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Letter from the Section
Chair,
Charles J. Siegel
Dear Section Members:
As I begin my year as Chair of the Torts Insurance
& Compensation Law Section, I would like to take this opportunity to
thank our immediate past Chair, Dan Gerber for his hard
work and dedication to our section. I am sure that our executive
committee and entire section join me in wishing Dan the best and
thanking him for his hard work and effort last year. Through Dan’s
leadership and effort, our section continued to grow and move forward. I
believe with the hard work and effort of our dedicated executive
committee we will continue to succeed. I look forward to sharing in the
challenge of leading this great Section with Laurie
Giordano, our Vice Chair, Tom Maroney, our
Secretary and Brendan Baynes, our Treasurer.
Your Executive Committee will continue to
energize our substantive committees and create opportunities for
involvement in the Section. We are continuing to focus on growing our
membership through young and diverse members.
As attorneys we are well aware that the law is
constantly evolving and growing to meet the challenges of our changing
environment and society. Whether due to new legislation or appellate
decisions, our need to be kept aware and current is critical to our
profession. That is why our section is dedicated to meeting this
challenge by offering our membership easy access to updated case law,
proposed legislation that impacts our area and a forum to discuss ideas
among our peers throughout the state. Our website, blog, journals,
electronic newsletters, web casting and of course, our old fashion
meetings, makes our section one of the most progressive and informative
sections within The New York State Bar Association. I encourage all our
members to take advantage of all that our section has to
offer.
Our section has long been known for substantive and
outstanding CLE courses given throughout the state. This year will
be no exception. We have planned a number of programs for
throughout 2009. We again will sponsor our “Law School for the
Insurance Professionals” where our members conduct a one day
seminar for insurance company professional throughout the state. We are
planning to conduct this program in October. Lisa
Berrittella will chair our program this year. If you are
interested in speaking or being a local chair, please contact her at
(585) 454-2181 or email her at LBerrittella@trevettlaw.com
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We would ask that if you have an interest in speaking,
publishing, joining the executive committee or just networking with
attorneys across the state, we can help. Please feel free to call me at
212.440.2345 or email me at charles.siegel@cna.com.
Finally, as we enter into the challenges of 2009, I
ask you all to “Save the Date” for our annual meeting that
will be held at the Mohegan Sun. The annual Tort, Insurance and
Compensation Law Section’s 2009 meeting will be held
August 9th – 12th. Don’t miss out on a
wonderful opportunity to socialize and have fun with friends and family
and earn CLE credit as well. Not only can you enjoy the company of
your friends and family, but also meet and network with attorneys from
across the state. As in the past we also expect that insurance
professionals and judges will be attending. So join us at our annual
meeting at the Mohegan Sun. This five star resort is more than just a
casino. The Mohegan Sun is at the heart of New England's most popular
activities and attractions, from its scenic countryside and covered
bridges to local vineyards and yachting on Long Island Sound. Hunt for
antiques, visit the past at Mystic Seaport, enjoy a show at a historic
theater, hone your golf or tennis game or just relax by shopping and
dining. So save the date. More details will follow in the coming
months.
I will continue to update the membership during the
year with information of importance to the Section. I look forward
to sharing in the challenge of leading this great Section and with your
help, we will succeed.
Charles J. Siegel
Charles J. Siegel is Chair of the Torts, Insurance and Compensation
Law Section. His Law Office is located at 40 Wall Street, New
York, NY, and his e-mail address is
Charles.Siegel@CNA.com.
Highlights of Section Events at the Annual
Meeting in New York City
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left to right: Roderick J. Coyne,
Chairman, Professional Responsibility Committee; Paul S. Edelman,
Co-Editor, The Journal; Edward B. Flink, Fourth District
Representative)
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An elegant evening. The Section celebrated its many accomplishments of 2008 over
dinner on January 28 at the Cipriani Wall Street Restaurant. A number of
prominent jurists attended the event, which was co-hosted by the Trial
Lawyers Section. In his keynote speech, Court of Appeals Associate
Judge, Hon. Robert S. Smith, offered insights on the role of the
judiciary and his own personal transition from the Bar to the
Bench.
