The Brief Case: DRI Committee News

Insurance Law: Covered Events (Cont.)

Suspected Fraud After the Insured has Assigned Benefits: Practical Considerations

By Andrew Willis

Introduction

This article addresses practical considerations for dealing with a party you suspect of making an inflated or fraudulent property insurance claim under an assignment of benefits from the policyholder. It looks at how different courts have answered basic questions regarding assignments and discusses the practical implications of the answers. The article begins, however, by placing assignments fraud in context, both in terms of how it may manifest itself in your day-to-day practice and also how it has occurred on a state- and even nationwide scale.

AOB Fraud in Context

Consider the following hypothetical:

An exasperated adjuster refers you a water damage claim that would ordinarily never wind up with outside counsel. The policyholder has apparently executed an assignment of benefits in favor of a public adjuster. Purporting to speak for the insured, the adjuster derides the carrier’s decision to “lawyer up” and bristles at the suggestion that a six-month delay in the reporting of the claim is a legitimate topic of discussion. The adjuster vehemently disagrees with the carrier’s estimate, which he points to as evidence of the carrier’s obvious bad faith. At the same time, the adjuster refuses to answer questions about he arrived at his own, significantly higher, valuation of the claim. Nor will he disclose whether he is in possession of additional documents supporting his own figure.

You issue document requests and a request for the policyholder’s EUO. The contractor gets a lawyer of his own. The case eventually settles, but not before you receive a lengthy demand package prepared by the adjuster replete with legal authority from other states addressing disputes that you did not realize existed in your case. The claim did not involve fraud in the sense of material false statements or the intentional concealment of information by the policyholder. All the same, your estimator determined the claim to be worth a third of what the adjuster claimed. You can’t help but conclude the contractor’s aggressive tone was an attempt to cow your adjuster and then you into accepting a claim the contractor knew to be inflated.

Legally speaking, an assignment is the transfer of a contract right by the party possessing the right to another party. 9 Corbin on Contracts § 47.1 (2023). The transferring party must completely relinquish the right in order for the assignment to be valid. Id. The assignment is a unilateral act and does not, by itself, create a new contract. Id. Practically speaking, assignments serve a legitimate economic function. In the insurance context, in exchange for the right to insurance benefits payable after a loss, a contractor or public adjuster assumes the burden of restoring the damaged property and dealing with the insurance company. What is an Assignment of Benefits? Jim Probasco. In theory, everybody wins. The policyholder is relieved of having to delve into the finer points of construction and property insurance. The carrier can deal with a sophisticated party. The contractor or public adjuster profits financially. However, the scenario described at the beginning of this article gives hypothetical expression to how this legitimate function can be subverted by fraud and abuse.

An earlier edition of this publication detailed how contractors, public adjusters, and their attorneys abused the assignment of benefits process to submit inflated and false property claims on a grand scale. Selling Shovels in a Legal Gold Rush: Policyholder Advocates Swindle Insurers and Insureds to Cash In, Christopher Teske, The Brief Case: DRI Committee News, Vol. 2, Issue 3, March, 2023. The article recounts how a Houston-based law firm, known for filing roughly 1,500 claim-related lawsuits in Louisiana federal court in a single day, was accused of using an affiliated roofing company’s assignment of benefits form to engage policyholder clients without their knowledge. Id. This earlier article and others documented how legislative changes intended to protect policyholders in fact fueled their abuse at the hands of their assignees. In Florida, for example, prior to legislative reforms in 2019, a statute permitted prevailing policyholders in first-party claims litigation to recover their attorney’s fees, but not prevailing insurers. “This one-sided fee shifting scheme, which was intended to even the playing field between insurers and insureds, incentivize[d] contractors and their attorneys to aggressively file lawsuits against insurers without having to risk the possibility of paying the insurers’ legal costs if they fail.” Long-Awaited Assignment of Benefits Reform Law Enacted, Fred E. Karlinsky, et al., The Demotech Difference, Summer, 2019.

