Torts, Insurance and Compensation Law Section
NEWSLETTER

May, 2008

Letter from the Section Chair,
Daniel W. Gerber

Dear Section Members:
It was my pleasure to attend the Section's Spring meeting held April 10-13 at the Hotel Del Coronado in San Diego. The venue, the CLE, the weather, the networking -- everything was exceptional! If you missed this meeting, you missed a spectacular program. The outside counsel panel was insightful for both plaintiffs and defendants. Gary Cusano and Jean Gerbini debated whether New York should remain a no-prejudice state with respect to late notice. The Ediscovery program was incredible with experts from around the country explaining the technical aspects and legal consequences. Judge Suarez and Spinola provided riveting commentary on summary jury trials and technology in the courtroom.
I want to thank all of the presenters for their time and effort. Special acknowledgement to Judges Suarez and Spinola for joining us. Also, the Section is grateful to the sponsors of this event: ECounseLIVE, Doculegal, HRH, and Terrier Claims Service. Last, but not least, my personal thanks to Bob McCarthy and Brian Rayhill for co-chairing San Diego and making it a huge success.

Sunset serves as a backdrop to Daniel Gerber’s remarks at the Section’s Spring meeting in San Diego		Hon. Lucindo Suarez (Supreme Ct., Bronx) and Hon. Joseph P. Spinola (Supreme Ct., Mineola) join San Diego Program Co-Chairs Brian Rayhill and Robert McCarthy and Section Chair Daniel Gerber at the Section Spring Meeting in San Diego

Onto new business:

Law School for Insurance Claims Professionals.   We are now turning to planning the Section's “law school” for the claims professional, which will be in the Fall this year at six locations (Buffalo, Syracuse, Albany, White Plains, Manhattan, and Long Island). Steve Lazare and Lou Cristo are overall chairs of this event. We expect more information to be out very shortly in terms of local chairs and sponsorship opportunities.

Website and Weblog.  Please check out the Section Website http://www.nysba.org/TICL. Matt Lerner and Charlie Siegel have worked hard to update it. Several Committees are posting regular content, as well as "Top 5" tips in substantive areas of law. There is now a searchable Section membership directory, and the Section Blog is regularly updated with useful information, including proposed legislation.

Get Involved.  Please check out the committees on the website. I have attempted to energize our already active committees by asking each Committee Chair to appoint a vice-chair and other sub-committee chairs. If you have an interest in speaking, publishing, being a committee leader, or networking, we can find you a home. I have been involved in the Section for many years and have published, spoken, met friends and met clients. I am glad to help anyone do the same. Currently there are several opportunities for involvement. We are actively searching for a co-chair of our Future Sites Committee to work on sponsorship issues. We are so looking for an incoming chair for the Construction and Surety Division. Please feel free to call me or email me at dgerber@goldbergsegalla.com or 716.566.5425
All the best,

Daniel W. Gerber

Section Members Weigh in on Proposed Amendment to CPLR 3102

One of the advantages of TICL Section membership is an opportunity to debate with one’s peers the pros and cons of pending legislation in our areas of practice.  A proposed amendment to CPLR §3102 generated lively e-mail comment, some of which is reproduced in the attachment.

The proposed bill, S-5256-B, would overturn Arons v. Jutkowitz, 9 N.Y.3d 393 (2007), where the Court of Appeals held that, under certain circumstances, defense counsel could independently interview a plaintiff’s treating physician.  At its meeting in San Diego April 10-13, the TICL Section’s Executive Committee voted to oppose the bill.

Diversity

The New York State Bar Association’s 2007 Section Diversity Report Card, which evaluates the level of diversity in Section leadership, membership and activities, was recently released in January 2008.  The Torts, Insurance and Compensation Law Section was one of several Sections to be commended by the NYSBA for its continued efforts to foster and improve diversity within its Section.  In particular, it was noted that TICL’s executive committee membership reflects the Section’s overall composition, with respect to gender, ethnicity and race. 

The TICL Section Executive Committee voted at its April meeting to create 20 Diversity Scholarships, providing for a one-year waiver of Section dues.  The TICL Section’s Diversity Committee is currently in discussions to host several events and programs which aim to provide our members with diverse topics, useful information, and networking opportunities.  Look for more information regarding upcoming events in future issues of TICL’s newsletter.

For additional information, or to join TICL’s Diversity Committee, please contact co-chairs Joanna L. Young, Esq. at JYoung@cmk.com or Mirna Martinez Santiago, Esq. at MartiM78@nationwide.com.

Law School for Insurance Claims Professionals

The TICL section is again offering to the insurance claims community "Law School for Insurance Claims Professionals". Because of the outstanding response to last year's program, the course will be offered at five sites around the state, adding an Albany venue to the course previously offered in Buffalo, Syracuse, NYC and Long Island. Louis B. Cristo and Steven Lazare will co-chair the program which will be held in the fall, 2008 and will be looking for speakers at each location. The program will include an expanded section on coverage issues. Stay tuned for details !
           
