March 16, 2012 2012 Issue 2 Case Search Database Link Leadership Notes http://dri.org/Services/Cases From the Chair by Anthony R. Zelle DRI Resources My Notes for this issue were composed on Presidents Day and in the spirit of that commemorative holiday, I present some of the contributions our presidents have made to the industry of insurance. Join the DRI Community As a resident of the Commonwealth of Massachusetts, birthplace and temporary residence of many presidents, and even more unsuccessful presidential candidates, I feel compelled to begin with the observations of John F. Kennedy. JFK once said: "In our system of free enterprise, insurance holds a place of special importance. This is a In This Issue segment of American industry with which a high percentage From the Chair of our citizens are associated. In a very real sense insurance sets standards of performance and responsibility for all From the Editor American business. Surely Americans derive their image of CALIFORNIA business most often from the relations with they establish with FLORIDA insurance agents. The varied services performed by American insurance can do much to carry forward our ILLINOIS traditions of freedom." INDIANA KANSAS I could devote the rest of this piece, and much more time, to dissecting these observations, but suffice it to say that as MAINE member of the Insurance Law Committee, it is not only "[i]n NEW JERSEY our system of free enterprise," but is also in our professional and personal lives that "insurance holds a place of special NEW YORK importance." Perhaps the Supreme Court will decide that OKLAHOMA Patient Protection and Affordable Care Act, which requires individuals to buy health insurance or pay a penalty, is an PENNSYLVANIA invasion of our constitutional rights, but the fact that Supreme SOUTH DAKOTA Court will decide the issue will serve to make the place TEXAS insurance holds in our society even more special. UTAH Franklin Delano Roosevelt may be the past president with the WASHINGTON greatest personal experience in our industry. Between 1921 WISCONSIN and 1928, FDR worked as a vice president in the New York office of the Fidelity & Deposit Co. of Maryland, which is now The Black Box Does Not Lie in PIP and Third-Party Auto a Zurich-owned company. He also served as member of the Accident Cases board of directors. FDR took this position after his Increase Your DRI Membership Value unsuccessful run as the running mate of democratic presidential nominee in 1920, James Cox. Commemorating the one-hundredth anniversary of its operations in the United States, Zurich recently gifted the desk at which FDR sat in his Committee Chair New York office, along with documents related to FDR's Anthony R. Zelle insurance career, to the FDR Presidential Library and Zelle McDonough & Cohen Museum. According to the acting director of Library and (617) 742-6520 Museum: "The desk helps tell the story of one of the most email@example.com critical periods in FDR's life, from 1920-1928, when he struggled to recover from polio and used his position with F&D to benefit the company as well as maintain his contacts Committee Vice Chair with important leaders in business and politics." For those of Michael M. Marick you in the Chicago area who want to see the desk before it Meckler Bulger Tilson Marick & goes on display next year in New York, it is being exhibited at Pearson Zurich's North American headquarters in Schaumburg, (312) 474-7888 Illinois. firstname.lastname@example.org Another U.S. President to serve as a director for an insurance Publications Chair company was Calvin Coolidge. After his presidency, Coolidge served as a director of New York Life Insurance Matthew S. Foy Company. Gordon & Rees (415) 986-5900 email@example.com Occupying a slightly less lofty, but possibly more ambitious role in the industry, after graduating from college, Warren Harding worked as an insurance salesman. Co-Editor Tiffany M. Brown Meagher & Geer While looking at the presidential contributions to the insurance (612) 371-1324 industry, a brief mention of the contributions of the insurance firstname.lastname@example.org industry to our presidents is also worth noting. In the current presidential election, financial contributions to candidates and their political action committees already exceed $20 million Co-Editor and are well on the way to eclipsing the record $46 million Jonathan L. Schwartz that was invested by the insurance industry in the last Lewis Brisbois Bisgaard & Smith presidential election cycle. The $46 million given in the 2008 LLP cycle was in addition to the $160 million invested by the insurance industry in lobbying efforts in 2008. email@example.com Co-Editor Bryan M. Weiss Shifting the focus to our to the contributions of the Insurance Murchison & Cumming Law Committee to our professional lives, it is with enthusiastic firstname.lastname@example.org anticipation that I look forward to the Insurance Coverage and Claims Institute that will present its annual program in Chicago on March 28-30, 2012. If you can attend the conference and have not yet registered, here is the link: Associate Editors http://www.dri.org/Event/20120155. I also encourage you to register for the DRI Annual Meeting that will take place in New Suzanne Young Orleans from October 24-27. The ILC has laid plans (which Zelle McDonough & Cohen must remain secret until the Annual Meeting brochure is (617) 742-6250 finalized) to present one of the Mainstage programs and has email@example.com a blockbuster speaker for its business meeting as well. You can use this link to register for the Annual meeting: http://www.dri.org/Event/2012AM. Elaine Murphy Pohl As always, I encourage you to get involved with the Insurance Law Committee and you should not hesitate to contact me to share your interests. Plunkett Cooney (248) 901-4000 firstname.lastname@example.org From the Editor by Jonathan L. Schwartz Roger Williams Rivkin Radler (516) 357-3227 My February edition of Covered Events seems email@example.com to always involve a reference to Groundhog Day, and this year is no exception. But rather than comment on Punxasutawney Phil and Click to view entire Leadership how much longer we have until spring, sunshine, and warmth, or how Phil Connors was forced to spend thousands of years in a small town in Pennsylvania learning how to play the piano, Seminars speak fluent French, and ice sculpt, I want to speculate briefly on how, if I were in a similar time loop, DRI and Covered Events would play a significant role in my finding the right path to success. Initially, I, as a young associate, got involved with Covered Events, submitting short summaries about recent developments in Illinois. That allowed me to showcase to others in the leadership of DRI that I was committed to this fine organization and its mission of scholarship and excellence. Following the summaries came my appointment to editor of Covered Events, where I was given the opportunity to see first-hand how a well-run newsletter operates. And not only did that give me the valuable training critical to the creation of my firm's quarterly newsletter, my activity in the Insurance Law Committee has recently led to my appointment as Chair of the Personal and Advertising Injury Law Subcommittee. Now while all of this did not happen for me in one magical day, Groundhog Day should hopefully inspire you with its message of commitment