

Want to become more involved in the ACCC? Join a committee! Our Co-Chairs are actively seeking volunteers to join their committees:  · ADR · CGL/Excess Liability Insurance · Communications · Cyber Insurance & Emerging Issues · D&O Management & Professional Liability · Extracontractual and Bad-Faith Claims Litigation · First-Party Insurance · Outreach & Regional Meetings · Pop-Up Dialogues · Professionalism and Ethics   Volunteer Now!

Regional Meet Ups Review Regional Meetings Co-Chairs

Andy Downs Bullivant Houser Bailey, PC San Francisco, CA Martin Pentz Foley Hoag LLP Boston, MA

At the end of 2023, the Regional Meetings committee organized meet-ups in markets across the country, including Atlanta, Boston, Chicago, Dallas, Houston, San Francisco, Seattle and Washington, D.C. In December and January, additional meet-ups were hosted in Los Angeles/Southern California and Southern Florida. Many thanks to our co-hosts in each city who organized these gatherings!   ACCC meet-ups are events coordinated to help keep Fellows in touch between annual meetings and symposia, encourage them to enhance their involvement in the College, and consider possible nominees. Candidates for potential admission participated in many of the events, offering them the opportunity to learn about the benefits of ACCC Fellowship.

Los Angeles/Southern California Area Meetup December 18, 2023, The Conrad LA

Southern Florida Area Meetup January 16, 2024, Perry's Steakhouse and Grille

Meet ACCC's New Fellows

Michael Menapace Wiggin and Dana LLP Hartford, CT By Michael Aylward, Morrison Mahoney LLP Michael grew up near Princeton, New Jersey, and came to Connecticut to attend music school. After graduating from college, he had a 10-year teaching and performing career as a saxophonist. While teaching at the university, Michael was asked to take on more administrative roles but a career in college administration was not in his long-term plans. Michael was attracted to the law because he enjoys developing long-term strategies, problem solving, and the presentation/rhetorical aspect of dispute resolution. After law school, Michael started his career at LeBoeuf Lamb Greene & MacRae, stayed through the merger at Dewey LeBoeuf, and then found his home at Wiggin and Dana in 2008. Outside of his law practice, Michael is Bailli (President) of the Hartford chapter of the Chaîne des Rôtisseurs, the largest fine dining and wine society in the world.   Michael’s first significant insurance coverage case was in confidential arbitration, so specific details cannot be disclosed. However, Michael can say he’s not a fan of coverage arbitrations due the lack of an appellate right. The biggest change Michael has seen over his legal career in coverage litigation (perhaps due to an increase of cases on court dockets) has been an aversion for courts to dig into legal issues on early motions and instead delaying legal rulings until summary judgment.  Michael says it’s difficult for him to keep track, but he has handled coverage matters in at least 25 states. He finds the most challenging jurisdictions are those in which the courts do not read briefs prior to argument (or at all), noting lawyers spend a lot of time getting every argument and sentence just right, so it is frustrating for the client when the court does not read the papers.

Margaret Fonshell Ward Downs Ward Bender Herzog & Kintigh, P.A. Hunt Valley, MD Margaret (“Peggy”) Ward is a founding partner of the Downs Ward Benzer Herzog and Kintigh PA law firm in Hunt Valley, Maryland.  Since graduating from the Georgetown University Law Center in 1987, she has found herself in the midst of some of the most complex insurance coverage disputes in Maryland.   Ms. Ward has been active in professional and community organizations, serving on the Board of Directors of DRI and as President of Maryland Defense Counsel, chair of the Lawyers Campaign for CollegeBound and an active pro bono contributor to Maryland Volunteer Lawyers Service, for which she currently handles guardianship cases. She is an engaged committee member of the International Association of Defense Counsel, the Federation of Defense and Corporate Counsel, and the Association of Defense Trial Attorneys. She was honored to be named one of Maryland’s Top 100 Women for 2005 by The Daily Record and was the DC Defense Lawyer of the Year in 2018. She has published and lectured extensively on trial and insurance-related topics and was a faculty member for IADC’s esteemed Trial Academy in 2011. Outside of the office, Ms. Ward teaches public speaking to high school girls and is a dedicated long-distance runner and swimmer. Michael Aylward, Morrison Mahoney LLP, recently interviewed Margaret for this article:   Where are you from; where did you grow up? I was born and raised in the Baltimore metropolitan area.   What steered you to a career in the law? When I was young, I always thought everything should be “fair” and somehow I got the notion that lawyers made things fair! I had zero contact with any lawyers but, nevertheless, decided by middle school that I was going to be either a gym teacher or a lawyer. Some wise guidance counselor in high school suggested gym teacher might not be the best path for me. What did you do after law school; what was your first job as a lawyer? I started as an associate at a large firm in Baltimore, doing insurance defense and, soon thereafter, insurance coverage. We got to try cases quite early and I loved being a trial lawyer at such a young age. What is the most interesting thing you do outside of the practice of law? I am a long distance runner and swimmer. I love traveling to fun races across the country and around the globe.   Tell us about your first big insurance coverage case. I would have to say this is one where I represented both a U.S. insurer and a Canadian insurer in a case involving concrete railroad ties that were failing across the country. The manufacturer was suing its insurers in both countries for defense and indemnity against many cases filed by railroads. There were endless policy issues and differing law, with many exposure years and towers. I spent about two years traveling all over the U.S. and into Montreal for depositions, and learned so much, especially from the other insurer counsel who had been doing coverage work longer than I had.   What is the biggest change you’ve seen over your career with respect to how insurance coverage disputes are handled and litigated? While it has always been the case that coverage lawyers do mostly coverage but when I started, coverage lawyers also did other litigation, which made them better acquainted with the realities of trials. They were more often trial lawyers, not just litigators. Too many coverage lawyers now can’t really relate to how that deposition will or will not be useful at trial.   How many jurisdictions have you handled coverage or bad faith litigation? Do any of them stand out for one reason or another? I have regularly handled coverage matters in Maryland, the District of Columbia and Virginia and occasional in California, Florida, Pennsylvania in Texas. Virginia is a difficult state to try insurance cases in because until a year ago, it did not have an intermediate appellate court that takes all cases on appeal.  Consequently, there are relatively published appellate opinions discussing insurance. Aside from that, I think the bigger difference is between being in state court and federal court in any jurisdiction. State court judges just seem to only rarely have the kind of experience that allows for really thoughtful decisions on the complicated issues.

