The Missouri legislature has enacted amendments to our state’s interpleader statute, Mo. Rev. Stat. § 507.060, which address one of the most vexatious problems in claims handling – multiple claimants with insufficient policy limits to fully resolve each claim against the insured. House Bill 1531 was signed by the governor on June 1, and will become effective August 28, 2018.
Prior to these amendments, Missouri law was unsettled as to which approach should be favored by an insurer in a multiple-claimant scenario without risking third-party bad faith claims, for which Missouri is notorious. This post looks at the approaches to this problem in Missouri and elsewhere under the common law, and then at the changes worked by the revised interpleader statute.
I. THE STATE OF THE LAW PRIOR TO AUGUST 28, 2018
A. FIRST-COME, FIRST-SERVE
The oldest rule for resolving an insurer’s duties when presented with multiple claims and insufficient limits to pay all claims and potential claims is “first in time, first in right,” or “first-come, first-served.” When multiple claimants bring lawsuits against one or more insured defendants seeking damages for bodily injuries or death arising from a single occurrence and, based on a reasonable evaluation, the policy limits are plainly insufficient to cover the insured’s total potential exposure, courts generally apply the rule “first in time, first in right.” Voccio v. Reliance Ins. Cos., 703 F.2d l, 3 (1st Cir. 1983). This principle “applies regardless of whether the priority is by way of judgment or by way of settlement.” World Trade Ctr. Props. LLC v. Certain Underwriters at Lloyd’s of London, 650 F.3d 145, 151 (2d Cir. 20 11); Allstate Ins. Co. v. Russell, 13 A.D.3d 617, 788 N.Y.S.2d 401, 402 (N.Y. App. Div. 2004); Castorena v. Western Indemnity Co., 213 Kan. 103, 110, 515 P.2d 789, 794 (1973).
This means that the insurer is entitled to pay the first claimant who obtains a judgment, or the first claimant who presents a settlement demand within policy limits. A liability insurer “has discretion to settle whenever and with whomever it chooses, provided it does not act in bad faith.” World Trade Ctr. Props. LLC v. Certain Underwriters at Lloyd’s of London, 650 F.3d 145, 151 (2d Cir. 2011); Allstate Ins. Co. v. Russell, 13 A.D.3d 617 (N.Y. App. Div. 2004). The first to settle rule does not literally require that the insurer settle the first claim that is presented, but absolves it of responsibility for later claims when it has reached a reasonable settlement with the first claimant to negotiate to settlement.
[W]hen faced with a settlement demand arising out of multiple claims and inadequate proceeds, an insurer may enter into a reasonable settlement with one of the several claimants even though such settlement exhausts or diminishes the proceeds available to satisfy other claims. Such an approach, we believe, promotes settlement of lawsuits and encourages claimants to make their claims promptly.
Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312 (Tex. 1994). Soriano is generally considered the lead opinion on resolution of multiple-claimant problems.
It is generally agreed that the insurer can pay some claims and leave others unresolved, such that settlement exhausts policy limits so that the insured and other claimants are left without coverage under the policy. Liquori v. Allstate Ins. Co., 76 N.J. Super. 204, 208, 184 A.2d 12, 17 (N.J. Super. Ct. 1962). When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease.” Boris v. Flaherty, 242 A.D.2d 9, 12, 672 N.Y.S.2d 177, 180 (N.Y. App. Div. 1998).
It is also generally accepted that the insurer does not need to, and probably should not, wait until all claims are presented before determining which it will settle and how it will settle them. Hartford Casualty Ins. Co. v. Dodd, 416 F. Supp. 1216, 1219 (D. Md. 1976); State Farm Mutual Auto Ins. Co. v. Hamilton, 326 F. Supp. 931, 934 (D.S.C. 1971).
Still, the insurer should make every attempt to settle as many claims as possible within policy limits. In Continental Casualty Insurance Company v. Peckham, 895 F.2d 830 (1st Cir. 1990), the court explained that, in a multiple-claimant case, the insurer should try to settle all or some of the claims so that the insured could be relieved from as much liability as is reasonably possible. Id. at 835. In doing so, the insurer is entitled to exercise “honest business judgment” as long as it attempts to resolve the multiple claims in good faith. The court further recognized that, when the insurer is making a good-faith attempt to resolve multiple claims within the inadequate policy limits, the insurer is not required to make perfect judgments and is not automatically found in bad faith if the insured incurs liability beyond the policy limits. Id.
