The Dean of Policyholders’
Attorneys Looks Back
M
any attorneys dream of a breakthrough
court win that will open doors for
themselves and their law firms. Gene
Anderson’s breakthrough victory against three
insurance companies in Keene vs. Insurance Co.
of North America reshaped the landscape not
only for his firm but for corporate policyholders
everywhere. At a time when corporations across
the country were facing huge liabilities for
pollution and asbestos claims that alleged damage
over the course of many decades, Keene helped
companies tap insurance policies that extended
over the full period in which their liabilities
developed.
As Mr. Anderson moved from that signature
victory to other major insurance coverage battles,
a new practice area, now known as insurance
recovery or insurance enforcement, took shape.
Over the ensuing 27 years, Mr. Anderson has
mentored a generation of zealous advocates for
policyholder’s rights.
GENE ANDERSON
The year was 1981, and client Keene Corporation
faced millions of dollars in liabilities stemming
from personal injury claims from plaintiffs alleging Faced with these “three bears,” Mr. Anderson came
that they had been exposed to asbestos over the up with a reverse-Goldilocks solution. All three were
course of many years. The company tendered the “just right” — that is, right about the others. If a
suit to three insurance companies that had insured carrier insured the company at any time during the
it at different times — each of which pointed the exposure, injury or claim, it was liable for the loss.
finger at the others.
The Court of Appeals accepted that argument,
One carrier claimed that the insurer on the risk which established the doctrine of the “triple
when the plaintiffs were first exposed to the trigger” for insurance coverage: a claim can be
asbestos was on the hook. The second carrier triggered at the time damage occurs, at the time
asserted that the claim’s responsibility was with it manifests itself, or at the time when a plaintiff
the insurance carrier of record when the plaintiff seeks redress.
realized he was ill. And the third alleged that
the carrier on the risk when the first plaintiff The victory was also especially sweet for Mr.
demanded relief from the insured company was Anderson because, he recalls, an opposing
responsible. attorney went out of his way to belittle
Continued next page
Volume 7 | issue 1 5
him — only to find that ever sat down at a PC, Mr. of Appeals judge ruled that the
Mr. Anderson ultimately Anderson said, “I don’t know common clause “sudden and
outworked him. “I spent four how I got this vision. I just accidental” in the pollution
days holed up in a hotel room thought, put all this stuff in exclusion was ambiguous,
getting ready for a 15-minute what we called ‘in the can,’ and upholding the win.
argument,” Mr. Anderson figure out ways to access it so
recalls. “And my client said, that when the next case comes With the landmark wins
‘Never underestimate a up you’ve got it. Everybody came widespread recognition.
dedicated workaholic.’ I guess does it now. I did it to make it American Lawyer described
he was right, but I also was easier for me.” Mr. Anderson as “a
furious at that case because brand name specialist for
the lawyer for Hartford said Armed with his “can,” Mr. policyholders.” Business
at one point ‘Mr. Anderson Anderson kept winning Insurance designated him one
has more enthusiasm than business, to the point where of the 20 people who have had
experience.’ And I thought, he was billing $35 million per the greatest impact on property
‘God I love that. I hope it’s year. He found like-minded and casualty insurance over
going to remain true the rest peers who devoted themselves the past 20 years. Business
of my life.’” to coverage litigation on Week described Mr. Anderson
“I was furIous at that case because the
‘Mr. anderson has More enthusIasM
‘god, I love that. I hope It’s goIng to
Inventing a Practice Area behalf of policyholders only, as the “dean of policyholders’
In the years that followed, and mentored a generation attorneys.” Best’s Review called
an enthusiasm that kept him of attorneys who exploited Anderson Kill & Olick, P.C.
working 12 hours per day, and built on precedents he “a national giant in insurance
seven days per week drove established. coverage law.”
Mr. Anderson to delve deeper
into insurance industry “lore” Among those principles: that
than anyone had before — that “pollution exclusions” to For All Policyholders:
is, to unearth and contrast liability policies written in
what insurance industry the 1970s did not bar coverage Pro Bono and Amicus Work
executives had told regulators for accidental pollution that For Gene Anderson, enforcing
and policyholders about policy occurred over an extended insurance policy provisions
language while getting it period of time. One signature was never primarily about
approved and selling policies, victory on this front was on money. He has made it his life’s
with what they told courts behalf of Central Illinois crusade to battle on all fronts
when denying coverage years Public Service Co., in a $12 what he sees as the insurance
later. He pioneered building million lawsuit against Allianz industry’s structural propensity
databases of such information Underwriters Insurance Co., to take in policy dollars and
— before personal computers and other companies. After deny claims. He has taken this
were ubiquitous. a jury found in October 1991 crusade into a long string of
that the utility’s pollution was pro bono cases on behalf of
Asked how he came to develop neither expected nor intended, individuals wronged by their
firm databases before he’d a Seventh U.S. Circuit Court insurance companies, many of
6 Enforce: The Insurance Policy Enforcement Journal
them women denied coverage are frequently cited in judges’ lawyers. Anderson identifies with
for breast cancer treatments decisions, including the U.S. the plaintiff’s attorney in the
deemed “experimental” by Supreme Court decision in book because, he said, insurance
insurance companies. Humana v. Forsyth (1999), lawyers always have treated him
which limited the insurance the same way. One even likened
Of that all-too-frequent defense industry’s McCarran-Ferguson his courtroom tactics to “the
against medical coverage, Mr. defense, subjecting the magician’s sleight of hand.”
