I am writing this flying back to Tampa from Indianapolis following an arduously long and contentious bad faith case that our firm has been involved in for eight years. It is cold and snowing in Indianapolis as we leave. Our clients, co-counsel, opposing counsel, judge, special master, and opposing insurance claims managers are all smiling despite one side paying more than what could have settled the matter long ago and our side wondering if we settled for far too little. Such is the nature of insurance bad faith lawsuit resolution.
I enjoy traveling and experiencing the different venues, people and communities where we ply our trade. As our plane rises above the winter snow storm, I am surprised to see a unique and beautiful sunset just above the winter clouds. You would never think that above the dark grey sky, there would be such a clear sky and sunset. Maybe we should all keep that in mind when things are not going so well.
Some cases emotionally beat the attorneys zealously advocating each client’s position. This is especially true in bad faith cases where each side pours time and money into the prosecution and defense. The case we just resolved was one of those cases.
The case was successfully tried to a jury on the underlying insurance contract case. Then, the bifurcated bad faith aspect of the case started and stalled for years. We have had three interlocutory appeals. Once, the Indiana Court of Appeals used our case to show Purdue MBA students how American litigation worked. In a classroom, I argued in front of appellate judges and about 100 MBA students the competing aspects of insurance company trade secrets and insurance bad faith obligations. I am certain few litigators have ever had such an experience.
The defendant insurer was defiant about turning over internal claims memorandum. The underlying policy limit was only $50,000. The insurer paid $100,000 for discovery sanctions. To be polite, we were at each others throats regarding litigation with a lot more at stake than this one individual claim.
My lead opposing counsel out of San Diego had all kinds of health issues which I suspect was the result of this litigation. He was representing the insurer on a national basis. Our networking activities with other policyholder attorneys were probably leading to a great deal of his stress as we lead a countrywide effort to uncover and prove exactly why the insurer developed its claims practices. We intentionally tried to catch him making inconsistent remarks and statements in various cases. To his credit, he weathered most of the storm, but we did not make it easy for him.
I am certain that many of you may be thinking that it gets pretty personal between attorneys. It does for many of us. Winning and enjoying the competitive game are traits needed for the best of trial counsel. Winning is all that matters to clients, and I appreciate why my law professors scolded us to always give our best. Our policyholder clients deserve it because the opposing clients, especially large insurance companies, will hire the best competitive lawyers they can find.
For this defendant, I hired an attorney, Jerry Marvin, into the firm to do nothing other than bad faith cases against the particular insurer. Many consumer attorneys are not so financially fortunate. Jerry was one of these "almost broke" attorneys when we hired him. With us, he blossomed and showed his creativity in the bad faith cases he handled. We are going to hire an attorney to do exactly the same in the Safeco and Liberty Mutual bad faith cases we are organizing now.
Unfortunately, Jerry Marvin smoked at least a pack of cigarettes a day. In June 2004, while doing simultaneous bad faith settlement conferences against this defendant, he told me he felt bad and weak. I had our presentation clerk take Jerry to the hospital. He never got out and died of lung disease related to smoking.
At the close of the settlement today, my co-counsel brought out a bottle of Jerry’s favorite Scotch and we toasted his life, work and contributions to many. I miss him dearly. His efforts helped many policyholders although they may never appreciate his efforts.
Lawyers touch and impact the lives of many when you try to practice at the level we do. We debate issues and positions of extreme importance for our clients. It is an honor and huge responsibility to do so.
As this year closes, I thank all of you who take time to read and reflect on what we have to say. I thank our clients. I appreciate all the competing viewpoints from our opponents as well. And, I truly appreciate everybody who has allowed me into their life…I am the better for it. Even if you are my common opponent, I recognize and appreciate the symbiotic relationship we have.
God bless, the best to you, and thank you. Pray that we all keep each other in a spirit of mutual love and hope for future endeavors as we bring in the New Year.