Outgoing Section Chair, Daniel Gerber, received warm
thanks for his leadership over the past year, and in turn presented the
following awards:
Sheldon Hurwitz Young Lawyer Award: Given to
Lisa G. Berrittella (Seventh District Representative and
Co-Chair of the Law School for Claims Professionals) and to John H.
Snyder (Liaison to the Young Lawyers Section and Co-Chair of the
Section’s January 2009 Annual Meeting
program);
Chair of the Year Award: Given to Robert F.
McCarthy (Chair of the Ethics and Professionalism Committee and Co-Chair
of the Section’s successful Spring Meeting in San Diego,
California);
John E. Leech Memorial Award for outstanding service
and distinguished contributions to the legal profession as a member of
the TICL Section: Eileen E. Buholtz (Past Chair of the
Section, Chair of the Future Sites Committee and a long-time promoter of
the Section’s diversity efforts).
Substantive program. The Torts,
Insurance and Compensation Law Sections joined up again on January 29 to
co-host a day-long MCLE program focused on the tragedies of September
11, 2001 and its many impacts on the law and the practice of law.
Topics included:
- The Media’s Role in Major Tragedies—How
the Media Covers the News and Influences Events—9/11 and
Beyond
- NYSBA and the Ethical Response to Mass Disasters as
Demonstrated by 9/11
- Victims’ Compensation Fund—How it Came
About; Administration, Outcomes and Lessons Learned
- Litigation After 9/11
On the Executive Committee agenda. The
Section’s Executive Committee held meetings on January 28 and 29
to set the agenda for the year ahead. Among the items for
consideration are a series of American Bar Association proposals for
federal, state and local initiatives to encourage disaster preparedness
and insurance for hurricane-related losses. The Section was also
being asked to weigh in on a proposed Federal Insurance Charter, and
amendments to New York Insurance Law 3420(d) (discussed in previous
Newsletters). The Executive Committee is also examining the
establishment of guidelines for District Representatives, including
representatives of “District 99,” composed of Section
members who live or work outside New York State.
Message from the Immediate
Past Chair
It has been an honor to serve as the Chair of the
Torts, Insurance and Compensation Law Section. I set an ambitious agenda
when I began my term and I am happy to say that we accomplished many of
these goals during the course of a year. Key among these items was a
commitment to diversity, youth, membership and technology.
During my term as Chair, your Executive Committee met
monthly and worked hard to enhance the benefits
of Section membership. We embarked on a new quarterly newsletter
and proposed legislative change. Recently the Section's Executive
Committee took action to recommend an amendment to Insurance Law Section
3420(d). In addition, the Section has sponsored many district events and
CLE. The Section also continued its annual Law School for the Claim
Professional program. Last year's program was a tremendous success with
over 500 claim representatives in attendance. This annual program alone,
and the networking opportunities it provides, makes membership in the
Section worthwhile. If you missed this program, you missed an
opportunity to discuss claims with the companies and representatives who
are looking for counsel or who are adjusting the claims you are
attempting to resolve.
We continued to look for ways to reinvest in
membership. Some examples include the creation of diversity
scholarships and the law student writing contest. The scholarships cover
one year's membership in the Section for new members who meet diversity
guidelines. The law school writing contest is intended to interest
soon-to-be young lawyers in the areas of Torts, Insurance and
Compensation Law. Our leadership also reached out to various law schools
and held several on-campus recruiting events to interest new lawyers in
the New York State Bar and the Section.
The Section has been acknowledged for its use of
technology. It recently received national acclaim for the first ever web
cast of an Executive Committee meeting, and the Section Blog has been
recognized with top honors as well. In addition, we now have
podcast messages on the Section webpage from various leaders in the
Section. I am proud to say that the Section Website is the most current
and expansive of any Section. The Section also now has a discussion
group on Linkedin.com.