to self-improvement. Please do the same for your young associates and inspire them to become a better professional. First, get them to join DRI. Since you receive this newsletter, you are already member of DRI and should be aware of its innumerable professional benefits. Foremost, the educational and networking opportunities are unparalleled. Second, Insurance Coverage and encourage your young associates to make a name for Claims Institute themselves by submitting summaries of recent decisionsinvolving a type of coverage or jurisdiction in which you practice. This approach is certain to highlight their March 28-30, 2012 budding expertise. Third, bring your young associates with Chicago, Illinois you to the Insurance Law Committee's top-notch seminars. There, they will have the chance to meet our committee's DRI Publications roster of superstar young lawyers, who should continue to inspire your young lawyers to be elite, thorough, and reliable, persons to whom you can turn to and depend on at crunch- time. So spread the word about DRI among the young lawyers in your firm, and get them started right away on their path to success. Insurance Bad Speaking of seminars, please make sure you have on your Faith-2010 calendar DRI's Insurance Claims and Coverage Institute, which is being held in Chicago on March 28-30, 2012 at The Westin Michigan Avenue. The conference offers the perspectives and insights from a distinguished faculty of lawyers, insurance industry leaders, and policyholder counsel regarding recent court rulings and national claims trends, as well as practical advice for both the first- and third-party practitioner and claims professionals. This program also offers top-notch networking opportunities with senior claims executives and experienced coverage lawyers from across the country. Wednesday afternoon features a Print to PDF program focused on bad faith. The Thursday session is filled with a wide range of cutting-edge topics including Trial Advocacy in a CSI World, The Role of E&O Liability of Agents and Brokers, and Drilling Down on the Duty to Defend. The Friday program includes two outstanding break out tracks focusing on Construction Defect and First-Party Personal Lines and Property. For more information and to register, please go to: http://dri.org/Event/20120155. What's more, the Insurance Law Committee now has its own DRI subgroup on LinkedIn. Posting on the subgroup site is a great way for our members to share articles, update each other on important case developments, seek assistance on a particular coverage issue or case, or post about any other matter unique to ILC members. To join the subgroup, go to the DRI page on LinkedIn. Click the "More" tab at the top, right of the page (it's the 6th tab among the tabs beginning with "Discussions"), click on "subgroups", scroll down to the "DRI Insurance Law" subgroup, and click "Join the Group." And once you've joined our subgroup, feel free to post about any matter related to our practice. As always, thank you to those who submitted to Covered Events for this edition, especially Bob Abramson for his article on vehicles' Event Data Recorders. We very much appreciate new submissions, so if there is a new coverage development in your state, show off your expertise and please send us a summary. Editors: Jonathan L. Schwartz Lewis Brisbois Bisgaard & Smith LLP Chicago, Illinois firstname.lastname@example.org Bryan M. Weiss Murchison & Cumming, LLP Los Angeles, California email@example.com Tiffany Brown Meagher & Geer Minneapolis, MN firstname.lastname@example.org Associate Editors: Elaine Pohl Plunkett Cooney Bloomfield Hills, MI email@example.com Roger Williams Rivkin Radler Uniondale, NY firstname.lastname@example.org Suzanne Young Zelle McDonough & Cohen LLP Boston, MA email@example.com Recent Case Law Updates CALIFORNIA CALIFORNIA—ASBESTOS/BANKRUPTCY The Ninth Circuit ruled that a California District Court erred in refusing to consider various insurers' objections to a proposed 524(g) reorganization plan to resolve the insured insulating company's asbestos liabilities. In In re Thorpe Insulation Co, No. 10-56543 (9th Cir. Jan. 24, 2012), the court refused to find that the insurers had failed to diligently press their rights based on the "equitable mootness" doctrine or that it would be inequitable to unwind the plan at this stage. Further, the court ruled that the proposed plan was not "insurance neutral" in light of its substantial interference with the contractual obligations of the insurers and their rights of contribution. Having declared that the insurers did have standing to object, the Ninth Circuit remanded the case back to the District Court to consider the insurers' objection that the plan was not proposed in good faith, did not comply with 524(g), and was developed by conflicted counsel (Morgan Lewis). Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org CALIFORNIA—EXCESS COVERAGE/EXHAUSTION/SIRs A federal district court ruled that where a hotel was entitled to insurance coverage as an additional insured under a policy issued to a restaurant inside the hotel, funds contributed by the restaurant's insurer towards the settlement of a wrongful death claim against the hotel and the restaurant satisfied a $250,000 self-insured retention in the hotel's own policy with Federal. Notwithstanding language in the Federal policy stating that the insured itself was responsible to pay all self- insured retention expenses," the U.S. District Court ruled in National Fire Insurance Co. of Hartford v. Federal Insurance Co., 2012 U.S. Dist. LEXIS 641 (N.D. Cal. Jan. 4, 2012), that the language in question was distinguishable from that considered by the Court of Appeal in 2010 in Forecast Homes that unambiguously stated that "payment by others, including without limitation additional insureds or insurers, do not serve to satisfy the self-insured retention." Michael Aylward Morrison Mahoney Boston, MA email@example.com FLORIDA FLORIDA—CHINESE DRYWALL/POLLUTION EXCLUSION Granite State Insurance Company (Granite) and New Hampshire Insurance Company (NHIC) brought suit against their insured, American Building Materials, Inc. (ABM), to determine if the insurers had a duty to defend or indemnify ABM in lawsuits and pre-suit claims alleging that ABM supplied defective Chinese drywall. As a threshold matter, the district court found that the doctrine of lex loci contractus must be applied under Florida choice of law principles, which dictate that "the governing law is 'the law of the state … where the last act necessary to complete the contract is done.'" Applying this analysis, the district court concluded that Massachusetts law applied. Both insurance carriers' policies contained the total pollution exclusion. The court noted that Massachusetts courts have found the total pollution exclusion to be "clear, unambiguous, and enforceable." The district court further found that, pursuant to United States Liability Ins. Co. v. Bourbeau, 49 F.3d 786 (1st Cir. 1995), "the pollution exclusion was … 'an absolute bar to coverage for any form of pollution,' and 'applied to all releases of pollutants.'" The court determined that, under Massachusetts law, the damage caused by defective Chinese drywall was not covered under the insurers' policies. The district court reasoned that "[t]he basis of the underlying claims is that the Chinese drywall is defective because it is