High Court Changes Cumis Landscape

Posted in: Attorneys Fees, Case Updates, Duty to Defend, General Liablity August 26, 2015

We all know the maxim that “bad facts make bad law.”  Two years after J.R. Marketing, LLC prevailed in the Court of Appeal concerning its dispute with its commercial general liability insurer, Hartford, it ran out of luck before the California Supreme Court in its fight over important Cumis counsel issues.  Hartford Cas. Ins. Co. v. J.R. Marketing, LLC, 190 Cal. Rptr. 3d 599, 2015 DJDAR 9111 (Cal. Aug. 10, 2015).  This is a must read for every lawyer in California that acts as Cumis counsel.

The High Court held an insurance company can sue independent counsel (i.e., Cumis counsel) directly for reimbursement of unreasonable or unnecessary legal charges counsel billed it to defend its insured.  This decision may dramatically change the entire Cumis counsel landscape.  Previously, an insurer could only sue its insured for reimbursement of defense fees.  The High Court’s decision, no doubt, will have a chilling effect on how Cumis lawyers represent their clients.  They will fear subsequent fee litigation from the insurer.  One has to wonder if “independent counsel” will truly be independent anymore.  Quite possibly, this case will practically (though not legally) relegate Cumis counsel to a similar role as an insurance company’s panel counsel, who has to pander to the “hand that feeds them” even though, under the law, Cumis counsel has two clients, the insured and the insurer.

The facts of this case were unique because Cumis counsel racked-up a whopping $15 million in legal bills under a court order it drafted that allowed it to bill the insurer without any fear whether or not the bills would be immediately paid in full.  Hartford had issued J.R. Marketing a commercial general liability policy that covered business-related defamation and disparagement.  J.R. Marketing was sued in Marin County (and other liability actions) for interference with business relationships, defamation, unfair competition and other business-related torts.  It tendered the defamation lawsuit to Hartford under the policy.  Hartford denied any duty to defend or indemnify.

J.R. Marketing sued Hartford for breaching the insurance policy.  Hartford, only after the coverage action was filed, agreed to defend under a reservation of rights but only prospectively.  It refused to pay J.R. Marketing’s legal bills back to the date of tender, and it also refused to provide Cumis counsel in place of its own panel defense counsel.  The trial court in the coverage action found Hartford breached it duty to defend by failing to provide and pay for Cumis counsel from the date of tender.

A few months later, because Hartford still had not paid Cumis counsel’s bills violating the trial court’s summary adjudication order, the trial court entered an enforcement order in the coverage action.  The order, drafted by J.R. Marketing’s Cumis counsel, Squire Sanders, required Hartford to promptly pay all of Squire Sanders’s past defense invoices within 15 days and to pay “all future defense costs” in the defamation action “within 30 days of receipt.”  The order stated Hartford breached its duty to defend by failing to honor it until ordered to do so by the court and by thereafter failing to pay counsel’s submitted bills in a timely fashion.  The order further stated that Squire Sanders’s bills had to be reasonable and necessary and that, to “the extent Hartford seeks to challenge fees and costs as unreasonable or unnecessary, it may do so by way of reimbursement after resolution of the” underlying defamation action.  The trial court’s order did not specify from whom Hartford could seek reimbursement, i.e. from its insured, J.R. Marketing or from Squire Sanders.

After the defamation suit ended, Hartford filed a cross-complaint in the coverage action for “reimbursement pursuant to the enforcement order,” unjust enrichment and other claims.  It directly sued Cumis counsel, Squire Sanders, as well as its insured J.R. Marketing.  “The cross-complaint asserted that Hartford was entitled to recoup from the cross-defendants a significant portion of some $15 million in defense fees and expenses, including some $13.5 million Hartford paid to Squire Sanders pursuant to the enforcement order.”

Squire Sanders, representing itself and J.R. Marketing, demurred to Hartford’s cross-complaint.  It argued, among other things, that an insurer has no direct claim against an insured’s independent counsel for reimbursement.  The trial court agreed and “concluded that Hartford’s right to reimbursement, if any, was from its insureds, not directly from Cumis counsel.”  The appellate court affirmed the decision.  It rejected Hartford’s argument that an insurer has a right to recover directly from Cumis counsel unreasonable and excessive fees it pays counsel because counsel (and not just the insured) is unjustly enriched in that scenario.