Of course, the Section continued its tradition of
offering this first rate publication of the Torts, Insurance and
Compensation Law Journal. In addition, we commented and participated on
over 50 pieces of legislation. We also participated in the newly formed
Federal Legislative Priorities Committee established by New York State
Bar President, Bernice Leber.
The Section’s Committees and Divisions have been
re-energized with new proactive leadership. Each is sponsoring CLE or
working on a project of significance. I encourage you to contact the
Chairs of these committees and get involved. There are always new
opportunities for involvement. The best source for information on how to
get involved is exploring the Section Website and reading its
newsletter.
We began 2008 with a modest surplus, and I am glad to
report that we ended the fiscal year with a surplus that will ensure
stability for the Section in these troubling financial times. Many
thanks to Brendan F. Baynes, the Section’s Treasurer and unsung
hero, for steering the financial ship and working closely with the NYSBA
and me.
I would be remiss if I did not acknowledge and thank
Charlie Siegel and Laurie Giordano, the now Chair and Vice-Chair of your
Section. When I began my term, I discussed with both of them ideas to
make the Section more interactive with its members and how to raise its
profile. Charlie and Laurie were the perfect teammates, as were the rest
of the Executive Committee. Charlie and Laurie, probably wanted to block
my emails at times, but I thank them for not doing so. I am truly
grateful to them, and the Executive Committee. The Section will no doubt
continue to grow and succeed under Charlie’s and Laurie’s
leadership.
Serving as Chair was very rewarding experience. I had
the opportunity to meet with and interact with so many people I would
have never have otherwise met. I dealt with issues I would not otherwise
have had exposure, and I learned that our time on this planet is really
about making it better. I hope we did some of that during my term, but
will let others be the judge. I thank everyone who I interacted with
Chair for making it a truly remarkable experience.
Daniel W. Gerber
Immediate Past Chair
Goldberg Segalla LLP
Growing Diversity
Recognizing that the Section’s strength is in its
diversity, the Section has made diversity a central focus of its
membership efforts. Diversity Committee Co-Chairs Mirna E.
Martinez and Joanna L. Young provide effective
liaison with minority bar associations and assist in referring speakers
to ensure a variety of viewpoints on our CLE panels. The Section
also co-sponsors a variety of events, including the Diversity Reception
at the NYSBA Annual Meeting (attended by Second District Rep.
Richard W. Dawson Future Sites Chair Eileen E.
Buholtz) and the Committee on Women in the Law Annual Meeting
Program.
On The Web and Ready for Our Close-ups
The Section’s web page has been updated to include video clips of
Executive Committee members discussing the activities of their
committees of the Section, as well as the web-cast Executive Committee
meeting of October, 2008. www.nysba.org/ticl
Law School for Claims Professionals
The Section’s acclaimed Law School for Claims Professionals had
another successful set of programs in September 2008. Offered in
an interactive workshop format in Albany, Buffalo, Syracuse, Hauppauge,
Westchester and New York City, the Law School provided insurance claims
professionals with an overview of premises liability, automobile
liability, liens and subrogation, indemnification and defense obligation
issues, notice and bad faith developments.
Offered again in 2009, the Law School for Claims
Professionals is an excellent opportunity for a speaker or sponsor to
showcase his or her legal expertise. Prospective speakers and
sponsors should contact the program Chair, Lisa G. Berrittella, LBerrittella@trevettlaw.com
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SAVE THE DATE:
Fun at the "Sun"
Torts,
Insurance and Compensation Law Section
Annual Meeting—Summer 2009
August 9-12, 2009
Mohegan Sun Resort
Practice Tip: Balancing the
“Tripartite” Relationship under New Ethics Rules
By Verne A. Pedro
On April 1, 2009, the New York Rules of Professional
Conduct (“Rules”) will replace the current New York
Lawyer’s Code of Professional Responsibility
(“Code”). The newly enacted Rules will adopt the
format of the ABA Model Rules and are expected to provide a more readily
accessible source of ethical guidance for New York lawyers than the
current Code. With the advent of the Rules, it is an apt time to
revisit the tripartite relationship -- the triangular relationship among
the three parties when a lawyer is hired by an insurer to defend a suit
against an insured. See, e.g., Bovis Lend Lease, LMB, Inc.