Anna Engh Covington & Burling LLP. Washington, D.C. By Christine Haskett of Covington & Burling LLP. Anna Engh hails from the teeming metropolis of Elkins, West Virginia (pop. 8,000). Anna first became interested in a career in the law because she was looking for a new challenge after teaching high school and working in college admissions. So she went to law school and then clerked for a Fourth Circuit judge for a year, after which she joined Covington, where she has been since 1990.   Anna’s first big insurance coverage case was as an associate, when she represented Nestle in a large environmental coverage case in California state court. She and the team prevailed on the duty defend in an early motion, and the case was subsequently resolved. Since then, Anna has handled coverage litigation in at least a dozen or so jurisdictions. The ones that stand out to her are Massachusetts and Maryland because of their provisions for fee-shifting for policyholders who prevail on duty to defend motions. Over her career, one of the biggest changes that Anna has noticed in the field is the increased interest in mediation and pre-litigation settlement efforts.   Outside of law, Anna enjoys hosting an annual pumpkin carving party, which she has done for the past 20 years.

Alexandra Markov Carroll Warren Parker, PLLC. Jackson, MS  Seth Lamden, Blank Rome LLP, recently interviewed Margaret for this article. The following is a transcript of their conversation: What steered you to a career in law? Many people that I admired were lawyers. What did you do after law school and what was your first job as a lawyer?  My first job after law school was at a mid-sized mass tort litigation firm. How did you come to specialize in insurance law?  In 2003, I joined CWP, a boutique law firm specializing in complex insurance coverage litigation nationwide, and have been with the firm ever since. What are some of the cases that you enjoyed most over your career? In retrospect, the cases I’ve enjoyed the most are the ones that were also the most challenging. The case that always stands out is one in which our firm represented a market of reinsurers of a captive insurer of a petrochemical plant that experienced a large fire. The claimed loss exceeded $700 million. In addition to the coverage disputes, the arbitrability of the dispute was hotly litigated in Texas, and we ultimately won a motion to compel arbitration. While the case settled prior to a final award, preparing for, and participating in that trial, before seasoned and well-respected arbitrators, was monumental in the development of my insurance practice and career. What is the biggest change you’ve seen over your career with respect to coverage litigation? The biggest change I’ve seen from my perspective is representing quota share markets as opposed to single insurers in coverage disputes. This has had a significant impact on our practice in that it changes the dynamics of the decision-making process, as well as the general approach to handling these types of disputes. How many jurisdictions have you handled coverage or bad faith litigation? Eight. What do you like to do in your spare time?  I am a foodie and love to cook. I also like spending time outdoors and traveling.

