August 2014 issue THE MAGAZINE FOR NORTHERN CALIFORNIA PL AINTIFFS ATTORNEYS

Transcription

1 THE MAGAZINE FOR NORTHERN CALIFORNIA PL AINTIFFS ATTORNEYS Insurance law for every plaintiff s attorney Edward Susolik The Magazine for Northern California Plaintiffs Attorneys August 2014 issue Reproduction in whole or in part without express written permission is prohibited. Copyright 2014 by Neubauer & Associates, Inc. Sneaky insurance defense tactics First, you must catch them in the act E. Gerard Mannion, Demian Oksenendler and Kelly Mannion Health insurance and mental health parity laws David M. Lilienstein and Alice J. Wolfson Disclosure of policy limits in UM/UIM arbitration Richard Phelps Fighting protective and secrecy orders Keep it narrow. Sunshine is the best disinfectant Lori E. Andrus Trial Practice Demonstrative exhibits in opening statement A look at the authorities for using exhibits Tom Brandi Profile Jim Butler Rebellious son of a plaintiff s lawyer finds his own way into the profession PRESORTED STANDARD MAIL US POSTAGE PAID PERMIT 4083 CITY OF INDUSTRY, CA Change Service Requested 211 Sutter St., #801 San Francisco, CA Food processing A dangerous place to work The machinery used to process food products may present products liability opportunities in addition to the WC remedy Steven A. Kronenberg AUGUST2014

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4 Referral and Co-Counsel Relationships Membership Includes FREE Online MCLE One of Nevada s largest and highest rated personal injury law firms I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client s multiple-seven-figure recovery. The case was expertly worked up, litigated, and masterfully mediated. Everyone I worked with on Rick s team was outstanding. For either a referral or a co-counsel arrangement, I wholeheartedly recommend Rick and the Richard Harris Law Firm for any Nevada case. ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyer 2010, San Francisco, California...we re here to help. 4PVUI UI 4USFFU t -BT 7FHBT /7 4 Plaintiff August 2014 plaintiffmagazine.com "7 3BUFE o #BS 3FHJTUFS PG 1SFFNJOFOU -BXZFST t &MJUF -BXZFST PG "NFSJDB --. o %JTQVUF 3FTPMVUJPO 1FQQFSEJOF 6OJWFSTJUZ t.vmuj.jmmjpo %PMMBS "EWPDBUFT 'PSVN 0VUTUBOEJOH -BXZFST PG "NFSJDB t 1SFTJEFOU T $MVC "NFSJDBO "TTPDJBUJPO GPS +VTUJDF 5IF 7FSEJDU $MVC o 1MBUJOVN.FNCFS 2013 RHLF

5 Features 7 How to break that dog of sucking eggs Sneaky defense tactics can drive you nuts. Draw the line. It is up to you to push issues with carriers, opposing counsel, and the courts. E. GERARD MANNION, DEMIAN OKSENENDLER AND KELLY MANNION Primer: Insurance law for every plaintiff s attorney Don t be the bull in a china shop, litigating PI cases aggressively with no regard for the impact of insurance issues on your case. Investigate possible coverage before you file suit. EDWARD SUSOLIK Disclosure of policy limits to a UM/UIM arbitrator Pros, cons and a solution that can protect both sides. RICHARD PHELPS The increasing importance of mental health parity laws State and federal laws require that mental and physical illnesses be treated equally, but getting the health insurer to comply can still be difficult. DAVID M. LILIENSTEIN AND ALICE J. WOLFSON Profile: Jim Butler Rebellious son of a plaintiff s lawyer finds his own way into the profession. STEPHEN ELLISON ON THE COVER: Main Photo: Hand Caught in Cookie Jar, karenfoleyphotography, Secondary Image: Workers Processing Fish, Medioimages, Vol. 8 No. 8 AUGUST 2014 Plaintiff is the magazine for plaintiffs attorneys throughout Northern California. Plaintiff is an independent magazine, not affiliated with any legal professional association. We support those who protect the individual s right of access to the civil justice system. Copyright 2014 by Neubauer & Associates, Inc. All rights reserved. Reproduction in whole or in part without written permission is prohibited. PUBLISHER EDITOR Richard J. Neubauer Maryanne B. Cooper, Esq. CONTRIBUTING EDITORS Donna Bader, Esq. Jeffrey Ehrlich, Esq. William L. Veen, Esq. SALES MANAGER Christopher S. Neubauer COPY EDITOR Eileen Goss 6 Plaintiff August 2014 plaintiffmagazine.com ART DIRECTOR David Knopf SUBSCRIPTIONS Jean Booth VICE PRESIDENT - ADMINISTRATION Deborah L. Neubauer 42 Fighting protective and secrecy orders When approached with a form protective order, beware! Make it as narrow as you can, and remember that sunshine is the best disinfectant. LORI E. ANDRUS Food processing a dangerous place to work The machinery used to process food products may present products liability opportunities in addition to the WC remedy. STEVEN A. KRONENBERG Departments Trial Practice and Procedure Objection overruled The use of demonstrative exhibits in opening statement A look at the authorities for using exhibits in your opening statement. TOM BRANDI Appellate Reports and cases in brief Recent opinions of the California Supreme Court, including Iskanian on employment arbitration and class-action waivers. JEFFREY ISAAC EHRLICH Back Story Chance favors the prepared Making the Expedited Jury Trial (EJT) work requires cooperation from both sides of the aisle. MILES B. COOPER ADVERTISING SALES No. California: So. California: advertising@plaintiffmagazine.com Rate card online at Plaintiff is published monthly by Neubauer & Associates, Inc. Mail subscriptions are free to plaintiffs attorneys in Northern California; $50 annually for others. Send requests to subscriptions@plaintiffmagazine.com. SUBMITTING ARTICLES FOR PUBLICATION Plaintiff welcomes your submissions. Articles on all appropriate subjects are considered throughout the year. Query us, or send your completed article as a WordPerfect, Word or RTF file attachment to: editor@plaintiffmagazine.com Plaintiff Magazine 211 Sutter St., #801, San Francisco, CA Fax POSTMASTER: Change Service Requested Send address changes to Neubauer & Associates, Inc., P.O. Box 2239, Oceanside, CA How to break that dog of sucking eggs Defeating insurance defense counsel s sneaky tactics BY E. GERARD MANNION, DEMIAN OKSENENDLER AND KELLY MANNION Invariably in our insurance coverage and bad-faith practice, we run across certain defendants and/or defense attorneys who frequently file frivolous motions and generally do what they can to waste time. We refer to these characters as egg-sucking dogs. The reason for the nickname is simple: Like an egg-sucking dog, these attorneys and insurers are seemingly addicted to doing what they know is wrong. According to one court, It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it, and that there is no calculable limit to his appetite in the indulgence of the habitual propensity. And generally he has a sufficient degree of intelligence that he will commit the offense, and return to it upon every clear opportunity, in such a stealthy way that he can seldom be caught in the act itself. Hull v. Scruggs (1941) 2 So.2d 543, 544. With all due respect to the learned justices, we are here to tell you that you can break that dog of sucking eggs. The secret is to catch it in the act and slap a little turpentine on that dog s behind (according to the great sage Dick Sangster.) Presented below are three egg-sucking scenarios: a frivolous demurrer, discovery obstructionism, and the failure to suggest Cumis counsel, and our methods for applying the turpentine. Part 1: The junk demurrer One common defense tactic in litigation is delay. This is particularly true in insurance coverage and bad-faith litigation. The longer an insurer holds on to the benefits, the more money it makes. The delay tactics start the moment the suit is filed. First, insurance defendants seek a lengthy extension of time to file a responsive pleading. Then, the insurer will demur to the Complaint. Insurers like to demur to everything. After all, if they are paying the filing fee and aren t in a single-assignment county, why not see what sticks? The most common junk demurrer we see is brought against our breach of contract causes of action (every coverage complaint has to have one). The grounds for the demurrer are, without fail, that the actual insurance contract is neither attached to the Complaint nor pled verbatim. Although this all-too-common demurrer is a favorite of insurance carriers, it is one you may see in your practice even if you don t practice in the insurance coverage arena as it applies to all contract claims. What makes the demurrer for failing to attach or plead contract terms verbatim a junk demurrer is that it is based on outdated and superseded case law that was bad to begin with. The case that the defense will cite is an employment case from 1985: Otworth v. Southern Pac. Transp. Co. (1985) 166 Cal.App.3d 452. In Otworth, our Second District Court of Appeal stated (incorrectly citing a case from 1963) that If the action is based on an alleged breach of a written contract, the terms must be set forth verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Otworth v. Southern Pac. Transp. Co. (1985) 166 Cal.App.3d 452, 459 (citing Wise v. Southern Pac. Co. (1963) 223 Cal.App.2d 50, 59) (emphasis added).) The citation to Wise was actually a bad one. The Wise decision actually said that a cause of action for breach of written contract may be pleaded in haec verba by attaching a copy as an exhibit and incorporating it by proper reference. (Wise at 59 (emphasis added).) Obviously, may is not must, but someone thought it was important enough to codify. (E.g., Cal. Rules of Court, rule 1.5(b) (defining must as mandatory and may as permissive).) California plaintiffs lawyers were stuck having to explain Otworth s misstatement of the law until 2002, when the California Supreme Court did away with it. (Constr. Protective Svcs., Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, ) See Egg-Sucking Dogs, Next Page plaintiffmagazine.com August 2014 Plaintiff 7

