Home Page The Publication The Editor Contact Information Insurance Key issues Book Subscribe
Vol. 7, Iss. 5
June 6, 2018

The Four Questions: Andy Lundberg

Finding A Picasso Behind A Paint-By-Numbers

In 2017 Andy Lundberg put down his pen after 35 years of representing policyholders at Latham & Watkins in Los Angeles. He chaired the firm’s global insurance recovery practice for many years and also chaired the office’s Litigation Department for five years. Andy certainly went out on top: the same year that he retired he was named Los Angeles Insurance Lawyer of the Year by Best Lawyers.

After three-plus decades in the trenches – sometimes literally, as Andy’s coverage work included environmental -- he surely has stories to tell. I asked him to share some with Coverage Opinions readers. He was kind enough to do so, including one about the day he found the insurance coverage equivalent of a Picasso behind a paint-by-numbers at a flea market.

Following his graduation from Stanford in 1978, a stint on the Harvard Law Review, and a clerkship on the D.C. Circuit, Andy’s early career included leading roles in the defense of complex environmental tort and product liability actions. However, a couple of opportunities to work on some early cutting-edge environmental coverage cases, including a piece of the many-headed Montrose litigation, soon turned him into a full-time policyholder lawyer. His practice expanded to all the major coverage lines and a few oddball ones, earning him a place among the leaders of the policyholder bar. From its inauguration of the category in 2007 forward, Chambers & Partners ranked Andy in Band 1, in California and nationally, of American policyholder counsel.


Outside the office, Andy is the outgoing president of the Chancery Club of Los Angeles, a bar group founded in 1925, and a past president of the Half-Norwegian (On the Mother’s Side)-American Bar Association. An outdoor enthusiast, he is a past board member of Outward Bound, honeymooned trekking in Bhutan, and climbs an occasional mountain (he has summited his home state’s Mount Rainier four times). When he isn’t engaged as an AAA-credentialed arbitrator or Master Mediator, he whiles away the hours attempting to make himself and others laugh. As a Stanford undergraduate, he was a contributor to “Hellbent on Insanity,” a best-of compilation of college humor, an inductee into the Hammer & Coffin Society (the national collegiate humor honorary society), and the producer of the cult-classic 45-rpm punk rock record, “Picked Off the Litter,” which was made as a parody but now sells as actual art for up to $1,700 a copy.

What was the best part of your practice as a policyholder lawyer?

Two things, mainly.

First was the same thing I liked about being a First Amendment and con law geek in law school and like about contract law generally: insurance coverage is a great practice if you like the “law” part of being a lawyer. I always had an academic bent, and as a philosophy major in a very Anglo-American department -- all caught up in trying to do philosophy by looking at language -- I got very interested in arguments about meaning, which predisposed me to be fascinated with all those rules of interpretation aimed at divining what the parties supposedly meant. I cited a philosopher more than once in a coverage brief (A.J. Ayer was my go-to). I confess I enjoy the prospect of talking to judges about law more than that of talking to jurors about facts, and I was very fortunate to stumble into Latham & Watkins, where I could actually start and build a practice in the very law-oriented coverage area, working on cutting-edge, big-money issues right out of the box. I was also very lucky that my best friend from law school, Mark Newell -- one of the best lawyers ever, and eventually the vice-chair of Latham -- also joined the firm and also became a policyholder lawyer. We had many wonderful years of successful collaboration and are still very close today.

Second, the complex coverage practice at the national level is a relatively small bar in which you develop ongoing relationships with both your opponents and your fellow sufferers/competitors. At least in some instances, that makes the job more interesting in a Borg-vs.-McEnroe sort of way -- OK, you got me that time, but I got you worse the time before that, let’s have a drink and tell some stories.

There is a small group of really good carrier lawyers out there who appreciate the intellectual elegance of many of these coverage issues, play fair, and make the contest fun. They embody the best qualities of professionalism, and some even end up being your friend at the end of it all. Among those worthy adversaries -- and I stress that it’s not an exhaustive list -- I’d include Stuart Cotton of Mound Cotton, Rich Goetz of O’Melveny, Paul Koepf of Clyde & Co. (against who I had my very first coverage case back in 1983), Paul Killion of Duane Morris, John Roth of Chubb, and Charlie Wheeler of Cozen. The week I retired, I called a bunch of those guys up and told them how much I appreciated their integrity and common sense and the opportunity to work against them over the years.

By the way, my Latham colleagues occasionally suggested that the best thing about the policyholder practice was that since jurors can be just as biased against insurers as they can against alleged corporate polluters, securities fraudsters and makers of dangerous products, I was picking only the easy fights. I deny it (they should have been there for Montrose and a few others!). And even if they were right, well, sorry, but plenty of gold medals have been handed out to folks who did a really good job of executing the easier dive . . .

What do you consider to have been your most interesting or challenging cases?