v. Seasons Contracting Corp., 2002 WL 31729693 (S.D.N.Y.
2002)(recognizing that in New York, counsel retained by an insurer may
represent both insurer and insured, but the attorney’s paramount
client is the insured).
As practitioners know, myriad conflicts of interest
may arise when lawyers represent multiple clients either in the same or
related matters - such as when a lawyer is retained by an insurance
company to defend an insured. In that regard, three newly enacted
Rules pertaining to the lawyer’s duty of confidentiality and duty
of disclosure are of particular note for lawyers representing multiple
clients. (These ethical considerations are currently addressed in
various sections of the Code, including Canons 4 and 5).
Under Rule 1.4, the lawyer is required to provide
information to a client “to the extent reasonably necessary to
permit the client to make informed decisions regarding the
representation.” Rule 1.6 sets forth the lawyer’s
foremost duty to protect the confidentiality of each client and provides
that the lawyer may not reveal any information relating to the
representation unless the client gives informed consent; disclosure is
impliedly authorized; or disclosure is permitted under an exception to
Rule 1.6. Significantly, Rule 1.6 applies to privileged and
non-privileged information. Further guidance is provided under
Rule 1.7, which prohibits the lawyer from using information relating to
the representation that would disadvantage the client without the
client’s informed consent.
When a lawyer represents both insured and insurer in
the same or related matters, however, the obligation of confidentiality
to each client may conflict with the obligation of disclosure to each,
especially when disclosure to one will harm or compromise the other
client’s interests. For instance, the defense lawyer may
obtain information during the representation of the insured that would,
if disclosed to the insurer, provide an unequivocal basis for
disclaiming coverage. So how does the defense lawyer representing
multiple clients reconcile the duty of confidentiality, on one hand, and
the duty of disclosure, on the other?
The tension between these Rules was recently analyzed
in ABA Formal Opinion 08-450, which concluded that a lawyer is
prohibited by Rule 1.6 from revealing information related to the
representation of a client that may be harmful to the client if
disclosed to another client or third person, unless disclosure is
otherwise permitted under the Rule. See ABA Comm. on Ethics and
Prof’l Responsibility, Formal Op. 08-450 (2008). To the
extent withholding the information violates the lawyer’s duty of
disclosure under Rule 1.4 (or any other Rule), the lawyer may be
required to withdraw because the interests of the two clients would be
directly adverse. See Rule 1.16. Given that New York
substantive law holds that the insured is the paramount client, the
applicable Rules and ABA Opinion direct that the lawyer cannot disclose
any information to the insurer that is contrary to the insured’s
interests.
All counsel representing multiple clients should
recognize the duties that the newly enacted Rules impose upon the
attorney-client relationship and exercise care to resolve any potential
conflicts of interest.
Verne A. Pedro is Vice-Chair of the Newsletter
Committee, as well as Statewide Chair of the Spring, 2009 Insurance
Coverage CLE program. An attorney with Gibbons, P.C., he
represents clients in complex insurance coverage disputes, including
those involving construction, environmental and pharmaceutical coverage
claims.
First Department Holds that
Supreme Court’s In Camera Review of Settlement Agreements May
Provide Basis for Disclosure to Non-Settling Parties
Non-settling defendants may be entitled to disclosure
of settlement agreements between a plaintiff and settling defendants,
under a recent decision by the First Department. Mahoney v.