6 Egg-Sucking Dogs, continued from Previous Page CPS involved a company (CPS) that provided security for construction sites. TIG was its liability insurer. One of CPS s clients (a company called SHC) tried to stiff them on a $26,000 bill, and CPS sued. Rather than file a cross-complaint, SHC claimed it was entitled to a setoff. It alleged that CPS was responsible for fire damage at one of SHC s projects. CPS tendered the setoff claim to TIG, which refused to defend CPS or pay the claim. (Id. at 194.) CPS sued TIG, alleging, among other things, a cause of action for breach of contract. TIG demurred, in part, on the grounds that CPS had not attached a copy of the insurance policy to its complaint. The trial court sustained the demurrer. The Court of Appeal (citing Wise, but not Otworth), reversed. (Id. at 194; Constr. Protective Svcs., Inc. v. TIG Specialty Ins. Co. (2001) 90 Cal.App.4th 149.) The Supreme Court affirmed. It held: In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language [citations omitted]. CPS has chosen to proceed in this manner, and... it satisfactorily alleged that (1) the insurance policy obligated TIG Insurance to defend and indemnify CPS against suits seeking damages, and (2) that under the terms of the policy, SHC s setoff claim fell within the scope of that contractual obligation. (CPS, supra, 29 Cal.4th at ) Regardless of whether Otworth ever contained an accurate statement of the law on this issue, the Supreme Court clearly superseded it. Unfortunately, they did not cite Otworth, so it still shows up as good law on both Westlaw and Lexis. Perhaps that explains why the dogs keep sucking that egg? The next time you face a demurrer for failing to attach a contract to your complaint (and if you ever sue for breach of contract, you will), keep your copy of CPS handy and turpentine that dog. Part 2: Discovery obstructionism A favorite move for the insurance defense is to refuse to provide you with discoverable documents and then force you to make a motion to compel to get it. Insurance loss reserve information is commonly withheld. (A loss reserve is the amount the insurance carrier expects to pay on a claim.) The reserves can, and often do, change over the course of a claim to reflect additional information or changed circumstances. Defendants like to claim that loss reserve information is neither relevant nor reasonably calculated to lead to admissible evidence. They are wrong. It has long been established that loss reserve information is discoverable in bad-faith cases against an insurer. (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, ; Bernstein v. Travelers Insurance Company (2006) 447 F.Supp.2d 1100, ) In Lipton, the court found that the loss reserve information could lead to admissible evidence regarding: the mental state of the claims personnel with regards to claims handling, whether the insurer had conducted a proper investigation, and/or whether the insurer had given reasonable consideration to all of the factors involved in a specific case. (Id. at 1614, 1616, and fn. 8.) In Bernstein, the court found that even under the more limited definition of relevance provided in the Federal Rules of Civil Procedure, loss reserves were discoverable. (Id. at 1107.) Even in situations where the reserves were only changed once or were immediately set at the highest level, the plaintiff is entitled to discover that information. This is because the loss reserves can lead to admissible evidence regarding a variety of issues including: the knowledge or mental state of the claims handler(s) who set the reserve (i.e., how experienced they were, what factors they were considering, and are the reserves in mold claims all the same, a cookie cutter approach); whether, how, and why the valuation of the case changed over the course of time, and/or what or who caused the loss reserves to be changed. For example, if a defendant immediately set the loss reserves at the policy limits but also refused to permit certain necessary tests, this would tend to show bad faith. Alternately, the reserve data could lead to a line of questioning in deposition regarding how the claim was analyzed at various times. Or, if the reserves were kept at zero even after it was shown there was coverage, that would tend to show bad faith. Conversely, the loss reserves could show that the insurer made reasonable valuations of the potential loss throughout the processing of the claim. Whatever amount of the loss reserves, the information can and will lead to admissible evidence. When an egg-sucking dog tells you that something may generally be the rule but that the rule doesn t apply in your particular case, do not believe him. Get out your motion to compel and your can of turpentine. Don t be afraid to ask for sanctions. Part 3: Protecting The right to a proper defense: Independent/Cumis Counsel Imagine a situation where two nextdoor neighbors Joe and Bob, get into a heated argument. Bob goes inside, and Joe begins working on his side yard which is located next to Bob s driveway. Bob comes out, yells some profanity at Joe, gets in his car, and clips Joe while backing out of the driveway. If Bob intentionally hit Joe, there is no coverage. (See Ins. Code, 533 (which bars coverage for willful acts).) If he drove negligently, there is coverage. Joe files suit. He sues for battery and negligence. Bob tenders the defense to the carrier who agrees to provide a defense subject to a reservation of rights. The reservation of rights states that the carrier will not pay for any damages caused by intentional conduct. The carrier sends the defense of the case to one of its usual panel insurance defense counsel. The insurance defense counsel is immediately placed in a conflict of interest situation because he has two clients, the insurer and Bob, with conflicting interests. It is in the best interests of Bob to have defense counsel try to develop and present evidence in the case that Bob acted negligently. If liability is found, the carrier will have to pay the judgment. Conversely, it is in the best See Egg-Sucking Dogs, Page 10 8 Plaintiff August 2014 plaintiffmagazine.com

7 Egg-Sucking Dogs, continued from Page 8 interests of the insurer to have insurance defense counsel develop and present the evidence in a way that, should liability be found, the insured is liable for battery, only. In such a situation, the carrier would not have to pay the resulting judgment. What should be done in this situation? To begin with, the existence of this potential conflict needs to be identified at the outset of the litigation before insurance defense counsel takes any steps to favor one client over the other. This is because there is no distinction between a potential and actual conflict of interest with regard to the attorney s obligations to his two clients. California Rule of Professional Conduct makes no distinction between actual and potential conflicts of interest. Rule 3-310(c)(1)-(2) states that potential conflicts are treated the same as actual conflicts. Under that rule, both types of conflict prohibit an attorney from jointly representing two clients without informed, written, consent. In San Diego Navy Federal Credit Union v. Cumis Insurance Society (1984) 162 Cal.App.3d 358, 371, n.7 the court explained that there can be no legitimate distinction between potential and actual conflicts of interest. Recognition of a conflict cannot wait until the moment a tactical decision must be made during trial. It would be unfair to the insured and generally unworkable to bring in counsel midstream during the course of trial expecting the new counsel to control the litigation. Contrary to Cumis argument, the existence of conflicting interests should be identified early in the proceedings so that it can be treated effectively before prejudice has occurred to either party. (Ibid.) Then, in order to deal with this situation, the Cumis court required that once the carrier reserved rights to deny coverage, the carrier had to pay for independent counsel whose only obligation was to represent the insured. Three years after the Cumis decision, the California legislature enacted Civil Code section 2860 which requires a carrier to provide independent counsel to represent the insured when a conflict of interest arises. In subsection (b), it states that... when an insurer reserves its rights on a given issue and the outcome of that coverage issue can be controlled by counsel first retained by the insurer for the defense of the claim, a conflict of interest may exist. The factual scenario set forth above is clearly one that would require a carrier to advise the insured of the right to independent counsel to be paid for at the carrier s expense. The Rules of Professional Conduct, the reasoning of the Cumis decision, and Civil Code section 2860 all compel the carrier to do so. It started out well... In the first few years after the Cumis decision was announced, and after Civil Code 2860 was enacted (1987), carriers were fairly good about offering independent counsel to insureds when there were reservations of rights. Then, carriers began playing games with their coverage letters by saying that they were not reserving rights but were simply pointing out the types of claims that were not covered under the policy. They claimed that permitted them to refuse to provide independent counsel. Still, most carriers would offer to provide independent counsel at the beginning of the case, or would at least agree to provide such counsel when requested to do so. Over the last 20 years or so, the situation has changed. Carriers have begun to completely ignore their obligation to provide independent counsel and have increasingly refused to do so even when directly challenged on the point. They have been buoyed in this approach by three developments: bad case law, an inexperienced bar, and a lack of consequences for failing to abide by their obligations. In cases such as Dynamic Concepts, Inc. v. Truck Insurance Exchange (1998) 61 Cal.App.4th 999, James No. 3 Corp. v. Truck Insurance Exchange (2001) 91 Cal.App.4th 1093, and Federal Insurance Company v. MBL, Inc. (2013) 219 Cal.App.4th 29, the courts have strayed from the reasoning of the Cumis decision, and ignored California Rule of Professional Conduct 3-310, by making a distinction between actual and potential conflicts of interest. The courts have said that where there is only a potential conflict of interest, and where the conflict is only theoretical rather than being significant (whatever that means), then the carrier does not have to offer to provide independent counsel. These decisions have no legal or conceptual support. The courts have made up these distinctions out of whole cloth. They have made no attempt to adequately address the language of Rule 3-310, or the Cumis decision which is directly contradictory. The policyholder bar has been attempting to reverse this trend. However, given the present makeup of the California Supreme Court and many of the Courts of Appeal, it may ultimately need to be addressed in the Legislature. (But that does not mean the courts should not be educated on this point). Another factor which has given insurers solace in ignoring their obligations under Civil Code section 2860 is the lack of experience among plaintiff and defense counsel with these issues. During the late 70s, and early 80s, the question of whether carriers had to provide independent counsel where there was a reservation of rights was a hot topic among insurers, insurance defense counsel, coverage attorneys, and the plaintiff s bar. Then the Cumis decision came down and dramatically changed the way that carriers defended cases. Cumis attorneys appeared in every case where a reservation of rights letter was sent. When Civil Code section 2860 was enacted, there was some reduction in the number of independent counsel, but they were still appointed often. As time went by, however, plaintiff and defense counsel were not exposed to these issues quite as often. Carriers began offering independent counsel less and less. In short, the next generation of lawyers had little experience with these issues. This has had two consequences. First, the lawyers are not as well trained to identify when independent counsel should be provided. Now, for example, insurance defense See Egg-Sucking Dogs, Page Plaintiff August 2014 plaintiffmagazine.com

