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Vol. 5, Iss. 3
March 2, 2016

Pearls Of Wisdom For A New Coverage Lawyer


A few weeks ago on the DRI Insurance Coverage Message Board there was a thread – wisely started by Patrick Omilian of Goldberg Segalla -- where participants provided one piece of advice – a Pearl of Wisdom – to a new coverage lawyer. It made for very interesting reading. Not to mention that you don’t need to be a new coverage lawyer to benefit from others’ experiences.

This gave me an idea -- the idea to steal Patrick’s idea (Thank you, Patrick). I reached out to DRI folks, and others, to get their Pearls of Wisdom for a new (or old) coverage lawyer. There is a lot of great advice here for all who do coverage work. Thank you to all who participated.


Truly, the best piece of advice for new coverage lawyers is to READ the POLICY. After that, once you have a feel for the coverage analysis process, my advice is: Listen to your gut. If something just doesn’t make sense, or seems unusual, that’s your clue to investigate further. Maybe there are facts you don’t have. Perhaps you have missed an endorsement or misread (or misinterpreted) the policy language. Don’t stop the analysis until you have assuaged that nagging feeling in your gut that something is not quite right.
Alissa Christopher
Cozen O’Connor

Don’t give your opinion on coverage until you’ve written your opinion, or at least do your best to qualify it as an initial impression. I don’t know how many times I discovered other coverage issues, or even completely reversed my initial coverage impression, after going through the process of researching and writing the opinion letter.
Jennifer Eubanks
Senior Staff Attorney
Canal Insurance Co.
Greenville, SC

(1) Be ready to answer a question different from the one you were asked: do not confuse coverage questions with contractual risk transfer or insurance procurement language with Certificates of Insurance. Accordingly, make certain that you properly have the underlying facts, secure the appropriate and necessary documents (policies, trade contracts, etc.) and frame the questions that really need to be answered. (2) Develop a formulaic approach to coverage analysis and coverage position letters to assure consistence in approach and format, with a checklist that assures a complete review of the actual policy in place at the time.
Dan D. Kohane
Hurwitz & Fine, P.C.

[I couldn’t agree more with Jennifer Eubanks of Canal Ins. Co.] Do not reach a final conclusion on a coverage issue until you have written an analysis. Time and again I review claims documents and policies and reach a conclusion on a coverage issue. But then, as I begin to write the analysis for the client, I change my mind. The deliberative and methodical process of writing an analysis sometimes causes you to see things that could not be appreciated from simply a review of the documents.
Randy Maniloff
White and Williams, LLP

The advice I wish I had been given, instead of learning it the hard way, is: “Don’t start with exclusions.” Most of the coverage assignments I’ve gotten were in a phone call or email asking whether some exclusion applied. Young coverage lawyers are often led astray by this initial contact. Old coverage lawyers know to first analyze whether the facts bring the case within the insuring agreement.
Barry Miller
Mazanec Raskin & Ryder

My first assignment as a newly-minted coverage attorney was to research coverage for construction defects litigation in Nevada. This was 1980. Then, as now, there is a dearth of decisional law in Nevada. I could not find a single case dealing with construction defects, or even interpreting a liability policy (other than auto policies). So I came up with a “genius” idea. Reasoning that an insurance policy was a contract, I decided to look at contract law in Nevada. Little did I know that all the contract cases in Nevada involved gambling joints and/or brothels. Red-faced, I reported my findings to my boss. He laughed uproariously, then suggested I look at California law. There I found my answer, and we successfully argued that the Nevada courts often adopt California law. Lesson 1: Not all contracts are the same. Lesson 2: Insurance policies tend to use the same language, so that the cases of other states can be applicable authority if on point.
Julia Molander
Cozen O’Connor
San Francisco

Take a position and own it. Too often I’ve seen associates offer a thorough analysis of what might happen without offering their opinion and recommendation as between multiple options. Our clients seek our counsel and want to know what we recommend, not merely a range of possibilities. Don’t be wishy-washy or non-comital. Present a thorough analysis, stake out your position and own it.
Patrick Omilian
Goldberg Segalla, LLP

Always make sure your copy of the policy is complete. Once you’ve done that, read the policy cover to cover and don’t skip over anything. There are no shortcuts.
Jonathan L. Schwartz
Goldberg Segalla, LLP

If something seems like it should be covered and you determine it’s not under the policy you have, think if it should be covered under a different type of policy. I teach that for normal risks, the different types of policies intermesh to provide a broad scope of coverage for persons and businesses. If normal activity is excluded under one, it’s probably covered by another policy, and if you can figure that out, your denial seems more appropriate and therefore more easily defensible.