Matthew O'Hanlon Barnes & Thornburg LLP Los Angeles, CA By Mary Craig Calkins, Blank Rome LLP Matt O’Hanlon is a partner at Barnes & Thornburg in Los Angeles, where he grew up in Westwood near UCLA. Matt was admitted to practice in 2007 after crossing the country to attend Columbia University for his B.A., and then obtaining his J.D. at Washington University in St. Louis’ School of Law.  He is recently inducted as an ACCC Fellow but has been active in the field of insurance recovery since early in his career. Like many Angelino practitioners representing policyholders, Matt has pursued coverage for entertainment companies, music content companies, musicians and bands, television personalities, producers, and a host of other clients in the apparel, financial services, healthcare, hotel and hospitality, sports and real estate industries. Matt was named a Southern California Super Lawyer and is a member of the Public Counsel’s Leadership Council. He shares the following additional tidbits (some with a definite tongue in cheek):    What steered you to a career in law? As a history major, I had limited useful skills upon graduation from college besides reading, writing, and researching. I wasn’t quite talented enough to be a rock star, songwriter, or a record producer so I went to law school instead.   Tells us about your first job as a lawyer and your first big insurance coverage case. I was a summer associate at K&L Gates in Century City and started there as a first year associate. My first big coverage case was actually my first coverage matter, which spanned two law firms including Barnes & Thornburg and involved two separate pieces of litigation over the period of eight years. It involved hotly contested coverage litigation with both domestic and foreign CGL insurers over advertising injury coverage. The case ultimately settled and was a great learning experience. I still represent that apparel industry client.  In how many jurisdictions have you handled coverage or bad faith litigation? Do any of them stand out for one reason or another?  My practice focuses almost exclusively on representing insureds with some connection to California. 99% of the coverage litigation I have handled has been in California, though I had one coverage matter in Illinois that I will always remember because I got a migraine during an early morning Zoom hearing and could not see the screen. It turns out that you don’t need to see to argue!    What is the most interesting thing you do outside of the practice of law? I used to have hobbies and do fun things, but then I had kids (Isla is 5 and Neve is 3). So I’m either working or parenting these days or suffering through home improvements (which explains the photo). I still get to play guitar once in a while and I like to bike and play tennis with my family.    What is the biggest change you have seen over your career with respect to coverage litigation? I remember back in the day when we had years and years of policies in binders. Now, I have them all scanned so I can search them easily. I still like reviewing paper copies and marking them up.

Brian Scarbrough Jenner & Block Washington, D.C.  By Mary Craig Calkins, Blank Rome LLP Brian Scarbrough, is a partner and Co-Chair of the Insurance Recovery and Counseling Practice at Jenner & Block in Washington, D.C. He is a recent inductee and Fellow, but he has been active in the field of insurance recovery and litigation for his entire career. Brian was admitted to practice in Illinois and then D.C. after attending Duke University as an Undergrad, where he was a terrible underachiever, graduating magna cume laude and Phi Beta Kappa with a degree in public policy studies. He obtained his J.D. from Harvard. Brian is Chambers USA and Legal 500 ranked, among other rankings, and has continued his great successes into his practice where has recovered more than $1 billion in insurance proceeds over the years.    Where are you from and what led you to the practice of law? I grew up in a suburb of Columbus, Ohio and while I did not go to Ohio State, I proudly admit that I am a lifelong Ohio State Buckeyes fan (and of course a Duke Blue Devil). I am the first in my family to be an attorney. I initially thought I was going to be an engineer but in college became more interested in law and public policy. I liked the variety of legal and policy issues that are necessary to analyze, and crafting arguments, and that initial technical background has kept me in good stead considering the nature of my practice over the years.   What was your first job as a lawyer? My entire legal career (20 years) has been at Jenner & Block. I was a summer associate at Jenner in the Chicago office, and then started in the Chicago office as a first year associate. I then transferred to Jenner’s DC office in 2008, when I was a mid-level associate and have been in DC ever since.   What is the most interesting thing you do outside of the practice of law? I am happy to report that both my son (Wesley, 12 years old) and my wife, January, play polo. We recently got a polo pony named Rafi. While I don’t play, I am now a dedicated polo fan and horse groom, helping to take care of Rafi. [MCC: No one told Brian that it is cheaper to lease the horse instead of buying it and having it on payroll for years.] And yes, I occasionally answer emails and tackle billable matters while in the stands watching the other members of my family compete and score.   Tell us about your first big insurance coverage case. The very first billable matter I worked on at Jenner was an environmental insurance coverage case that had been pending at that point for twenty years. Remarkably, the case ran another 17 years, so I worked on it nearly my entire career. That case is responsible for making me into a coverage attorney. But in my “spare” time, I have also represented large commercial airlines and shipbuilders, major aerospace and defense companies, aircraft engine manufacturers, and other high-tech product manufacturers and tech service providers, among many other types of companies, in connection with a variety of issues.   What is the biggest change you’ve seen over your career with respect to coverage litigation? The expansion of insurance coverage to new areas and the creation of new lines of coverage – cyber, tech E&O, crypto, NFTs, bitcoin, blockchain, and generative artificial intelligence, among others. Twenty years ago few if any of those topics would have been the subject of insurance coverage. But today they are some of the hottest areas in coverage. And I look forward to what the next twenty years will bring.