8 Egg-Sucking Dogs, continued from Page 10 counsel alone are defending claims involving allegations of negligence and fraud, where there are reservations of rights with regard to the fraud claim, and both the carrier and defense counsel are ignoring their obligation to tell the STRUCTURED SETTLEMENTS PROPRIETARY ATTORNEY FEE STRUCTURES MEDICARE SET-ASIDES TRUSTS LIEN RESOLUTION John Vaclavik Audrey Kenney insured that they cannot defend both sets of allegations without a conflict waiver. Likewise, plaintiff s attorneys are not pushing the issue, because they do not know to do so. Second, the consequence of this set of circumstance is that judges do not understand these independent counsel issues either, both because they have not been exposed to them in private practice, and because it is seldom presented to them in court. This leads to many judges adopting the erroneous approach espoused in Dynamic Concept s, James No. 3 Corp., and Federal Insurance, supra that if insurance defense counsel has not actually done something to prejudice the insured, there cannot be a conflict of interest. Obviously, this is the wrong approach because when the actual conflict manifests, it is too late. The insured is already damaged. However, the biggest problem with getting carriers to abide by their obligations under the Cumis decision, and Civil Code section 2860 is that there are no clear adverse consequences if they fail to do so. Carriers figured out that section 2860 has no penalties or enforcement mechanism built into it if they do not abide by it. Returning to our factual scenario above, assume the carrier failed to offer to pay for independent counsel or refused a demand that such counsel be provided. The case then goes to trial and a large verdict is rendered against Bob on the battery theory alone. In addition, punitive damages are awarded against Bob. Bob turns to the carrier demanding it pay the judgment, including punitive damages. The carrier says no because the battery claim is not covered under Insurance Code section 533 (as a willful act), and it is improper to pay for punitive damages under California law. Bob responds that that may be true generally, but here the judgment happened because no independent counsel was provided. Bob says, Your failure to provide independent counsel was the reason this case was tried in a way that I got hit with an allegedly uncovered judgment, and so you should pay for the full judgment. See Egg-Sucking Dogs, Page 14 Doctor Highlights Dr. Robert Aptekar Orthopedist University of Michigan, Ann Arbor - Medical School Stanford University - Residency (Orthopedic Surgery) Former Clinical Professor at Stanford University Boutique is better. If you read the articles in this magazine, you ll know that using medical liens to obtain full, net medical bills on your cases is the best way to achieve max policy limits. At Standard Medical Funding every attorney we work with is designated one contact person in order to facilitate a personal, mutually trusting relationship. Unlike many doctors who hold their own liens or our competitors, Standard Medical Funding takes pride in working with attorneys to get reductions when they re needed. A knowledgable, compassionate and interested orthopedic surgeon. He has a great staff. He is efficient and thorough. Great to have this kind of doctor when you need one. Sue H., Yelp 9/8/2011 Dr. Justin Lo Board Certified in Anesthesiology and Pain Management UCLA - B.S. in Biochemistry University of Rochester School of Medicine UCSF Fellowship, Assistant Professor [Dr. Lo is an] Outstanding health care professional. All the qualities you d want in a doctor. He treated me like I was his only patient. Very detailed explaining procedures... He knew exactly what to do to lessen my pain... Thank you, Dr Lo, for giving me my quality of life back. Scarlet Sayer, Yelp 10/5/ Submit@StandardMedicalFunding.com 12 Plaintiff August 2014 plaintiffmagazine.com plaintiffmagazine.com August 2014 Plaintiff 13

9 Egg-Sucking Dogs, continued from Page 12 There is no case law or statutory law which answers the question of whether the carrier would be liable for the judgment in this situation. Right now, all we have are questions. Can the carrier be held liable for an allegedly uncovered claim? Who has the burden of proving what would have happened if independent counsel had been involved in the case? Carriers will say the insured must prove that the failure to provide independent counsel was the cause of a judgment being entered against the insured on these (uncovered) causes of action, and for these amounts. Insureds will say the burden should be on the carrier to prove that its violation of the law did not cause the insured to suffer this loss. Furthermore, the insured will argue the carrier should be liable for all the damages, including the punitive damages, because it is responsible for all damage proximately caused by its failure to abide by its contractual and statutory obligations. (Amato v. Mercury Casualty (1997) 53 Cal.App.4th 825.) (Carrier is liable for all damages proximately caused by tortious breach of the contract). As noted, there is no case law which decides these issues. The only case that touches on the issues is Dynamic Concepts, supra which dealt with the question of whether the carrier would be liable for a settlement reached without its consent. The insured claimed the settlement was proper because the insurer refused to pay for an attorney hired by the insured after the insurer reserved its rights to deny coverage. However, in that case the court found that there was competent insurance defense counsel already in place, only a theoretical conflict, and that there was an attempt to set up the insurer. Where the insurer controls the defense completely, and does not abide by its legal obligation to provide independent counsel, the Dynamic Concepts, supra analysis should have no application. Hold the insurer responsible We suggest that the only way to reinvigorate Civil Code section 2860, and the Cumis decision, and to force carriers to honestly and fairly provide independent counsel when needed, is to hold the carrier responsible for any judgment which is rendered in the case where independent counsel should have been provided but was not. This would include all damages awarded, even punitive damages. Such a rule would definitely increase the number of independent counsel that would be hired. That, in turn, would undoubtedly increase the number of settlements, and as to those judgments which were rendered, it would increase the likelihood they would be structured in such a way as to require the carrier to pay it. (In our example, the judgment would have been a general verdict, or only on the negligent cause of action). Of course, such a rule would produce the usual wailing and gnashing of teeth by the carriers about how their resources were being squandered to pay for claims which were not covered by the policy. The rejoinder is that this is because the carrier and its insurance defense counsel did not do a job of properly protecting the insured. But, let us acknowledge that these complaints could receive a receptive ear among certain members of the Judiciary. An alternative to an absolute rule of strict liability for the full amount of the judgment could be to create a rebuttable presumption that where independent counsel should have been provided, and was not, the judgment came about as a result of the failure to provide independent counsel. The defendant would then have the burden of proving that independent counsel would not have made a difference. The beauty of this approach is that it places the burden on the party who created the problem, the insurer which violated the law by not providing independent counsel when required to do so, but avoids requiring a carrier to pay for truly nefarious conduct. In the end, it is going to be up to the plaintiffs and policyholder bars to push these issues with carriers, opposing counsel, and the courts. Otherwise, carriers will continue to suck the life (egg) out of the defense obligation. E. Gerard Mannion has been successfully representing policyholders in insurance coverage and bad faith matters for 35 years. He has handled many different types of insurance E.G. Mannion matters, including duty to defend claims, property claims, excess judgment actions, life and disability actions, director and officer liability claims, disputes between primary and excess carriers, environmental claims, and maritime actions. He is a past president of San Francisco Trial Lawyers Association, and is an emeritus member of the Board of the Consumer Attorneys of California. He is a frequent lecturer on insurance coverage and bad faith issues. He consults with plaintiff s attorneys on these issues. Demian Oksenendler is an attorney at Mannion & Lowe in San Francisco. He represents policyholders in litigation involving various lines of insurance, including property/casualty, Oksenendler liability, disability and life. In addition to SFTLA, he is an active member AAJ, CAOC, the Western Trial Lawyers Association, and the Inns of Court marks his fourth consecutive year on the Super Lawyers Rising Stars list. Kelly Mannion knew she wanted to be a lawyer before she had any full sized teeth. After spending most of her life fighting for the underdog, the little guy, and average consumers outside of the K. Mannion courtroom, Kelly decided it was time to step into the courtroom. She received her law degree from USF in 2011 and passed the bar the same year. She joined Mannion and Lowe as a full-time associate in January ERIK L. PETERSON JAMES BOSTWICK Bostwick & Peterson LLP has successfully represented catastrophically injured personal-injury victims in California and Hawaii for over 40 years. We are pleased to report these recent settlements: $11,000,000 neonatal injury settlement $10,700,000 record birth injury settlement $8,000,000 neonatal injury settlement $7,100,000 birth injury settlement $5,000,000 settlement for wrongful death of a minor The majority of our cases are referred to us by attorneys and we gladly pay referral fees. For more information, please visit our website: Fax: Four Embarcadero Center, Suite 750, San Francisco, CA Plaintiff August 2014 plaintiffmagazine.com

10 Primer: Insurance law for every plaintiff s attorney Don t be the bull in a china shop, litigating PI cases aggressively with no regard for the impact of insurance issues on your case BY EDWARD SUSOLIK Knowledge of insurance law is critical to successful personal-injury litigation. All personal-injury lawyers should acquire a baseline understanding of insurance principles. You do not want to be the bull in a china shop, litigating personal-injury cases aggressively with no regard for the impact of insurance issues on your case. By way of example, virtually every settlement of personal-injury litigation involves insurance and insurance issues. In fact, of the hundreds of personalinjury matters which this author has litigated, virtually every case has either settled using insurance money or the judgment after trial was paid by insurance proceeds. An expertise in insurance coverage has helped maximize the ultimate recoveries in these cases. In the big picture, insurance coverage, bad faith, duty to defend, and other insurance coverage issues are frequently integral to personal-injury litigation and function as the catalysts for settlement. Insurance controls settlement dynamics of personal-injury litigation, and the ultimate decisions regarding the timing and amount of settlements are virtually always made by insurance companies. This article surveys and summarizes the fundamental insurance issues that affect personal-injury litigation, and provides specific advice and strategies for dealing with such insurance issues. My goal is that this article will provide a roadmap for plaintiff s lawyers to settle more cases and achieve greater recoveries for their clients. The complaint and insurance issues: pleading into coverage The first step in any litigation is the filing of the complaint. To trigger insurance coverage, a plaintiff must plead facts and assert claims that are at least potentially covered by insurance under defendant s liability policies. Generally, the claim would be for negligence proximately causing plaintiff s injuries. But this covered claim could also be for negligent maintenance, hiring and training, entrustment of a vehicle or other dangerous objects, or any other act or omission that arguably constitute a breach of duty to act reasonably and refrain from injuring others. See Primer, Page Plaintiff August 2014 plaintiffmagazine.com

