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Vol. 4, Iss. 1
January 14, 2015

Remembrance: A Tribute To Don Malecki



The insurance industry lost a giant on December 12th. Don Malecki passed away after a hard-fought battle against Acute Myeloid Leukemia. Diagnosed in February and given just weeks to live, Don proved the doctors wrong. In over a half a century in the property-casualty world Don served as a broker, underwriter, risk manager, claims consultant, prolific author (including twelve books), editor, publisher, educator and expert witness in 500 cases. In a world where the term legend gets tossed around a lot, and it’s not always appropriate, Don Malecki truly was one. I have three of Don’s books on my shelf. I will have very fond memories of him each time I open one. Don is gone but not his guidance to the insurance industry.

I had the privilege of interviewing Don for the January 30, 2013 issue of Coverage Opinions. He talked about his long career, how things have changed, his incredible insurance library, the role that history can play in coverage disputes and his best advice. I reprint my interview here.

Don, thank you for taking the time to speak with Coverage Opinions. I know it is impossible to summarize a 53-year career in just a few words, but please try. What are some of the highlights?

During my senior year at Syracuse University, I was employed by the Fireman’s Insurance Company of Newark, N.J. It provided a solid foundation in insurance. This was followed by a one-year training program with Continental Insurance Company, including taking courses at the College of Insurance in New York City.

I then became an editor of the Fire, Casualty & Surety Bulletins (FC&S) at the National Underwriter Company in Cincinnati, where I learned how to research and write for that publication and others. This provided a great foundation for my later work.

My “baptism by fire” in risk management came when I was hired by a firm in California, owned in part by the esteemed Dave Warren and Donn McVeigh. I worked on a huge bank in Phoenix and the City of Anaheim.

Shortly thereafter, I wrote my first textbook used in the CPCU curriculum, and was influenced by such insurance giants as the late James Donaldson, William Rodda, and Ronald Horn, who was a professor at various colleges. That one book led to another and the number of published books stands at twelve and counting.

Still working with some nice, knowledgeable partners and staff, still in demand and continuing to have the opportunity to meet (and sometimes help) others around the world is quite an achievement for someone who will be 80 years young this year.

Of course this question has to be asked. How have things changed in the P&C world in the half a century in which you’ve been a participant and observer?

Well, I still have the L.C. Corona typewriter and some carbon paper, but it is rather unlikely I will ever put them to use again. When I started in the business, the SMP (special multi-peril package) concept was one year old. Umbrella policies, which I underwrote, offered many broad coverages. In fact, virtually all policies were broader than today and rating them was much simpler. Policy revisions were infrequent and not being pushed so hard by today’s aggressive litigation. Directors and officers liability insurance was unheard of back then, and so too were many of the E&O and professional liability policies and coverages we see today. “Cyber” insurance was not even a gleam in the eye of insurance underwriters.

Another interesting observation was that the industry was divided and everyone knew his or her place. Members of stock company-related organizations, such as the Big I, viewed members of mutual company-related organizations, such as the PIA, as mortal enemies. Nowadays, producers handle insurance from both stock and mutual companies.

I know you have amassed a huge collection of insurance policies and documents over your career. What are some of the most interesting things in your library?

My insurance library includes old and new insurance company underwriting and claims manuals. It also has over 500 subject categories of documents packed with old articles, speeches, correspondence dealing with coverage questions and old policies and endorsements of all kinds. This includes the original umbrella policies of Lloyds, INA and many other industry pioneers. I have Best’s P&C magazines since 1958 (which is when I was taking insurance courses in college), Business Insurance, including the first copy produced in 1968 and National Underwriter magazine since 1966.

We have been very successful in locating old documents that are germane to current issues particularly those involved in litigation. I am certainly not Indiana Jones, but insurance archeology is a passion minus the whip and hat.

You’ve talked to me about the importance that history should play in insurance coverage disputes. Can you please describe that?

When I talk to insurance people about history, they are not usually interested in that subject. What they may not know, however, is that insurance history, like all history, has a tendency to repeat itself. In fact, not knowing history can be harmful. Many of the old provisions that have been held to be ambiguous and, thus, eliminated, are often resurrected by agents and brokers. One example is the product liability batch clause that was introduced in the standard liability policies of the National Bureau of Casualty and Surety Underwriters in 1941, for purposes of serving as an aggregate limit. It was explained as being troublesome and eliminated. Apparently, those still using that same language are not aware, as drafters of those provisions, of the potential problems they have created for themselves.

You have been retained as an expert in 500 cases. To what do you owe that success?

The first thing I would like to say is that I have turned down just as many cases, if not more, than I have accepted. I used to keep a list of the ones that I also turned down, to prove that I do not take all of them offered.

Second, my success is attributable, in part, to three lawyers. Two from Houston and one from Kentucky. Early on, they put me through their fact witness and expert witness classes and taught me the ropes, including how to breath in depositions.

Third, I realized that in the event of a coverage dispute, it is up to the court to decide whether coverage applies or not. Most courts, however, have permitted me to testify on the genesis of policy language and its evolution.

One difference between other experts and myself is that I am a prolific writer and, therefore, subject to attack on what I have written. I have written hundreds of articles and have managed to remain a desired expert. What I have to sometimes explain, via depositions and trials, is that my opinions as expressed in articles change over time in response to legal and policy changes. What I may have said ten years ago is not necessarily imbedded in concrete today.

There must be some claims you will never forget. Can you share a couple of those.

Out of over 500 cases, I have only testified 55 times in court. I also can remember that only five of the judges were ones I would not care to meet again. I probably have outlived them anyway.

I remember the 1999 case of Great Lakes Dredge & Dock Company v. Commercial Union Assurance Company and the Honorable Joan Gottschall of the U.S. District Court. My testimony was like two friends who were drinking coffee and discussing matters. Another memorable case was the Dow Corning Corporation case before the U.S. Bankruptcy Court in 1996 in Michigan. The judge referred to me as “the father of many of the insurance policies’ forms—or at least many of clauses and paragraphs therein—which are in litigation here.” He must have thought I was a lot older than I was at the time.

What keeps you going after all these years and what things are keeping you most busy.

I believe insurance is a continuous learning classroom and have worked so hard to learn all I can. I now enjoy helping others through speaking engagements, open discussions and writing articles and books. The word “retirement” is not in my vocabulary.

What is the best advice that you can give someone starting out in the P&C business?

What I tell people is to continue to learn and increase your knowledge of the subject matter, not only your job but everyone else’s. Don’t believe everything you read on the internet. A lot is misleading. Do your own research and ask others when there is no other alternative. Attend seminars and workshops and meet others for purposes of networking, even if you have to foot the bill. View matters as an investment. Also work toward CPCU and other designations.

What do you enjoy doing when you are not sitting in front of a computer?

My main hobby is my kids and grandkids. I love helping them in their work and play activities. Personally, I like to golf. I started it late in life so I will never turn pro. I combined my interest in golf and hired a pro for my granddaughter who, at the time, was 13. She is now 16 and will be playing varsity at her all-girls school. I am hopeful she will earn a college scholarship for her level of play.

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