Note from the chair
Greetings! Spring is here, and with that comes renewal and the
bloom of projects long in planning. The MBA's Civil Litigation
Section Council has been very busy throughout the winter, and we
are excited for the spring events that are on the horizon.
Below are some of the highlights of recent events, and a preview
of others to come.
We had a very successful section council meeting on April 6 at
the MBA where former Attorney General Tom Reilly was the featured
guest speaker. Reilly spoke about his experiences as Middlesex
County District Attorney, as Massachusetts Attorney General, and
more recently in private practice at Cooley Manion Jones LLP. It
was very interesting, and we thank him for his time and inspiring
The CL Section Council has a newly formed Federal Practice and
Procedure Committee that is tri-chaired by Chris Sullivan, Nancy
Frankel Pelletier and Frank Morrissey. They kick-off meeting was
held on March 22. The first planned event will be a CLE program in
Worcester focusing on the differences between state and federal
practice. The program will concentrate on the distinct and unique
aspects of federal practice and procedure, highlighting how it
differs from practice in Massachusetts state courts. The MBA Young
Lawyers Division and the Worcester County Bar Association will help
design and co-sponsor the program. The committee also hopes to
present this program in Springfield, Boston and Southeastern
Massachusetts. In addition to the federal/state practice
differences program, the committee is discussing a "Meet the
Clerks" program at all of the Federal Courthouses in Massachusetts.
Watch for the date for their spring "open house" meeting. Any
suggestions for other programs or events for the Federal Practice
Committee are welcome.
Ray Ausrotas, vice chair of the CL Section Council, held a CLE
Roundtable Series with Dr. Daniel Dugan of Trial Science. The
topic of "Storytelling" was held on March 22, and the
topic of "Scientific Trial Preparation" was held on March
23. Both of these programs are available via MBA On Demand if you
could not make it to the MBA, 20 West St., Boston for these very
interesting and worthwhile events.
On May 4 the CL Section Council will hold its monthly meeting
in Western Massachusetts at the U.S.D.C. in Springfield and it will
be co-sponsored by the Federal Bar Association. I am excited to
inform you that Judge Michael A. Ponsor and Judge Kenneth P. Neiman
have agreed to join us at this meeting and provide an overview of
practice and procedure in the federal court in Western
Massachusetts. We are currently checking with the judges to
see if they will permit us to hold a networking reception following
The Construction Law Committee will host the following webinars
- "Signs of a Troubled Project"
- "Traps for the Unwary in Standard Construction Documents"
- "Public Construction Update"
Watch for further updates on the time/dates for these exciting
Section Council member Holly Polglase has been working with MBA
Program Attorney Michele Himes and Katherine Hesse from the ADR
Committee to plan a seminar on Mediation Advocacy Tips, Tactics and
Techniques to be held later in the Spring. Again, watch for the
date/time to be announced.
CL Section Council members Paul White and Marianne LeBlanc will
hold a CLE program on Advanced Deposition Techniques. This program
will be on Tuesday, May 10 from 4 to 7 p.m. at the MBA, 20 West
St., Boston. It will cover deposition fundamentals, but also
feature advanced strategic considerations for achieving "game
changing" case developments through mediation planning and
Ken Rubinstein and Joan DiCola of the Tax Section Council will
hold a seminar on tax implications for settlements and judgments
and for Medicare and Medicaid liens. Click
here for more information.
This is an exciting time of year. With your assistance and
participation, we hope to keep up the energy and enthusiasm that
have been building. We continue to encourage you to participate in
all that the section has to offer.
Chris Kenney, chair
Civil Litigation Section
Upcoming Civil Litigation meetings
Civil Litigation Section Council
Wednesday, May 4, 4:30-6
U.S. District Court, 300 State St., Springfield
This meeting will be held at the U.S.D.C. in Springfield. Guest
speakers will be Hon. Michael A. Ponsor and Hon. Kenneth P. Neiman.
All Civil Litigation section members are invited to attend.
Federal Practice Committee formed
MBA Civil Litigation Section Chairman Christopher A. Kenney has
appointed Nancy Frankel Pelletier, Frank Morrissey and Christopher
P. Sullivan to serve as tri-chair leaders of the newly formed
Federal Practice Committee. On March 22, the tri-chairs held an
organization meeting to establish programs and events for the
committee. The first planned event will be a CLE program in
Worcester on the differences between state and federal practice.
The program will focus on the distinct and unique aspects of
Federal practice and procedure highlighting how it differs from
practice in Massachusetts state courts. The MBA Young Lawyers
Division and the Worcester County Bar Association will be asked to
help design the program co-sponsor the program.
The committee also hopes to present this program in Springfield,
Boston and Southeastern Massachusetts. In addition to the
Federal/State practice differences program the committee is
discussing a "Meet the Clerks" program at all of the Federal
Courthouses in Massachusetts. Any suggestions for other programs or
events for the Federal Practice Committee are welcome. More
information regarding meetings and events will be forthcoming.
If you are interested in
joining this practice group,
e-mail your interest to [e-mail jstevens]">Jean Stevens.
From left to right: Christopher A. Kenney and Adam M. Veness of Kenney and Sams PC.
Massachusetts Federal District Court Holds That An Insurance Company Cannot Recoup Defense Costs From An Insured
by Christopher A. Kenney and Adam M. Veness*
A very important and highly debated area of law is the extent of
an insurer's ability to recoup defense costs that it advanced to an
insured under a duty to defend. The debate only arises when the
insurance policy does not contain language explaining the potential
for a recoupment of defense costs. The law on this subject differs
greatly depending on the state law that governs the issue. Until
recently, Massachusetts courts had not officially adopted a
position on the question, but in February, the Massachusetts
Federal District Court has finally chosen a side. Before discussing
the court's opinion, it is important to analyze the two cases with
which the court grappled in making its decision.