Call For New Fellows Nominations The ACCC regularly seeks Nominees to be admitted as Fellows of the ACCC who are distinguished for their skill, experience and high standards of professional and ethical conduct in the practice of insurance coverage and extracontractual law, and who are dedicated to excellence in this area of practice. ACCC's Membership Committee looks for nominees who are prominent in the field, and are committed to the practice of law, professionalism, scholarship, diversity, and civility in the bar. Nominees should have at least 15 years of experience representing insurers or policyholders in the field of insurance coverage or extracontractual law, typically devoting at least 70% of their practice to this area. Nominees must be nominated by a current Fellow of the ACCC who is not a member of the Nominee’s law firm. Fellows should not advise their proposed Nominee that his or her name has been submitted. After review, if the Committee determines a Nominee should be invited to apply for membership, a Committee Member will send a Nomination Form to the Nominee. Due diligence is completed by a member of the Membership Committee who is not personally acquainted with the Nominee. If the Nominee is determined to qualify for membership by the Committee, the nomination is forwarded to the ACCC Board of Regents with their recommendation to approve membership.   Nominations should be submitted to membership@americancollegecoverage.org. Please include the nominee’s name, basic contact information, and url link to their firm bio. The Membership Committee will conduct an initial vetting, including contacting other Fellows for references, and will then send an application to the candidate as a next step. If a candidate is nominated and does not progress to the application stage, the nominator will be informed accordingly.

2024 Insurance Law Symposium Preview By Symposium Planning Committee Co-Chairs:

Laura Hanson Meagher & Geer, PLLP, Minneapolis, MN

Christopher H Yetka Larkin Hoffman Daly & Lindgren, Ltd. Minneapolis, MN

The Tenth Annual Insurance Law Symposium will be held on November 15, 2024, at Walter F. Mondale Hall at the University of Minnesota Law School in Minneapolis, MN.  Chris Yetka and Laura Hanson, along with a creative and energetic committee, have designed a terrific conference on coverage issues in the Artificial Intelligence realm. We will hear from Fellows and other experts in the field of AI and its impact on underwriting, claims, fraud detection and risk management. If you have not registered, take some time to do so. We would love to see you in Minneapolis!

The ACCC would like to thank the following sponsors for their valued support:

Welcome Dinner Sponsor

Event Sponsor

Reception Sponsor

In Memoriam: Mike Huddleston, Munsch Hardt Kopf & Harr, PC

Michael Warren Huddleston, the tenth President of the American College of Coverage Counsel, died in Texas on May 6, 2024. Mike was a beloved member of the ACCC and a protean figure within the Texas insurance bar. A Celebration of Life from Mike will be held at 2 p.m. on May 21 at the Mulkey-Mason Funeral Home in Lewisville, Texas, where he grew up. There will be a gathering of ACCC Fellows following the service. The ACCC has created a fund through the American Battlefield Trust in Mike’s memory which Fellows are asked to support. The fund will be used to help create a new national battlefield park outside Vicksburg at the Chickasaw Bluffs Bayou where Union forces under Sherman were narrowly repulsed by the defenders of Vicksburg in December 1862. Mike spent an afternoon walking the grounds of the battlefield in November 2023 in the company of a Mississippi lawyer who is organizing the effort and spoke of little else for days afterward. Those of us who knew and loved Mike felt that this monument to history and the spirit of preservation was a fitting tribute to a good man who loved both. Mike was a son of Texas. After studying music at North Texas State University for two years, Mike transferred to Texas A&M University from which he graduated summa cum laude in 1980 with a B.A. degree in political science. Three years later, he was awarded his juris doctorate degree by the Dedman School of Law at Southern Methodist University in 1983, where he also served as citations editor for the Journal of Air Law and Commerce and received several advocacy awards. For the first several years of his career, Mike represented insurance companies, first with Cowles, Sorrells, Patterson & Thompson, P.C., (now known as Cowles & Thompson, P.C) and then, after 1993, with Brent Cooper as Cooper & Huddleston, P.C. He subsequently moved to the policyholder bar, where he represented corporate and professional insureds in major coverage disputes, most recently as a principal of Munsch, Hardt, Kopf & Harr, P.C. as a shareholder since 2013. In both his appellate and insurance practices, Mike was instrumental in numerous cases yielding landmark decisions. A few examples include Christopherson v. Allied Signal which clarified the criteria for expert testimony; Hendricks v. Todora addressing the limited scope of a premises owner’s liability for third party criminal acts; Rose v. Doctors Hospital refining applicability of the constitutional open courts guarantee; and State Farm Lloyds v. Williams involving the extent of coverage for an innocent spouse’s estate under a homeowner’s policy.  Mike also prevailed in State Farm v. Gandy in which he persuaded the Texas Supreme Court to erect  safeguards against consent judgments in coverage cases. While best known for his legal acumen, Mike’s great loves were people, music and history.  He was rarely without his beloved saxophone and regularly jammed with the house band at the Small’s jazz club in Greenwich Village until the early hours of the morning. On one memorable weekend in 2022, he joined Mike Aylward, Chris Martin and Sheri Pastor at Madison Square Garden for a reunion concert of The Who. More recently, he accompanied Ned Currie, Steve Pate and Mike Aylward on an intense five-day visit to Civil War battlefields in Mississippi and Tennessee, including Shiloh, where one of Mike’s ancestors fought for the Union in 1862. Happening as it did just before the ACCC’s annual meeting in Chicago, Mike’s passing elicited a flood of memories and fond reminiscences.  Looking back on that 2023 Civil War battlefield tour, Ned Currie, who had recruited Mike to join our College, recalled: “Mike became a surrogate to our guides so vast was his detailed knowledge of each battle. To the joy of all, throughout he was unequaled in lively conversation. I treasure that time together and will sorely miss my friend who was so giving, so cheerful, fun to be with, and his ever-present saxophone.”     Mike Aylward remembered Mike for his love of music: “Mike was my best friend in the ACCC. He and I first met in 2017 when we were the co-winners of the Segalla Service Award, but I really didn’t get to know him until I ran the Rock and Roll Trivia contest for the College during the COVID pandemic when we were are stuck at home. He and I would spend endless hours on Zoom late at night reminiscing about great concerns and debating vital questions such as whether Jeff Beck or Eric Clapton was a better Yardbird.     Our trip to Madison Square Garden was the ultimate perfect Friday evening. Eight of us dined in splendor at Le Bernardin (where we were a bit underdressed) and then sprinted to Madison Square Garden to see The Who and a 70-piece orchestra for back up (won’t get fooled again!), followed by a late night of scotch and jazz. Damn, he was fun.”   Mary Craig Calkins observed: “Mike had the best attitude, was always smiling and was truly happy. We will miss him terribly.” As Tom Segalla succinctly put it, “Mike was a man of his word and always willing to listen! “   Bob Allen may have known Mike the longest, as they overlapped at SMU Law and then again in the 1990s when both were in the thick of bad faith assaults on insurers in Texas.   “While Mike and I were always friends and we ran into each other regularly, it was through the College that we became good friends. It started at my first Annual Meeting in 2014 when we ended up together after the Thursday dinner and I told him about the Kingston Mines; a blues bar—over by the old Cabrini Green—that I had been going to for years. That night turned into an annual event that many Fellows have participated in over the years. In fact, last year, Mike brought his saxophone. I left around midnight, so I missed Mike getting on stage around 1:30 am and jamming with the band. Fortunately, Mike Manire was there to see it.”   Sheri Pastor has summed it up for all of us: “The quote “Music, once admitted to the soul, becomes a sort of spirit, and never dies,” suggests that music has a profound impact on our emotions, memories, and experiences. The same was true of Mike. Not only was he a legend of insurance law, he also was an incredibly kind soul, who always wore a smile and filled a room with his humor and passion for music. Among my fondest memories of Mike was running into him at a Who concert, and hearing him share, with unbridled joy, his adventures playing in a nearby jazz club. Mike, like the music he loved, will remain a lasting part of my soul and my happiest memories.”