However, the insurer must be careful to attempt to preserve policy funds for truly significant claims. In Brown v. United States Fidelity & Guaranty Co., 314 F.2d 675 (2d Cir. 1963), an insurer was found to have acted in bad faith for the “overeager” settlement of a claim in disregard of potential personal liability on the insured. Id. at 682. That is, the insurer should not jump to settle a claim of minimal value, simply because it is presented first and easy to resolve, when this would deplete already insufficient policy funds and increase the insured’s exposure to an excess judgment.
The “first in time” cases are obviously in tension with cases holding that the insurer must still attempt to preserve as much of the policy funds as possible to minimize the insured’s exposure to an excess judgment, and the reported cases are highly fact-specific without a bright-line rule. Moreover, there are no reported Missouri cases authorizing a “first in time” approach to settlement of multiple claims exceeding the policy limits.
B. SEEK THE CLAIMANTS’ SUGGESTIONS ON A SPLIT
Insurers should attempt to resolve all claims if possible. One approach would be to determine whether the claimants would agree to a split of the policy proceeds. See Voccio v. Reliance Ins. Cos., 703 F.2d 1, 3 (1st Cir. 1983) (the fact that “the carrier met together with counsel for both [claimants] and sought suggestions on how to divide the money” was evidence of the insurer’s good faith); accord, Kinder v. Western Pioneer Ins. Co., 231 Cal. App. 2d 894, 902 (1965).
Voccio involved competing claims by the survivors of a decedent, and a minor who lost both legs in an auto accident. The insured maintained only $25,000 in combined liability limits. The insurer consulted with representatives of both claimants and proposed a 50/50 split. The decedent’s family accepted the settlement, but the minor refused, and obtained a substantial judgment. The First Circuit, nevertheless, found no bad faith because the insurer had reasonably attempted to resolve the situation.
There is no real harm in notifying the claimants that their claims are believed to exceed the policy limits, and seeking their input regarding an equitable division of the proceeds. This may help to inoculate the insurer from a later bad faith claim.
Our sense is that, for claims that pre-date the amended interpleader statute, although there are no reported Missouri cases, Missouri courts would prefer to see an insurer attempt to resolve all claims globally based upon suggestions from the claimants as to how the funds should be divided. It is probably a good idea to make such a request as soon as possible after receipt of a demand. Even though it is unlikely that the claimants will actually provide an agreed-upon division of the policy proceeds, documenting that the insurer has identified the problem and seeking the claimants’ proposals probably can only help deter a future bad faith claim.
C. PRO RATA
Missouri specifically approves payment of policy proceeds on a pro rata basis, based on the relative magnitude of each claim. Christlieb v. Luten, 633 S.W.2d 139, 140 (Mo. App. E.D. 1982); see also Geisner v. Budget Rent a Car of Mo., 999 S.W.2d 265, 268 (Mo. App. E.D. 1999). However, the Christlieb case involved distribution of policy proceeds following judgments in which the value of the claims were established by juries.
In Countryman v. Seymour R-II Sch. Dist., 823 S.W.2d 515, 522 (Mo. App. S.D. 1992), plaintiffs in a garnishment action argued that an insurer is required to pay out policy proceeds on a pro rata basis. The case notes that, other than Christlieb, there is no clear guidance in Missouri law for how to handle multiple claimants to an insufficient policy limit. Countryman, like Christlieb, found that it would be most equitable to divide the policy funds on a proportionate or pro rata basis under the facts of that case. However, this case is post-judgment, and does not address resolution of pre-suit claims.
These cases seem to support an insurer reaching its own good-faith determination of the relative value of the claims and attempting a pro rata distribution. However, these cases do not apply to settlement (as opposed to final judgment). As discussed elsewhere, if a claimant with a significant claim refuses to accept a pro rata distribution, the insurer must re-evaluate its position – Christlieb and others are not a “get out of jail free” card to allow the insurer to avoid bad faith.