To Recoup or
Not to Recoup
In the controversial decision of Buss v. Superior
Court, the Supreme Court of California was the first court to
directly address the issue of whether an insurer is entitled to
recoup costs for defending the noncovered counts of a third party
action against its insured. 939 P.2d 766 (Cal. 1997). In
Buss, the insurer defended an entire action and sought
restitution for its costs in defending the 26 out of the 27 counts
which were not covered by its policies. Id. at 770. The
court affirmed a primary insurer's duty to defend an entire "mixed
action" but held that the insurer had a quasi-contractual right to
secure reimbursement for costs incurred in defending noncovered
counts. Id. at 776. The court further held, however, that
an insurer is entitled to reimbursement only of defense costs "that
can be allocated solely to the claims that are not even
potentially covered." Id. at 778.
The court reasoned that the insurer could only recover defense
costs allocated solely to the claims not even potentially covered
because the insured paid premiums to the insurer to cover claims
that are at least potentially covered by the policy. Id.
The insured also paid premiums to cover defense costs that can be
allocated jointly to both potentially covered and noncovered claims
(i.e. mixed claims). Id. The court noted that defense
costs which were required to defend actually or potentially covered
claims, whether or not joined with noncovered claims, cannot be
recovered by the insurer. Id. at 778, n.15.
The other decision the Massachusetts Federal District Court
considered was American & Foreign Ins. Co. v. Jerry's Sport
Center, Inc., 2 A.3d 526 (Pa. 2010). In Jerry's
Sport, the court determined that the insurer had an absolute
duty to defend claims that are even potentially covered, and that
an insurer must make the decision about whether to advance defense
costs. Id. at 542. If the insurer determines that there is
no possibility of coverage, then it should deny its insured a
defense. Id. However, if the insurer is incorrect in
denying coverage, then it risks being liable for breach of
The Jerry's Sport court placed the duty to determine
coverage and the risks associated with an incorrect determination
solely on the insurer. Following the Jerry's Sport
holding, an insurer has two choices: it can advance defense costs
and not have a claim for recoupment even if the claims against the
insured are not even potentially covered by the policy, or it can
deny its insured a defense and risk breaching its contract with the
Makes Its Determination
Relying on the reasoning of the two opposite holdings in
Buss and Jerry's Sport, the Massachusetts Federal
District Court fell directly in line with Jerry's Sport.
In Welch Foods Inc. v. Nat'l Union Fire Ins. Co., the
Massachusetts Federal District Court determined that an insurer
must bear the risk of advancing defense costs to an insured. 2011
WL 576600, at *3 (D. Mass. Feb. 9, 2011). The Welch court
agreed with Jerry's Sport in that it is the insurer's duty
to make the determination of whether a claim is covered.
Id. The court reasoned that the insurer is in the business
of making that determination and should do so in these situations.
Id. If the insurer was incorrect in its determination to
advance defense costs, the insured will not be required to
reimburse the insurer for the insurer's incorrect determination.
Although Welch is a federal opinion and has no direct
authority over Massachusetts state courts, it does shed light on
the direction that Massachusetts is headed on this issue. One thing
that is for sure, the Welch opinion will at least have a
deterrent effect on Massachusetts insurance companies that are
considering whether to seek reimbursement for defense costs
advanced to insureds.
& Sams PC
The MBA is on Facebook, Twitter and LinkedIn
Join the conversation today
The Massachusetts Bar Association is pleased to announce its
official Facebook fan page. To "Like" our new Facebook page, click here and please suggest your friends
"Like" our page as well.
The addition of Facebook means the MBA has a presence on three
social networking platforms, including LinkedIn, launched in January 2010, and Twitter,
launched in July 2009. All three social media platforms feature
information about the MBA including CLE, events and news.
As an MBA member, we encourage you to both post items of
interest to you, and the greater legal community, on these pages
and comment on items already posted.
Put your name out there
The goal of section councils is to offer members opportunities
for professional growth and development through participation in
section activities. One opportunity available to section members is
publishing articles which are of interest to fellow practitioners.
The MBA provides several forums for articles by section members -
Lawyers Journal and the Massachusetts Law Review.
If you are interested in writing an article for any of these
publications or if you have seen articles which you think may be of
interest to other Civil Litigation Section members, please contact
Jean Stevens for more information regarding this
MBA May 18-19 Centennial conference to feature two-days of concurrent educational tracks; the Access to Justice Awards Luncheon and "Hail to the Chiefs" Bench-Bar Panel on May 18; Centennial Ball on May 19
The MBA's Centennial Conference, a celebration of the MBA's
century of service to the public, profession and rule of law, will
take place on Wednesday, May 18 and Thursday, May 19 at the Boston
Click here to
Conference programming includes:
** Massachusetts lawyers who are MBA members can earn up to a
7.5 percent premium credit on Massachusetts professional liability
insurance offered by CNA through the MBA Insurance Agency. You can
earn a 5 percent premium credit by attending the Building a Solid
Foundation: Managing Law Practice Risk session plus one other
Substantive Track session. If more than one-third of your firm's
attorneys attend, you can earn up to a 7.5 percent premium credit.
This offer is valid for new and renewed lawyers' professional
liability insurance policies with an effective date of Aug. 1, 2011
to July 31, 2012. This offer may not be combined with any other
malpractice prevention/CLE premium credits. **