Mike was a supporter of the American Battlefield Trust, which works to preserve Civil War and Revolutionary War battlefields. The College Board of Regents has voted to donate $1,000 in Mike's memory, with funds earmarked for the Chickasaw Bayou Battlefield restoration. Anyone who wishes to make a contribution, to be combined with the College's, can click here to make a donation. Contributions must be received by May 31, 2024 to be included with the College's donation.

In Memoriam: John Tollefson, Tollefson Bradley Mitchell & Melendi, LLP

John Charles Tollefson, age 68, tragically died March 13, 2024, after a pedestrian-car accident in Memphis, TN. He was on the way to the family mountain home in North Carolina, which brought him great joy. John was an adoring husband; loving brother, father and grandfather; brilliant attorney; and a generous and charismatic friend and neighbor. He was a passionate soul who pursued adventure, new experiences, and knowledge. He marched to the beat of his own drum in the best way. Born in Cedar Rapids, IA to Robert (Bob) Dean Tollefson and Margaret (Marge) Zauner Tollefson, John was the older brother to Karen. From an early age, he was hard to contain. He was just too smart. While he admitted he may have tormented his younger sister in childhood, as they grew, Karen became his equal sparring partner and closest companion. The Tollefson family moved often during John's childhood living in Richardson, TX, Huntsville, AL, and St. Louis, MO, where he graduated from Parkway West High School in 1973. He then enrolled in Emory University for his undergraduate education and graduated from Tulane University School of Law in 1979. He joined Bienvenu, Foster, Ryan & O'Bannon LLC in New Orleans where he worked until 1991. In 1981, John met his future wife Bonnie Baine at a law firm picnic following an introduction by a mutual friend. They picked strawberries in a garden there, married a little over a year later, and shared their love for each other and their daughter Margaret until the day he died. A devoted and enthusiastic father, John drove Margaret to school every day, proudly instilling his wicked sense of humor and insatiable curiosity into her personality. John, Bonnie, and Margaret settled in Dallas in 1991, where John built his career as an insurance coverage lawyer and ultimately was a founding partner in 2006 of what is now known as Tollefson Bradley Mitchell and Melendi LLP. During his career, he argued multiple times before the Fifth Circuit, served as Chair of the Texas Insurance Law Section, and was recognized countless times as one of the best insurance attorneys in the state. He also helped start the ABA Insurance Coverage Litigation Committee and was the long-time editor of the Coverage journal. John stayed busy keeping pace with his speedy mind. He did not do "idle" well. With a unique and widespread set of hobbies, he built and restored wooden boats; was an avid gardener of native plants; a yoga practitioner; a white water kayaker; a history aficionado and avid reader; and a cyclist who finished the Hotter N' Hell 100 bike race 20 times. In addition, John was a passionate environmentalist, hiker, advocate for Harry S. Moss Park, and early member and eventual spin instructor of the Lake Highlands YMCA. His favorite new role, though, was being Grandpa John to his first grandchild, Claire Ellen Guerrero, whom he taught how to use an abacus and do "the pig face" at the age of 7 months. John is survived by his wife Bonnie, daughter Margaret Guerrero, son-in-law Ryan Guerrero, granddaughter Claire, sister Karen Mauro and her husband Joe, brother-in-law John Baine, uncle Charles Tollefson, loving nieces, nephews, neighbors, friends, and dog and fellow adventurer, Oscar. He is preceded in death by his parents and many beloved dogs. A celebration of life was held on March 22, 2024 at Christ Lutheran Church in Dallas, TX . In lieu of flowers, donations to the Lake Highlands YMCA or Christ Lutheran Church Mission Endowment Fund are encouraged. Published by Dallas Morning News from Mar. 21 to Mar. 22, 2024.