The California Supreme Court reversed.  The Court was very careful to narrowly frame the issue before it because it did not want its holding to apply to all Cumis counsel cases, just ones where the insurer had a reimbursement right rooted in a trial court order.  It therefore stated the issue in great detail as:

From whom may a CGL insurer seek reimbursement when: (1) the insurer initially refused to defend its insured against a third-party lawsuit; (2) compelled by a court order, the insurer subsequently provided independent counsel under a reservation of rights . . . to defend its insured in the third party suit; (3) the court order required the insurer to pay all “reasonable and necessary defense costs,” but expressly preserved the insurer’s right to later challenge and recover payments for “unreasonable and unnecessary” charges by counsel; and (4) the insurer now alleges that independent counsel “padded” their bills by charging fees that were, in part, excessive, unreasonable, and unnecessary?

The Court emphasized again, “We granted Hartford’s petition for review, which raised a narrow question: May an insurer seek reimbursement directly from counsel when, in satisfaction of its duty to fund its insureds’ defense in a third party action against them, the insurer paid bills submitted by the insureds’ independent counsel for the fees and costs of mounting this defense, and has done so in compliance with a court order expressly preserving the insurer’s post-litigation right to recover ‘unreasonable and unnecessary’ amounts billed by counsel?” [Emphasis added].

To that very narrow issue the High Court responded:

We conclude that under the circumstances of this case, the insurer may seek reimbursement directly from Cumis counsel. If Cumis counsel, operating under a court order that expressly provided that the insurer would be able to recover payments of excessive fees, sought and received from the insurer payment for time and costs that were fraudulent, or were otherwise manifestly and objectively useless and wasteful when incurred, Cumis counsel have been unjustly enriched at the insurer’s expense. [Emphasis added].

As alluded to earlier, bad facts make bad law.  The Court could not ignore the fact that the law firm acting as independent counsel, Squire Sanders, had racked up $15 million in legal bills defending the insured!  Moreover, the Squire firm had written its own meal-ticket.  It drafted the proposed order adopted by the trial court finding the defendant insurance company owed a duty to defend its insured through independent counsel.  But Squire Sanders did not stop there.  It included language in the order requiring Hartford to pay all of its legal bills in the case within thirty days, no questions asked, and that Hartford could not challenge any of the bills until after the underlying liability action had ended. The Squire firm’s aggressive and expensive litigation tactics completely unchecked by anyone, and the fact that the firm had drafted the very order permitting that highly advantageous scenario to them, lead the High Court to decide it had to allow a direct reimbursement action by Hartford against Squire Sanders.  It could not allow $15 million in legal bills to stand without affording Hartford an opportunity to contest their reasonableness.

Unfortunately, the extreme facts of J.R. Marketing may forever change the Cumis counsel landscape, and not in a good way.  While the Supreme Court was careful to clarify its holding was limited to the unusual facts of the case before it, its opinion unrealistically downplays the chilling effect it will have on Cumis counsel’s ability to zealously represent their client’s interests independent from the influence of its insurer.

We emphasize that our conclusion hinges on the particular facts and procedural history of this litigation.  . . . We . . . express no view as to what rights an insurer that breaches its defense obligations might have to seek reimbursement directly from Cumis counsel in situations other than the rather unusual one before us in this case.

While firms acting as independent counsel will try to zealously defend their clients and look out solely for their interests (as the law requires), the threat of fee litigation looming over their heads by insurance companies will shape Cumis counsel’s strategy.  Cumis lawyers will consider whether the insurance company is likely to challenge their defense strategies as unnecessary in a subsequent reimbursement action for fear of having to re-pay large legal bills.  They are likely to decide how to defend the case based not just on their client’s best interests but, on their own and the insurer’s too.