The CGL may be the basic form, but it is meant to intermesh with auto, professional liability, employment practices, workers compensation, and cyber coverages to provide proper risk management for a business. For example, most auto claims are excluded from the CGL form because the industry wants the insured to buy an auto policy to intermesh with the CGL. However, if you determine the auto related matter is not covered under the CGL and it would also not be covered by the standard business auto policy, then you should re-examine your analysis because somewhere along the way, there is a good chance something is not being analyzed correctly. Obviously, there are types of claims and conduct that are never covered, but this holds true most of the time. Also, when a normal risk is arguably not covered under any form, there is a higher likelihood of a finding of ambiguity, or a finding that the applicable language was not clear and conspicuous.
Neil Selman
Selman Breitman
Los Angeles

Always look beneath the surface, especially when assessing statements by the opposition. For example, “liability insurance coverage tort claims, not contract claims” is a generally correct but oversimplified and potentially misleading aphorism. More precisely, liability coverage covers bodily injury or property damage caused by an occurrence, regardless of whether an otherwise qualifying occurrence is framed as a tort action or a contract action. As another example, a statement that “More than X courts have held that the Y clause is unambiguous” or that “More than A courts have ruled that the B clause is ambiguous” may not reflect an immutable tendency of courts but instead describe context-specific precedent that is not applicable to your case.
Jeffrey W. Stempel
Doris S. & Theodore B. Lee Professor of Law
William S. Boyd School of Law
University of Nevada Las Vegas

The standard CGL policy is said to fit together like pieces in a jigsaw puzzle. In addition to reading the entire contract and all endorsements before reaching any coverage conclusions, figure out what the standard policies contain that your policy does not. For example, in the ISO forms, the “to which this insurance applies” language in the insuring agreement is tied to the “[t]his insurance does not apply to” lead-in language of the exclusions. Figure out what has been omitted from the policy you are reviewing and analyze what impacts that may have on the coverage provided by the policy under review.
Jonathan M. Stern
Schnader Harrison Segal & Lewis LLP
Washington, DC

I don’t recall my first coverage opinion, but I do recall one of my most meaningful early opinions. I was contacted by a major insurer who was facing garnishment in a proceeding supplemental because the insurer had not defended under an ROR, and the large church they insured had been defaulted for $2 million in a sexual molestation case. The insurer confidently told me that it was not concerned because it had an ironclad sexual molestation exclusion. I received the certified policy, and indeed, the policy had an unambiguous and broad sexual acts exclusion.

Being a brash young lawyer I sent the policy to the opposing counsel and politely informed him that his client was out of luck. He then pointed out to me that the policy had been in force for many years and that it appeared that the exclusion was added two years earlier on renewal. However, no one had called the exclusion to the attention of the church, and they did not know it was there. (You older practitioners will recall when sexual molestation exclusions were introduced and uniformly added to school and church and similar institutional insured policies.)
It was then that I learned the rule that if an insurer materially reduces the coverage of a policy on renewal they must notify the insured in a clear and conspicuous manner. If they fail to do so, then the change to the policy may be ineffective.

I mention this experience because I continue to this day to encounter cases in which an insurer wants to rely on a policy provision, and they fail to check to see if the provision has been in the policy since inception or whether it was added on renewal. About once out of a dozen times I will find that the language was added on renewal and that the company lacks proof that the change was communicated in a clear and conspicuous manner. It is a pitfall for the unwary that can be avoided if you know to look for it.
John Trimble
Lewis Wagner LLP


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