11 Primer, continued from Page 16 Given the egregiousness of certain conduct, plaintiff s attorneys will often plead a claim for intentional torts with 18 Plaintiff August 2014 plaintiffmagazine.com the strongest possible and inflammatory language. But intentional torts (i.e., willful acts) are generally excluded under liability policies, and in fact, Insurance Code section 533 prohibits indemnification for intentional tortious acts. Section 533 says, An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured s agents or others. Hence, in the context of obtaining insurance proceeds from a carrier, adding inflammatory allegations of intentional wrongdoing is a hindrance, not a help. There is, however, often a good-faith basis to plead negligence as an alternative cause of action even for acts that appear to be intentional torts thereby triggering access to insurance money. In recent years, I have handled numerous cases where the wrongful act causing injury or death would seem to have been caused by intentional acts. Those include a notorious shooting at an Orange County hair salon that killed eight people, where the defendant has since pled guilty to murder and potentially faces the death penalty. I represented several families of the victims slain in that incident. In that case, the good-faith basis for asserting a cause of action for negligence was defendant s possible state of mind at the time of the shooting. Mental illness, impairment, or incapacity may serve to vitiate intent, thereby turning a seemingly uncovered willful act into a non-intentional occurrence that is covered. (Jacobs v. Fire Ins. Exch. (1995) 36 Cal.App.4th 1258, 1269 [if insured was legally insane, actions cannot be deemed willful ]; J.C. Penney Cas. Ins. Co. v. M.K. (1991) [evidence that insured lacked sufficient mental capacity to control his own conduct is admissible to show that there could be no voluntary act of any kind].) As a result, the clients claim for negligence successfully triggered insurance coverage and ultimately, resolution of the case. Obtaining a defendant s insurance information pre-discovery After the complaint has been filed, the first step in addressing insurance issues is to learn what coverage the defendant See Primer, Page 20 BRADFORD S. DAVIS, M.D. & LAW OFFICES OF MICHELS & LEW MEDICAL MALPRACTICE PERSONAL INJURY MARTIN P. WENIZ Verdicts and Settlements Totaling Over 10 Figures. ELIZABETH HERNANDEZ PHIL MICHELS JEROME J. CALKINS Wilshire Blvd. #1300 Los Angeles, CA michels-lew.com JIN LEW OUR TEAM CAALA Trial Lawyer of the Year CAALA Appellate Lawyer of the Year Board Certified Physician President Elect KABA CAALA Board of Governors STEVEN B. STEVENS

12 Primer, continued from Page 18 Boster, Kobayashi & Associates Accident Consulting Engineers and Scientists 20 Plaintiff August 2014 plaintiffmagazine.com may or may not have, including the policy limits. In instances where the defendant promptly tendered the claim to its carrier, often the first response received by a plaintiff s lawyer to the demand letter or the filing of suit will be made by defense counsel appointed by the carrier. In those cases, appointed defense attorneys may be cooperative in sharing information concerning insurance policy, since they themselves know that the handling and ultimate outcome of the litigation will depend greatly on the availability of insurance. In fact, an insurer faces significant risk if it does not seek authority from its insured to disclose to a claimant the limits of a policy. In Boicourt v. Amex Assurance Co. (2000) 78 Cal.App.4th 1390, the plaintiff s attorney asked the insurer to disclose the policy limits applicable to a car accident where his client was seriously injured. The insurer responded that it had a policy of declining to disclose policy limits, as a result of which plaintiff did not make a settlement demand before or after filing suit. Five months after the litigation commenced, the insurer offered to pay the policy limit of $100,000, which plaintiff rejected. The case went to trial and plaintiff obtained a judgment for almost $3 million. The insured assigned to plaintiff his claim for bad faith against the carrier in exchange for a contract not to execute on the judgment. The claimant sued the carrier for bad faith, based on, among other things, the allegation that plaintiff would have demanded and taken the policy limit of $100,000 had it been disclosed before the filing of suit. The carrier moved for Salty Sez TM B Failing to refer to or associate with a Maritime Lawyer in any boating-accident case is like going to sea without a chart and compass: too many detours, too long a voyage and you can hit a reef. A R N O L D I. B E R S C H L E R ERSCHLE R. c o m summary judgment on the ground that the insurer had not favored its own interests over the interests of its policyholder (the premise of a bad-faith claim) because plaintiff had not made a settlement demand. The Court of Appeal reversed. It held that the insurer s blanket policy not to seek authorization from its insured to disclose the limits raised material issues of fact about whether the insurer did act in its own interests at the expense of the policyholder s; i.e., engaged in bad faith. The court reasoned that, among other things, failure to disclose limits gives the carrier an advantage over plaintiff s attorneys but disadvantages the policyholder because it prevents or discourages settlement demands, thereby increasing See Primer, Page 22 ATTORNEY AT LAW i n f b e r s c h l e r. c o m Lawful referral fees paid. Member of the Maritime Law Association of the United States Reconstruction Specialists An engineering firm specializing in the technical aspects of accident reconstruction, traffic engineering, highway design, and injury causation. We also handle matters dealing with safety issues in construction and industry, as well as machine design. Areas of Expertise Accident Reconstruction Product Liability Electrical Engineering Traffic Engineering 3D Laser Scanning Contact: Michael Kreutzelman Human Factors Biomechanics Slip and Falls Motorcycles Animations Seat Belts Bicycles Airbags Safety Pedestrians Boster, Kobayashi & Associates Consulting Engineers and Scientists

13 Primer, continued from Page 20 the risk that the insured would be hit with judgment in an amount much greater than the policy limit. Accordingly, when faced with an adjuster or defense counsel who resists disclosing the policy limits, remind them of the Boicourt decision and specifically inform them that continued refusal to disclose such limits shall be among the grounds for a bad faith claim against the insurer. Discovery of defendant s coverage Formal discovery is a powerful weapon for obtaining full and complete disclosure of insurance information. For example, in many cases, the defendant has not tendered the claim for whatever reason, or its insurer has failed to respond to a tender. In those instances, it is the responsibility of the plaintiff s lawyer to ascertain any and all insurance policies and coverage that defendant may have. Aside from the fact that an insurance policy will ultimately provide a source of recovery, insurance information is important because it may affect the strategies of plaintiff s attorneys. For instance, if the policy has burning limits (i.e., defense fees and costs are deducted from the policy limit), a plaintiff s strategy that minimizes defense fees and costs would ultimately benefit the client plaintiff, while also being more efficient for plaintiff s lawyers. As a result, it is critical to obtain all insurance information from a defendant in formal discovery. Included among the first set of document requests served on defendant should be requests that call for the production of any and all policies that may cover plaintiff s claims. Since defendant and its attorneys may not know what policies maintained that may cover plaintiff s claims, such requests should enumerate the different insurance policies potentially available and applicable to plaintiff s claims, such as homeowners, errors and omissions, commercial general liability, professional liability, primary, and excess. Plaintiff should also make a catch-all request for any and all policies, as it is better to be overinclusive than underinclusive. As part of the First Set of Form Interrogatories, plaintiff s attorneys should check the boxes for Form Interrogatories 4.1 and 4.2, which ask for information concerning any policies that cover or may cover plaintiff s claims, as well as any self-insurance. If it appears necessary to inquire further on defendant s insurance coverage (for instance, if the above requests for production and Form Interrogatories yield unsatisfactory or unclear information), a plaintiff s lawyer should also ask about insurance coverage through special interrogatories, as well as in the depositions of defendant and its principals. If attempts to obtain discovery on defendant s insurance coverage are resisted, a plaintiff would have strong grounds to make a motion to compel and for an award of sanctions. California statute expressly provides that insurance information is discoverable. (See Code Civ. Proc., [ A party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement s coverage of the claim involved in the action, but not as to the nature and substance of that dispute. ]) Case law also supports discovery of defendant s insurance information, on the ground that insurance policies are directly relevant because they may assist in resolution of the case. (See Laddon v. Superior Ct. (1959) 167 Cal.App.2d 391, [ plaintiff s discoverable interest in defendant s liability insurance arises with the very pendency of the action against the assured. The conclusion is inescapable that... the insurance policy is relevant to the subject-matter... ]; accord Irvington- Moore, Inc. v. Superior Ct. (1993) 14 Cal.App.4th 733, ; Pettie v. Superior Ct. (1960) 178 Cal.App.2d 680, ) Therefore, it would be an unusual circumstance in which a defendant could properly refuse to disclose its insurance information in response to proper discovery requests served by plaintiff. The timing of insurance issues in litigation: Settlement and Mediation In most personal-injury cases, the first time that insurance issues come to the surface is during the settlement process, especially if a formal mediation is conducted. Settlements can be attempted and reached at any time, including before filing suit or very shortly after the filing of a complaint. However, in cases that involve substantial sums and/or complex issues of fact and law, it is unlikely that a carrier would agree to a favorable settlement so early or easily. It is uncommon for an insurance company to pay top money for settlement without going through the litigation process. In light of this reality, in order to have a meaningful mediation yielding maximum value, the mediation should, in almost all cases, be held in the later stages of litigation. Insurance adjusters deal with facts, not just allegations. Most carriers will not provide a true bottom line until they have completed all or most of discovery and have conducted an analysis of plaintiff s experts. Fundamental issues encountered in mediation There are many critical insurance issues that a plaintiff s attorney may face at mediation, especially in high-value cases where there are multiple defendants and multiple policies. While it is difficult to address all such possibilities, the following are some of the key issues that should be considered and understood by plaintiff s lawyers. In cases involving a continuous loss that has occurred over a number of years, it is important to make sure that all insurers that insured the defendant from the time the loss began be given notice of the claim. California applies the continuous injury trigger of coverage See Primer, Page 24 Many of our clients have: LEUKEMIA MYELOMA LYMPHOMA OTHER CANCERS BLOOD DISEASES LUNG DISEASES BREAST CANCER SYSTEMIC VASCULITIS LEAD EXPOSURE And other diseases From working in jobs like: MECHANIC PAINTER PRINTER MACHINIST CONSTRUCTION WORKER RAILROAD WORKER SEAMAN FACTORY WORKER And other jobs that use solvents, paints, inks, food flavorings, lead, or other chemicals. We represent children exposed to lead and/or lead paint Specializing in TOXIC TORTS We represent individuals and communities injured or affected by chemicals and toxins We pursue the manufacturers and distributors of chemicals and toxins We also represent non-profit organizations and other community groups pursuing environmental justice against manufacturers of toxins and chemicals in food, consumer goods, buildings, land, and land owners REFERRAL FEES PAID PER STATE BAR RULES For more information, call us or visit us at METZGER LAW GROUP TOX-TORT Tel. 562/ Fax 562/ Plaintiff August 2014 plaintiffmagazine.com

