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Amicus Curiae Support List |
© Property Loss Research Bureau 2011 |
Requests for Amicus Curiae Support
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The following is a list of cases where the parties to the case or the court believe amicus curiae briefs would be helpful. The information is intended as a summary. Please contact the listed contact person for additional details and procedural information.
Reasonable Expectations Doctrine - Can an insured's purported "reasonable expectations" trump an unambiguous policy exclusion? HoneyBaked is an Ohio Company that makes and sells glazed hams and turkey products. In 2006, HoneyBaked discovered that their product was tainted with a pathogenic bacterium, listeria, that could cause serious infections in humans. As a result, HoneyBaked recalled and disposed of nearly one million pounds of their product. They also temporarily shut down their operations. HoneyBaked determined that the source of the contamination was a hollow roller on a conveyor. Repairs were made. HoneyBaked subsequently filed a first party property insurance claim for their loss to property and for loss of business income. Their insurer, Affiliated FM Insurance Company (FM), denied the claims pursuant to a contamination exclusion in the policy. HoneyBaked brought suit. The Federal trial court held that the contamination exclusion unambiguously applied to the loss. However, HoneyBaked argued that the exclusion should not apply, even though unambiguous, because HoneyBaked, a multimillion dollar organization that used the expertise of a sophisticated insurance broker, nonethless had a "reasonable expectation" that this type of contamination loss would be covered. The court certified the question of state law to the Ohio Supreme Court as follows: In light of the Supreme Court of Ohio’s opinion in Anderson v. Highland House Co., 93 Ohio St. 3d 547 (2001), does the reasonable-expectations doctrine apply to a commercial general liability “all-risk” insurance policy, so that coverage, which otherwise would be excluded under the terms and conditions of the policy, is afforded, provided the trier of fact determines that the insured reasonably expected, when purchasing the policy, that the policy would cover the loss at issue. Counsel for FM believes that this issue significantly impacts the law of insurance contracts and all other contracts within Ohio. A court's failure to honor unambiguous terms within a contract could lead to great uncertainty in the business world. Consequently, FM seeks support from others in the industry in the form of amicus curiae briefs to the court. Counsel for FM reports that the matter is currently at its jurisdictional stage. Ohio's high court must decide whether it will accept the certified question. Affiliated FM will be opposing jurisdiction and seeks amicus curiae assistance in doing so. Those briefs are due March 30, 2011. Alternatively, if the Ohio Supreme court accepts the certified question, Affiliated FM seeks amicus curiae assistance in opposing the question at the merits stage. Counsel for FM respectfully requests that you direct this information to your company's legal department for review and consideration. For more information, please contact Thomas Brown, Counsel for FM. Thomas S. Brown, Esq.
Anti-concurrent causation preface to wear and tear exclusion - Is it enforceable?
The roof over a city owned swimming pool collapsed after a large snowstorm struck the area. A jury concluded that the collapse resulted partially from decay and deterioration (10%), which were excluded causes of loss, and partially from the weight of snow (90%), which was a covered cause of loss under the policy. The trial court, therefore, ordered the insurer to pay 90% of the loss.
On appeal, the Colorado appellate court held that the entire collapse loss was excluded. Colorado Intergovernmental Risk Sharing Agency v. Northfield Ins. Co., 207 P.3d 839 (Colo. App. 2008) reviewed at PLRB, Prop. Ins. L. Rev. 7599 (2008). The court reasoned that the decay and deterioration exclusions were prefaced with an anti-concurrent causation clause. Therefore, the weight of snow was not relevant.
It seems important to note that the policy was a non-standard form. The court made no mention of a collapse exclusion or a collapse additional coverage provision. More importantly, the wear and tear group of exclusions, which included decay and deterioration, were prefaced with an anti-concurrent causation clause (ACC). In standard forms, this type of clause prefaces exclusions such as earth movement and the water damage group of exclusions, but generally not the wear and tear group of exclusions.
The appellate court strictly applied the ACC pursuant to Colorado precedent established in Kane v. Royal Ins. Co., 768 P.2d 678 (Colo. 1989). In Kane, the Colorado Supreme Court held that the ACC prefacing a flood exclusion applied to excluded loss cause by a dam failure and third party-negligence in maintaining the dam.
Issue on Appeal
Whether the Colorado Supreme Court's "ruling in Kane v. Ryal Ins. Co., 768 P.2d 678 (Colo. 1989), applies to exclude recovery under an insurance policy when a jury finds that the damage was caused 90% by a covered peril (weather event) and 10% by an excluded peril (wear and tear, rust, or deterioration)."
The Colorado Intergovernmental Risk Sharing Agency v. Northfield Ins. Co., 2009 WL 1485804, No. 2008SC907, Court Order May 26, 2009.
Who do you contact to give amicus support?
The insurer, Northfield, believes the case will impact the entire industry. They believe that the court will be amenable to receiving amicus curiae briefs.