Obviously, in a pre-judgment settlement posture, the claimants may not be willing to accept a pro rata distribution, and/or may disagree regarding the relative values of their claims. As discussed more fully below, there are consequences to an insurer that loses the opportunity to settle at least one of the claims while attempting a global resolution. While proposing a pro rata allocation of the policy proceeds is acceptable, the insurer still must act to settle within or for the policy limits if possible if the claimants will not accept a pro rata distribution. If there is no agreement, then the insurer should proceed with either a “first in time” or “most valuable/greatest risk” approach.
D. MOST VALUABLE CLAIM OR CLAIM PRESENTING THE GREATEST RISK OF EXCESS EXPOSURE
One of the leading cases on this issue is from across the border in Kansas, Farmers Ins. Exch. v. Schropp, 567 P.2d 1359 (Kan. 1977). This case involved $25,000/$50,000 policy limits, and an auto accident which resulted in the death of the insured driver and injury to five surviving claimants. A Mr. Schropp suffered the most severe injuries and the most damages. The insurer refused his settlement demand for $25,000, based on the other four claims. Id. at 1363. This case is discussed in greater detail below, but Schropp eventually recovered on an assigned bad faith claim. Id. at 1364.
While the reported case law in Missouri is less clear, the standard for bad faith in Missouri looks at whether the insurer has adequately protected the insured from a judgment in excess of the policy limits:
Circumstances that indicate an insurer’s bad faith in refusing to settle include the insurer’s not fully investigating and evaluating a third--party claimant’s injuries, not recognizing the severity of a third--party claimant’s injuries and the probability that a verdict would exceed policy limits, and refusing to consider a settlement offer. . . . Other circumstances indicating an insurer’s bad faith include not advising an insured of the potential of an excess judgment or of the existence of settlement offers.
Johnson v. Allstate Ins. Co., 262 S.W.3d 655, 662 (Mo. App. W.D. 2008). Where an insurance company, knowing that a claimant was badly injured and that liability was clear, and expecting the possibility of a significant adverse judgment in excess of the policy limits against its insured, refuses to offer the full amount of the policy limit in settlement of the claim, it is apparent the insurer placed its own financial interests before those of its insured. See Frank B. Connet Lumber Co. v. New Amsterdam Casualty Co., 236 F.2d 117, 126 (8th Cir. 1956). This is more complicated in a multiple-claimant context, but under Missouri law there is the clear potential for bad faith liability where the insurer does not take advantage of an opportunity to settle a large claim that would expose the insured to an excess judgment.
E. DO NOT LOSE THE OPPORTUNITY TO SETTLE ONE CLAIM WHILE PURSUING SETTLEMENT OF ALL CLAIMS.
The lead Missouri case on these issues is not particularly helpful, but does demonstrate some of the potential pitfalls in failing to handle appropriately a multiple-claimant situation. The insurer should not overlook good opportunities to resolve substantial claims in pursuit of the goal of settling all claims.
In Rinehart v. Shelter General Insurance Company, 261 S.W.3d 583 (Mo. App. W.D. 2008), the insured was driving drunk when he struck another vehicle, causing serious injuries to his passenger (Adkins) and the two occupants of the claimant vehicle (Ingram and Krohn). The applicable policy limits were $50,000 per person / $100,000 per accident. Claimants Ingram and Krohn demanded $50,000 each. Id. at 588. The insurer advised that it was willing to tender the full policy limits, but advised that claimants Ingram and Krohn would have to reach an agreement with insured passenger Adkins as to the distribution of the proceeds. Claimants Ingram and Krohn refused to share the policy limits with Adkins. Id. at 589. Counsel for Ingram and Krohn presented another policy limits demand, and the insurer responded that it would settle the claims for two-thirds of the total policy limits. Id. at 589. Claimants Ingram and Krohn filed suit, and excess judgments were entered for more than $3.5 million to Ingram and over $1 million to Krohn. Subsequently, the insured filed a bad faith action and a jury awarded $6.25 million in compensatory damages and $3 million in punitive damages. Id.
