Home Page The Publication The Editor Contact Information Insurance Key issues Book Subscribe


Vol. 3, Iss. 13
September 10, 2014


Declarations: The Coverage Opinions Interview With Sonia Waisman

The Coverage Lawyer Who Is No One-Trick Pony





Sonia Waisman may not have nine lives.  But she certainly has at least two. 

Waisman, of California’s McCloskey, Waring & Waisman, LLP, is a veteran and accomplished insurance coverage lawyer, having spent a career--including as national insurer counsel--handling a wide-variety of claims, such as environmental, toxic tort, personal and advertising injury, construction defect and bad faith, to name just a few, under various types of policies.  Before joining her current firm, Waisman was a partner in the L.A. office of Morrison & Foerster.

 

So far Waisman’s resume resembles that of many coverage lawyers.  But then it makes a sharp turn.  Waisman is also one of the nation’s leading authorities on animal law.  To drive this point home, there are about 150 law schools in America that teach Animal Law.  Waisman is the co-author of the case book that is used by nearly all of them.  Animal Law, Cases and Materials (5th Edition; Carolina Academic Press) is clearly the 900 pound gorilla in the field.        

I set out to learn how this coverage lawyer came to have such a completely unrelated expertise. All I’m interested in is animal law.  None of the questions on my legal pad are about insurance – well, except one:  How can a coverage lawyer write a 700 page single-spaced, tiny font, law book, and devote barely five of them -- five little pages -- to the subject of insurance?  Say It Ain’t So…nia!

Waisman’s journey to renowned animal lawyer started at California Western School of Law in the late 1980s and her involvement with the Animal Legal Defense Fund.  Following law school she saw a notice of an e-mail group of animal law professors being formed.  At that time there were only about a dozen law schools in the country with an Animal Law course offering.  She contacted her law school, which thought of itself as being progressive, and suggested that it offer a course in Animal Law.  The school’s response…You’ll teach it, right?

So in the late 1990s Waisman created and began teaching a course that filled the animal law gap that was missing in California Western’s curriculum.  And then, while continuing her full time coverage litigation practice throughout, she plugged another hole in animal legal studies – a case book.  The field had grown past the point of being taught using lots of handouts.  Waisman’s first edition of Animal Law, Cases and Materials, was published in 2000.  While Waisman’s days of teaching Animal Law are over, at least for now (she also taught at Loyola Law School (L.A.) and Vermont Law School), the case book (along with her coverage practice) keeps her busy.  The fifth edition of Waisman’s “proudest accomplishment” was just published.     

These days law schools have been coming under pressure, even more than ever before, about not preparing their students for the actual issues that will confront them upon graduation.  I’ve been practicing for 23 years and am still waiting to use the lessons I learned in Comparative Matrimonial Law Between Papua New Guinea and Idaho.  Maybe animal law sounds like that – just another example of law schools being completely out of touch.  But it’s not.  Not even close.  This was made very clear both from reviewing Waisman’s case book and discussing the subject with her.   

When talking about animal law, and her case book, Waisman is quick to tell me what animal law is not.  It’s not animal rights and it’s not animal activism.  It’s animal law.  You see this right away when you open the book.  There are chapters called Property and Beyond, Torts, Constitutional Law, Criminal Law, Contracts and Wills and Trusts.  You quickly recognize that the table of contents in Waisman’s case book mirrors the first year law school curriculum and bar exam.  The book demonstrates that animals touch every cornerstone of life and the law.  This is why animal law has a real place at the table of legal education. 

This is just cat scratching the surface but the Con Law chapter discusses such things as a church’s right to engage in animal sacrifice, constitutional standing to protect animal interests and statutes designed to prevent harassment of hunters.   The Torts chapter looks at damages recoverable for the death of a pet, in a veterinary malpractice setting and otherwise.  The Criminal Law chapter explores animal cruelty.  Contracts brings us pets in the context of landlord-tenant disputes and marital dissolution.  And Wills and Trusts explores such things as wills that contain provisions concerning animal care after the testator’s death and modern pet trust statutes.  In addition, a chapter on Commercial Uses of Animals covers a vast array of legal issues pertaining to the raising and slaughter of animals for food, which Waisman believes is or should be relevant to everyone who consumes these animal products as well as those who don’t.

Waisman stressed during our call that her objective as a teacher, and that of the case book, is not to ask philosophical questions.  Rather, it is to encourage students to think about the rationale and ramifications of judicial and legislative action and to look at what a court or legislature did and ask – Does that make sense?  Philosophical discussion would be fine--if the subject were animal rights.  But this is animal law.                    

I see this clearly when Waisman and I get into a discussion of last year’s Texas Supreme Court decision in Strickland v. Medlen, where the court held that bereaved owners could not recover emotional injury damages from a shelter that negligently euthanized their dog.  Several animal welfare organizations filed amicus briefs opposing emotional injury damages.  In general, their reasons were that, to allow damages for emotional injury, would harm pets.  Pet litigation would become a cottage industry, which would lead to an increase in insurance costs and vets needing to practice defensive medicine.  As a result, care would become too expensive for some pets.  [Coincidentally, Strickland v. Medlen was written by Justice Don Willett, who I had the privilege of interviewing in the May 7, 2014 issue of Coverage Opinions.]

When discussing the case, Waisman looks at the various issues and asks the same question.  Does it make sense that recovery is allowed for the sentimental value of a lost heirloom, such as an athletic ring, but not a dog that is considered a member of your family?  Does it make sense that the question can’t even be presented to a jury to let them decide if damages for emotional injury should be awarded? It would be very easy for a discussion of Strickland v. Medlen to bleed into philosophical questions, but Waisman is focused on legal ones.      

[From Justice Willett’s opinion: “The Medlens find it odd that Texas law would permit sentimental damages for loss of an heirloom but not an Airedale. Strickland would find it odd if Texas law permitted damages for loss of a Saint Bernard but not for a brother Bernard. The law is no stranger to incongruity[.]”]

Now, about Animal Law, Cases and Materials devoting well under 1% of its pages to insurance law, I take Waisman to task.  How could you?, I ask.  Does that make sense?  Her response is a valid one.  In most coverage cases involving animals, she tells me, the case isn’t about the animal, it’s about the insurance policy.  So they are not really animal law cases.  They are insurance law cases -- that just so happen to involve animals.  I see her point.  In other words, in most dog bite coverage cases, insurance is the tail wagging the dog.  

 
Website by Balderrama Design Copyright Randy Maniloff All Rights Reserved