Fraud and abuse has occurred at a sufficiently large scale, with a corresponding influence on insurance premiums, that state legislatures have intervened. Passed in 2022, Florida’s Senate Bill 2-A enacted changes to Florida law prohibiting the assignment of property claims under residential and commercial property policies issued after January 1, 2023. Fla. Stat. § 627.7152(13). A Louisiana statute operates similarly, with exceptions permitting assignments to lenders and purchasers of property. La. Stat. tit. 22 § 1275. However, despite this recent momentum for reform, assignments remain a vital force for practitioners dealing with first-party claims. This author has recently confronted inflated claims from assignees in Virginia, a state with few of the statutory incentives to litigate which have given rise to legislative reforms elsewhere. This suggests the problem can arise anywhere. What should a practitioner do?

Practical Considerations

When confronted with the questionable claim of an assignee, start by determining whether assignments are valid as a general matter in your state. This analysis will probably prove counter-intuitive because, on one hand, most homeowner’s policies contain language purporting to prohibit assignments without the carrier’s consent, and yet, on the other hand, most states appear to allow assignments of insurance benefits notwithstanding this language. See, Orthopedics v. State Farm Mut. Auto. Ins. Co., No. 18-162907-NF, 2018 Mich. Cir. LEXIS 3414 at * 2 (Mich. Cir. Ct., April 20, 2018) (policy at issue stated: “[n]o assignment of benefits or other transfer of rights is binding upon [the insurance company] unless approved by [the insurance company]”). In Texas, however, courts have enforced anti-assignment clauses under the simple rationale that the “law is clear that parties have a right to contract with regard to their property as they deem appropriate, so long as the contract does not offend public policy and is not illegal.” Texas Pac. Indem. Co. v. Atlantic Richfield Co., 846 S.W.2d 580, 582 (Tex. App. Houston 1993). Moreover, as discussed above, some states like Florida and Louisiana now prohibit the assignment of insurance benefits by statute. However, states prohibiting assignment constitute a minority of jurisdictions. Keller Founds, Inc. v. Wausau Underwriters Ins. Co., 626 F.3d 871, 874 (5th Cir. 2010).

The “great majority of courts,” meanwhile, “adhere to the rule that general stipulations in policies prohibiting assignments...except with the consent of the insurer apply only to assignments before loss, and do not prevent an assignment after loss.” Couch on Insurance, § 35:7. Under the prevailing rationale, once a loss has occurred, the “interest of the assured becomes a chose in action, which he has a right to assign, in spite of this clause, without asking permission of the company.” Aetna Ins. Co. v. Aston, 96 S.E. 772, 774 (1918). In other words, the right to insurance proceeds after a loss becomes a property interest held exclusively by the insured. The insured is free to transfer that right irrespective of the policy’s terms, much as the insured could freely spend the policy proceeds after they have been paid.

Assuming that an assignment is valid, a logical next step is to confirm what, exactly, has been assigned. For example, many homeowner’s policies contain conditions similar to those found in the following Broad Form Endorsement – Pennsylvania endorsement (HO 37 02 08 11) from the Insurance Services Office:

SECTION I – CONDITIONS
***
C. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an "insured" seeking coverage, or a representative of either:
***
5. Cooperate with us in the investigation of a claim;
***
7. As often as we reasonably require:
a. Show the damaged property;
b. Provide us with records and documents we request and permit us to make copies; and
c. Submit to examination under oath, while not in the presence of another "insured", and sign the same;

Does it follow from the assignee’s assumption of the policyholder’s rights to the insurance proceeds that the assignee has a corresponding duty to comply with the policy’s conditions? Under the general law of assignments, the answer is most likely not. As articulated by the New Jersey Superior Court:

It is classic hornbook law that the assignment of a contract right does not also delegate its duties. ‘While an ‘assignment’ of a contract right extinguishes the right in the assignor and recreates the same right in the assignee, it is impossible to ‘assign’ a duty . . . . [O]ne assigns rights but delegates duties. . . .” Unless the assignee expressly assents to assume the duty or was a party to the original agreement, ‘no action can be maintained against him [for non-performance of the duties], either by the assignor, or by the third party as a beneficiary.’