On appeal, the insurer argued that there was no evidence of bad faith because its sole objective was to settle all of the potential claims within the policy limits and, thus, protect the insured from any potential personal liability. The court determined that the evidence demonstrated that the insurer did not really intend to settle Adkins’s claim, and, therefore, a jury could infer that the insurer had attempted to escape its full contractual obligation to the insured by only offering to pay two-third of the policy limits. Id. at 596. The court of appeals also found that a jury could reasonably find that the insurer had acted with reckless indifference to the insured’s financial interests by refusing to settle with Ingram and Krohn for the full policy limits. Id. Rinehart suggests that it would be preferable to settle with a “big” claimant and to leave other claims unresolved, rather than to lose the opportunity to settle with the big claimant whose claim could well exceed policy limits.
II. AFTER AMENDMENTS TO MISSOURI’S INTERPLEADER STATUTE
Missouri House Bill 1531 provides clear options for insurers faced with the multiple claimants, insufficient limits problem. The bill amends Mo. Rev. Stat. § 507.060 to specifically provide that an interpleader action may be filed in circumstances “including multiple claims against the same insurance coverage.” The amended statute provides that an interpleader claim may be filed where there are multiple “potential” claims against the insurer or insured.
Under the new statute, so long as the insurer files an interpleader action within 90 days from receiving a settlement demand, the insurer is insulated from extra-contractual liability in “any other action,” specifically addressing the third-party bad faith problem. However, the insurer gets this “get out of jail free” card as to a potential bad faith claim only if it defends the insured in any bodily injury action even though it has deposited its limits into court in the interpleader. See Mo. Rev. Stat. § 507.060.4 (effective Aug. 28, 2018). Filing the interpleader and timely paying the policy limits into court following its order also insulates the insurer from a subsequent garnishment action by any of the claimants, who are prohibited from recovering from the insurer any amount beyond the limits deposited in the context of the interpleader. § 507.060.5.
This is significant because not only has Missouri been a bad faith trap for decades, there is case law in other jurisdictions holding that filing an interpleader action does not insulate insurers from potential bad faith claims. In Liberty Mut. Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969), the insurer chose to file an interpleader action when faced with multiple claimants and insufficient limits. It did not accept the first-presented demand for policy limits, but proceeded with the interpleader action. While the interpleader was pending, one of the injured claimants obtained a default judgment against the insured, and proceeded with garnishment and an assigned bad faith claim against the insurer. The bad faith claim went to trial.
The Fifth Circuit found that, while Liberty Mutual’s concerns about having to pay more than its policy limits were relevant to the ultimate jury question of bad faith, they did not, as a matter of law, justify the trial court’s directing a verdict for the insurer. It was for the jury to decide whether the insurer’s refusal to settle was primarily in its own interests and with too little regard for its insured’s interests.
When several claimants are involved, and liability is evident, rejection of a single offer to compromise within policy limits does not necessarily conflict with the interest of the insured. He hopes to see the insurance fund used to compromise as much of his potential liability as possible. Of course, if the fund is needlessly exhausted on one claim, when it might cancel out others as well, the insured suffers from the company’s readiness to settle. To put the point another way, even if liability be conceded, plaintiffs will usually settle for less than they would ultimately recover after trial, if only to save time and attorney’s fees. Each settlement dollar will thus cancel out more than a dollar’s worth of potential liability. Insured defendants will want their policy funds to blot out as large a share of the potential claim against them as possible. It follows that, insofar as the insureds’ interest governs, the fund should not be exhausted without an attempt to settle as many claims as possible. But where the insurance proceeds are so slight compared with the totality of claims as to preclude any chance of comprehensive settlement, the insurer’s insistence upon such a settlement profits the insured nothing. He would do better to have the leverage of his insurance money applied to at least some of the claims, to the end of reducing his ultimate judgment debt.
412 F.2d at 480-481.
The Fifth Circuit concluded that:
[E]fforts to achieve a prorated, comprehensive settlement may excuse an insurer’s reluctance to settle with less than all of the claimants, but need not do so. The question is for the jury to decide. As this Court put it in Springer v. Citizens Casualty Company, 5 Cir. 1957, 246 F.2d 123, 128- 129, it is “a question for jury decision whether the insurer had not acted too much for its own protection and with too little regard for the rights of the insured in refusing to settle within the policy limits”. [sic] Here, bearing in mind the existence of multiple claims and the insured’s exposure to heavy damages, did the insurer act in good faith in managing the proceeds in a manner reasonably calculated to protect the insured by minimizing his total liability? In many cases, efforts to achieve an overall agreement, even though entailing a refusal to settle immediately with one or more parties, will accord with the insurer’s duty. In other cases, use of the whole fund to cancel out a single claim will best serve to minimize the defendant’s liability. Considerable leeway, of course, must be made for the insurer’s honest business judgment, short of mismanagement tantamount to bad faith.
