Friday, June 14, 2013

Devon Thurtle Anderson Named 2013 Rising Star


We are pleased to announce that Devon Thurtle Anderson has again been named to the Washington
Rising Stars list as one of the top up-and-coming attorneys in Washington State for 2013.  Each year, no more than 2.5 percent of the lawyers in the state receive this honor.

The selection for this respected list is made by the research team at Super Lawyers.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a rigorous, multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country.

For more information about Super Lawyers, visit superlawyers.com.

Thursday, April 18, 2013

Houston General Awarded $2.8 Million In Contribution Claim

After winning a favorable jury verdict, Houston General was recently awarded $2.88 million in its contribution claim against St. Paul Fire & Marine.

The claim arose after Houston paid its insured, Lakewest, $6 million for damage at the insured property.  Another of Lakewest's insurers, St. Paul, did not contribute to the settlement.  So, Houston sued St. Paul for contribution.  The trial was conducted in two phases.  First, a jury determined that coverage existed under three of the St. Paul policies at issue.  Then, the court determined St. Paul's share of the loss, and held that St. Paul was liable to Houston for $2.88 million in contribution.

The court's complete Findings of Fact and Conclusions of Law are available here.

Monday, April 1, 2013

Recovery of Defense Costs When Defending Under a Reservation of Rights

The Washington State Supreme Court was recently presented with the issue of whether an insurer may unilaterally condition a reservation of rights defense on the insured absorbing defense costs if it is ultimately determined there is no duty to defend.  National Surety Corp. v. Immunex Corp., No. 86535-3 (March 7, 2013).  In holding that insurers may not unilaterally require recoupment of defense costs upon a finding that no duty to defend was owed, the Court affirmed its prior decisions setting the standard for an insurer’s duty to defend.
The Court first reviewed the insurer’s duty to defend, and observed that insurance contracts are imbued with public policy concerns.  As a result of these public policy concerns, insurers have a good faith duty to fulfill their contractual obligations. An insurer’s good faith duty includes a duty to defend and a duty to indemnify its insured.  The duty to defend is broader than the duty to indemnify and arises if any reasonable interpretation of the facts or law could result in coverage.  If there is a question of whether a claim is covered, an insurer can choose to defend its insured under a reservation of rights while seeking a declaratory judgment to determine if such a duty exists.
An insurer defending under a reservation of rights benefits by protecting itself from findings of breach, waiver, bad faith, and coverage by estoppel. Allowing an insurer the benefits of defending under a reservation of rights, and also allowing recoupment of defense costs if a loss is ultimately not covered, would only serve to protect the insurer.  According to the Court, such a scenario would leave the insured with no greater benefit than if the insurer had initially refused to defend, which would be contrary to the longstanding view that the duty to defend is broader than the duty to indemnify. Because of this broad duty to defend, when an insurer chooses to receive the benefits of defending a claim under a reservation of rights, it cannot recover defense costs if it is later determined that no duty to defend was owed.  

Friday, March 29, 2013

Heffernan Law Group Wins Jury Verdict In Collapse Case

On Thursday afternoon, the jury returned their verdict in the case Houston General Insurance Co. v. St. Paul Fire & Marine. After a three-day trial, the jury found that "collapse," defined as "substantial impairment of structural integrity" (or SSI for short), occurred during three of St. Paul's policy periods: 1997-98; 1998-99; and 1999-2000. In order to recover on its claim for contribution, the plaintiff Houston General only had to prove that collapse occurred during one of the St. Paul policy periods.

Heffernan Law Group represented Houston General at trial, which was in US District Court before the Honorable Marsha J. Pechman.

Friday, March 22, 2013

"Collapse" Means SSI

Many insurance policies provide coverage for "collapse."  Some policies expressly define "collapse" as an actual caving in or falling down.  But if there is no definition, what does the term "collapse" in an insurance policy mean?

SSI caused by hidden decay in a structural beam at the Lakewest
Condominiums on Westlake Avenue in Seattle, Washington
Chief Justice of the U.S. District Court for the Western District of Washington, the Honorable Marsha J. Pechman, recently ruled that, under Washington law, the undefined term "collapse" in an insurance policy means "substantial impairment of structural integrity" (or "SSI" for short).  In other words, a building does not need to actually fall down – or even be in imminent danger of doing so – for a property insurance policy’s collapse coverage to apply, so long as the policy itself does not specify a different definition of "collapse."

Although this definition of "collapse" has long been accepted in Washington, a handful of recent litigations have sought to call this into question.  In one such case, Judge Zilly, also of the U.S. District Court for the Western District of Washington, cited the two-justice dissent in Sprague v. Safeco for the proposition that Washington would adopt a stricter “imminent collapse” standard, rather than SSI.  Acknowledging Judge Zilly’s holding in Queen Anne, Judge Pechman noted that the dissent Judge Zilly relied upon was signed by only two Washington Supreme Court justices, and that “two justices do not a majority make.”   Instead, Judge Pechman pointed out that “twice as many justices joined the dissenting opinion in Sprague, which reiterated the consistent holding of Washington Courts that collapse means SSI.”  Judge Pechman's complete opinion in the case, Houston General Insurance Company v. St. Paul Fire & Marine, can be found here.  

This isn’t the last that Washington jurisprudence is likely to see on this issue, as it is currently pending appeal in both state court and the Ninth Circuit.


Thursday, November 1, 2012

Federal Court Holds SSI Backdating Satisfies Daubert Standard

A handful of recent cases have sought to question whether an expert may testify as to the date substantial structural impairment, also called "SSI," commenced for purposes of determining property insurance coverage.  In a recent ruling in Houston General Insurance Co. v. St. Paul Fire & Marine Insurance Co., USDC Case No. C11-2093MJP, Judge Pechman held that expert "backdating" of SSI is admissible, and that it satisfies the standard for expert testimony set forth in the seminal case Daubert v. Merrell Dow Pharmaceuticals.

A complete copy of the Order is available here.

Houston General Insurance Company is represented by Heffernan Law Group in the litigation.  The backdating model was prepared by Houston's experts, Lee Dunham P.E. of OAC Services, Inc. and Dr. Robert Edmonds, a wood decay pathologist at the School of Forest Resources at the University of Washington.

Wednesday, June 13, 2012

Devon Thurtle Anderson Named 2012 Rising Star Attorney by Super Lawyers

Devon Thurtle Anderson has been named to the Washington Rising Stars list as one of the top up-and-coming attorneys in Washington State for 2012.  Each year, no more than 2.5 percent of the lawyers in the state receive this honor.

The selection for this respected list is made by the research team at Super Lawyers.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a rigorous, multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country.

For more information about Super Lawyers, visit superlawyers.com.