emitting harmful gases …. The total pollution exclusion unambiguously precludes coverage for the release or discharge of pollutants. Pollutants include any gaseous contaminant." In line with a distinction made by the Massachusetts Supreme Court, the district court further determined that the pollution alleged with respect to the Chinese drywall should be categorized as industrial pollution "involv[ing] the discharge of a harmful substance" as opposed to "cases that 'involve injuries resulting from everyday activities gone slightly … awry[.]'". Because it was industrial pollution, the total pollution exclusion applied and the insurers had no duty to defend or indemnify ABM. Granite State Insurance Co. v. American Building Materials, Inc. (M.D. Fla. Dec. 5, 2011). Charles W. Browning Kenneth C. Newa Plunkett Cooney P.C. Bloomfield Hills, MI firstname.lastname@example.org email@example.com ILLINOIS ILLINOIS—AUTO COVERAGE/ARBITRATION The Appellate Court ruled in United Automobile Insurance Co. v. Buckley, 2011 IL App. (1st), 103666 (Ill. App. Dec. 5, 2011), that a judgment based upon an arbitration award was recoverable against an automobile insurer, notwithstanding the insured's failure to appear at or participate in the arbitration hearing. Notably, the insurer was found to have failed to present credible evidence that the insured's non- cooperation was deliberate or that it had been substantially prejudiced as the result of the insured's failure to appear. Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org ILLINOIS—HOMEOWNERS INSURANCE/MOTOR VEHICLE EXCLUSION Allegations that the insured negligently installed the brake pedal on the plaintiff's motorcycle, causing it to crash, did not trigger a duty to defend under a homeowner's policy in light of a motor vehicle exclusion. In Allstate Property & Casualty Insurance Co. v. Mahoney, 2011 ILL App (2d) 101279 (Ill. App. Nov. 1, 2011), the Second District ruled that motorcycles are "motor vehicles", not "motorized land conveyances." The Appellate Court also ruled that the motorcycle was not in "dead storage" so as to be subject to an exception to this exclusion, holding that vehicles that in the process of being repaired are not in "dead storage." Michael Aylward Morrison Mahoney Boston, MA email@example.com INDIANA INDIANA—AUTO The Indiana Supreme Court ruled in Haag v. Castro, No. 29S04-1102-CT-118 (Jan. 10, 2012), that injuries suffered by members of a youth soccer team when their rented van went off the road en route to a white water rafting event did not trigger coverage under a hired vehicle endorsement to the soccer league's auto policy because the usage of the vehicle at the time was not in the "business of the insured." The Court emphasized that because the policy was issued to the tournament sponsor, the business of the insured was athletic competitions, not "team building" and other events specific to the individual teams. Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org KANSAS KANSAS—GARNISHMENT/CONSENT JUDGMENTS Nearly 20 years after a massive warehouse fire prompted a huge inter-carrier coverage dispute that has already been to the Kansas Supreme Court twice, the Supreme Court ruled in Associated Wholesale Grocers, Inc. v. Americold Corp., No. 99,506 (Dec. 23, 2011), that the garnishment action by which the plaintiff sought to recover against excess carriers must be dismissed, as the underlying legal liability of the garnishee/insured to the plaintiff was itself extinguished due to the dormancy of the proceedings under KSA 60-2403(a) and the plaintiff's failure to file a motion for reviver within two years of dormancy under KSA 60-2404. Writing in dissent, Chief Justice Greene contended that the dormancy period was tolled by KSA 60-2403(c), as the plaintiff could not have executed on these consent judgments due to the ongoing legal proceedings and issues of collusion raised by the insurers in challenging the consent judgments. Michael Aylward Morrison Mahoney Boston, MA email@example.com MAINE MAINE—DUTY TO DEFEND/INTENTIONAL ACTS Allegations that a lobsterman conspired to destroy a competitor's traps triggered a duty to defend under a homeowner's policy, notwithstanding the allegations of intentional acts and conspiracy to injure. The Maine Supreme Judicial ruled in Mitchell v. Allstate Insurance Co., 2011 ME 133 (Me. Dec. 22, 2011), that although the insured's dominion over the plaintiff's property by exercising possession over it would not have triggered coverage, since that would not have resulted in third-party property damage, it could conceive of a scenario in which other individuals cut the plaintiff's lobster traps that the insured subsequently located and took without knowing that they belonged to the plaintiff, damaging them in the process. Under these circumstances, the court found that the insured could have exercised dominion over the plaintiff's goods, damaging them in the process, so as to create a claim for conversion without any intent to cause injury to the plaintiff's property. Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org NEW JERSEY NEW JERSEY—AUTO COVERAGE/PERMISSIVE USE The Appellate Division ruled in Repossession Specialists v. Geico Insurance Co., A-23712-10T1 (App. Div. Jan. 12, 2012), that a lawsuit brought against a repo company by a car owner who was injured while trying to retrieve personal items from a vehicle that was being towed did not trigger coverage under the omnibus provisions of the owner's personal auto policy. The Appellate Division ruled that repossession was not a permitted use and that the repo company was therefore not entitled to seek coverage as an additional insured under the owner's auto policy. Although the right of repossession was set forth in a contract that the named insured had entered into, the court emphasized the inability of the owner to revoke this right, declaring that "use as of right pursuant to irrevocable authority is inconsistent with the concept of permissions." Michael Aylward Morrison Mahoney Boston, MA email@example.com NEW JERSEY—E&O/RELATED ACTS EXCLUSIONS A federal district court ruled in Gladstone v. Westport Insurance Corp., 2011 U.S. Dist. LEXIS 132100 (D. N.J. Nov. 16, 2011), that a "related acts" exclusion which provides that multiple claims arising out of a single wrongful act or a series of related or continuing wrongful acts shall be deemed to have been asserted when a claim is first made precluded coverage for a lawsuit brought during the policy period that was related to a lawyer's representation of numerous parties in a zoning ordinance matter that had prompted litigation by other clients prior to the policy period. Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org NEW YORK NEW YORK—REINSURANCE/FOLLOW THE FORTUNES The First Department ruled that various reinsurers must "follow the fortunes" of their cedent and reimburse Travelers for $420 million out of a total of $975 million that USF&G paid to settle Western McCarthur's asbestos claims. In USF&G v. American Re-Insurance Co., 2012 NY slip op 00421 (App. Div.,1st Dept. Jan. 24, 2012), the Appellate Division of the New York Supreme Court ruled that the Supreme Court had not erred in agreeing with USF&G that the treaty year under which these claims had been ceded had only a $100,000 retention, not the $3 million retention that applied to later years. Further, the court refused to find that USF&G had settled to avoid a likely bad faith award against it. In light of the "follow the fortunes" doctrine, the First Department declared that the reinsurers had no right to second-guess USF&G's decision to settle, much less its decision to assign the entire loss to a single policy instead of spreading it among its thirteen years of coverage. As to the latter point, the court noted that applying thirteen retentions would have deprived USF&G of any reinsurance for this settlement and that the decision to select the 1959 policy, whether or not beneficial to the cedent's reinsurance rights, was not only permitted under California's "all sums" law and benefitted the underlying claimants, since the 1959 policy was the only one that was triggered by all their claims and had a higher policy limit that some of the other years. Writing in dissent, Judge Abdus- Salaam argued that there were disputed issues of fact with respect to whether the settlement was for bad faith, noting that Western McCarthur had not only made such claims in the original coverage litigation (USF&G had first denied that it ever insured Western McCarthur and then asserted that any policies would necessarily have contained aggregates when, in fact, copies that unserenditipously turned up in an archive that USF&G had donated to a Baltimore museum proved the opposite) but that the Bankruptcy Court, in approving the settlement, had assigned value to these claims. Michael Aylward Morrison Mahoney Boston, MA email@example.com NEW YORK—WAIVER/ESTOPPEL The Appellate Division reversed prior precedent that allowed insurers a reasonable time to conduct an investigation without fear of statutory waiver, declaring in George Campbell Painting v. National Union Fire Insurance Co. of Pittsburgh, PA, 2012 NY slip op 00254 (App. Div., 1st Dept. Jan. 17, 2012), that Section 3420(d)'s requirement that any declination of coverage be issued as soon as is reasonably possible, "cannot be reconciled with allowing the insurer to delay disclaiming on a ground fully known to it until it has completed its investigation (however diligently conducted) into different, independent grounds for rejecting the claim. If the insurer knows of one ground for disclaiming liability, the issuance of a disclaimer on that ground without further delay is not placed beyond the scope of the 'reasonably possible' by the insurer's ongoing investigation of the possibility that the insured may have breached other policy provisions, that the claim may fall within a policy exclusion, or (as here) that the person making the claim is not covered at all." Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org NEW YORK—ARBITRATION Generally, an application to stay an uninsured or underinsured motorist arbitration must be made within 20 days of the time arbitration has been demanded. However, a motion to stay arbitration may be entertained outside the 20- day period when "its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with." Here, the accident occurred while a rental car was being driven in Mexico. The policy provided coverage only for accidents that occurred within New York State, the United States, its territories, possessions, or Canada. Since the policy did not provide for coverage in the geographic area where the accident occurred, it cannot be said that the parties ever agreed to arbitrate this claim. In re Allstate Insurance Co. v. LeGrand (App. Div., 1st Dept., Jan. 17, 2012). Dan Kohane Hurwitz & Fine, P.C. Buffalo, NY email@example.com NEW YORK—NOTICE TO INSURER/DUTY TO INDEMNIFY Ocean Gardens d/b/a Horizon sought a declaration that Travelers was obligated to indemnify it in an underlying personal injury action alleging that Horizon's employee caused damages in an automobile accident. This was not a suit seeking defense costs. The duty to pay is determined by the actual basis for the insured's liability to a third person, not the allegations in the complaint. Since Horizon's liability to the plaintiff in the underlying action had yet to be determined, it was premature for the Supreme Court to decide the question of whether such loss would be covered by the policy. Additionally, Travelers contended that Horizon failed to give notice of the accident "as soon as reasonably possible," as required by the policy. This was a pre-prejudice (§ 3420(d)) case. Here, in opposition to Travelers' prima facie showing that notice, given approximately 15 months after the accident, was not "as soon as reasonably possible," Horizon raised an issue of fact as to whether its good faith belief in nonliability constituted a reasonable excuse for the delay. The supporting evidence was as follows: according to deposition testimony, at the time of the accident, Horizon's employee was driving in his own personal vehicle and was not engaged in any matters which were related to his employment with Horizon. Moreover, Horizon was not named as a defendant in the underlying action and was not contacted regarding the case until more than a year after the accident occurred, when it was subpoenaed to produce records for inspection by the underlying plaintiff. Notice was given shortly thereafter. Accordingly, the court found a question of fact on the reasonableness of the delay. Ocean Gardens Nursing Facility, Inc. v. Travelers Cos., Inc. (App. Div., 2d Dept., Jan. 17, 2012). Dan Kohane Hurwitz & Fine, P.C. Buffalo, NY firstname.lastname@example.org NEW YORK—PROFESSIONAL LIABILITY Plaintiffs are limited liability companies that made multiple loans to Goldan totaling approximately $3 million. Daniels, an attorney, was a member of Goldan. Goldan was an American insured. Daniels was sued for legal malpractice. It was claimed that as K2's attorney, he failed to record mortgages and obtain title insurance and thus, committed malpractice. The plaintiffs demanded $450,000 from Daniels in full settlement of their claims under the E&O policy. The carrier denied coverage on two exclusions in the policy: one based on an exclusion for an insured's capacity or status as an officer, director, etc., of a business enterprise, and the other exclusion based on a claim arising out of the alleged acts or omissions of the insured for any business enterprise in which he had a controlling interest. Daniels defaulted in the malpractice action after the disclaimer and judgments totaling over $3,000,000 were entered against him. Daniels then assigned to plaintiffs all his claims against defendant, including bad faith claims. The court found that the exclusions did not apply with respect to either the duty to defend, which was demonstrated based upon the allegations of legal malpractice, or the duty to indemnify for a judgment based in legal malpractice. The allegations of professional malpractice had nothing to do with Daniels' status as an officer or his controlling interest in the entity. These were malpractice claims arising out of the attorney-client relationship. The bad faith case was dismissed, however, plaintiffs having failed to establish a prima facie case of bad faith based upon defendant's "gross disregard" of the insured's interests under the policy. A two judge dissent believed an issue of material fact remained as to whether plaintiffs' legal malpractice claims, at least in part, are based upon or arose out of Daniels's capacity or status as an officer, director, shareholder or employee of Goldan, or out of his alleged acts or