As I say, I was very fortunate to end up at Latham & Watkins in the early 1980s, when the environmental coverage wars were just getting under way. My “tenure piece” was one of the very first cases against the infamous London EIL program, the first generation of what is now known as Pollution Legal Liability coverage. That program was cooked up from whole cloth; the lead underwriter was a British chemistry professor who had never written insurance before (I deposed him for, I believe, 20 days). I took so many depositions in that case that I’m pretty sure at one point I knew more about that program than anybody who had worked for it (one of the deponents asked me when we were finished if I had been at one of the meetings I had questioned him about). Based on that learning curve, I then got involved in Montrose’s claim against the same insurers involving the Stringfellow site and others. What an incredible education those two cases gave me in just about every conceivable aspect of insurance coverage.

I had a similarly robust and fascinating experience against another first-generation coverage product when I represented a bank in a series of cases arising out of the short-lived insurance-backed independent film financing program. Another fine lesson in “you can spot the pioneers -- they’re the folks with the arrows in their chests.” The underwriters of that program thought they were going to make a fortune guaranteeing bank loans to independent movie producers. They greatly underestimated the role of adverse selection, and also discovered, guess what, it’s hard to predict if a movie is going to be a hit or not. Again, I got to spend quite a lot of time being one of the first lawyers to pick apart a novel insurance concept and showing how it really hadn’t been thought through before it was launched.

You are credited as “the guy who found the lost chord” -- California Insurance Code Section 520 -- that resulted in Fluor v. Superior Court (2015), in which the California Supreme Court stunningly overruled its earlier ruling on the hugely important consent-to-assignment, Henkel v. Hartford (2003). How’d that come to pass?

Well, in a very unusual way, especially in this day of full-text legal research. I was sitting in my office one Friday afternoon in, oh, 2009 or so. That was a point in the week when, with the phones and email cooling off, I often found time to spend an uninterrupted hour or two doing some research I’d had to defer (I always did a lot of my own research). I was working on some claim or other having absolutely nothing to do with consent to assignment -- some insurability issue, I think. I was flipping through my paper copy of the California Insurance Code, thinking that there was some statute dealing with whatever the issue was somewhere in those juicy code sections around the 300s to the 600s. So I’m just flipping pages and skimming, and wait a minute, what’s this? Here’s Section 520, enacted in 1872, one sentence long, and it seems to say exactly the opposite of what the Supreme Court held in Henkel! Long story short, I reread Henkel, pulled the Supreme Court briefs, then pulled the Court of Appeal briefs, and then pulled the original motion papers -- not a mention of it anywhere. It appeared to be the statute that time forgot. (It had been cited in exactly one case, and never in any law review or commentary, in its 130-year history).

So through sheer caprice, I had discovered what seemed like a completely novel argument for overruling Henkel . . . but I had no case in which to make it! But one of the virtues of working for a great big law firm that operates on the “one-firm firm” model is that you have a lot of colleagues fighting a lot of issues every day and a lot of communication about them. Lo and behold, I soon learned that our client Fluor had a case, which my partners Brook Roberts and John Wilson were handling, with a consent-to-assignment issue (ironically, unlike most of our cases where we’re the plaintiff, that case was a dec relief action that Hartford -- the winning insurer in Henkel -- had filed against Fluor).

The rest is history -- and when Fluor came out I was tickled to call Carlos Moreno, a now-retired Justice who had been the lone dissenter in Henkel, to tell him that his dissent had been vindicated. (We had lost resoundingly in the two lower courts, by the way, which made it all the sweeter.) The research on that case, including the legislative history of Section 520 going back to the original Field Code and beyond, and development of the argumentation we ultimately prevailed on was one of the most fascinating projects of my career.

Funny footnote to all that: early on in our litigating the consent issue in Fluor, before we had a ruling in the trial court and others were aware of the case, my dear then-colleague Alexandra Roje, now a partner at Lathrop Gage, rolled into my office one day and said “hey, I just noticed this Section 520 -- isn’t that contrary to Henkel?” I guess Latham is a culture of page-flippers.

I actually think there’s an even better argument against the insurance industry’s consent-to-assignment position that nobody has made yet. Maybe I’ll write an article about it one of these days.

Lawyers are famous for thinking they all have the Great American Novel inside them, and many make the mistake of letting it out. Is it true you’ve found a middle way?

Yeah, I was at risk of being one of those -- in my tenth high school reunion report, one of the three things I said I still hoped to accomplish was “publish a novel.” It turns out writing a decent novel requires a lot of time and inspiration, which sounds an awful lot like practicing law.

On the other hand, writing a terrible novel is pretty easy -- just ask the friends of most lawyers who have taken pen in hand. So a couple of years ago, I entered the long-running Bulwer-Lytton Fiction Contest for the first time. It recognizes the composition of the first sentence of “the worst of all possible novels.” I was delighted to receive a Dishonorable Mention (i.e., almost the worst) for a sentence featuring my superhero Swordfish and his every-loyal sidekick Ling Cod Boy gearing up to battle the arch-villain Avenging Tuna. Encouraged, I entered again in 2017, and won the Adventure and Science Fiction categories. I’m still after the Grand Prize, though. By the way, I know it still sounds like a lot of work to write an entire awful novel and then submit the first sentence of it to a contest, but you don’t think I’m to cheat and just write the one sentence, do you?

Website by Balderrama Design Copyright Randy Maniloff All Rights Reserved