Turner Constr. Co. et al., 2009 NY Slip Op. 00137 (1st Dept. Jan.
15, 2009). At issue was a settlement agreement between the
plaintiff, who was hurt in a construction site accident, and two of the
defendants, the owner of the site and the general contractor on the
construction project. The other (non-settling) defendants, the
subcontractors on the project, served upon the plaintiff and the
settling defendants a demand for the settlement agreement, which they
refused to provide, citing the confidentiality clause in the settlement
agreement. The non-settling defendants then moved to compel
disclosure of the settlement agreement, or in the alternative, for
in camera review by Supreme Court to determine which parts of
the agreement were “material and necessary” for the purposes
of disclosure, citing General Obligations Law §15-108. The
settling parties opposed this application, continuing to cite the
confidentiality provisions of the settlement agreement, but averred that
they were willing to provide a copy for Supreme Court’s in
camera review. Supreme Court granted the motion of the
non-settling defendants to compel the disclosure of the amount of the
settlement, but no further details of the settlement agreement were
provided. The settlement agreement was never disclosed to Supreme
Court.
The First Department modified Supreme Court’s
determination, finding that the settling parties had to disclose the
settlement agreement to Supreme Court for an in camera review
to determine its discoverability before Supreme Court could issue a
finding on the non-settling defendants’ motion. In doing so,
the First Department observed that although confidentiality is an
important policy consideration, any portion of a settlement agreement
that is “material and necessary” to the non-settling
parties’ case must be disclosed. The Court further expressed
its concern that in spite of the fact that all parties to the action
were aware of the settlement, the settling defendants intended to
participate in the trial, which was, in its view, “at least cause
for concern.” The Court then noted that the public policy
strongly favoring settlement can be maintained in this instance by a
CPLR 3103 (a) protective order, which would allow disclosure of relevant
portions of a settlement agreement to the parties while protecting
confidentiality, after weighing the facts in any particular case,
including the parties’ conflicting interests, and striking a
balance among them.
Katherine E. Wild is Vice-Chair of the Newsletter,
and an attorney with Gibson, McAskill & Crosby, LLP in
Buffalo. Her practice focuses on defense of physicians, hospitals
and other health care professionals against claims of
malpractice.
Request for Submissions—TICL
Journal
The section Journal comes out twice a year.
We are always interested in articles, particularly on new important
cases in the tort and insurance fields. Please contact Paul Edelman, 212
687 8181 and pedelman @ kreindler.com. Your name and city of practice
should appear under the title. E mail your submission or put it on a
disc.
--Paul S. Edelman (pedelman@kreindler.com)
--David A. Glazer (dglazer@shaferglazer.com
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Must-See CLE
Additional Insured Coverage: Hot Topics
& Critical Issues for 2009
If you have ever been flummoxed by a certificate of insurance or
wondered whether an insurance-procurement agreement was worth the paper
it was written on, this is the seminar for you.
This Spring’s insurance coverage CLE program
turns to the thorny question of additional insured coverage in a
full-day seminar offered in Albany, Buffalo, New York, Long Island and
Syracuse. Speakers will address operative insurance policy
language, the interface of contractual indemnity with additional insured
coverage, the anti-subrogation rule, new trends and decisions, priority
of coverage where the additional insured has a separate policy, the
effect of a certificate of insurance, and the additional insured’s
notice obligation. The program will also include a one hour ethics
component.
Here’s the schedule:
Friday, May 8, 2009 Albany
(Holiday Inn, Wolf Road)
Friday, May 8, 2009 Buffalo (Holiday Inn
Amherst)
Friday, May 15, 2009 New York City (Affinia
Manhattan)
Friday, May 15, 2009 Long Island (Melville
Marriott)
Friday, May 15, 2009 Syracuse (Renaissance Syracuse
Hotel)
For further information, please contact the Statewide
Chair for the program, Verne A. Pedro, vpedro@gibbonslaw.com
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