omissions on behalf of Goldan, a business enterprise in which he had a controlling interest. K2 Investment Group, LLC v. American Guarantee & Liability Insurance Co. (App. Div., 1st Dept., Jan. 3, 2012). Dan Kohane Hurwitz & Fine, P.C. Buffalo, NY email@example.com NEW YORK—FIRST PARTY PROPERTY The Second Circuit rejected class claimants' contention that a requirement in Allstate's fire insurance policy requiring that repairs be completed within 180 days in order to be compensable violated Section 3404(3) requirement that insureds be given "a reasonable time" after a loss to repair or replace their property. In Woodhams v. Allstate Fire and Casualty Co., No. 10-4389 (2d Cir. Jan. 3, 2012), the court declared that the claimants' argument ignored the fact that New York requires only that an insurer pay the "lesser amount" of the actual cash value of the property, the cost of repair or replacement, or an otherwise fixed limitation-of- liability amount. Because Allstate paid plaintiffs the actual cash value of their property at the time of loss, which was allegedly less than the full value of repairs, the court ruled that had Allstate satisfied its statutory obligation to provide "no less favorable" coverage than that set forth in § 3404(e). Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org NEW YORK—NO FAULT INSURANCE An issue of fact precluded summary judgment in the insurer's favor on the issue that the plaintiff violated the 45-day rule, as the plaintiff submitted an affidavit form the billing manager who averred that he personally mailed the claim form. Further, the insurer was not entitled to summary judgment with regard to certain claims based upon an adjuster's affidavit attesting that a fee schedule review revealed the amount charged exceeded the workers' compensation fee schedule. However, the insurer's summary judgment motion with regard to certain additional claims denied upon an IME report should have been granted. The plaintiff failed to rebut the conclusions set forth in the IME report. MIA Acupuncture, PC a/a/o Fidel Williams v. Praetorian Insurance Co. (N.Y. App. Term, 2d Dept. Dec. 29, 2011). Audrey Seeley Hurwitz & Fine, P.C. Buffalo, NY email@example.com NEW YORK—ADDITIONAL INSURED REQUIREMENTS LMIII brought this action, asserting that Gemini Insurance Company is obligated to defend LMIII as an additional insured in an underlying personal injury action. In the underlying action, a roofer employed by Shaffer Building Services, Inc. (Shaffer) sought damages for injuries he sustained during the course of his employment. LMIII had hired Shaffer to replace a roof on its property, and Shaffer was insured under a commercial general liability policy issued by Gemini. The policy's additional insured endorsement provided that a third- party may constitute an additional insured "when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy." The court held that the term "in writing" refers to the entire phrase "in a contract or agreement." Here, there was an enforceable purchase order that required Shaffer to add LMIII to its policy. Although unsigned, it was in writing, and the parties agreed that they were bound by it. It was therefore a writing that warrantedadditional insured status. LMIII Realty, LLC v. Gemini Insurance Co. (App. Div., 4th Dept., Dec. 23, 2011). Dan Kohane Hurwitz & Fine, P.C. Buffalo, NY firstname.lastname@example.org OKLAHOMA OKLAHOMA—"INSURED CONTRACT" Robbie Griffin was injured in an explosion while working as an independent contractor for S&W Transports, Inc. A settlement was reached by S&W, but it did not resolve which of its insurers would provide coverage for the settlement payment. Mid-Continent issued a CGL policy to S&W, while Union issued an umbrella policy. The Mid-Continent policy contained a contractual liability exclusion to which there was an insured contract exception, providing that the exclusion did "not apply to liability for damages … [a]ssumed in … an 'insured contract'…." The policy defined "insured contract" in part as a contract "under which [the insured] assume[s] the tort liability of another party to pay for 'bodily injury' … to a third person … provided the 'bodily injury' is caused, in whole or in part, … by those acting on [the insured's] behalf." The issue was whether Griffin had caused his own injuries, at least in part. The Tenth Circuit Court of Appeals concluded that, because Mid-Continent's definition of "insured contract" specifically stated that the bodily injury need only be caused in part by the person acting on the insured's behalf, the "expert reports suffice to establish there is no genuine dispute that Griffin's actions were at least a partial cause of his injuries." The Tenth Circuit, therefore, concluded that the insured contract exception to the contractual liability exclusion applied, and, in turn, Mid-Continent owed coverage to S&W for the settlement payment. Mid-Continent Casualty Co. v. Union Insurance Co. (10th Cir. Nov. 2, 2011). Charles W. Browning Kenneth C. Newa Plunkett Cooney P.C. Bloomfield Hills, MI email@example.com firstname.lastname@example.org PENNSYLVANIA PENNSYLVANIA—UM/UIM On January 26, 2012, the Third Circuit Court of Appeals issued an interesting uninsured (UM) motorists benefits coverage decision in the debris-in-the-road case of Allstate Property and Casualty Insurance Co. v. Squires, No. 11-1664 (3d Cir. Jan. 26, 2011). There, the injured party insured was driving his pickup truck when he allegedly swerved to avoid a cardboard box lying in the middle of his lane. Significantly, Allstate stipulated in this matter that an unidentified vehicle dropped the box. Allstate rejected the injured party's claim for uninsured motorist benefits and sought a declaratory judgment. The insured responded with counterclaims for breach of contract and insurance bad faith under 42 Pa. Cons. Stat. § 8371. At the trial court level, the District Court entered judgment for Allstate, finding that the injuries did not "arise out of ownership, maintenance or use of an uninsured auto." The Third Circuit reversed, rejecting the main argument by Allstate that the harm was caused by the box in the road and not by any vehicle, as required to support a UM claim under the insurance policy language and Pennsylvania law. The Third Circuit relied, in part, on the notion that physical contact with an uninsured vehicle is not required for an accident to "arise out of" the use of an uninsured vehicle. The Court ultimately held that, accepting for purposes of appeal the stipulated facts that the debris was placed on the road by an unidentified vehicle, the Court found that the accident arose out of the maintenance and use of a motor vehicle such that there was a sufficient causal connection to support a finding of potential coverage for the claims presented. The Third Circuit stated its belief that the Pennsylvania Supreme Court would rule in the same fashion if presented with the same case. Perhaps a significant difference between the Third Circuit's decision in Squires and other Pennsylvania state trial court decisions on debris-in-the-road cases is that it does not appear that there was any stipulation in any of the trial court decisions that the debris on the road had indeed come from a vehicle. Rather, in those cases, the injured party was without any evidence to establish how the debris came to be on the road. A number of the state court decisions