Selective Ins. Co. of America v. Hudson East Pain Management Osteopathic Medicine and Physical Therapy, 416 N.J. Super. 418, 426 (N.J. Super. 2010) (internal citations omitted). The Arizona Court of Appeals recently reached a similar conclusion in an unpublished decision. Allstate Vehicle & Prop. Ins. Co. v. EcoDry Restoration of Ariz., LLC, No. 1 CA-CV 21-0710, 2022 Ariz. App. Unpub. LEXIS 901 (Az. Ct. App. 2022). Identifying a practical problem with imposing contractual duties on assignees in the insurance context, that court went on to state in dicta that “[i]t would be impractical, if not nearly impossible, for [the assignee] to conduct its business of remediation if it assumed the contractual responsibilities of each of its clients with their respective insurers.” Id. at *5. By contrast, at least one federal court, applying the general principles of Louisiana’s law of assignments, found that a contractor who had assumed a policyholder’s rights also assumed its duties: “under Louisiana law, an ‘assignee ‘steps into the shoes’ of the assignor and acquires only those rights possessed by the assignor at the time of the assignment. Accordingly, Plaintiffs must comply with the terms and conditions of the policy, including the appraisal [and examination under oath] provision.” Morgan v. Americas Ins. Co., No. 16-13900, 2017 U.S. Dist. LEXIS 104184 at *4 (E.D. La. Jul. 6, 2017).

As a practical matter, practitioners in most states probably will not, by default, have a legal basis for insisting that the contractor or public adjuster they are dealing with provide documents or sit for an EUO. However, this does not preclude you from asking. In the hypothetical situation described at the beginning of this article, an EUO and document requests would have proved valuable in forcing the contractor to clarify the basis (if any) for his dispute regarding the carrier’s estimate.

Moreover, even in jurisdictions that follow the law of assignments as articulated in New Jersey’s Hudson East Pain Management decision, an assignee can assume the policyholder’s duties by contract. Thus, you should not assume you will have no legal basis for insisting on the contractor’s or public adjuster’s compliance with the policy conditions even if the law of your jurisdiction does not otherwise provide for it. This, in turn, raises two additional practical considerations: 1.) it is important to obtain a full copy of the executed assignment of benefits as well as any contract between the policyholder and assignee; and 2.) you should have the right to obtain these documents, as well as an EUO, from the policyholder. Regarding this second point, if the law of your jurisdiction is that an assignment of benefits does not delegate the policyholder’s duties under the policy, it follows logically that those duties remain with the policyholder. The policyholder will likely be ignorant of how a contractor or public adjuster has calculated a loss. Nonetheless, the policyholder’s EUO can be useful in helping you assess the truthfulness of the assignee’s representations about the loss and providing you with a sense of the degree to which the contractor or adjuster may be using the policyholder to pursue an inflated claim. After all, the policyholder will no longer be expecting a cash recovery and will have a different, although overlapping, interest in the outcome of the claim than the assignee.

Conclusion

In the majority of states where assignments are permitted, there is potential for fraud and abuse. If you encounter an assignee’s claim that you suspect is inflated or fraudulent, challenge the assignee’s basic assumptions. Determine whether statutory or decisional law in your jurisdiction permits assignments in the first instance. If it does, review the assignment of benefits itself to see whether the assignee has agreed to be bound by the policy’s conditions. Even if you lack the legal right to demand documents or an EUO from the assignee directly, exercise these rights with respect to the policyholder. Do not let an assignee use an assignment of benefits to thwart a legitimate investigation, especially in cases of suspected fraud.

Andrew Willis is a member in McAngus, Goudelock, and Courie’s Richmond, Virginia office. He also serves as the vice chair of DRI’s Fraud/SIU Substantive Law Group. Andrew dedicates a significant portion of his practice to fraud and arson investigations. He also analyzes a wide variety of coverage issues for insurance clients, including issues arising under homeowners, CGL, and excess/surplus lines policies. Andrew regularly litigates insurance coverage disputes in state and federal courts. He is barred in Virginia, Washington, D.C., and Maryland.