For further information, and to offer your support, please contact Louis Cristo (lcristo@trevettlaw.com) or Stephen Lazare (SLazare@lpgk.com)

Spotlight on the Insurance Coverage Committee
— Stephen Lazare, Committee Chair

I am delighted and honored to be assuming Coverage Committee's Chair and look forward to working with current and new members.  It is an interesting time for New York coverage professionals. Never has it been more important to remain involved and be heard.  The TICL Coverage Committee is the perfect forum for such participation.  Our aim is to foster an environment in which New York's coverage attorneys can contribute to and learn from a healthy and robust exchange of views on a broad range of issues. 

We have much planned for the coming months.  We again look forward to staging and being a part of coverage related CLE panels, including our popular Spring program (this year being directed by Elizabeth Fitzpatrick -- "Coverage Issues Affecting Bodily Injury Claims Under The Commercial General Liability Policy") and the always well-received "Law School for Claims Professionals."  Among our goals is to further expand the Committee's focus beyond traditional liability coverages by taking an expanded role in connection with property, professional liability and other, specialized insurance.  The Committee hopes also to develop interest and participation in a regular, coverage "e-bulletin" to keep TICL members up to speed on the ever-changing and evolving world of New York coverage law.

Of course, there are many ways to become involved -- as speaker, author, list-serve participant, etc.  We can use your talents.  Just drop me a note (slazare@lpgk.com) to express an interest or share your ideas.

This Committee is here for you.  Let us know how we can serve.

Note from the Products Liability Chair, Denis J. Brady

What did the Court of Appeals say in Ramos v. Howard Industries on March 13, 2008?
As a member of the Product Liability Committee it is our intention to put this, and other valuable information, at your finger tips.

As the new chair of this committee I invite you to join us and not only benefit from the changes that we have planned but assist in the future direction of this Committee in New York State.  It is our desire to be an interactive go-to area for both the plaintiff and defense attorneys.  We will continue to offer excellent CLE and articles and energize the website with vital links and a blog for current active discussions of this ever changing area of the law.

Contact us (dbrady@mwb-law.com) and join the Committee. 

Staten Island Comes of Age

Staten Island attorneys, long part of the Bar Association’s Second District, enjoy new status as members of a newly-created 13th District.  This creates a leadership opportunity, as the TICL Section has need of a 13th District representative to serve on the TICL Executive Committee.  If you live or practice in Staten Island, and would like to serve as representative, please contact TICL Chair, Daniel W. Gerber (dgerber@goldbergsegalla.com).

In Memoriam

It is with sadness that we acknowledge the recent passing of Edward S. Reich, a former Chair of our Section.  Ed made significant contributions to this Section during the many years that he was an active member.  He also represented the Section's interests as our delegate to the New York State Bar Association House of Delegates and later as a vice president.  Our thoughts and prayers go out to his wife, Arlene, and children.

Law Student Writing Contest

This year’s law students are next year’s leaders in our field.  To encourage their intellectual efforts in the areas of torts, insurance and workers’ compensation law, and to introduce them to the benefits of Section membership, the TICL Section has established a writing competition for law students.  Each of five winners will receive a $250 prize, free registration to the TICL Section’s meeting at the Bar Association’s Annual January Meeting in New York City, and an acknowledgement at the breakfast meeting of the Section at that event.  One selected entry will be published in the TICL Section Journal.  Details will be posted on the TICL webpage—or contact the TICL Journal Editors, Paul S. Edelman (pedelman@kreindler.com) or David A. Glazer (dglazer@shaferglazer.com ).
This is a great opportunity for law students to build their resumes and their business networks.    

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.
                &n bsp;       --Paul S. Edelman (pedelman@kreindler.com)
                &n bsp;       --David A. Glazer (dglazer@shaferglazer.com )

Practice Tip for Newly Admitted Attorneys
—By Katherine E. Wild

Remember to immediately print important emails upon sending or receiving them, and place them into the file.  While this is easy to do, it can be difficult for some new attorneys to treat email as actual correspondence.  Often, communications with clients and opposing counsel occur through email, and these communications generally have the same implications as regular mail correspondence.  In addition, a large amount of internal office communication occurs though email.  It may be convenient for you to have the emails you have sent and received saved on your computer or in your inbox, but if they are not printed and placed into the file, others in your office, including both your supervising attorneys and staff members, will probably not be aware of these emails.  This obviously can have a deleterious effect on your office because if your client or opposing counsel assumes everyone involved with the file is aware of your communication, but your supervising attorney remains blissfully unaware, the lack of internal communication will be obvious to your client.   If others in your office are aware of your email communications, they will be frustrated by their inability to access them at a crucial moment, which assuredly will be when you are not available to do so.  Therefore, protect your firm (and yourself) by printing!