Id. at 481.
Although not an interpleader action, an insurer in Kansas filed a declaratory judgment action prior to the reduction of any of five competing claims to judgment. The court found that the insurer could still be liable for bad faith. Farmers Ins. Exch. v. Schropp, 567 P.2d 1359 (Kan. 1977). The facts of Schropp are discussed above.
The Kansas Supreme Court faulted the insurer for not filing an interpleader action, but also held that the preferred method for resolving the problem was to invite all of the claimants to participate in a joint effort to distribute the available policy funds. Id. at 1364. Even filing an interpleader may not have been enough to preclude bad faith liability. Filing a declaratory judgment action, however, was definitely not the correct course of action. Id.
It is a strange and refreshing sensation to find Missouri law to be more favorable than that of other jurisdictions on third-party bad faith exposure. However, given the nature of the plaintiffs’ bar in the state and some problematic courts, we will keep an eye on how the amended § 507.060 is applied by the trial courts.
Amendments to 537.065 Providing for Notice to the Insurer and Intervention as of Right to be Applied Prospectively OnlyJuly 25, 2018 | Lisa Larkin
A recent decision from Missouri’s Western District Court of Appeals, Desai v. Seneca Specialty Insurance Company, WD81220, involves retroactive vs. prospective application of certain amendments to § 537.065, RSMo. That statute allows a claimant and a tort-feasor to contract to limit recovery against the tort-feasor. It permits any person with a claim for damages against a tort-feasor to enter into an agreement with that tortfeasor whereby, in consideration of the payment of some amount, the claimant would agree that in the event of a judgment against the tort-feasor, he would limit his recovery as against the tort-feasor to the amounts of the insurance policy. Amendments to that statute, effective August 28, 2017, provide new protections to the insurer in the context of these agreement, which are often used to set up claims against an insurer for bad faith refusal to settle. Under the 2017 amendments, before a judgment may be entered against any tort-feasor who has reached such an agreement with a claimant, an insurer must be provided with written notice of the execution of the contract and must be given thirty days after receipt of the notice to intervene as a matter of right in any pending litigation involving the claim for damages. The pre-August 28, 2017, statute contains no such protections for the insurer. The rights to notice and to intervene contained in the amendments is important, therefore, because it seemingly allows the insurer to contest both liability and damages, and possibly coverage issues, as part of the underlying litigation.
In Desai v. Seneca Specialty Insurance Co., Seneca sought to intervene in the lawsuit filed by Neil and Heta Desai against Seneca’s insured, Garcia Empire, LLC. In October 2014, Neil Desai suffered a personal injury while being escorted from a Garcia Empire establishment. The Desais filed suit in May 2016, and Garcia advised Seneca of the suit. Seneca offered to defend Garcia subject to a full and complete reservation of rights regarding coverage, but Garcia rejected Seneca’s offer. In November 2016, the Desais and Garcia entered into a contract under § 537.065 wherein the Desais agreed to limit recovery of any judgment against Garcia to its insurance coverage.
The parties tried the case on August 17, 2017, and the court entered judgment in favor of the Desais and against Garcia on October 2, 2017. Within 30 days of the entry of judgment, Seneca filed a motion to intervene as a matter of right, arguing it was entitled to receive notice of the § 537.065 contract between Garcia and the Desais and to intervene as a matter of right in the lawsuit based on the August 28, 2017, amendments to § 537.065.
The trial court denied the motion to intervene, holding the legislature did not expressly provide for the August 2017 amendments of § 537.065 to be applied to proceedings had or commenced under the statute prior to the amendment. The court of appeals affirmed.