New York State Appellate Division Rules, in Seminal Decision, That Retrocessionaire Can Bring Malpractice Suit Against Underlying Insured’s Counsel Under Equitable Subrogation Theory

By Robert A. Whitney

Historically, states have taken divergent views on the ability of an insurance company to step in to the shoes of its insured and file suit for legal malpractice. Many of these cases deal with the ability of an excess insurer to file suit against the insured's defense counsel. Many fewer courts, however, have looked at the question as to whether a reinsurer can bring a claim for legal malpractice against an underlying insured’s defense counsel.

Many jurisdictions have allowed an excess insurer to assert a legal malpractice claim against the insured's defense attorney under the doctrine of equitable subrogation. See Allstate Ins. Co. v. Am. Transit Ins. Co., 977 F. Supp. 197, 201 (E.D.N.Y.1997)(applying New York law); Am. Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 484 (Tex. 1992); Atlanta Intl. Ins. Co. v. Bell, 438 Mich. 512, 521, 475 N.W.2d 294 (1991); Gen. Accident Ins. Co. v. Schoendorf & Sorgi, 202 Wis.2d 98, 549 N.W.2d 429 (1996); Chem. Bank of New Jersey Natl. Assoc. v. Bailey, 296 N.J. Super. 515, 687 A.2d 316 (1997); Great Am. Ins. Co. v. Perry, 1994 WL 101991, at *2 (Minn.App.1994).

Other jurisdictions, however, have refused to recognize an excess insurer's right to maintain such a legal malpractice action. See St. Paul Ins. Co. of Bellaire, Texas v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991)(applying Louisiana law); Continental Casualty Co. v. Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 107 (2nd Cir. 1991) (applying Connecticut law); Bank IV Wichita, Natl. Assoc. v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 827 P.2d 758 (1992); Fireman's Fund Ins. Co. v. McDonald, Hecht & Solberg, 30 Cal.App.4th 1373, 36 Cal.Rptr.2d 424 (1994); Natl. Union Ins. Co. v. Dowd & Dowd, P.C., 2 F.Supp.2d 1013, 1024-25 (N.D.Ill.1998).

Recently, the New York Appellate Division examined the question as to whether a reinsurer could bring a legal malpractice claim against an underlying insured’s defense counsel. In Century Property and Casualty Insurance Corp. v. McManus Richter, et al., No. 1136, slip op. (N.Y. Sup. Ct., App. Div., 1st Dept. February 15, 2024), 2024 NY Slip Op 00799, 2024 N.Y. App. Div. LEXIS 880, the New York Appellate Division, in a matter of first impression, ruled that a retrocessional insurer, under an equitable subrogation theory, can maintain a legal malpractice claim against a law firm that represented the insured in an underlying personal injury action. In its February 15, 2024, opinion, the New York Appellate Court noted that “where a reinsurer, or retrocessionaire, has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured.” As such, the Court concluded that that the plaintiff retrocessionaire, “having paid out on the settlement on behalf of the insured in the underlying action, has standing to assert a claim for legal malpractice against defendants under the theory of equitable subrogation.” Slip op. at 1.

The dispute began in an underlying personal injury action in the New York County Supreme Court, Palaguachi v. The Battery Park City Authority, in which the McManus & Richter law firm was retained by WFP Tower B, L.P. and its insurers. In the underlying action, Ramon Palaguachi, an employee of Rite–Way Internal Removal Inc., was injured when he fell off an unsecured ladder while performing demolition work at a site owned by Tower B.  Palaguachi subsequently sued Tower B and its affiliates, alleging they were vicariously liable for his injuries as the owners and general contractors of the site. Slip op. Rite–Way was contractually indemnify Tower B and to provide $6 million in insurance coverage, naming Tower B as an “additional insured” and to indemnify Tower B for any losses it might sustain as a result of Rite–Way's work. The contract also required Rite–Way's insurance policies to provide coverage prior to any other available insurance. However, instead of providing the contractually-required $6 million in insurance coverage, Rite–Way maintained only a $2 million policy subject to a $250,000 self-insured retention. Slip op. at 1.