If insurance companies had a record of integrity and looking out for their insured’s interests (and the lawyers that defend them), the Court’s opinion might work.  But they don’t.  They have a well-earned reputation of unreasonably nitpicking lawyer’s bills, refusing to pay for necessary legal work, demanding to pay antiquated hourly rates rather than market rates, employing auditing firms paid on a commission by how much of a lawyer’s bills they cut, and by trying to impose unreasonable billing guidelines on law firms.  Cumis firms therefore will make legal strategy decisions against that backdrop.  They will decide strategy based not only on whether they think legal work is necessary to their client’s defense, but, the possibility that the insurer paying their bills will file an expensive reimbursement action against them that unreasonably challenges their fees.

In the proceedings below, the trial court and the appellate court held a breaching insurer has no right to seek reimbursement directly from Cumis counsel.  The lower court’s opinion enhanced the ability of independent counsel retained by insureds to vigorously prosecute their clients’ cases without fear of a possible action for reimbursement by insurers.  It sent a strong message: insurers who reserve their rights and refuse to fund the defense of Cumis counsel take a big chance that they will be stuck paying those fees without any real ability to challenge them.

The California Supreme Court obliterated that vitally important message and sent its own.  Cumis lawyers better carefully scrutinize their bills and only perform legal work that is absolutely reasonable and necessary to defending their clients because, if they cross the line, they will end up with a huge legal bill of their own.  This decision, no doubt, will have a chilling effect on how Cumis lawyers represent their clients.

This decision would appear to undermine the purpose of the Cumis doctrine codified in Civil Code section 2860: when the insurer has a conflict with its insured on how to defend the underlying liability case because the outcome of a reserved coverage issue can be controlled by how it is defended, the insurer must pay for an independent defense lawyer chosen by and with allegiance solely to its insured to defend the case.  How can a lawyer be truly independent from the client’s insurer and solely dedicated to protecting the insured’s interests when the insurer has the power to question every defense decision the lawyer makes and recoup legal fees that were arguably not wisely spent?  Even the most ethical, skilled lawyer will measure each strategy decision he makes not just by whether it will benefit his client’s defense but by whether an insurer may have room to argue against the strategy.  What is the silver lining?  Perhaps the courts will indeed limit this holding to its very unique facts and confine its application.  We can only hope.

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ERISA Insurers’ Conclusory Medical Opinions Regarding Disability Status Will Not Carry the Day

Posted in: Case Updates, De Novo Review, Disability Insurance, Disability Insurance News, ERISA, Insurance Blog August 20, 2015

An individual suffering from a disabling condition undoubtedly has many concerns. In addition to dealing with physical pain and emotional distress, there is always the thought of how to pay for medical bills and living expenses if the disability prevents the person from continuing work.

It can be stressful and time consuming for a disabled claimant to fight for long-term disability benefits (“LTD”) provided under an ERISA-governed employee benefit plan. However, a recent District Court case, Carrier v. Aetna Life Insurance Company, 2015 WL 4511620 (C.D. Cal. July 24, 2015), may help insureds by making it more difficult for insurance companies/claim administrators to summarily deny an insured’s claim without proof of specific findings and details as to how and why they reached their conclusion to deny benefits.

Gloria Carrier was employed by Bank of America as a Credit Administrator. Her job duties included clearly communicating risk analysis, identifying problems on credit-related issues, guidelines and policies, performing research on closed loans and supervising between twenty and 100 people across multiple states. After being diagnosed with uterine cancer, she had to have her uterus removed and subsequently underwent three cycles of chemotherapy. After her surgery and chemotherapy, her cognitive abilities were severely affected and, according to her treating physician, she suffered from severe depression and suicidal thoughts.

Carrier initially received short-term disability (“STD”) benefits under her employee benefit plan issued by Aetna Life Insurance Company. After the expiration of her STD benefits, she applied for LTD benefits under the plan. Although Carrier was initially awarded LTD benefits, Aetna decided to terminate them a few months later “based on its determination that she no longer met the definition of disability,” despite her treating physician’s opinion that she continued to suffer from major depression and cognitive disorder that prevented her from performing her normal job duties. Aetna’s decision was based on peer evaluations conducted by three Aetna retained doctors of the plaintiff’s treating physician’s records and office notes. Aetna then upheld the denial decision on appeal.