resulted in findings of no coverage on the basis that the accident was not vehicle-caused, but rather caused by foreign objects on the roadway. Daniel E. Cummins Foley, Cognetti, Comerford, Cimini & Cummins Scranton, PA email@example.com PENNSYLVANIA—RETURN OF DEDUCTIBLES The Pennsylvania Supreme Court in Jones v. Nationwide Property & Casualty Insurance Co., No. 61 EAP 2010 (Pa. Dec. 21, 2011) (Majority Opinion by Baer, J.) (Eakin, J., concurring), affirmed the practice of property damage carriers returning deductibles to insureds on a "pro rata" basis after a subrogation recovery against a third party tortfeasor. The court rejected the plaintiff insured's contention that this practice violates the "made whole" doctrine, which according to the plaintiff required that she receive her whole deductible back. The Pennsylvania Supreme Court ruled that the "made whole" doctrine did not apply to the collision coverage at issue in this case. Accordingly, the court dismissed the insured's class action. Daniel E. Cummins Foley, Cognetti, Comerford, Cimini & Cummins Scranton, PA firstname.lastname@example.org PENNSYLVANIA—DISCOVERY A federal district court ruled in Craker v. State Farm Mutual Auto Insurance Co., 2011 U.S. Dist. LEXIS 141811 (W.D. Pa. Dec. 9, 2011), that an insured was entitled to obtain production of an insurer's reserve with respect to disputed UIM claims. However, Judge Lancaster rejected the insured's additional efforts to obtain reports from counsel notwithstanding the insured's contention that the lawyers were acting as an adjuster at the time. Michael Aylward Morrison Mahoney Boston, MA email@example.com SOUTH DAKOTA SOUTH DAKOTA—SHIFTING OF ATTORNEY FEES Andrea Bjornestad was injured in an automobile accident caused by another driver, who had an auto policy with the minimum liability limit. Bjornestad had a policy with Progressive that provided $100,000 in Underinsured Motorists (UIM) coverage. Bjornestad's injuries were serious, and she demanded that Progressive pay her the full UIM limits. Instead, Progressive offered Bjornestad $25,000 in exchange for a full and final release of all claims. Bjornestad brought suit against Progressive for breach of contract and bad faith and sought punitive damages and attorneys' fees. The jury found in Bjornestad's favor on the breach of contract claim but rejected her bad faith claim. Bjornestad subsequently moved for attorneys' fees pursuant to South Dakota statute, which the district court awarded. Progressive appealed, arguing that the rejection of Bjornestad's bad faith claim precluded an award of attorneys' fees. Quoting its recent decision in Tripp v. W. Nat'l Mut. Ins. Co., __ F.3d __, 2011 WL 6822258 (8th Cir. Dec. 29, 2011), the Court of Appeals stated that "a jury's adverse finding on a bad faith claim does not, as a matter of law, preclude a trial court from awarding attorney's fees …. Rather, … a trial court should undertake a separate analysis to determine whether the insurer's refusal to pay was vexatious or without reasonable cause in those cases where a jury finds an insurer did not act in bad faith." The appellate court determined that the district court did not clearly err in finding Progressive's conduct unreasonable based on several facts, including Progressive's settlement offer, which was less than its own estimate of the value of the case. As a result, the Eighth Circuit Court of Appeals affirmed the district court's award of attorneys' fees in the absence of a finding of bad faith. Bjornestad v. Progressive Northern Insurance Co. (8th Cir. Dec. 29, 2011). Charles W. Browning Kenneth C. Newa Plunkett Cooney P.C. Bloomfield Hills, MI firstname.lastname@example.org email@example.com TEXAS TEXAS—DUTY TO DEFEND A Texas court of appeal held that an insurer had a duty to defend a complaint in which the underlying plaintiff failed to plead a specific date of injury. In GEICO General Insurance Co. v. Austin Power Inc.(Tex. App.-Houston Jan. 5, 2012), Weldon Bradley and his wife Ruth sued several defendants, including Austin Power, Inc., alleging that Weldon was injured by his exposure to the defendants' asbestos-containing products and machinery. In their factual allegations, plaintiffs did not identify the date Weldon's injury occurred. The trial court granted summary judgment in favor of Austin Power and dismissed it from the case. Austin Power held a CGL policy issued by GEICO's predecessor, covering the period from December 31, 1969, to December 31, 1970. On appeal, GEICO argued that because there was no specific date of injury alleged in the petition, it failed to make any allegation that suggested Bradley was injured during the policy period. The appellate court disagreed, finding several allegations that indicated a date of injury which triggered a duty to defend. The court observed that the Bradleys alleged that Austin Power "created hazardous and deadly conditions to which Mr. Bradley was exposed and which caused him to be exposed to a large amount of asbestos fibers." By re-incorporation, the plaintiffs alleged that Weldon was exposed to asbestos "on numerous occasions," and that "each exposure" caused or contributed to his injuries. In the conspiracy count against all defendants, the court found allegation that "for many decades, Defendants [acted] ... individually, jointly and in conspiracy with each other and other entities...." The court further observed that the Bradleys used the past tense in alleging that Weldon Bradley "has suffered injuries" from asbestos exposure (emphasis by the court). The court concluded that, in effect, the Bradleys alleged that Weldon was injured sometime before the petition was filed, and there was nothing in the pleadings that negated the possibility that the injury occurred between December 31, 1969 and December 31, 1970. Mark D. LoGalbo Liability Insurance Research Bureau Downers Grove, IL firstname.lastname@example.org TEXAS—CONSTRUCTION DEFECT/TRIGGER OF COVERAGE The Texas Court of Appeals ruled that a liability insurer had an obligation to defend in a construction defect case even where the underlying suit did not specifically allege that property damage occurred during its policy period. In Vines- Herrin Custom Homes, LLC v. Great American Lloyd's Insurance Co., 2011 WL 6396473 (Tex. App. Dec. 21, 2011), the Dallas division held that a potential for coverage existed as the policy in question was in effect while the home was under construction, even though the underlying complaint was silent with respect to when property damage commenced. Michael Aylward Morrison Mahoney Boston, MA email@example.com UTAH UTAH—RESTITUTION The Utah Supreme Court ruled in U.S. Fidelity & Guarantee Co. v. U.S. Sports Specialty Association, 2012 UT 3 (Jan. 24, 2012), that a liability insurer has no right to seek restitution from its policyholder in the absence of clear policy language granting such rights. Notwithstanding the fact that USF&G had posted a $4 million bond to protect its insured's rights, even though its policy limits were only $2 million, the court declined to find that the insured had been unjustly enriched or that USF&G had a right of equitable restitution to get back the $2 million it had paid over and above its policy limit. The court held that the doctrine of unjust enrichment was intended to provide equitable remedies where none existed at law, whereas here the parties' relationship was already governed by contract. The court also took note of the requirement under Utah Code Section 31A-21-106(1)(a) that all substantive terms in an insurance policy must be set forth in writing. Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org UTAH—OTHER INSURANCE/ALLOCATION Ohio Casualty issued one CGL policy to Cloud Nine, LLC, and Unigard issued a successive CGL policy; however, there was a gap in coverage between the policies. Cloud Nine was sued and tendered the defense of the suit to Ohio Casualty and Unigard. Unigard agreed to defend, and Ohio Casualty denied and filed a declaratory judgment action. The district court ruled that Ohio Casualty had a duty to defend and that, pursuant to the "other insurance" clauses in both carriers' policies, defense costs should be split equally between them. Ohio Casualty appealed that ruling to the Tenth Circuit Court of Appeals, which certified to the Utah Supreme Court the question of whether defense costs should be allocated between Ohio Casualty and Unigard based on the "other insurance" clauses in their policies or based on the time-on- the-risk method set forth in the Utah Supreme Court's decision in Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127, 140 (Utah 1997). The Utah Supreme Court concluded that "other insurance" clauses do not apply to successive insurance policies, because the purpose of such clauses is to "'prevent multiple recoveries' when 'two or more policies provide coverage during the same period.'" Instead, the court applied a modified version of the time-on-the-risk method, dividing defense costs for those periods that the insured had no coverage between the carriers based on their time on the risk. The Utah Supreme Court reasoned that the carriers' policies gave them the right to control the defense and that, as a result, "it would be inequitable to apportion any defense costs to an insured who has no power to select counsel or negotiate rates and no voice in deciding whether to settle the suit." Ohio Casualty Insurance Co. v. Unigard Insurance Co. (Utah Jan. 6, 2012). Charles W. Browning Kenneth C. Newa Plunkett Cooney P.C. Bloomfield Hills, MI email@example.com firstname.lastname@example.org WASHINGTON WASHINGTON—BAD FAITH Ledcor was the general contractor on a project to construct condominiums and townhomes. Upon completion of the project, the homeowners associations of both the condominiums and the townhomes notified Ledcor of various building defects, and Ledcor, in turn, provided notice of the potential claims to Virginia Surety. Virginia Surety requested that Ledcor provide certain information and documents, which Ledcor did. Virginia Surety subsequently denied coverage on several bases, including the Fungus Exclusion contained in the Virginia Surety policy. Ledcor brought suit against Virginia Surety and moved for partial summary judgment, claiming that Virginia Surety's investigation and denial of coverage constituted bad faith. The district court agreed that Virginia Surety's reliance on the Fungus Exclusion constituted bad faith because the construction defects listed by the homeowners associations "merely referenced water stains and other 'water damage'—they did not include any reference to mold or fungus." The district court determined that "reasonable minds could not differ that Virginia [Surety] had no basis for invoking the Fungus Exclusion, as the H[omeowners Association]s never complained about the presence of mold or fungus." The court further rejected Virginia Surety's argument that the Fungus Exclusion was not the primary basis for its denial of coverage. Relying upon Washington law, the district court noted that "an insured may maintain an action against its insurer for bad faith investigation of the insured's claim …regardless of whether the insurer was ultimately correct in determining coverage did not exist." Ledcor Industries (USA) Inc. v. Virginia Surety Co., Inc. (W.D. Wash. Dec. 9, 2011). Charles W. Browning Kenneth C. Newa Plunkett Cooney P.C. Bloomfield Hills, MI email@example.com firstname.lastname@example.org WISCONSIN WISCONSIN—AUTO COVERAGE/EXHAUSTION/TENDER The Wisconsin Court of Appeals ruled in Rural Mutual Insurance Co. v. Denzine, 2011 AP 183 (Wis. App. Jan. 4, 2012), that an automobile liability insurer had no continuing obligation to provide a defense to its insureds after tendering its limits for settlement. In light of language in the policy stating that "we will not defend any suit after our limit of liability has been offered or paid," District III held that this "tendered for settlement" language was effective, rejecting the insured's argument that the insureds had not received the policy or been made aware of this provision. Michael Aylward Morrison Mahoney Boston, MA email@example.com WISCONSIN—FIRST PARTY PROPERTY/"OCCUPANCY" The Court of Appeals ruled in Johnson v. Mt. Morris Mutual Insurance Co., 2010AP2468 (Wis. App. Dec. 1, 2011), that a homeowner was entitled under WIS. STAT. § 632.05(2) (2009-10) to recover the full policy limit when a house they owned was destroyed by an explosion and subsequent fire. Despite the property insurer's contention that the house was not "occupied" or a "dwelling" within the meaning of the statute because the Johnsons were not living in the house at the time it was destroyed, District Four ruled that the house was clearly purchased with the intention of making it a "dwelling" and did not lose this status merely because the property was being fixed up prior to actual occupancy. Further, the court interpreted "occupy" as including uses of a property beyond present physical occupancy that are related to future occupancy of the property. Michael Aylward Morrison Mahoney Boston, MA firstname.lastname@example.org Feature Article The Black Box Does Not Lie in PIP and Third-Party Auto Accident Cases by Robert S. Abramson Recently, a plaintiff in Michigan testified that just prior to an auto accident occurring, she was stopped at a stop sign, had her foot on the brake, and her seatbelt on. However, the “black box” in her vehicle revealed the true story. According to the data downloaded from her Event Data Recorder (EDR), the plaintiff was traveling at a speed of 61 miles per hour five seconds before impact, and 42 miles per hour in a 25 mile per hour zone at the time of impact; she never applied her brakes; never stopped at the stop sign; and was not wearing a seatbelt. Needless to say, EDR data can serve as powerful evidence not only in third-party auto cases, where liability is in question, but also in personal injury protection (PIP) cases where plaintiffs attempt to embellish the speed and force of the impact. Indeed, EDRs are cutting-edge technology that are going to play a prominent role in auto litigation for years to come, as they will be required to be installed in all North American vehicles effective 2013. An EDR has been defined by the National Highway Traffic Safety Administration (NHTSA) as "a device installed in a motor vehicle to record technical vehicle and occupant information for a brief period of time (seconds, not minutes) before, during and after a crash." While they have been around since 1994, the NHTSA required automakers for the first time in 2011 to disclose the existence of the technology in owners’ manuals. Typically, EDRs are located under the passenger front seat, driver’s seat, or the center console of a vehicle. Currently, Bosch