Rite–Way and its insurers initially declined a tender offer to defend and indemnify Tower B, and McManus & Richter filed a third-party complaint against Rite–Way on behalf of Tower B, asserting claims for breach of contract for failure to procure the contractually required insurance, and for indemnification and contribution. The underlying defendants McManus & Richter moved for summary judgment in the third-party action, and while the motion was pending, Rite–Way and its primary insurer agreed to accept the defense of Tower B, but not its affiliates, and only to the extent of Rite–Way's $2 million policy after the remainder of the SIR was exhausted. Slip op. at 1.

On June 8, 2017, Palaguachi discontinued his claims against Tower B's affiliates, leaving Tower B as the sole defendant in the underlying action. McManus & Richter then withdrew the summary judgment motion pending in the third-party action “on consent.” Then McManus & Richter discontinued the third-party action, purportedly without authorization from the insured Tower B or its insurers. The New York Supreme Court ultimately ruled that Tower B was liable for Palaguachi’s injuries on the motion for summary judgment, but before a trial on damages could take place, Tower B settled the action for $4.6 million. Slip op. at 2.

Once the defense costs were subtracted, Tower B was left with only $1.8 million in coverage and still owed $2.8 million toward the settlement. Century paid the $2.8 million on behalf of Tower B and later commenced an action against McManus & Richter for legal malpractice, accusing the firm of negligently withdrawing the motion and discontinuing the third-party action against Rite-Way, leaving Tower B with a $2.8 million exposure, and alleging that it was the “equitable and contractual subrogee of Tower B.” Slip op. at 2.

In its malpractice action, Century alleged the underlying claims against Tower B were covered by a $3 million primary insurance policy issued by ACE American Insurance Co., which was reinsured by ACE INA Overseas Insurance Company Limited (“ACE INA”). Century and ACE INA had entered into the retrocessional agreement, pursuant to which Century accepted a 100 percent pro rata quota share reinsurance (retrocession).  According to Century, as the retrocessional insurer for Tower B, it “was contractually obligated to fund” a portion of the settlement in the underlying action on Tower B's behalf, and that obligation forms the basis of Century's instant claims of legal malpractice against McManus & Richter. Slip op. at 2.

In its motion to dismiss in the malpractice case, McManus & Richter argued that Century lacked standing to assert claims on behalf of Tower B, and could not assert direct claims for legal malpractice because it lacked privity or “near privity” with McManus & Richter. The trial court granted the law firm’s motion for lack of standing and dismissed the amended complaint. Slip op. at 2 – 3.

On appeal from the Supreme Court’s order of dismissal, the Appellate Division explained that “absent an attorney-client relationship, a direct cause of action for legal malpractice typically cannot be stated.” The Appellate Division noted that Century lacks standing to assert a direct legal malpractice claim against McManus & Richter because it had conceded it was not McManus & Richter’ client and therefore not in strict privity with the law firm. The Appellate Division noted that to bring its claim under the doctrine of “near privity,” a third party must allege “an awareness by the maker of the statement that it is to be used for a particular purpose; reliance by a known party on the statement in furtherance of that purpose; and some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance.” Slip op. at 2 – 3.

The Appellate Division stated that “[a]lthough this doctrine may allow a nonclient to sue for legal malpractice,” Century here was not in “near privity” with McManus & Richter, “as it has not pleaded that it relied upon a negligent misrepresentation made by [McManus & Richter].” Slip op. at 4-5. However, the Appellate Division also found that Century still had standing to bring a malpractice claim against the law firm as an “equitable subrogee” of Tower B. The Court stated that “[w]here a reinsurer, or retrocessionaire has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured.” Slip op. at 7.