The appellate court rejected Seneca’s argument that the August 28, 2017, amendments applied because the judgment had been entered after the effective date. The plain language of the amended statute provides that an insurer shall be given notice and an opportunity to intervene before a judgment may be entered against any tort-feasor “after such tort-feasor has entered into a contract under this section.” Thus, the trigger point is the entry of the contract, not the date of the judgment.
The appellate court also rejected Seneca’s argument that the 2017 amendments could apply to contracts entered before that date because the changes to the statute regarding notice and intervention were merely procedural and not a substantive change in the law. When Garcia and the Desais entered into their § 537.065 contract, however, Seneca had no right to notice and no standing to intervene as a matter of right. Yet, after the amendments, an insurer would have such standing and have the right to notice. Thus, that section, as amended, creates new legal rights in favor of an insurer which did not exist prior to the amendments. It also imposes new obligations and duties upon the insured, giving a contract entered before August 28, 2017, a different effect from that which it had when entered. Application of these amendments to contracts executed before August 28, 2017, therefore, would be impermissibly retrospective in nature, i.e., it would affect past transactions to the substantial prejudice of the parties.
Thus, the appellate court concluded the notice and intervention provisions of amended § 537.065 apply prospectively only to § 537.065 contracts executed after the effective date of the amendments, August 28, 2017. For contracts entered before that date, such as that at issue in this case, the insurer does not have the protection of the new notice provision and the option to intervene as a matter of right. This opinion reaches only these two specific portions of the August 28, 2017, amendments to § 537.065. It remains to be seen how appellate courts will address the retroactive application of other portions, but this opinion gives some good insight into how the Western District is likely to approach the issue.
Missouri Upholds Pollution Exclusion to Relieve Insurance Company from Duty to Defend Toxic Tort Claims Arising from Industrial PollutionNovember 27, 2017 | Martha Charepoo
In a recent decision, the Missouri Supreme Court for the first time considered the meaning and application of a pollution exclusion in a commercial general liability policy, landing unanimously on the side of the insurance company in favor of denying coverage to the insured. In Doe Run Resources Corp. v. St. Paul Fire and Marine Ins. Co. et al., the Supreme Court decided whether a policy’s pollution exclusion relieved the insurer from having to defend a lead mining company in numerous toxic tort lawsuits alleging injury from industrial pollution emitted from an overseas operation. The outcome turned on whether the exclusion was ambiguous, and, therefore, should be construed against the insurer in favor of coverage.
In defending its decision to deny coverage, the insurer had to contend with Missouri appellate precedent relied upon by the insured that found, where the insured’s business involved chemicals that might be deemed “pollutants”, a pollution exclusion is inconsistent with the insured’s reasonable expectations of coverage. Hocker Oil Co. v. Barker-Phillips-Jackson, Inc., 997 S.W.2d 510 (Mo. App. S.D. 1999). The trial court adopted Hocker and found that the pollution exclusion created an ambiguity in the policy because it did not specifically identify lead as a pollutant. Consequently, the trial court construed the exclusion against the insurer and entered summary judgment in the insured’s favor on coverage. The Court of Appeals agreed that the pollution exclusion was ambiguous and did not bar coverage for the toxic tort claims.
On transfer from the Court of Appeals, the Supreme Court took the opposite view of Hocker and instead followed a more recent Eighth Circuit decision involving the same insured (Doe Run) which upheld a pollution exclusion and applied it to claims alleging injury from exposure to hazardous waste byproducts of the insured’s production process. Doe Run Res. Corp. v. Lexington Ins. Co., 719 F.3d 876 (8th Cir. 2013). In doing so, the Supreme Court distinguished the facts of Hocker, which involved failure of a gasoline storage tank at a gas station, releasing 2,000 gallons of gasoline into the ground causing damage to neighboring property. The court said that this case is completely different because the alleged exposure here was to toxic lead byproducts released into the air by the insured’s production process, not the insured’s lead products themselves. In framing the facts of the case in this way, the court found this case to be identical to Lexington in which the Eighth Circuit found that a nearly identically worded pollution exclusion barred toxic tort coverage for claims from the insured’s Missouri facility.
As a result of Doe Run, Missouri law is now clear that pollution exclusions are not inherently ambiguous as to toxic tort claims arising from exposure to industrial pollution rather than the insured’s product themselves, and insurers can probably rely on such an exclusion to deny coverage in such cases.
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