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Insurance All Sums with Stacking: An Examination of the California Supreme Court's Stringfellow Coverage Decision



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Description:
What is the general issue? Why this is important now?
 
In August, 2012, the California Supreme Court issued a landmark decision regarding the Stringfellow Acid Pits in Riverside County, California.  The high court ruled that stacking is permitted and therefore the insurers are responsible to pay up to their policy limits on each policy issued.  The Court disagreed with anti-stacking precedent in California.  This decision is significant because it was a complete victory for policyholders and addresses several key coverage principles, and thus will likely impact the future of long tail insurance coverage strategies.    
 
Who will be most interested in this program?
• In-house counsel at insurance companies
• Insurance company claims professionals
• In-house counsel at policyholder companies
• Risk managers
• Attorneys representing insurance carriers
• Attorneys representing policyholders
• Insurance brokers and agents
 
Key Learning Objectives 
Attendees will come away with a practical understanding of:
 
1) The legal and regulatory landscape of long-tail insurance claims
2) “All sums” provisions in insurance policies
3) “Stacking” provisions in insurance policies
4) Allocation among multiple insurers in complex, long-tail claims
5) “Reasonable expectations” provisions in insurance policies
6) The ramifications of Stringfellow on cases and underwriting 
7) The ramifications of Stringfellow on other types of claims
 
Program Agenda: 
 
1) Background on the Litigation and General Overview of the Decision
 
2) The “All Sums” Aspect of the Ruling
 
3) The “Stacking” Aspect of the Ruling
 
4) The Expected Impact on Long-Tail Disputes in Other States:  Environmental, Injury, Construction Defect, etc.
 
5) The Expected Impact on Insurance Underwriting
 
6) Conclusion
a. Key takeaways for insurers
b. Key takeaways for policyholders
 
7) Question and Answer Session
 
 
Faculty Information 
 
 
Moderator: Robert M. Horkovich, Esq., Anderson, Kill & Olick P.C.
Speaker: Laura A. Foggan, Esq., Wiley Rein LLP
Speaker: Daniel J.Schultz, Esq., The Law Offices of Daniel J. Schultz
Speaker: Darryl L. Doke, Esq., 
Lead Supervising Deputy Attorney General
Office of the Attorney General
Tort & Condemnation Section - Sacramento
 
Speaker Biographies:
 
Robert M. Horkovich is "the 'go-to person' in the area of insurance recovery" reports the Chambers USA.  Bob is a top ranked lawyer nationally, previously recognized by Chambers USA: America’s Leading Lawyers for Business as "the first and only choice for clients seeking total commitment to a case."  "If you need somebody to take hold of things and gain control of the situation, he’s your guy."  Chambers USA 2011 ranked Bob all alone in the top tier of policyholder lawyers in Insurance (Policyholder) in New York.  Chambers reported that Bob is regarded by his clients as “one of the finest coverage trial lawyers in the country.”  In 2009, Lexis/Nexis named Bob as its "Policyholder Lawyer of the Year."

Bob has obtained over $5 billion in settlements and judgments from insurance companies for his clients over the past decade.  Bob is a trial lawyer with substantial experience in trying complex insurance coverage actions on behalf of corporate policyholders.  His victories include one of the top 10 jury verdicts in the United States in 2003, the top insurance recovery jury verdict in the United States in 2005, seven landmark state Supreme Court decisions, eight jury verdicts and eight bench trial decisions in favor of the policyholder since 1994 including:
• United Nations:  Engaged on several significant projects by the United Nations as its general insurance counsel.
• State of California:  Selected by the State of California as lead trial counsel.  Won jury verdict securing coverage for the Stringfellow Acid Pits, described as the most complex environmental clean-up in the world.  To date we have recovered gross settlements of $130 million plus $54 million in defense before trial.
• Fuller-Austin.  Won jury verdict of $188,793,014 against Lloyd's and other insurance companies in an asbestos insurance coverage case (one of the top 10 verdicts in the U.S. in 2003), presently on remand.  Gross settlements of over $190 million from 14 different insurance companies before trial.
• Weyerhaeuser.  Two Washington Supreme Court decisions recognizing joint and several liability of multiple insurance companies on the risk over time and recognizing coverage for environmental clean-ups even without a government lawsuit.  Two jury trial victories recognizing coverage for the clean-up of six environmental sites.
• Textron.  Two Rhode Island Supreme Court decisions regarding coverage for unintentional environmental contamination despite the pollution exclusion and recognizing the trigger of multiple years of coverage for property damage over time.
• AT&T.  Lead attorney against CNA in the successful resolution of AT&T's environmental insurance coverage litigation for a $300 million site in Pennsylvania.
Bob has represented General Electric, Thiokol, Waste Management, Clorox (First Brands), Saks Fifth Avenue, NYU, Princeton University , United Bank, Textron, Maidenform, Spalding, Cascade, Tektronix, Bijan and Evander Holyfield.

As to asbestos insurance recoveries, Bob represents the Trusts in the Owens Corning, Congoleum, Fuller-Austin and Swan Transportation (Tyler Pipe) cases, the Debtor in the Asarco case, and the Asbestos Claimants' Committee in the Federal Mogul, PPG/Pittsburgh Corning, A.P. Green, and W.R. Grace bankruptcies.

Mr. Horkovich was selected by his peers for inclusion in Best Lawyers for insurance law since 2009 and Super Lawyers for insurance since 2006.

Mr. Horkovich has been rated "AV® Preeminent™ Peer Review Rated," the top rating, by his peers as listed in Martindale Hubbell for more than a decade.1

He has been selected as a Fellow of the American Bar Foundation, the premier institute for social science research on law in the USA, an honor limited to one-third of one percent of the lawyers in America.
 