The Appellate Division noted that that under New York law, reinsurers had previously been able to recover their reinsurance payments from underlying tortfeasors that actually caused the losses under the principles of equitable subrogation, and that under the circumstances, counsel committing legal malpractice should likewise be subject to the same equitable subrogation principles. Slip op. at 6-7. The Appellate Division held that Century, “having pleaded that it was contractually obligated to, and did, pay the majority of Tower B's settlement amount in the underlying personal injury action, and that it brings the instant action for legal malpractice as subrogee of Tower B, [Century] can proceed with this action under the theory of equitable subrogation.” Slip op. at 7.

The New York Appellate Division further opined that Century “sufficiently pleaded that the alleged malpractice was the proximate cause of the loss it suffered in having to pay almost $2.8 million on behalf of Tower B towards the settlement in the underlying action,” and that as such, Century had “set forth facts sufficient to show the potential merit of the third-party complaint in the underlying action, and [McManus & Richter’s] allegedly negligent and unauthorized discontinuance of that action.” Slip op. at 7.

While the New York Appellate Division found for the first time that a reinsurer is entitled to equitable subrogation on behalf of the insured to make a claim for legal malpractice, other courts, however, have found that a reinsurer is not be entitled to equitable subrogation on behalf of the insured to pursue a legal malpractice case against the underlying insured’s. In Swiss Reinsurance America Corporation, Inc. v. Roetzel & Andress, 163 Ohio App. 3d 336 (2005), the Ohio Court of Appeals was faced with the question as to whether a reinsurer, Swiss Reinsurance America Corporation (“Swiss Re”), could bring a legal malpractice claim against an underlying insured’s counsel. In that case, the Ohio Court determined that “Ohio's zealous guarding of the attorney-client relationship compels a holding that equitable subrogation is not available to [Swiss Re].” 163 Ohio App. 3d at 347.

The Ohio Court stated that “equity compels a holding that when the interests of an insured conflict with the interests of the insurer, equitable subrogation will not exist to permit a claim of legal malpractice when the record reflects that the attorney has complied with the interests of his client to the detriment of the insurer. To permit equitable subrogation in this context "would drive a wedge between counsel and the insured to the inexorable detriment of the attorney-client relationship[.]" See id., quoting Pullman, 929 F.2d at 107.

“Indeed,” the Ohio Court continued, “the attorney would be placed in an even more precarious position than is inherent in a tripartite relationship.” Swiss Re, 163 Ohio App. 3d at 347. The Court noted that in the case presented, a conflict clearly existed between the insurer and the insured, where the attorney had been hired by the primary insurer to represent the insured’s interests. To permit a reinsurer or an insurer to file a claim against the insured’s counsel under equitable subrogation for decisions made that were in the best interest of the insured would, according to the Ohio Appeals Court, "substantially impair an attorney's ability to make decisions that require a choice between the best interests of the insurer and the best interests of the insured." See id.

In conclusion, as to whether a particular jurisdiction allows a reinsurer to bring an equitable subrogation legal malpractice claim against an underlying insured’s counsel, it might depend upon that jurisdiction’s views on the relative strength of attorney-client relationship between an insured and its counsel. In Ohio, the Ohio Appeals Court has determined the state’s “zealous guarding” of the attorney-client relationship between an insured and its counsel preludes a finding that would allow a reinsurer to bring a legal malpractice claim against that insured’s counsel. In contradistinction, in New York, the New York Appellate Division has come to the opposite conclusion, finding that under New York law, where reinsurers had previously been able to recover their reinsurance payments from underlying tortfeasors that actually caused the losses under the principles of equitable subrogation, underlying insured’s counsel committing legal malpractice should likewise be subject to the same equitable subrogation principles.

Robert A. Whitney, a partner of the law firm McAngus, Goudelock & Courie, LLP, in its Insurance Coverage and Reinsurance Practice Group in Boston, was previously the President of the Massachusetts Insurance & Reinsurance Bar Association. Rob is also the chair of DRI’s Reinsurance SLG of the Insurance Law Committee, and a member of the Boston Bar Association’s Insurance and Reinsurance Committee of the Tort and Insurance Section. Rob was previously Deputy Commissioner and General Counsel of the Massachusetts Division of Insurance. Rob is also an ARIAS-US Certified Insurance and Reinsurance Arbitrator. Rob was recently selected by Boston Magazine as a “2023 Top Lawyer in Boston in Insurance,” and was also selected as one of the “2024 Best Lawyers in America® in Insurance.”