During litigation, the district court conducted a de novo review of the claim decision, and determined that Carrier’s benefits were improperly terminated. In finding that plaintiff’s claim for LTD benefits was wrongfully terminated, the court found that the opinions of Aetna’s physicians were “presented in a conclusory fashion, making it unclear how they reached such starkly contrasting results from those of [plaintiff’s treating physician], despite reviewing the same materials.” The court found the opinions of plaintiff’s treating physician that she suffered from severe depression and cognitive disabilities that prevented her from performing her job under the “own occupation” definition of “disability” to be more compelling. Although it indicated that there was no legal deference to the treating physician’s opinion, the court’s ruling demonstrates that insurance companies who rely upon peer-to-peer evaluations in evaluating and potentially denying a LTD claim must ensure that a detailed analysis has been conducted, rather than a simple blanket/conclusory conclusion made without meeting or treating the insured.

The court awarded Carrier LTD benefits for a portion of the period she was wrongfully denied benefits and remanded the action to the plan administrator to resolve a secondary issue regarding a change in the policy’s language from “own occupation” to “any occupation” that went into effect while the initial dispute was being litigated.

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The Death of the Abuse of Discretion Standard of Review in ERISA Disability Insurance Cases in California

Posted in: Disability Insurance, Disability Insurance News, ERISA, Insurance Blog July 29, 2015

When an insured obtains his or her disability insurance coverage from an employer, more often than not, that claim is governed by Employee Retirement Income Security Act of 1974, also known as ERISA. Litigation under ERISA is very different from “normal” bad faith insurance litigation where the insured sues the insurer for breach of contract and breach of the implied covenant of good faith and fair dealing. Some of the differences favor the insured, while others favor the insurance company/claims administrator. However, thanks to the California Legislature and recent District Court rulings, one of the insurer’s asserted weapons is longer available.

In an ERISA case, the court reviews the claim decision by applying one of two different standards of review: the abuse of discretion standard of reviewor de novo review. Under the abuse of discretion standard of review, the Court is required to give some deference to the insurer’s decision. However, under the de novo standard of review, the Court does not give any deference to the insurer’s decision, but rather determines in the first instance if the claimant has adequately established that he or she is disabled under the terms of the Plan. Between these two options, obviously, the abuse of discretion standard of review could be viewed as more favorable to disability insurance companies. (We believe that in practice there is not much difference between them as the abuse of discretion standard of review gives a disability insurance claimant more access to good discovery from the insurer and we believe that if judges are convinced that a claimant is really totally disabled, they will rule in favor of the claimant no matter the standard). However, the abuse of discretion standard is no longer available to insurers in California.

An insurer can only reap the benefits of the abuse of discretion standard of review by pointing to language in the insurance plan/policy in which the insurer is specifically granted the “discretion” to make claim decisions and interpret the plan provisions. Such a provision is referred to the “discretionary clause.” California Insurance Code section 10110.6 has now completely foreclosed the inclusions (and effect) of any discretionary clause contained in an plan/policy with a “renewal date” of 2012 or later.

California Insurance Code section 10110.6 states in the relevant part:

(a) If a policy, contract, certificate, or agreement offered, issued, delivered, or renewed, whether or not in California, that provides or funds life insurance or disability insurance coverage for any California resident contains a provision that reserves discretionary authority to the insurer, or an agent of the insurer, to determine eligibility for benefits or coverage, to interpret the terms of the policy, contract, certificate, or agreement, or to provide standards of interpretation or review that are inconsistent with the laws of this state, that provision is void and unenforceable.

(b) For purposes of this section, “renewed” means continued in force on or after the policy’s anniversary date.

(c) For purposes of this section, the term “discretionary authority” means a policy provision that has the effect of conferring discretion on an insurer or other claim administrator to determine entitlement to benefits or interpret policy language that, in turn, could lead to a deferential standard of review by any reviewing court.

(g) This section is self-executing. If a life insurance or disability insurance policy, contract, certificate, or agreement contains a provision rendered void and unenforceable by this section, the parties to the policy, contract, certificate, or agreement and the courts shall treat that provision as void and unenforceable.

