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Vol. 5, Iss. 3
March 2, 2016

Chuck Browning of Plunkett Cooney, P.C.

I’m always looking to add new things to Coverage Opinions to keep it fresh. Welcome to the inaugural column of The Four Questions: Why Is This Coverage Lawyer Different From All Other Coverage Lawyers?

In each issue I’ll feature a coverage lawyer and ask him or her, well, four questions. I’ll be looking to focus on things about the lawyer or their practice or their jurisdiction that makes them unique. But, admittedly, since this is the first installment of The Four Questions, it remains to be seen how it will evolve. Like lots of new ideas in CO, it’s a work in progress.

Chuck Browning of Michigan’s Plunkett Cooney, P.C. has graciously agreed to be The Four Questions test subject.

Chuck Browning serves as co-chair of Plunkett Cooney’s Insurance Coverage Practice Group. He is a resident in the firm’s Bloomfield Hills, Michigan office. Michigan may be famous for cars, but Chuck’s career has been all about airplanes. In his 35 year career Chuck has handled coverage cases all over the United States. Indeed, he has been admitted pro hac vice in at least 34 states. Chuck has represented P&C insurers in just about every type of claim, including bad faith, class actions, construction defects, mass torts, environmental, defective products, asbestos, mold, contaminated foods, general liability (primary and excess), employer’s liability, errors and omissions, property, directors and officers and professional liability. Chuck is very active in DRI, including serving as Program Chair for DRI’s 2015 Insurance Coverage Practice Symposium in New York and Program Chair for DRI’s 2011 Insurance Coverage and Claims Institute in Chicago.

I attended the DRI’s Insurance Coverage and Practice Symposium in New York in December. It was a fantastic conference. You served as Program Chair. With 750 attendees that was no doubt a massive undertaking. What were some of the challenges to put together a conference of that magnitude and your most memorable experiences from it?

For DRI conferences, the buck always stops with the Program Chair. As a result, for a conference that large, from January 2015 through the end of the conference in early December, I dealt with some aspect of ICP almost every business day. No exaggeration. Juggling that with my responsibilities to clients and the firm was a keep-me-up-at-night challenge. But that immense challenge also gives rise to my most memorable experience from being Program Chair – the invaluable and tireless work by so many DRI Insurance Law Committee members who made the conference such a success. This is not triteness. It is truly remarkable to see the Insurance Law Committee machine at work, with countless people pitching in to help, and doing so in an outstanding manner. You really need to see it first hand to believe it.

Every jurisdiction has something that makes it unique when it comes to coverage issues. What does Michigan have in this category?

My coverage practice often takes me to jurisdictions outside of Michigan, but Michigan has always been my home and it has some unique aspects to its insurance coverage jurisprudence. Most notably, Michigan’s rules of insurance contract construction ensure a level playing field as between the carrier and the policyholder. The rule of reasonable expectations, in any form, is not recognized as a valid approach to contract interpretation. Wilkie v. Auto-Owners Ins. Co., 664 N.W.2d 776 (Mich. 2003). Michigan courts also do not recognize insurance policies as contracts of adhesion. Rory v. Continental Ins. Co., 703 N.W. 2d 23 (Mich. 2005). When faced with an ambiguity, Michigan courts apply contra proferentem only as a last resort and only if the trier of fact (not the court) is unable to determine the intent of the parties through an examination of relevant extrinsic evidence. Klapp v. United Ins. Group Agency, Inc., 663 N.W 2d 447 (Mich. 2003). Also, Michigan recognizes a cause of action for bad faith only in the context of a carrier’s failure to settle within policy limits, and with respect to that cause of action, limits the damages to the amount that could be collectible by the claimant from the insured. Frankenmuth Mutual Ins. Co., v. Keeley, 461 N.W.2d 666 (Mich. 1990).

You’ve been involved in some of the most important coverage battles in the country over a 35-year career. What are some that stand out as the most memorable?

I was extremely fortunate to be a coverage lawyer when the US EPA and similar state environmental agencies began aggressively pursuing Corporate America for its historical waste generation and disposal practices. Mega coverage litigations involving huge and unanticipated exposures exploded overnight across the country. Every major industrial company was pursuing coverage litigation for these exposures and coverage cases with 50 or more carriers as parties and involving hundreds of waste sites were routine. Having experienced a streak of early success in this area, I was retained as one of a handful of regional outside coverage counsel for The Aetna Casualty and Surety Company, the major insurer of Corporate America, such that I was involved in many of these mega cases. It was a heady time -- the issues were all cutting edge and trends were critical. The weekly Mealey’s Insurance publication (hard copy only) was our Bible, as we attempted to gain every advantage and to stay abreast of developments across the country. Our client Aetna presented the drafter of the sudden and accidental pollution exclusion and the co-drafter of the 1966 CGL form for mega-depositions, all noticed at the same time in more than 60 cases. We rented a ballroom in Hartford for that purpose. Each lawyer was assigned a number for purposes of objection or witness examination; and there were hundreds present. These depositions lasted more than two weeks.

While this was my foundation for major coverage litigation, my most memorable coverage battles in terms of complexity and exposure were the silicone implant coverage cases (Dow Corning, 3M, Baxter and Bristol Meyers Squibb). The science has now largely demonstrated no connection between silicone and auto immune disease. But these coverage cases were filed in the midst of a whirlwind of concern by the FDA and others about the health effects from silicone implants on hundreds of thousands of people. Every coverage issue was litigated – truly scorched earth.

The tire/roll-over coverage matters were also a challenge and interesting. More recently, the Waste Management asbestos coverage litigation, with competing actions in five different states, stands out for its complexity and its unusual nature. For example, while the case was actually pending in Texas, the court and the parties held a legendary six hour oral argument on summary judgment motions in a wine cave in Napa, California. That case was settled, but only after 90 plus days of mediation.

Most recently, the coverage case involving contaminated steroids from New England Compounding Company and the coverage litigation from the Indiana State Fair stage collapse also jump out as interesting and different.

Imagine you are addressing a roomful of third-year law students. Make the pitch why they should pursue a career as an insurance coverage lawyer.

Easy question to answer. Coverage law is not commodity work. Each matter is taken on its own merits, requiring a separate analysis under the insurance contracts, facts and applicable law. To this day, I have never seen two coverage matters exactly the same. What could be better than that for a young lawyer as she/he establishes the foundation for a professional career?

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