The American Law Institute Comes to Terms with First Party Bad Faith Law An Interview with ALI Reporter Michael Green By Michael F. Aylward[1], Morrison Mahoney LLP, Boston, MA On May 20, 2024, the members of the American Law Institute will gather together in a ballroom in San Francisco to discuss Tentative Draft No. 3 of the Third Restatement of Torts: Miscellaneous Provisions.  As its title suggests, this portion of the Restatement of Law, Torts (Third) is an eclectic grab bag of torts that have emerged since the Second Restatement, including medical monitoring, spoliation, wrongful birth, pregnancy and life, neonatal liability and, of greatest interest to ACCC Fellows: first party bad faith. Many of the subjects in Tentative Draft No. 3 were set to be argued at the 2023 ALI Annual Meeting, but little progress was made due to the lengthy debate over its medical monitoring section.  While that controversy remains, the project’s reporters are cautiously optimistic that the rest of Tentative Draft No. 3can now be debated and approved, including Section 20 A. For an advance peek at the 2024 ALI Meeting and the history of the Torts Restatement project, we sat down with Professor Michael Green, one of the two lead Reporters for the Miscellaneous Provisions Restatement and the author of Section 20 A. Green is an internationally renowned authority on tort law, which he has taught for the last four decades at the University of Iowa, Wake Forrest and, most recently, the Washington University School of Law in St. Louis. Professor Green is co-author of a leading torts casebook and of two advanced torts casebooks. He served as Co-Reporter for the Restatement (Third) of Torts: Liability for Physical and Emotional Harm and for Apportionment of Liability with Professor William C. Powers. They were jointly named the R. Ammi Cutter Reporters by the ALI from 2011 to 2015. ACCC: How was it that you came to be named as one of the Reporters for the Restatement (Third), Torts? Green: Sometime early 2000s, there was a meeting in Austin about the future of the Third Restatement of Torts, portions of which had been underway in four separate projects for a decade. At that meeting a commitment was made that the Third Restatement, when finished, would completely supersede the Second Restatement. That is, nothing would be left in the Second Restatement that would be official ALI policy. I had worked some earlier sections of the Third Restatement with Bill Powers, who was the President of the University of Texas and a great torts teacher and scholar. Around 2018, Ricky Revesz asked us to prepare a memo for him describing what work remained to be done to finish the Third Restatement of Torts. Bill and I knew that there needed to be new projects covering defamation and remedies but as we worked on the memo, we realized that a lot of new torts had emerged since the Second Restatement was completed and we were well aware of three topics that belong in a Restatement of Torts but had never found their way in: statutes of limitation, vicarious liability, and medical malpractice. So, we sent Ricky this memo, describing all of these holes that hadn't been done, having no notion that we'd be involved in this new project. We were two old, washed -up Reporters, after all! But Ricky comes back and said will you two, do it? And I still remember my conversation with Bill and him saying: “Mike, this is crazy, but let's do it.” Fortunately, we had the good sense to realize we were old guys, and we should get someone younger involved, and the best thing I've done for this project was recruiting Nora Freeman-Engstrom, of the Stanford Law School, who was named the R. Ammi Cutter Reporter in 2022 and continues to hold that Chair) to work with us. ACCC: I don’t think that people realize what a huge commitment of time and energy being a Restatement Reporter entails. What prompted you to volunteer again?   Green: There is a lot of drudgery and you do have to read a ton of cases and synthesize them into the Black Letter, Comments, and Reporter’s Notes format that the ALI uses. But it’s very satisfying to make something coherent out of something as messy as case law. I enjoy the give and take, getting advice on some points and on others defending what we've done. I’m looking forward to our meeting in May when we will be presenting our book. And in the end, I’m gratified to make some contribution to the law on the ground. Writing about tort theory for an audience of other torts theorists is not nearly as satisfying in my opinion.   ACCC: At what point did you decide that first party bad faith needed to be included in this Restatement?               Green: Bad faith falls in the category of new torts that have emerged since the 1960s and 1970s and weren’t covered in the Second Restatement.  We might not have covered it if the ALI had decided to do a full Restatement on first party insurance as they did with liability insurance (“RLLI”), but it didn’t look like that was going to happen, so we thought we should include it in our project (though with some trepidations given how contentious the RLLI had been)   ACCC: I know that insurance is one of the topics that you’ve taught to law students for years but were there aspects of first party insurance that surprised you?   Green: One thing that surprised me and that I found very interesting was that good faith in claims handling is a non-delegable duty. An insurer can still be held liable even if the bad faith was committed by an independent contractor that it had hired to process claims. I had also assumed that if an insurer violated a state Unfair Practices Act, that that would be the equivalent of negligence per se. In the course of conversations with industry liaison, however, I was persuaded that there really wasn’t case law to support such a Section, so it came out of the draft.   The other thing that has surprised me is how calm the discussion of this Section has been compared to what happened in the RLLI drafting process. I’m grateful for that.   ACCC: Assuming the ALI approves Tentative Draft No. 3 this month, what sort of impact do you see Section 20 A having in how first party bad faith claims get addressed in the court:   Green: In many respects, jurisdictions already have law in these areas, so it's not like the first Restatements where courts were confronting issues for the first time. But I can imagine jurisdictions that haven't confronted first party bad faith might look to Section 20 A for help.   ACCC: One last question, this has been such a big part of your life for the last few years: what will you do now with all this free time?   Green: Well, I like the work that I do. I'm still doing it and I'm 74 years old. I expect that Tentative Draft No. 3 won’t actually be in shape for publication until the end of 2025. I hope also to finish the next edition of our torts case book (the 12th!) by early 2026, and then maybe it's time for me to go out to pasture.   ACCC: Thanks, Professor. Good luck in San Francisco. [1] Michael F. Aylward is a long-time member of the American Law Institute. He was an advisor on the Restatement of Law, Liability Insurance and has consulted on Section 20 A of the Restatement of Law, Torts (Third): Miscellaneous Provisions. He was a founding Fellow of the ACCC and served as its President from 2020 to 2021.