Interested in joining the Insurance Law Committee? Click here for more information.

Young Lawyers: Raising the Bar

Chair's Corner

By Melissa Harly Rose

In March, the Young Lawyers Committee had our Annual Leadership Meeting (or “Fly-In Meeting”) in Miami, Florida. The meeting was attended by approximately 80 Young Lawyers from the Young Lawyers Steering Committee and the Young Lawyers SLC Liaison Program. Besides subcommittee reports and breakout meetings, a few other highlights from our 2024 Fly-In Meeting included:

• A networking dinner at the Hard Rock Cafe with beautiful views of Downtown Miami;
• A DRI Cares project crafting cards for children, seniors, and members of the military for Cardz for Kids;
• A “Build Your Own Law Firm” breakout discussion session led by the Diversity & Inclusion Fly-In Subcommittee, which focused on strategies on how to hire, retain, and promote diverse attorneys;
• An inspiring meditation session presented by the DRI For Life Subcommittee; and
• A lively and competitive women-in-the-law themed “Jeopardy” activity hosted by the Women in the Law Subcommittee.

After a fun and productive meeting in Miami, I’m now so looking forward to seeing everyone again at the upcoming Young Lawyers Seminar, which will take place June 14 to 16 in Nashville, Tennessee. Our Seminar Planning Subcommittee has an exciting agenda planned. The seminar will not only include substantive legal programming focused on strengthening litigation skills, but there will also be many different networking opportunities to meet and develop connections with other Young Lawyers.

If you are looking to become involved in the Young Lawyers Committee, or if you know of Young Lawyers at your firm or company that may be interested in getting involved, please do not hesitate to contact me (MRose@perkinscoie.com), Emily Ruzic (Chair of Young Lawyers Committee, eruzic@bradley.com), or Tom Wyatt (Vice Chair of the Young Lawyers Committee, twyatt@qgtlaw.com).

Melissa Harly Rose is an associate at Perkins Coie LLP in San Diego, California. She is Second Vice Chair of the Young Lawyers Committee.

Young Lawyers are heading to Nashville, Tennessee June 12-14, 2024—GET A SHOUTOUT AND SPONSOR!

By Tyler Park,Jami Lacour Ishee, and Amado Montoya

From June 12-14, DRI is heading to Nashville, Tennessee, for its annual Young Lawyers Seminar. DRI is offering high-exposure investment opportunities that will allow you and your firm(s) to showcase your leadership and participate in valuable networking opportunities with key decision-makers and influencers—all while providing prominent brand exposure!

DRI is even offering a new opportunity for sponsors to directly address attendees with the DRI Insight Series. This series consists of short, powerful presentations that will cover a wide range of topics, including but not limited to emerging legal topics, cutting-edge issues, and important legal changes.

Law firms of all sizes boast about the business development, network exposure, and case generation that comes with sponsoring the DRI Young Lawyers Seminar, and it continues to pay off for years to come. We hope that you – and your Firm—can join us in Nashville this year!

What investment opportunities await? Below are our options:

Signature Sponsorship (offered exclusively to law firms)—investment $7,500 (ONLY EIGHT SIGNATURE SPONSORS AVAILABLE AT SELECT SEMINARS)

As a signature sponsor, your law firm can participate in this exclusive program with the opportunity for enhanced networking and premium recognition in front of the DRI community, including:

-Recognition as one of the presenting sponsors for the Premier networking event, including sponsor signage at the entrance to the event and acknowledgement in the program agenda and supporting marketing materials;
-Four (4) complimentary seminar registrations plus the opportunity to purchase additional registrations at the VIP registration rate;
-Visual and verbal sponsor acknowledgement in the opening session;
-Logo inclusion with hyperlink on the event website and in the event app;
-Access to the pre-seminar registration list to facilitate planning for on-site engagement during the seminar;
-Contact details for all attendees following conclusion of the event
-Dedicated account support and comprehensive post-event fulfillment reporting.