is the only company that provides the crash data retrieval (CDR) software. This allows for downloading data from a microchip onto a laptop computer with the relative ease of connecting a wire to a plug under the car’s dashboard, which will then generate reports for use in accident reconstruction. There are two types of recorded crash events. First, a non- deployment event records data, but does not deploy the air bags—it contains pre-crash and crash data; however, after 250 ignition cycles, the data is wiped out. Second, in a deployment event, the air bags are deployed. The recorded data includes pre-crash and crash data, which is saved and may never be overridden. How to decide whether or not to obtain data from the EDR First, figure out whether the vehicle is still around. It may be totaled and no longer available. Second, find out the make and model of the vehicle. Older cars may not have EDRs. Importantly, analyze what sort of information may be downloaded from that particular car, and whether or not it could be useful for your defense. What types of information can be extracted from an EDR?Again, it depends on the car, but in general, the following data may be accessible: Air bag deployment; Whether the driver was wearing a seat belt; Whether brakes were applied; Vehicle speed five seconds and one second before impact; Throttle position; Severity of the crash, known as the delta force or the change of speed; Duration of the crash; Whether any warning lamps or fault codes were on. Another consideration is cost. If the EDR needs to be cut out from the underbody of the vehicle, that could add to the expense. Privacy laws, chain of custody, and spoliation of evidence Before you even think about accessing an EDR from a vehicle, check your state laws. Currently, thirteen states have enacted privacy statutes regarding obtaining data from EDRs: Arkansas, California, Colorado, Connecticut, Maine, New Hampshire, New York, Nevada, North Dakota, Oregon, Texas, Virginia, and Washington. In California, the data may not be downloaded unless the registered owner of the motor vehicle consents to the retrieval of the information. Colorado requires that the owner’s consent be obtained within the preceding 30 days. New Hampshire describes EDR data as “private property,” and ownership of the EDR module and data survives salvage transfer of ownership of the vehicle so long as the EDR is not separated from the vehicle. Once consent is provided, send out a notice of inspection of the vehicle and invite the plaintiff and his accident reconstructionist to attend. Also, prepare a letter demanding preservation of evidence. After the data is downloaded, provide a chain of custody for the information, including an affidavit from the accident reconstructionist. This is a critical step, because if the data is lost, the plaintiff may be allowed to use a spoliation of evidence jury instruction. For example, Michigan Civil Jury Instruction 6.01(d) provides that a trier of fact may infer that evidence not offered in a case would be adverse to the offending party if it was under the party’s control, it could have been produced, and no reasonable excuse was shown for failure to produce the evidence. This is a powerful and potentially damaging instruction. EDR evidence is generally admissible Courts across the country have consistently held that the crash data and its collection is not new or novel and have admitted such data into evidence. Further, the data has been found to be generally accepted in the scientific community, and therefore, it was proper for an expert to testify regarding the results of the data. Potential challenges to admission of EDR evidence by plaintiffs include: EDR not in proper working condition and accurately recording information at the time of the accident; Expert testimony concerning the calibration and/or maintenance of the vehicle; That the EDR data is inconsistent with the damage photos, measurements at the accident scene, and testimony of witnesses. The leading case regarding the admissibility of these black boxes is Bachman v. GM, 332 Ill.App.3d 760, 776 N.E.2d 262 (4th Dist. 2002). There, the plaintiff appealed from a defense verdict, claiming that the trial court erred by allowing evidence downloaded from the plaintiff’s vehicle that the airbag and restraint system functioned properly. The court held that the crash data and its respective collection was not new or novel and admitted it into evidence. Further, the data was found to be generally accepted in the scientific community, and it was therefore proper for the expert to testify regarding the results of the data under Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 US 579 (1993). Thus, the dismissal was upheld. In Cansler v. GM, 765 N.E.2d 698 (Ind. App. 2d Dist. 2002), an Indiana appellate court also determined that an EDR download confirming non-deployment of an airbag was proper and therefore admissible. However, the court stressed that since the defendants failed to present evidence that the EDR was functioning properly at the time of the accident, the data itself was not irrefutable evidence that the airbag performed properly. In People of the State of Michigan v Frank Druzynski (unpublished opinion per curiam of the Michigan Court of Appeals, decided July 20, 2010 [Docket No. 289521]), the defendant alleged that the victim’s vehicle caused the accident through the victim’s excessive speed. The defendant challenged the admissibility of the expert’s testimony, including the speed of the victims’ automobile at the time of the accident as recorded by module in the vehicle. After conducting a two-day Daubert hearing, the court determined that the data from the EDRs was reliable. The defendant then contended that the expert’s testimony should not have been admitted because the validity of the data was not in accord with the physical evidence. The court held that the reliability of the expert’s testimony regarding speed was not undermined by the physical evidence. Based on the case law outlined above, defendants must be vigilant about laying the proper foundation and chain of custody for the data and using an expert who is trained in examining this data (accident reconstructionist or engineer). Defendants should also be aware that they may have to proceed through an evidentiary hearing for the admission of the data and the proposed expert testimony. Nevertheless, if these steps are closely followed, the evidence should be deemed admissible, and should play a significant role inundermining the plaintiff’s subjective recall and providing a true snapshot of what actually occurred in the vehicle. Robert S. Abramson Kopka, Pinkus, Dolin & Eads Farmington Hills, MI 48331 email@example.com MyDRI Increase Your DRI Membership Value Did you know every DRI member has a listing on the Membership Directory? DRI has populated the member profiles on the DRI website for each member with their name, firm name, firm address, firm phone number, and member e- mail address, as well as a list of committees in which the member belongs. Once you log onto the DRI website using your username and password, you can find your member profile by clicking the 'Dashboard' link at the top of the screen. Complete your profile (known as MyDRI profile) by including your member photo, practice areas, member bio, and firm location. 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