This section, by its own terms, applies to any policy or agreement that provides “disability insurance coverage” to “any California resident” regardless of where it was offered, issued, delivered, or renewed. Thus, when determining whether a subject policy is governed by this section of the California Insurance Code, the only issue is whether the policy was offered, issued, delivered, or renewed on or after January 1, 2012 and before the claim accrued. However, this is typically a minor hurdle for an insured to clear as, for the purposes of section 10110.6, a policy automatically renews every year on the policy’s anniversary date. See Cal. Ins. Code § 10110.6(b) (providing that “renewed” means “continued in force on or after the policy’s anniversary date”). Most Policies renew every year, which means, that as of now, a vast majority of disability insurance policies’ issuance dates (and renewal dates) fall within the relevant time period.

Indeed, numerous recent Court rulings establish that, even if the Policy contains a discretionary clause, per California Insurance Code section 10110.6, that language is unenforceable, and de novo is the proper standard of review. See Polnicky v. Liberty Life Assur. Co. Of Boston, 999 F. Supp. 2d 1144, 1148 (N.D. Cal. 2013) (applying de novo standard of review to ERISA claim for denial of benefits because “[t]he Policy was continued in force after its January 1, 2012 anniversary date, [so] any provision in the Policy attempting to confer discretionary authority to Liberty Life was rendered void and unenforceable”); see also Gonda v. The Permanente Med. Grp., Inc., 10 F. Supp. 3d 1091, 1093-1094 (N.D. Cal. 2014); Cerone v. Reliance Std. Life Ins. Co., 9 F. Supp. 3d 1145 (S.D. Cal. 2014); Curran v. United of Omaha Life Ins. Co., 38 F. Supp. 3d 1184 (S.D. Cal. 2014); Rapolla v. Waste Mgmt. Employee Benefits Plan, 2014U.S. Dist. LEXIS 87256, 2014 WL 2918863 (N.D. Cal. June 25, 2014); Snyder v. Unum Life Ins. Co. of Amer., 2014 WL 7734715 (C.D. Cal. Oct. 28, 2014); Jahn-Derian v. Metro. Life Ins. Co., 2015 U.S. Dist. LEXIS 28652, 2015 WL 900717 (C.D. Cal. Mar. 3, 2015).

Given these rulings, it appears that the abuse of discretion standard of review is now, more than three years after the effective date of the statute, dead in ERISA cases that are filed in Federal Courts in California.

If your claim for short-term disability insurance or long-term disability insurance has been denied, you can call (949) 387-9595 for a free consultation with the attorneys of the McKennon Law Group, several of whom previously represented insurance companies, who are exceptionally experienced in handling ERISA short-term and long-term disability insurance litigation.

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Ninth Circuit Severely Limits Known-Loss Doctrine in Insurance Cases

Posted in: Case Updates, Commercial General Liability Insurance, Duty to Settle, Insurance Blog, Policy Interpretation July 11, 2015

Have you ever wondered whether the liability policy you purchased covers losses you already knew about before you bought the policy?  How much do you have to know?  What if you knew about certain property damage at a construction project you caused but not about other related damage your policy would otherwise cover?  A recent case from the Ninth Circuit sheds light on these issues, and it is good news for policyholders.

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Court Confirms that Medication Side Effects Can Support a Disability Insurance Claim

Posted in: De Novo Review, Disability Insurance, Disability Insurance News, ERISA, Insurance Blog June 29, 2015

When a person suffers from a disability caused by an injury or sickness, the resulting restrictions and limitations, be they physical or mental, can have a devastating impact on that person’s ability to return to work. What is often overlooked, is that the side effects of the medication prescribed to treat a medical condition can themselves also impede a person’s ability to perform in the work place, thus resulting in a long-term disability. Recently, Central District of California Federal Court Judge Percy Anderson, in Hertan v. Unum Life Insurance Company of America, 2015 WL 363244 (C.D. Cal. June 9, 2015), ruled that a long-term disability insurer had to consider how the side effects of an insured’s medication impacted her cognitive abilities, and therefore, her ability to perform her job.