14 Primer, continued from Page 22 in the context of a third-party liability policy; thus, bodily injury or property damage that is continuous or progressively deteriorating is potentially covered by all policies in effect during the period when the injury or damage occurred. (Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, ) Under the all sums rule adopted in Aerojet- General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 55-57, an insurer on the risk when continuous or progressively deteriorating property damage or bodily injury first manifests itself is required to indemnify the insured for the whole of the ensuing damage or injury. The prospect of continuous injury highlights the importance of obtaining all defendant s potentially applicable policies for all potentially applicable policy years, and not just the most recent policy, because there may have been significant changes that have been made in coverage, even if the policies have been issued by the same insurer. In cases involving intentional acts by an insured which would not be covered because of an intentional acts exclusion or Insurance Code section 533, it is important to emphasize the separate liability of innocent co-insureds. Minkler v. Safeco Insurance Co. of America (2010) 49 Cal.4th 315, 319 held that under a policy containing a separate insurance clause, each insured s coverage should be analyzed separately. (See also discussion in Section 2 supra regarding coverage for seemingly willful acts.) If there are excess and/or umbrella policies involved, it is important to determine what underlying policies need to be exhausted in order for each excess/ umbrella policy to come into play. The horizontal exhaustion rule requires all primary insurance to be exhausted before an excess insurer must drop down to defend an insured, including in cases of continuing loss. The vertical exhaustion rule allows an insured to seek coverage from an excess insurer as long as the specific underlying insurance policy or policies identified in the excess have been exhausted. Under California law, unless the excess insurance company has agreed 24 Plaintiff August 2014 plaintiffmagazine.com to cover a claim when only one, specific underlying insurance policy is exhausted, the horizontal exhaustion rule applies and all primary insurance must be exhausted before an excess insurer must defend and/or indemnify, especially in cases of continuing loss. (Padilla Construction Co., Inc. v. Transportation Ins. Co. (2007) 150 Cal.App.4th 984, ) If one or more of the defendants is an additional insured on another defendant s policy, there may be issues arising out of attempting to settle out only the named insured or only the additional insured. An insurance company cannot settle out one insured without obtaining a release of the other insured, without the other insured s consent. (American Med. Int l, Inc. v. National Union Fire Ins. Co. (9th Cir. 2001) 244 F.3d 715, ) One way to settle out only the named insured or only the additional insured is to try to attempt to persuade the insurance company, with the consent of both the named insured and the additional insured, to offer a portion of the policy limits to settle out the named insured or additional insured. In cases with burning limits, i.e., limits that are eroded by defense fees and costs, by the time of mediation, the remaining limits of the policy will be less than stated policy limits, and a policylimits demand would have to be less than the stated policy limits. One way to make a policy limits demand on a burning limits policy is to demand the remaining limits of the policy, as long as the amount of the remaining limits is over a specified amount (i.e., we demand the remaining policy limits, in an amount not less than $1 million ). Insurance bad-faith principles and settlement of personalinjury cases Often, the lever that provides the best chance for settlement of cases that involve an insurance company is the threat of extra-contractual liability, or bad faith. This possibility arises when, among other things, the insurer has refused to offer the policy limit, and the case proceeds to trial with the insured being assessed a judgment vastly greater than the policy limit. Being able to open the policy limits significantly increases plaintiff s potential recovery and is the occurrence most feared by every insurance company. The following are some of the critical principles that govern bad faith in the context of settlement discussions. Under California insurance law, an insurer owes a good faith duty to settle claims made against their insureds, within the policy limits. (Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 40 [insurer has an implied duty to accept reasonable settlement demands on covered claims within policy limits]; accord Garner v. American Mut. Liab. Ins. Co. (1973) 31 Cal.App.3d 843, 848; Brown v. Guarantee Ins. Co. (1957) 155 Cal.App.2d 679, 689; Shade Foods, Inc. v. Innovative Products Sales & Mktg., Inc. (2000) 78 Cal.App.4th 847, 906.) In addition to case law providing for such duty, California Insurance Code section 790(h)(5) requires insurers to attempt in good faith to effectuate... settlements of claims in which liability has become reasonably clear. In deciding whether or not to settle a claim, the insurer must take into account the interests of the insured. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, ) An insurer that breaches its duty of reasonable settlement is liable for all of the insured s damages proximately caused by the breach, regardless of policy limits. (Hamilton v. Maryland Cas. Co. (2002) 27 Cal.4th 718, 725.) The only thing an insurer can consider in determining the reasonableness of a settlement demand is whether, in light of the victim s injuries and the probable liability of the insured, the ultimate judgment is likely to exceed the settlement offer. (Johansen v. California State Auto. Assoc. Inter-Ins. Bureau (1975) 15 Cal.3d 9, 16.) An insurer s good faith but incorrect belief there is no coverage is not a defense to liability for its refusal to accept a reasonable settlement demand. (Id. at ) See Primer, Page 26 the pain detectives Handling Personal-Injury Liens for over 22 Years Perry Bubis, M.D. General/Vascular Surgeon Owner ALHAMBRA ALTADENA ANAHEIM APPLE VALLEY ARCADIA BAKERSFIELD BALDWIN PARK BELL GARDENS BEVERLY HILLS BONITA BRENTWOOD BURBANK BURLINGAME CAMPBELL CAMARILLO CANYON COUNTRY CARLSBAD CARSON CHATSWORTH CHINO HILLS CHULA VISTA CITY OF INDUSTRY Farris Tarazi administrator CLOVIS COLTON COMMERCE CORONA COVINA CULVER CITY DALY CITY DANA POINT DEL MAR DIAMOND BAR DOWNEY EAGLE ROCK EAST LA EL CENTRO EL MONTE EL SEGUNDO ENCINITAS ENCINO ESCONDIDO FONTANA FOUNTAIN VALLEY FRESNO FULLERTON GARDEN GROVE GILROY GLENDALE GLENDORA GRANADA HILLS HACIENDA HEIGHTS HAYWARD HOLLYWOOD HUNTINGTON BEACH HUNTINGTON PARK INGLEWOOD IRVINE LA CRESCENTA LA HABRA LA MESA LA MIRADA LA PUENTE LA QUINTA LADERA RANCH LAKEWOOD LANCASTER LAWNDALE LINCOLN HEIGHTS LOMITA LONG BEACH LOS ALAMITOS LOS ANGELES (18 LOCATIONS) LOS GATOS LYNWOOD MARINA DEL REY MENIFEE MERCED MILPITAS MISSION HILLS MISSION VIEJO MODESTO MONROVIA MONTCLAIR MONTEBELLO MONTEREY MORENO VALLEY MORGAN HILL MURRIETA NEWBURY PARK NEWPORT BEACH NEWHALL NORTH HOLLYWOOD NORTHRIDGE OAKLAND ONTARIO ORANGE PACOIMA PALM DESERT PALMDALE PALO ALTO PANORAMA CITY PASADENA PETALUMA POMONA POWAY RANCHO CUCAMONGA REDLANDS REDONDO BEACH REDWOOD CITY RESEDA RIALTO RIDGECREST RIVERSIDE ROSEMEAD ROWLAND HEIGHTS SACRAMENTO SAN BERNARDINO SAN DIEGO SAN FERNANDO SAN JOSE SAN LUIS OBISPO SAN MARCOS SAN MATEO SAN RAFAEL SANTA FE SPRINGS SANTA MONICA SANTA ROSA SEAL BEACH SHERMAN OAKS SIGNAL HILL SIMI VALLEY STANTON STOCKTON SUN CITY SUN VALLEY TARZANA TEMECULA THOUSAND OAKS TORRANCE TRACEY UPLAND VALENCIA VAN NUYS VENICE VENTURA VICTORVILLE WALNUT WALNUT CREEK WEST COVINA WEST LA WESTCHESTER WESTMINSTER WESTWOOD WHITTIER WOODLAND HILLS YUBA CITY 250 Facilities in California (661)