ACCC Announces New Web Site Functionality! Those of you who regularly check the ACCC web site may have discovered a new feature.  If not, click on www.americancollegecoverage.org and go to the “Quick Links” box where you’ll find a new feature: “Coverage Appeals.” One of the strengths of our College is the breadth of experience our Fellows have and the wealth of knowledge each of us has with respect to case developments in the jurisdictions in which we practice. Nevertheless, while we all acknowledge that impact that rulings around the country have on our practice, it is difficult, if not impossible to keep track of the pending appeals that will generate those rulings. Over the past several weeks, we have collected information from over a dozen ACCC Fellows, including John Bonnie; John Buchanan; Bill Bulfer; Rina Carmel; Bruce Celebreeze; David Goodwin; Angela Elbert; Dan Kohane; Seth Lamden; Cathy Maus; Ryan Maxwell; John Vishneski; Jeff Vita and Heidi Vogt. We will update this web site feature on a regular basis. Meanwhile, if you become aware of important new insurance cases that are going up on appeal, please let me know so that this feature can be relevant and helpful to all ACCC Fellows. Michael F. Aylward michael.aylward4@gmail.com

Fellow News & Articles

Texas Board of Legal Specialization Announces Inaugural Class of Board-Certified Insurance Law Attorneys Congratulations to the Texas-based ACCC Fellows who are now Board Certified in Insurance Law: ·      Bob Allen, The Allen Law Group, Dallas ·     Jim Cooper, Reed Smith LLP, Houston ·      Blair Dancy, Cain & Skarnulis PLLC, Austin ·      Linda Dedman, Dedman Law, PLLC, Dallas ·      Catherine Hanna, Hanna & Plaut, L.L.P., Austin ·      Steve Melendi, Tollefson Bradley Mitchell & Melendi, LLP, Dallas ·      Vince Morgan, Bracewell LLP, Houston ·      Doug Skelley, Shidlofsky Law Firm PLLC, Austin ·      Micah Skidmore, Haynes and Boone, LLP, Dallas ·      Ellen Van Meir, Nicolaides Fink Thorpe Michaelides Sullivan, LLP, Dallas ·      Steve Walraven, Langley & Banack, Inc., San Antonio

ACCC Fellow Brian McDonough recently prevailed at trial in an insurer vs insurer “Bad Faith” suit arising out of a construction-site wrongful death action. See a copy of the Trial Decision here. Brian P. McDonough McDonough Cohen & Maselek LLP, Boston, MA