The foregoing is for general interest only, and does not constitute legal advice.

The Defense Attorney’s Guide to Maintaining a Relationship with an Insurance Carrier*
By
Mirna Martinez Santiago

Insurance defense attorneys rely on positive business relationships with carriers in order to become and remain profitable.  The following are simple steps that you can take to keeps those relationship cogs turning.

• Respond to inquiries within twenty-four hours.

Most business guides will tell you that the key to fostering successful business relationships is being responsive to the client’s needs.  The insurance industry lives and dies by certain numbers (expense ratios, reserves, etc.).  There is a definite need for attorneys to respond to inquiries as expeditiously as possible.  You may not see how the inquiry relates to anything and think that it doesn’t matter whether you respond today or five days from now, but if the claims handler’s manager needs that piece of information in order to input a reserve that the director of the product line is going to look at in two days, your delay has now not only inconvenienced a long line of people, but may be effecting important financial decisions. 

Not every telephone call or e-mail is critical, but it could be.

• Be honest.

Nothing is more frustrating to insurance folks than getting a frantic call from an attorney on the courthouse steps – after a jury has been picked – asking for more money to settle a case.  Especially if the case has been pending for five years and every single report stated how defensible it was.  If you know from day one that your client/the insured is 95% responsible for the auto accident and the claimant is still in a coma five years later, you should be honest (and realistic) about the possibility of winning that case in your first report (or as soon as you’ve ascertained sufficient facts to make that determination).  You may not get many more defense dollars from that particular matter, but the odds are that you’ll get another case from that carrier.  To the contrary, you may have to wait a while after you frantic telephone call to hear from that carrier again. 

That is not to say that the carrier never wants you to say a case should be settled.  Carriers know that cases will be lost and claims will be paid.  Most claims professionals are not attorneys; they cannot predict legal trends or foresee what a jury may award, nor do they have the time to cull together the research to do so.  And, again, because of the “live or die by numbers issue” (see # 1, above), it is vitally important that reserves be set timely and that an insurance company be able to project (somewhat accurately) what it expects to pay for a particular case. 

• Jump through all the hoops

You didn’t expect to hear that, did you?  Well, if we’re being completely honest, we’d have to admit that there are hoops (some may appear to be flaming) that insurance defense attorneys have to jump through in order to get on a carrier’s panel and stay there.  There are reporting timelines and budget deadlines.  There are certain expenses that are limited (we won’t pay more than 10 cents per copy or per-page fax charges, for instance).  There are cost-cutting measures (one attorney to a file, please).  And, of course, there is electronic billing (don’t you just love it when a computer tells you that your work description is “vague”?). 

Every business relationship comes with a price; that is the price of being on the “preferred counsel” list.  Honestly, there is a reason for all of it.

• Be visible.  Don’t be afraid to pat yourself on the back.

“Humble lawyer” sounds like an oxymoron, but one of the biggest mistakes our panel counsel make is not promoting themselves.  We want to know if you’ve had a huge victory (even if it’s for another carrier) or if you’ve made legal history (in a good way, of course – if your client has just been hit for $16,000,000 on a $25,000 policy, you might not want tell everyone on your contact list). 

We really want to know what our attorneys are doing.  And it makes sense on the business end – if you got a really good result on a relevant case/issue, the odds are that we’ll want to hire you to try to replicate it.

• Make yourself indispensable.  Become a “go-to” person.

In times of economic uncertainty, everyone wants to make do with less.  That pertains to legal services as well.  Companies don’t want twenty attorneys on their panel with twenty different areas of expertise, when they could do with ten attorneys who are versed in more areas.  These days, many insurance companies are consolidating their work force.  Affiliate with other legal practitioners or expand your own knowledge base, so that when the insurance contact calls asking for legal advice, you can either answer the question yourself or have someone in mind that you can refer. 

In addition, be willing to talk “off the clock.”  Sometimes a claims professional would like to run an issue by you that, at the time, does not require legal representation.  If the matter blossoms into a suit, you’re already one step ahead of the next guy. 

These steps are a starting point.  As you already know, fostering any business relationship – not just with insurers – takes time and patience.

*  Editor’s note:  In the next issue, a tip for policyholder’s counsel.

The TICL Section is pleased to co-sponsor the following events:

Young Lawyers Section
70th Anniversary Celebration

Friday, June 6, 2008
Reception at Katra Lounge
New York City
Go to www.nysba.org/yls for more information

Basic Tort and Insurance Law Practice
CLE Seminar

Fulfills NY MCLE requirement for all attorneys (6.5): 3.0 skills; 3.5 practice management and/or professional practice

Tuesday, May 20
Albany, Buffalo, Melville, New York City, Syracuse, Wetchester