15 Primer, continued from Page 24 Given those principles, the most powerful strategy that a plaintiff can follow at mediation is to make a policy-limits settlement demand. In fact, at best the law is uncertain on whether an insurance carrier has an affirmative duty to initiate settlement discussions in the absence of a settlement demand by plaintiff or plaintiff s initiation of settlement discussions. In Yan Fang Du v. Allstate Insurance Co. (9th Cir. 2012) 681 F.3d 1118 ( Du I ), the Ninth Circuit held that under California law, an insurer has the duty to initiate settlement discussions, failure to which may constitute bad faith. In a subsequent rehearing of the matter, the court withdrew (but did not vacate) the foregoing conclusion on the ground that it was unnecessary. Yan Fang Du v. Allstate Ins. Co. (2012) 697 F.3d 753, A federal district court has nevertheless cited Du I as persuasive to find such duty. Travelers Indem. of Conn. v. Arch Specialty Ins. Co., 2013 U.S. Dist. LEXIS (E.D. Cal. Nov. 26, 2013). In contrast, a California Court of Appeal has held that the insurer s duty to settle did not include initiating settlement efforts. (Reid v. Mercury Ins. Co. (2013) 220 Cal.App.4th 262, ) In any case, a plaintiff s attorney can avoid the matter by initiating settlement discussions and making a settlement demand supported by adequate law and facts establishing liability and damages. A plaintiff must make sure that the carrier has all the facts and information to reasonably consider such a policy limits demand, and the demand must be kept open a reasonable time. But if the carrier fails to reasonably settle a case within policy limit under those circumstances, it may be exposed to bad-faith liability. Finally, the mediation privilege is broad, in that communications made in mediation are considered confidential and inadmissible. Accordingly, to guarantee that policy limits settlement demands are admissible in a later badfaith trial, they should be formally made (in writing) outside of the mediation context as well, even if they are substantively identical to what was discussed during mediation. Strategies for dealing with denial of coverage In many cases where defendants have insurance policies, their carriers have denied coverage, including refusing to defend. Under those circumstances, a plaintiff s attorney can take aggressive steps in obtaining a default judgment or assignment of the insured s bad-faith rights. That would give plaintiff significant leverage against the carrier in mediation and other attempted settlement of the bad-faith case, assuming the underlying personal-injury case is significant, and the case for coverage is strong. The following are some of the principles involved when the carrier denies coverage to defendant. If defendant s insurer has denied coverage, it may be worthwhile to either settle with defendant by agreeing to a stipulated judgment, with a covenant not to execute and an assignment of the insured s claims against the insurer, or obtain a default judgment against the defendant and then attempt to get an assignment. (Amato v. Mercury Casualty Co. (1997) 53 Cal.App.4th 825, 833 [insurer is liable for full amount of default judgment as damages caused by insurer s bad-faith denial of coverage, regardless of whether there is coverage for judgment].) A possible complication that could arise in the case of a default judgment is that the insurer could seek to set aside the default and default judgment and move to intervene. After obtaining the stipulated judgment or default judgment (assuming the policy in question is one (that) is subject to the judgment creditor statute, which all policies covering bodily injury and property damage are), plaintiff can bring an action against the insurer as a judgment creditor under California Insurance Code section11580, subdivision (b)(2), and as an assignee of any claims assigned by the insured. In obtaining an assignment of rights from the insured, the plaintiff should consider the fact that the right to attorney s fees and costs incurred in obtaining coverage is assignable, but claims for punitive damages and emotional distress damages are not. A partial assignment of the insured s assignable rights would allow the insured to keep the claims for punitive damages and emotional distress damages. Plaintiff s counsel could then seek a conflict waiver and represent both the insured and the plaintiff in one suit against the insured. Conclusion Virtually all personal-injury litigation involves insurance and insurance issues, especially during the mediation and settlement phases of the case. For a plaintiff s lawyer, an extensive understanding of insurance law and insurance principles is an extremely powerful weapon. Edward Susolik is the partner in charge of the insurance department at Callahan & Blaine in Santa Ana, California. Mr. Susolik specializes in complex insurance litigation, and has Susolik filed over 1000 insurance bad-faith lawsuits in his career. He is an adjunct professor of insurance law at USC Law School. He can be reached at esusolik@callahan-law.com. 26 Plaintiff August 2014 plaintiffmagazine.com plaintiffmagazine.com August 2014 Plaintiff 27

16 Essential Online Verdict Reports BECAUSE VERDICTS ARE NEWS. Disclosure of policy limits to a UM/UIM arbitrator Pros, cons and a solution that can protect both sides BY RICHARD PHELPS Does this dialogue sound familiar? Defense counsel to claimant s counsel: I have to disclose the policy limits to the arbitrator since he/she can t award more than the policy limits. UM/UIM is essentially a contract claim and all a claimant can receive is the 28 Plaintiff August 2014 plaintiffmagazine.com policy limits. My client doesn t want to have to go to court after the arbitration and move to have the Award amended to the policy limit. Claimant s counsel replies: The insurance code says that the arbitrator is to decide what the insured would have received as damages for his/her claim had the negligent party been insured. I don t want the arbitrator to be influenced by the policy limit. The arbitrator should only hear the evidence on liability and damages before he/she determines what damages the claimant would have been entitled to from the third-party tortfeasor, had he/she been insured. See Disclosure, Page 30 Get the attention your verdict deserves Verdict alerts are sent by to 11,500 California trial attorneys in both Northern and Southern California. Each case summary includes a link to the full verdict report on our Web site. Report your verdicts Unlike traditional print verdict reporters, we will send a verdict alert as soon as practical. It s a 24-hour news cycle. Why should verdicts be any different? Sign up it s free There is no charge to receive the verdict alerts or for viewing the full verdict reports. Go to the Web site and add yourself to the list. editor@juryverdictalert.com From the publisher of Plaintiff Richard Neubauer, Publisher Jean Booth, Editor So. California No. California

17 Disclosure, continued from Page 28 The problem Oftentimes, this argument continues ad infinitum with the tone and temperature rising, with no apparent solution. It can create a more antagonistic relationship than necessary for the rest of the arbitration process. Both sides have valid points. Who should prevail? Is this one of those irreconcilable differences? I believe that there is a solution that protects both sides. The primary concern of the claimant is to have an analysis of the damages done without the policy limits influencing the arbitrator. The primary concern of the insurer is to avoid getting stuck with an award above the policy limits followed by a court action to get it amended or to defeat a claimant s demand for payment of the award which is higher than the amount of insurance the insured purchased. The insurer will win this fight and who needs unnecessary litigation? The solution Have the insurer send a copy of the Declarations Page in effect on the date of loss to the arbitrator with a copy to the claimant s counsel. It should be marked on the envelope: Policy Limits. Orthopedic Expert Witness Dr. Steven R. Graboff, M.D. Dr. Graboff is a board-certified orthopedic surgeon and forensic-medicine specialist offering: Orthopedic medical-legal consultation Medical exam of client Review of medical records and radiologic studies Expert testimony at mediation, arbitration and trial Flexible schedule for medical exams, meetings, depositions and telephone conferences The arbitrator hears the evidence on liability and damages and determines the damages the claimant would have been entitled to from the thirdparty tortfeasor had he/she been insured. The arbitrator then opens the Policy Limits envelope and if the damages exceed the policy limits, the arbitrator concludes his/her Statement of Decision as follows: The claimant s damages against the third-party tortfeasor are $55,542. Based on a UM/UIM policy limit of $50,000, the claimant is awarded $50,000. Both sides get what they needed and what they deserve and all the Unparalleled experience: Supporting the Medical Legal Community for Over 20 Years (714) DrGraboff@gmail.com Huntington Beach, CA potential escalating debate on how to handle the conflict is resolved before it ever gets started. I have used this method successfully in several arbitrations wherein the parties believe that the damages may approach or exceed the policy limit. Often it comes up shortly after I have been selected as the arbitrator, sometimes with a motion in limine from claimant s counsel or a conference call regarding the issue. When I have made this suggested resolution, it is accepted after both sides ponder it for a moment or two; after they realize that their client will suffer no harm and it resolves the dispute. Avoid the conflict Suggest this resolution before the debate begins and the temperature rises. There are enough issues to fight over and this is not one of them. Richard Phelps has practiced tort and insurance law in the Bay Area for 32 years. His current primary focus is ADR work. Since 1995 he has mediated approximately 2400 civil Phelps cases of all kinds. He has mediated cases in every Bay Area county: Sacramento, Stockton, Modesto and Auburn. He has arbitrated since He was co-chair of the Alameda County Bar ADR Section and co-authored and successfully lobbied CCP Section He has written and lectured on Mediation and Settling Cases. He can be reached at Phelpsmediation@aol.com. 30 Plaintiff August 2014 plaintiffmagazine.com plaintiffmagazine.com August 2014 Plaintiff 31