Anatomy of an Entrenched Error: "Concurrent Causation" in Texas Coverage Litigation  By ACCC Fellow Marc E. Gravely and Brendan K. McBride Marc Gravely Gravely Attorneys & Counselors, San Antonio, TX

Honorary Fellow Leo P. Martinez Receives the ABA 2024 Robert J. Kutak Award Leo Martinez is Dean Emeritus and Albert Abramson Professor of Law Emeritus at the University of California College of Law in San Francisco. He is currently a Managing Director at Andersen, the tax and financial services firm. Read more. Leo P. Martinez UC College of Law, San Francisco

Send Us Your News! Do you have news to share? We’ll publish news of achievements, firm changes, awards, wins, etc. If you are quoted or published, send that as well. We are looking for content about our members to include in Member News, Article of the Month, and social media posts. Send your information to us at info@americancollegecoverage.org.

Welcome New Fellows

·      Jacquelyn Beatty, Karr Tuttle Campbell, Seattle, WA ·      Joseph Beavers, Miles & Stockbridge, Baltimore, MD ·      Geoffrey Bedell, Soha & Lang P.S., Seattle, WA ·      Anna Engh, Covington & Burling LLP, Washington, D.C. (Reinstatement) ·      Alexandra Markov, Carroll Warren Parker, PLLC, Jackson, MS ·      Michael Menapace, Wiggin and Dana LLP, Hartford, CT ·      Matthew O'Hanlon, Barnes & Thornburg LLP, Los Angeles, CA ·      Ryan Opgenorth, Pillsbury & Coleman, LLP, San Francisco, CA ·      Creighton K. Page, Foley Hoag LLP, Boston, MA ·      Gabriela (Gaby) Richeimer, Werner Ahari Mangel LLP, Washington, D.C. ·      Brian Scarbrough, Jenner & Block, Washington, DC ·      Darren Teshima, Covington & Burling LLP, San Francisco, CA

Register Now for each of these Upcoming ACCC Events:

ACCC Pop Up Dialogue Webinar The Forthcoming Torts Restatement’s Treatment of First Party Bad Faith Monday, June 10, 2024 2:00 PM - 3:00 PM EDT In 2018, the American Law Institute gave final approval to the Restatement of Law, Liability Insurance following years of controversy in which dozens of ACCC Fellows were actively involved. Now the ALI is on the verge of approving a new Restatement of Torts (3d) which will contain a single section that comprehensively addresses the tort of first party bad faith. Although unlikely to spark the furor that attended liability Restatement, Section 20 A is likely to have an important impact on the future shape of first party bad faith. Joining us to discuss the origins and scope of Section 20 A is the Restatement’s Reporter, Professor Michael Green of the Washington University of Law in St. Louis, accompanied by Lorie Masters, who provided helpful input to Professor Green on this project and will respectively provide the insurer-side and policyholder-side perspective on it. Speakers: Professor Michael D. Green, Washington University School of Law Lorelie Masters, Hunton Andrews Kurth LLP Michael Aylward, Morrison Mahoney LLP

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ACCC Pop Up Dialogue Webinar Named Insured, Additional Insured, Indemnitee - Belt & Suspenders or Gordian Knot? Thursday, July 18, 2024 4:00 PM - 5:00 PM EDT Speakers: John S. Vishneski III, Reed Smith, LLP David Schubert, Schubert & Evans, P.C. Risk-transfer remains as relevant a consideration as ever in commercial transactions, perhaps most frequently in the construction trades, but also in all sorts of other vendor, supplier, landlord-tenant and other commercial relationships. For example, anyone who has to wade through AIA forms and project contracts for any project involving construction, renovation, or alteration to commercial real estate is familiar with different provisions of the prime contract, subcontracts, and related documents that specify whose insurance must be endorsed to name whom as additional insureds, and what indemnification promises run in favor of which parties. This pop-up will explore issues that remain current following any kind of personal injury or property damage claim in connection with activities of parties who have entered into commercial transactions (e.g., construction-site injury claim) including which insurance must respond first in the event of a claim (additional-insured coverage or the policyholder’s own insurance), what the indemnity agreement covers (and whether it should have time or dollar limits, or both), and whether the order in which the various agreements have to respond can be controlled through the drafting of relevant contract language. Please join us as we look at what happens when parties litigate the “Gordian knot” – and what solutions there might be to it.

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ACCC 2024 Insurance Law Symposium Friday, November 15, 2024 University of Minnesota Law School Minneapolis, MN Hotel Information: Marriott Courtyard, Minneapolis Downtown 1500 Washington Avenue South, Minneapolis, MN 55454 Rates: $139 USD/night for 11/14 - 16/2024 (Book by: 10/24/24) Reserve your overnight accommodations at this link. Visit the Symposium event page on the ACCC website for the tentative agenda and latest details.

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For more news about the College and its Fellows, visit our website at www.americancollegecoverage.org

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