Anderson says, “I think that insurance industry to liability
this is a matter of corruption under the federal Racketeer
because of money — though Influenced and Corrupt Meeting of Like Minds:
it is very hard to get judges to Organizations Act (RICO).
buy that. There is no principled Anderson Kill Ties Up With
reason that a treatment “Gene uses insurance Wood & Bender
recommended by reputable enforcement as a mechanism In recent years, after a period
doctors shouldn’t be covered. of social reform,” observes of diversifying practices, An-
It’s experimental only in Robert M. Horkovich, co-chair derson Kill has refocused on
the sense that every medical of the insurance recovery its core competence: insurance
procedure is experimental. practice at Anderson Kill. “He recovery. That focus was rein-
lawyer for hartford saId at one poInt,
than experIence,’ and I thought,
reMaIn true the rest of My lIfe.’”
“The breast cancer litigation was has always recognized that forced this January by the firm’s
important and satisfying,” he while insurance is essential, merger with Wood & Bender,
continues. “We did not make the industry will not fulfill its a firm equally committed to
any headline in The New York obligations without compulsion insurance enforcement. Mr.
Times or anywhere else but I and constant vigilance. He’s Anderson notes, “The affiliation
have a little plaque from those taken it upon himself almost with Wood & Bender is a reflec-
breast cancer victims.” singlehandedly to supply the tion of Bob Horkovich’s firm
necessary vigilance.” conviction that there is going
Beyond his individual pro to be more business for cover-
bono work, Mr. Anderson There is a work of fiction age lawyers than ever. Bob has
found a truly unique way to that helped to crystallize Mr. steadfastly objected to any affili-
extend his firm’s influence Anderson’s sense of mission. ation on the West Coast until
and social impact. Working A 1998 profile in Best’s Review now. But Wood & Bender does
closely with a nonprofit noted: good work.”
advocacy group called United
Policyholders, he created a Visitors to his midtown
culture, an infrastructure, and Manhattan office are likely to
a conceptual framework that leave with a paperback copy of
A Hitchhiker’s Guide to
has led Anderson Kill to file John Grisham’s The Rainmaker Success in Law
250 amicus briefs in insurance and an exhortation from While the origins of a work
coverage disputes across the Anderson to read the novel for drive as strong as Mr. Ander-
nation — more than half of the depiction of a fraudulent, son’s are always mysterious, he
which Mr. Anderson himself no-claims-paying insurance began life in humble and diffi-
co-authored. The firm’s amici company and its unscrupulous Continued next page
Volume 7 | issue 1 7
cult circumstances, a child of the firm Chadbourne & Parke, of the Fresh Air Fund, sought
Great Depression. Son of a single where he worked his way to his help in an alleged insurance
mother who suffered bouts of partnership. While he always fraud case, which he handled
disability, he recalls that for chafed at the firm’s hierarchical pro bono. “She’s the best thing
extended periods, “I was an or- structure — and eventually that ever happened to me,” Mr.
phan. I lived in foster homes and created a far more egalitarian Anderson told Best’s Review.
an orphanage in Oregon. There culture at Anderson Kill — he “She really civilized me.”
were a lot of farms involved. I was fortunate to find an unusual
didn’t have the faintest idea of mentor at the white-shoe firm. “I Being “civilized” never
what I wanted to do when I grew went to work for one of the few diminished Mr. Anderson’s
up. But I knew I did not want to women lawyers, Janet Brown,” sense of connection to those
spend the rest of my life shovel- he recalls. “Female partners less fortunate. Asked why he
ing cow manure.” were as rare as hen’s teeth back does so much charity work, Mr.
then. I found out later that I was Anderson reflects, “I don’t think
ridiculed behind my back for there is any answer to that. I
working with Janet — but she kind of pick up mutts, I guess.
had an enormous influence on I like teddy bears too. I used to
my career. A great, great woman. have a drawer full of teddy bears
asked why he does so Much
charIty work, anderson says,
“I kInd of pIck up Mutts.”
She taught me, ‘Know more than that I gave to children who came
anybody else knows.’ She was to the office. I was thinking the
always very, very well prepared.” other day I need to replenish
that drawer. I am out of teddy
Starting work early, he put
That lesson was massively bears. I can remember losing my
himself first through high
reinforced by Mr. Anderson’s teddy bear in an orphanage I
school and then UCLA, where
next boss — and future lived in outside Portland. I went
he took a notion to go to law
father-in-law — Manhattan back to that same place many,
school but had little idea
District Attorney Robert many years later and looked in
how to go about it. While
Morgenthau. Anderson worked the rooms to see if I could find
hitchhiking, he met a lawyer
for Morgenthau in the U.S. that teddy bear. I couldn’t.”
who saw promise in him and
Attorney’s office. “That’s going
eventually helped him get Perhaps that’s why Mr.
to go down in my mind as the
admitted to Harvard Law Anderson has been a source of
high spot in my whole life,” Mr.
School. “Part of the key to my aid and comfort to so many for
Anderson reflects. “Working
life is hitchhiking,” he recalls. “I so long. s
with Robert Morgenthau. He
graduated from UCLA and put
was amazingly sharp.”
my thumb out. And hitchhiked
on Wilshire Boulevard all the Another high spot in his life
way to Harvard. I did that seven was marrying Mr. Morgenthau’s
times.” daughter, Jenny, 25 years ago.
Their relationship was kicked off,
After law school, Mr. Anderson
fittingly enough, by an insurance
landed a job with the New York
matter. Ms. Morgenthau, head
8 Enforce: The Insurance Policy Enforcement Journal