Laura A. Foggan recently was named one of Law360's "10 Most Admired Insurance Attorneys."  Practicing for more than 25 years, Ms. Foggan has made significant contributions to the development of key insurance law precedents across the country.  She serves as lead counsel in trial and appellate matters involving complex insurance claims under general liability and other policy forms and counsels insurers on emerging exposures, including Section 111 Medicare secondary payer compliance.  She has participated in more than 200 insurance coverage appeals nationwide.  A former co-chair of the Insurance Coverage Litigation Committee of the American Bar Association (ABA) Litigation Section, Ms. Foggan is the leader of the firm's Insurance Appellate Group.
In addition to her litigation work, Ms. Foggan represents insurers in arbitration and mediation settings.  On behalf of both individual insurers and industry trade groups, she also advocates for insurers in legislative and regulatory matters.  Ms. Foggan is regularly rated by Chambers USA as one of Washington, DC’s “Leading Lawyers” for insurers in commercial insurance work, and is known for being a "favorite with both clients and peers" for “complex trial and appellate work” (2011) and for her involvement in "some of the group's most significant complex work" (2010).  The Legal 500 US recommends Ms. Foggan for being “at the top of her field” and for having “one of the best analytical minds” (2012).  She is included in the Best Lawyers in America directory for insurance law and has been named one of Washington, DC’s “Top 100 Lawyers” and “Top 50 Women Lawyers,” among many other honors.
REPRESENTATIVE EXPERIENCE
• Directs major complex commercial litigation in courts nationwide.  Lead counsel in trial and appellate matters involving insurance for terrorism, technology, environmental, construction, personal and advertising injury, employment, product liability, mass tort and pharmaceutical claims.
• Participated in more than 200 appellate cases including key national precedents on insurance issues.  Argued before numerous federal circuits and state appellate courts.
• Counsels property and casualty insurers on emerging risks and litigation trends under general liability and other policy forms. Current issues include coverage for consumer privacy claims, global warming (climate change), nanotechnology, fracking, Section 111, tainted drywall, bad faith exposures and more.
• Represents insurers in arbitrations, as well as Alternative Dispute Resolution (ADR) and mediation proceedings.  Handles multi-party negotiations involving private claimants, multiple carriers and insureds.
• Advocates for insurers in legislative and regulatory matters, including providing technical analysis of insurance issues, testifying before legislative committees and drafting and negotiating legislative proposals. Current issues include Section 111 Medicare secondary payer requirements.
• Counsel, Complex Insurance Claims Litigation Association (CICLA).
Danial J. Schultz, Esq. Mr. Schultz’s practice has focused primarily on seeking insurance recoveries for policyholders with environmental or toxic tort claims against them, primarily in complex matters on behalf of Fortune 500 companies, but also on behalf of “mom and pop” businesses.  Unfortunately, almost always negotiations with the insurance companies have failed, requiring litigation to force insurance companies to pay the claims of the aggrieved policyholders.  Most recently I acted as co-lead trial counsel on behalf of the State of California, obtaining a jury verdict after a two-month trial on behalf of the State for its liabilities relating to the Stringfellow Acid Pits located near Riverside, California.  In addition to the amounts recovered at trial, he helped to negotiate settlements prior to trial with most of the thirty-plus insurance companies that had insured the State, for a total recovery at the time of the verdict, on May 16, 2005, of over $120 million.  Since then, he has participated in two successful settlement negotiations with two of the insurance companies, increasing the State’s recovery to over $127 million.  He has also participated in two successful appeals to both the California Court of Appeal and the California Supreme Court, vindicating the rights of policyholders and making new law in California relating to the meaning of pollution exclusions and the recent landmark ruling in the State of California v. Continental Ins. Co., et al., establishing the “all sums with stacking” rule.  
Mr. Schultz has also represented clients in constitutional tax and civil rights matters, has represented clients in entertainment, real estate, franchise and general business disputes, and has advised a variety of clients on trade secret and other intellectual property transactional matters.  Additionally, he has leveraged his intelligence and security training and knowledge to develop successful investigative and litigation strategies to quietly resolve sensitive employment disputes without negative publicity for his clients.  
 
Darryl L. Doke.  I am a 1972 graduate of the University of California Davis School of Law. In 2006 I retired from a 34 year career with the California Attorney General's Office, the last 18 years of which I headed a civil trial unit which has geographical responsibility for 34 counties in the Central Valley and Northeast California. In the course of this career I handled a number of mass tort/natural disaster actions unique to our state, including the 1972 Farrel's Air Crash Cases, the 1989 Loma Prieta Earthquake (Cypress Structure/ Bay Bridge collapse) Compensation Program, the 1991 Coalinga Dust Storm Multi - Vehicle Crash Cases, and the 1986 and 1994 Central Valley (levee failure) Flood Cases, as a well as scores of catastrophic personal injury and wrongful death actions.
 
I was assigned to the insurance coverage aspect of the Stringfellow Litigation in 1994 and have been lead attorney for the State ever since. I continue to act in this capacity on a contract basis following my retirement. I now reside in Sisters Oregon with my very understanding wife, and when not working on Stringfellow, I spend my idle hours bothering the residents of the local trout streams.


Practice Areas: Insurance Law
Online Media Type: Audio
Production Date: 10/24/2012
Level: Intermediate
Category: Standard
Duration: 1 Hours, 31 Minutes
Online Format: On Demand

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Speakers:
Darryl L. Doke - Lead Supervising Deputy Attorney General Office of the Attorney General Tort & Condemnation Section - Sacramento
Daniel J. Schultz - The Law Offices of Daniel J. Schultz
Laura A. Foggan - Wiley Rein & Fielding LLP, Washington, DC
Robert M. Horkovich - Anderson, Kill & Olick P.C.
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