These "friend of the court" briefs are legal documents filed by non-litigants in appellate court cases, which include additional information or arguments that those outside parties wish to have considered in that particular case. Appellate cases are otherwise limited to the factual record and arguments coming from the lower court case under appeal, and so amicus curiæ briefs are a way to keep the possibly broad legal impact of court decisions from depending solely on the parties directly involved in the case.
If your company's legal team would be interested in filing an amicus curiæ brief in this pending appeal, please contact:
Kevin Amatuzio Counsel for Northfield Insurance Company
Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P. 1775 Sherman Street, 21st Floor Denver, CO 80203
KAmatuzio@mkadlaw.com
Direct: (303) 592-6614 p 303-592-6600 f 303-592-6666
A briefing schedule has already been set by the court. Please contact Mr. Amatuzio regarding court procedures and deadlines.
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Please note that PLRB does not prepare or submit amicus curiæ briefs. We do alert member companies and others that may be interested in participating.
Also, our reading of the case indicated that this was a non-standard form. The anti-concurrent causation clause apparently was applied to the wear and tear group of exclusions. That is not typical of the standard ISO forms. If that is incorrect, please let me know.
If you have any questions or comments, please contact me at your convenience.
Sincerely,
Len Murphy Vice President & General Counsel Property Loss Research Bureau 630 724 2213
Does "loss of use/functionality" equate to "physical damage" for property coverage? Amicus Curiae Support requested - NJ.
A New Jersey appellate court found that the phrase “physical damage” was ambiguous and further found that an electrical grid was “physically damaged” because, “due to a physical incident or series of incidents, the grid and its component generators and transmission lines were physically incapable of performing their essential function of providing electricity.” Wakefern Food Products, et al. v. Liberty Mutual Insurance Co., A-2010-07T3 (Sup. Ct. N.J. April 22, 2009). (Click here for the text of the opinion.)
Liberty Mutual is appealing this decision to the New Jersey Supreme Court. The court is accepting Amicus Curiae briefs. Liberty Mutual is particularly interested in Amicus support that would outline the negative impact the decision and reasoning will have on the first-party insurance industry, particularly the court’s finding that the loss of functionality is physical damage. For more information, please contact:
Harris Berenson, Esquire 781-891-0230, Ext. 20131 781-642-6654 harris.berenson@libertymutual.com
The current deadline for submitting briefs is May 22, 2009. However, Liberty is seeking a 30-day extension for time to file.
Amicus Industry Support Requested - Duty to Defend Trademark Infringement -NC
Harleysville Mut. Ins. Co. v. Buzz OFF Insect Shield involves a duty to defend under the "Personal and advertising injury" provisions of a commercial liability policy. Harleysville believes there was no duty to defend because the underlying complaint did not contain sufficient allegations to trigger the duty to defend. The trial court and an intermediate appellate court in North Carolina found that there was a duty to defend.1 Harleysville believes the courts erred because their conclusion was reached by inferring facts not in the underlying complaint to support a finding of a duty to defend. Drawing inferences was held by this court to be correct as a matter of law. Harleysville believes the decision could widely impact the industry. Defense costs in this case, for example, already exceeded $9 million.
What can you do?
Harleysville believes this case concerns a matter important to others in the industry and wishes to encourage others to consider filing amicus curiae briefs to the North Carolina Supreme Court. If you believe that this is an issue of interest to your company, please contact the appropriate staff person within your organization who can review the matter.
For specific details regarding the case and filing information, please contact:
Theresa Funaro Harleysville Mutual Insurance 215-256-5714
or, defense counsel:
David Brown, Esq. Coates Kyre & Brown P. O. Box 4848 Greensboro, NC 27404 336-282-8848
You can review the appellate opinion by clicking here.
If you have a case needing support, you can request such support. Simply complete the online Amicus Curiae Support Request Form or call PLRB at (630) 724-2200 and ask for the office of the General Counsel.
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What is an Amicus Curiae Brief?
“Amicus curiæ (Latin for friend of the court; plural amici curiæ) briefs are legal documents filed by non-litigants in appellate court cases, which include additional information or arguments that those outside parties wish to have considered in that particular case. Appellate cases are otherwise limited to the factual record and arguments coming from the lower court case under appeal, and so amicus curiæ briefs are a way to keep the possibly broad legal impact of court decisions from depending solely on the parties directly involved in the case. Non-profit legal advocacy organizations such as the American Civil Liberties Union frequently submit amicus curiæ briefs to advocate for or against a particular legal change or interpretation.
If a case may have effects on other parties, then they may file amicus curiæ briefs. For example, if a decision will affect an entire industry, even though it is brought up against only one company, other companies may file briefs as amicus curiæ. Similarly, if a law in one state is under evaluation, and another state has a law that would be affected by the decision, then this other state may file a brief as an amicus curiæ.
Occasionally, however, amicus curiæ are not opinions on the argument or on one part of the argument, but simply an academic perspective. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim using his expertise. An economist, statistician, or sociologist may choose to do the same.
The court has discretion to grant or deny permission of parties to file briefs as amicus curiæ as it wishes. Generally, cases that are very controversial will attract a number of such briefs.”
<http://en.wikipedia.org/wiki/Amicus_curiae>
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