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Recent Juror Attitudes Should Frighten Insurance Companies

Posted in: Bad Faith, Disability Insurance, Insurance Blog, Life Insurance, Long Term Care Insurance, Punitive Damages June 23, 2015

Recent verdicts from across the nation in disability, life and health insurance policy cases must be alarming for big corporate insurance companies.  The trend is for jurors to award individual plaintiffs astronomical punitive damage verdicts, showing their general disdain for insurance companies and tendency to empathize with policyholders, particularly where a person’s health is at issue.

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Disability Insurers Can’t Seem to Get it Right – Another Tale of Insurance Claimant Woe

Posted in: Disability Insurance, Insurance Blog June 18, 2015

Did your disability insurer follow the law when it denied your insurance claim? Don’t count on it. If you have long- term disability insurance through your employer, you may need a lawyer with expertise in the Employee Retirement Income Security Act of 1974 (“ERISA”) to evaluate that. We routinely see disability insurers violate ERISA laws, either intentionally or negligently.

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For ERISA Disability Insurance Appeals, A Claimant Who is a Day Late May Not Be a Dollar Short

Posted in: Case Updates, Disability Insurance, Disability Insurance News, ERISA, Insurance Blog, Insurance Questions and Concepts, Policy Interpretation June 10, 2015

Under most long-term disability insurance plans governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), a claimant must appeal the denial of any claim for benefits within 180 days of the denial letter. Unless the appeal is made within that strict 180-day period, the claimant may forfeit the right to any short-term disability benefits or long-term disability benefits available under the plan. At least, that was the law until a recent ruling by the United States Court of Appeals for the Ninth Circuit cracked open the window for a timely appeal.

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“Slimy Conduct That Gives Insurance Companies a Bad Name:” Some Quotes from Judge Alex Kozinski

Posted in: Insurance Blog, Policy Interpretation, Property & Casualty Insurance, Uncategorized June 03, 2015

We do not normally focus on dissents in our blogging but we made an exception here with a published Per Curiam opinion from the Ninth Circuit Court of Appeals, Guam Industrial Services, Inc. v. Zurich American Insurance Co., 2015 DJDAR 5948 (9th Cir. June 1, 2015).  This insurance coverage case arose out of the sinking of a dry dock, loaded with barrels of oil, during a typhoon on Guam. The issues pertain to whether either of two insurance policies covered costs of damage to the dock and the associated cleanup which was accomplished before any of the oil leaked out of the containers into the Pacific Ocean. Guam Industrial Services, Inc. (“Guam Industrial”) owned the dry dock.  At the time of the sinking, one of its insurance policies, an Ocean Marine Policy, covered liability for property damage caused by pollutants, issued by Zurich American Insurance Company (“Zurich”). After the dock sank, Guam Industrial filed a claim under each policy. Zurich denied the claim, and Guam Industrial brought suit. The district court granted summary judgment for the insurers, finding that the first policy was voidable because Guam Industrial had failed to maintain the warranty on the dock, and that the coverage under the second policy was never triggered because no pollutants were released. Guam Industrial appealed the decision and the Ninth Circuit affirmed.

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Robert J. McKennon Named Corporate LiveWire’s Global Awards 2015 Insurance & Risk Management Lawyer of The Year for Orange County, California

Posted in: Disability Insurance, Disability Insurance News, Insurance Blog May 12, 2015

McKennon Law Group PC is proud and honored to announce that Robert J. McKennon, founding shareholder of McKennon Law Group PC, has been named as Corporate LiveWire’s Global Awards 2015 Orange County, California Insurance & Risk Management Lawyer of the Year. The annual Global Awards Lawyer of the Year recognition honors the achievements of those individuals that have consistently shown best practice and demonstrated general excellence in every endeavor on a global and national level. Mr. McKennon specializes in all types of insurance litigation but especially focuses his efforts in long-term disability insurance, life insurance, long-term care insurance, health insurance and insurance bad faith litigation.

The Corporate LiveWire Global Awards 2014 Lawyer of the Year winner’s guide is available here.

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