18 The increasing importance of mental health parity laws State and federal laws require that mental and physical illnesses be treated equally, but getting the health insurer to comply can still be difficult BY DAVID M. LILIENSTEIN AND ALICE J. WOLFSON Mental health is in the news more than ever before. And with scarier undertones than ever before. From Santa Barbara to Sandy Hook, on college campuses to elementary schools, and in small towns and big cities nationwide, there s a new, dark math. Take individuals with serious mental health problems, add lax gun control laws, and the results have increasingly been fatal. Practically speaking, there may be very little that can be done to the gun control part of the equation. But when it comes to identifying and treating individuals with serious mental health problems, getting help before a worst-case-scenario situation plays out has never been more important. Enter the Mental Health Parity Laws. These laws, which mandate that healthcare providers provide equal coverage for serious mental illnesses as they do for physical illnesses or injuries, have never been more important. So if a health policy or plan covers cancer treatment, for example, no matter how long the patient s hospital stay, the carrier must also cover all medically necessary mental healthcare and treatment. If a plan covers prescription drugs for physical problems, so must it equally cover prescription drugs to treat mental health problems. We have previously written about the parity laws in the pages of Plaintiff magazine (June 2011). California has parity laws, other states have them, and the Obama administration recently strengthened the Federal Parity Law. But as recently as two or three years ago, this issue was so new that there had been precious little litigation exploring the boundaries of these statutes. With scant case law, the nuances of the California s Mental Health Parity Act had not been fleshed out, and health insurers continued to improperly refuse coverage for medically necessary mental healthcare. However, two relatively recent appellate court decisions, one from the Ninth Circuit Court of Appeals, and the other from the California Court of Appeal, have made the parity-law landscape more certain, and have brought us much closer to realizing the goal of the parity laws: to insure that individuals with mental health problems get the treatment they need. 1 California s Mental Health Parity Act First is the California Mental Health Parity Act itself. As codified in both the Insurance Code and the Health and Safety Code, it mandates that: (a) Every healthcare service plan contract issued, amended, or renewed on or after July 1, 2000, that provides hospital, medical, or surgical coverage shall provide coverage for the diagnosis and medically necessary treatment of severe mental illnesses of a person of any age, and of serious emotional disturbances of a child, as specified in subdivisions (d) and (e), under the same terms and conditions applied to other medical conditions as specified in subdivision (c). (b) These benefits shall include the following: (1) Outpatient services. (2) Inpatient hospital services. (3) Partial hospital services. (4) Prescription drugs, if the plan contract includes coverage for prescription drugs. (c) The terms and conditions applied to the benefits required by this section, that shall be applied equally to all benefits under the plan contract, shall include, but not be limited to, the following: (1) Maximum lifetime benefits. (2) Copayments. (3) Individual and family deductibles. (d) For the purposes of this section, severe mental illnesses shall include: (1) Schizophrenia. (2) Schizoaffective disorder. (3) Bipolar disorder (manicdepressive illness). (4) Major depressive disorders. (5) Panic disorder. (6) Obsessive-compulsive disorder. (7) Pervasive developmental disorder or autism. (8) Anorexia nervosa. (9) Bulimia nervosa. (e) For the purposes of this section, a child suffering from, serious emotional disturbances of a child shall be defined as a child who (1) has one or more mental disorders as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, other than a primary substance use disorder or developmental disorder, that result in behavior inappropriate to the child s age according to expected developmental norms, and (2) who meets the criteria in paragraph (2) of subdivision (a) of Section of the Welfare and Institutions Code. 2 The only major shortcoming in the above language is that California s Parity Act does not include treatment for substance abuse. Yet since substance abuse is often one component of a greater set of mental illnesses, especially in children, do not concede that the Parity Law is inapplicable to a particular case before fully understanding a client s overall mental health picture, and history. California s Mental Health Parity Act was intended to be a powerful tool. The implementing regulations evidence this intent. They explain that: (a) The mental health services required for the diagnosis, and treatment of conditions set forth in Health and Safety Code section shall include, when medically necessary, all healthcare services required under the Act including, but not limited to, basic health care services within the meaning of Health and Safety Code sections 1345(b) and 1367(i), and section of Title 28. These basic healthcare services shall, at a minimum, include crisis intervention and stabilization, psychiatric inpatient hospital services, including voluntary psychiatric inpatient services, and services from licensed mental health providers including, but not limited to, psychiatrists and psychologists. 3 The key phrase here is all healthcare services. This should be read into subsection (b) of the Parity Act. It confirms that the benefit list there is illustrative and nonexclusive, and that it is the treatment, not the place of treatment, that is important. This is a crucial distinction, since many mental health programs and facilities do not fall neatly into recognizable categories such as outpatient services, inpatient care, or partial hospitalization. The law becomes clearer There are two seminal cases concerning California s Parity Act. Both involve Blue Shield. The first is Harlick v. Blue Shield. 4 That action involved a woman who had suffered from anorexia nervosa for more than 20 years. When multiple treatment efforts failed, and she was at 65 percent of her ideal body weight, the last resort was enrollment in a Residential Treatment Center, where she could be cared for on a 24-hour basis, for as long as was needed. The only problem is that residential treatment facilities are expensive (although, to be sure, not as expensive as inpatient care at a regular hospital). Unsurprisingly, the Blue Shield policy at issue contained a blanket exclusion for residential treatment. During litigation, Blue Shield contended that since residential treatment is not explicitly referenced in the body of the Parity Act, its exclusion 32 Plaintiff August 2014 plaintiffmagazine.com plaintiffmagazine.com August 2014 Plaintiff 33

19 Parity, continued from Previous Page was enforceable. Not so fast, Blue Shield, claimed the plaintiff. If residential treatment was medically necessary, it must be covered, she contended. The Ninth Circuit agreed (reversing the district court grant of summary judgment). The Court held that Blue Shield must provide coverage of all medically necessary treatment for severe mental illnesses under the same financial terms as those applied to physical illnesses. 5 This perforce included mental health care at residential treatment facilities. Blue Shield s second bite at the Parity Law apple came in Rea v. Blue Shield, a California state court case. 6 Rea also involved a trial court ruling (on demurrer) that favored the insurer, but that was reversed on appeal. Like Harlick, Rea involved a woman with a serious eating disorder who was treated at a Residential Treatment Center, and whose Blue Shield policy contained a blanket exclusion for Residential Treatment. In ruling for the insured, the court in Rea (as did the Ninth circuit in Harlick) engaged in extensive statutory analysis. It even discussed, at length, the legislative history behind the Parity Act. Finally, as in Harlick, the California Court of Appeal rejected the insurer s limited interpretation of the Parity Act and held that medically necessary services must be covered on par with the level of services offered for physical injuries and sicknesses, including Residential Treatment. As a result, Rea harmonizes the potential split between the federal and state courts, and gives insurers nowhere to turn with their efforts to circumscribe California s Parity Act (except, perhaps, the California Supreme Court in Rea). Medical necessity always a focus Although residential treatment is one of the most high profile and litigated Parity Law issues, Parity Laws are about much more than this specific modality of mental health treatment and care. For those plans that do not contain blanket exclusions, the heart of the case will usually revolve around medical necessity. Unfortunately, there is no overarching, statutory definition for medical necessity. Here again, though, the Harlick case is instructive in the need for a carrier to set forth the specific reasons behind a claim denial. In Harlick, the carrier had the opportunity to make a medical necessity determination. It chose not to deny the claim based on medical necessity, choosing instead to rely on the blanket exclusion described above. The court held that an insurer does not get a second bite at the apple it cannot deny a claim based on one reason, then on appeal or during litigation bring up other bases for claim denial. Thus, consumer attorneys should always home in on the insurer s claim denial rationale. Consider the claims handler, but also consider any medical professionals whose opinions provided the pretext for the claim denial. In one case the reviewing medical consultant testified that he denied 30 percent of the claims he reviewed, spent an average of 12 minutes per claim review, and had no problem dismissing the opinions of treating physicians. 7 Jurors did not take kindly to this, finding the carrier liable for punitive damages. 8 Separately, to the extent that a policy s definition of medical necessity is ambiguous, with one interpretation favoring coverage, and the other supporting a claim denial, the doctrine of reasonable expectations holds that coverage must be granted. 9 Remember ERISA; Avoid ERISA The beauty of the twin Parity Law cases discussed above, Harlick and Rea, is that together they cover the vast majority of the litigation landscape. In Harlick the health insurance policy at issue was governed by the Employee Retirement Security Act of 1974, more commonly referred to as ERISA. 10 Most group policies come under ERISA s ambit. But not all do be very careful before conceding that ERISA governs a particular policy, or action. Since ERISA preempts state law causes of action, thereby guaranteeing that the carrier cannot be held liable for the emotional distress caused by an unreasonable claim denial, much less for punitive damages, carriers will try every trick in the book to persuade a judge that ERISA applies. They know that if successful, at best they could be liable for the benefits they should have approved in the first place, along with maybe some attorneys fees. 11 This provides almost no incentive for an insurer to properly adjudicate mental health claims. Carriers also know full well that ERISA has been interpreted, unfairly some say, as precluding the plaintiff/insured s right to a jury trial; and to virtually all discovery. Thus it is important to understand that insurance companies have nothing to lose and everything to gain by playing the ERISA card. Finally, until recently, an ERISA claim denial could often be overturned only upon a finding that the carrier acted arbitrarily or capriciously, or abused its discretion. Thanks to the great work of consumer attorneys, and to an insurance commissioner who understood the injustice of such a standard, the arbitrary and capricious standard of review is, for the most part, a thing of the past. 12 The Rea case, on the other hand, is a class action not subject to ERISA s preemptive power. As a bad-faith action, tort damages may be available if a jury finds the carrier acted unreasonably toward its insured(s). 13 Given the potentially devastating nature of a mental healthcare claim denial, the potential damages for emotional and financial distress can be substantial. Thus, to fully understand an insured s rights, it is essential to determine whether an action can be brought under California s consumer-friendly bad faith laws, or will be preempted by the insurer-friendly federal ERISA statute. Now is the time for action Tens of millions of Americans suffer from some form of mental illness. 14 Availability limited! Regrettably, without proper treatment, the results can be devastating, not just for the individuals themselves and their families, but for innocent victims of mental health violence. Now, with the scope of the California Mental Health Parity Act more fully fleshed out, more guideposts exist to ensure that proper treatment and care is provided, by insurers who previously gave such care short shrift. David Lilienstein is a principal at the DL Law Group, a San Franciscobased boutique firm specializing in insurance bad faith and ERISA litigation, including ERISA preemption Lilienstein issues. Along with partner Alice J. Wolfson, the firm litigates all aspects of insurance claims, but primarily in the area of disability, health care and long-term care insurance. For more information about California s Mental Wolfson Health Parity Act, bad faith, and ERISA-preemption, check out the firm s website at or contact David Lilienstein directly at david@dllawgroup.com. Endnotes: 1 The vast credit for the sea change in Parity Law jurisprudence goes to Lisa Kantor and everyone at Kantor and Kantor. Visit them at 2 The act is codified in two places: Cal. Health & Saf. Cod, e , Cal. Ins. Code, C.C.R (emphasis added). 4 Harlick v. Blue Shield (9th Cir. 2011) 656 F.3d 832 (9th Cir. 2011). 5 Id. at p Rea v. Blue Shield of California (2011) 226 Cal.App.4th See Hughes v. Blue Cross of Northern California, (Cal.App.2d. 2014) 215 Cal.App.3d 832, 843 (Cal.App.1st 1989). 8 That element of the Hughes case has been superseded by Civ. Code, 3 294, which sets the current standards for a finding of punitive damages. 9 See, e.g. Hughes, supra; see also Padfield v. AIG Life Ins. Co. (9th Cir. 2002) 290 F.3d 1121, 1123 (applying the doctrine of reasonable expectations and holding that death by autoerotic asphyxiation cannot be reasonably interpreted as an intentionally self-inflicted injury in order to justify the denial of a life insurance claim). 10 The Employee Retirement Income Security Act of 1974, 29 U.S.C et seq. 11 The contention ERISA preempts parity laws was put to rest in Thompkins v. BC Life and Health Ins. Co. (C.D.Cal. 2006) 414 F.Supp.2d 953, n See Cal. Ins. Code,, See, e.g. California Shoppers v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d See National Institute of Mental Health The Numbers Count: Mental Disorders in America. ( statistics/index.shtml) Don t wait to get connected with personal injury clients! IAM-HURT vanity number, INJURY Website LAWYER and HOTLINE responses will be licensed TM to only one personal injury attorney in any city or state in the U.S. CALL NOW! People remember the phone number when they need a personal injury lawyer. If you want to take it to the next level, then IAM-HURT is the way to go. Tim Bottoro, Vriezelaar, Edgington, Bottoro, Boden & Ross, L.L.P. 34 Plaintiff August 2014 plaintiffmagazine.com plaintiffmagazine.com August 2014 Plaintiff 35

20 Profile: Jim Butler Rebellious son of a plaintiffs lawyer finds his own way into the profession BY STEPHEN ELLISON Taking the traditional route to a law career may not have been in the cards for James G. Butler Jr. In the end, though, it seemed he had little choice but to play the hand he was dealt. Rebel with a cause Like many young American men, Butler rebelled against his father, a plaintiffs lawyer, and vowed not to tread the same career path. So his first area of study in college, indeed, was Indian classical bamboo flute music. But his musical inclinations didn t translate into a stable livelihood, and eventually he graduated from UC Berkeley with a degree in rhetoric. Unsure of his next move What does one do with a degree in rhetoric? he had asked himself Butler sought advice from a college mentor. He told me I should do what I believe in, Butler recalled, and I was skeptical. I said, Like what? And he told me to go find an ad in the newspaper and give of yourself and build a better world. Butler offered himself up as a volunteer receptionist at the Legal Aid Society of Alameda County, and several years later, after working his way up through the ranks to paralegal and developing a penchant for litigation, he found himself contemplating law school albeit reluctantly. As a paralegal, I did Social Security cases, and I had had a long streak of wins without losing a case, Butler said. So my boss said, You gotta go to law school, and I said, No, I don t want to do that because my father was a lawyer, and I don t want to be anything like my father. She said, Well you like to help people, right? You could help more people if you got a better education. Today, nearly three decades after that Butler pivotal conversation, the founding partner of Butler Viadro in Oakland is one of the best in the region at helping people. He specializes in workers compensation cases and representing those injured in the workplace. But over the course of his career, he has worked plaintiffs cases across the board and, while it took him some time to fully understand the why and the how of his professional life, once he was in a position to help people who needed help, plaintiffs law was a no-brainer. I gradually saw the light about the social importance and the political importance of helping people who had been seriously injured, Butler explained, and who had no recourse other than under a contingency fee to hire a lawyer who would be good enough to beat the moneyed interest that always represented the corporations. Much of Butler s caseload these days consists of representing union workers, who seek his help because they know he does simultaneous litigation: He handles the third-party case, the workers compensation case, the Social Security case and the pension case, he explained, therefore making it a simpler and less-convoluted process for the client. He s also fluent in Spanish, French and Italian, which can simplify communication with some clients. As a trial lawyer and workplace injury specialist, Butler has been a prominent presence in professional organizations. He is the author of the Injured Worker Survival Guide (published annually from 1987 through 1995) and has been a member of the San Francisco Trial Lawyers Association board since He has served on SFTLA s Community Involvement Committee and Health Insurance Committees and is past chair of the organization s Third Party Work Place Injury Practice Group. He is currently board president of the California Applicants Attorneys Association and serves as Third Party Issues Committee chair for that association as well. It gives me an opportunity to give back, Butler said of his extensive professional involvement. The law has been very generous to me; I ve been very successful over the years, and as one grows conscious of the fact that one is part of a community of people, for me, the desire to lend my talents to organizations that are by, for and of the community becomes very important. More than just a job Born and raised in Compton, Butler grew up the namesake of a prominent attorney who handled the high-profile American thalidomide cases. Butler s father introduced him to some of the children who were born with limb deficiencies as a result of the drug, and that resonated with him it still does to this day, he said. As much as he rebelled against his father, Butler did have a desire to emulate him in at least one respect: helping people. The volunteer position at Legal Aid turned into a paid secretary position, followed by a promotion to office manager, then a promotion to paralegal. When he started law school at night at the University of San Francisco, he also worked half-time at Legal Aid and half-time at the U.S. Attorney s Office, where he served as a clerk in the civil division. He described his position at Legal Aid as the best job I ever had, but as a husband and father with a mortgage, he couldn t afford to keep it. Upon graduating from law school and passing the bar, Butler was hired by The Veen Firm and quickly progressed to trial team leader. He spent the first 22 years of his career there and considers Bill Veen an important influence on his career. I looked to him when I was perplexed and didn t know what to do, Butler recalled. He has the uncanny ability to see what is important in a case and focus only on that. After such a lengthy stay, leaving the Veen firm to start his own practice certainly was not an easy decision, and there were plenty of obstacles at the beginning, Butler said. But it was something he felt he had to do for the betterment of his career and his life. There comes a point where you need to step away in order to continue your professional growth, he said. For me, opening my own firm has been a key source of liberation and self-esteem. In retrospect, I m happier about that decision and the wisdom of that decision than perhaps any other professional choice I ve made. Making wise choices is an important skill for any trial lawyer, Butler contends. He said when you decide to take a case to trial, you better believe strongly in that case even when its weaknesses are obvious and easy for the opponent to latch onto. Oftentimes, Butler said, he is able to see what aspects of his case will move a jury and get him through all the flak brought forth by the defense. Then, he can just sell the justice of his cause. I think of Winston Churchill often when I m going to trial, Butler said. When the odds for England looked long in the face of the German onslaught on the continent, he said We will fight them on the beaches, we will fight them in the air, we will fight them on our seas, we will fight, we will fight, we will fight. And that s how one has to be relentless in the pursuit of justice and willing to fight for what you believe in. Perseverance pays off Persistence also is crucial for trial lawyers, Butler said. It certainly paid off during a recently concluded catastrophic injury case in which he represented a construction worker who severely burned his arms after making contact with a high-voltage line. The man s employer changed the books to make it appear as though he was employed by another corporation, Butler said, thus invalidating the insurance coverage and indemnity agreements between the employer and the general contractor. The case dragged on for years until Butler and his cohorts tracked down the ex-wife of one of the principals of both corporations. She testified about the fraud and that her ex-husband had participated in it and talked to her about it while it was going on, Butler explained. And using that, we were able to get ourselves back into the coverage under the insurance policy by showing (the worker s employer) was Corporation A and resolved his case for $5 million. Another case Butler took against long odds and turned around through perseverance involved a worker who fell through a plywood floor nine stories onto concrete and he wasn t wearing a safety line. Originally, the employer contended either the man jumped or he wasn t at work. Butler was able to prove those scenarios false and that his client was the victim of negligence. So I got three things, he said. I got him his workers comp benefits, I proved liability against the contractor who had put the plywood in on the ninth floor, and I was able to prove liability on the part of the general contractor, who had supervised the placement of the plywood. As hard as he works, Butler manages to find time to reboot himself every so often. In his leisure time, he enjoys swimming and surfing and, at any given time, he s immersed in one or more books. He also sets aside time every day to meditate, something he has practiced since 1991, he said. I find that it s a wonderful relief from the tensions of practicing law, Butler said, adding that all of the activities in which he partakes provide a feeling of peace and flexibility so that when I come back to my work, I m refreshed. Butler believes success alone in one s profession does not translate to a happy, fulfilling life, so he advises that young lawyers try to remember that day or moment when they first realized they wanted to pursue law. I would tell them to listen to the voice that they heard in their head on their very first day of law school about what they would do in the law, Butler said. Only if one does what one thinks is the most important thing, the right thing, does he have a chance at happiness. I can t tell you how many lawyers I know who work for insurance companies and really don t like the work they do which can make them depressed, which can make them turn to drugs or alcohol. And as long as I have been doing this, I ve followed my sense of justice, and in doing so, I feel sociologically and politically, like I m doing the right thing like I m serving a function within a society that is important. Stephen Ellison is a freelance writer based in San Jose. Contact him at ssjellison@aol.com. 36 Plaintiff August 2014 plaintiffmagazine.com plaintiffmagazine.com August 2014 Plaintiff 37