Seminar Sponsorship (law firms)—investment $3,500

Offered on a limited basis, as a seminar sponsor you are afforded with a variety of platforms for your law firm to connect with attendees, including:

-Two (2) complimentary seminar registrations, plus the opportunity to purchase additional registrations at the VIP registration rate;
-Visual and vocal Sponsor acknowledgement in opening session;
-Logo inclusion with hyperlink on the event website and in the event app;
-Access to the pre-seminar registration list to facilitate planning for on-site engagement during the seminar;
-Dedicated account support and comprehensive post-event fulfillment reporting.

Please reach out to jhovis@DRI.org to secure your firm’s seminar sponsorship today!

Tyler Park is on the DRI Young Lawyer Sponsorship Subcommittee. He is an Associate at Houston Harbaugh in Pittsburg, Pennsylvania. Tyler focuses his practice in the substantive areas of Business Litigation, Intellectual Property Litigation, Trade Secret and DTSALaw®, and Insurance Coverage and Bad Faith.

Jami Lacour Ishee is a partner with Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP’s litigation defense team in Lafayette, Louisiana. Her practice focuses on premises liability, products liability, FELA litigation and railroad defense. She is the Co-Chair of Sponsorship for the Young Lawyers Steering Committee and can be reached at jishee@davidsonmeaux.com.

Amado Montoya is an Associate Attorney at Rincon Law Group in El Paso, Texas. He focuses his practice on motor carrier, personal lines automotive accident, occupational injury, premises liability, oil field accidents, and UM/UIM matters.

Member Spotlight–David C. Vaughn IV

How and why did you first get involved with DRI?

A partner at my firm encouraged me, as a young associate, to join DRI. I attended the Annual Meeting in San Francisco; the rest was history.

What DRI committees (Other than YL) are you most interested in, and why?

I have been involved with DRI’s Medical Liability and Health Care Law Committee. Based on my practice, this committee is a natural fit.

What is your favorite part about being a lawyer?

Becoming an expert on any subject. Medical malpractice gives me the opportunity to dive deep into discrete, complicated topics, and I like going to a medical library, reading a new peer-reviewed article, and applying it to my present case. Maybe even depose or endorse that same expert and explain how that literature does, or does not, apply to my present case. I do not have to know all about neurology or cardiology. Still, in this discrete injury specific to my plaintiff, I can quickly catch up to a person who has studied the entire subject for a lifetime.

When you are not practicing law, what do you enjoy doing?

I am currently planning a wedding in May. I also enjoy traveling and going on runs in local St. Louis Parks. My next big trip is set for Rome and then Egypt.

Biggest Success in Your Legal Career?

Defense verdicts as a second chair and multiple defense verdicts, serving as a quasi-third chair and helping my partner cross-examine expert witnesses. Nothing beats the thrill of securing a verdict for a doctor you believe acted well within the standard of care.

What is the most important piece of advice you have been given related to practicing law?

Listen and be adaptable. Things do not always go the way you plan, whether it is a ruling, new evidence, or just mistakes that come with being a young lawyer. Maintaining a level head and listening to attorneys who may have handled similar situations can help make plan B work as well as better than your original plan.

What is the greatest sporting event you’ve ever been to?

Watching my Missouri Tigers upset #1 Oklahoma on Homecoming Weekend in the front row of the student section.

More recently – Probably the Cotton Bowl last December against Ohio State and I enjoy watching St. Louis City SC. The atmosphere is the best in MLS.

First Job?

I was a Target cashier in high school. In college, I officiated flag football, soccer and tutored economics student and conducted economic research for various projects led by my professors.

David C. Vaughn IV is an associate at Baker Sterchi Cowden & Rice in St. Louis. Baker Sterchi has a broad litigation practice, defending national, regional, and local businesses and professionals in a variety of industries and businesses in claims ranging from routine to complex. Collectively, the Baker Sterchi team of attorneys has tried more than 1,000 cases in state and federal courts nationwide. David graduated cum laude from Washington University School of Law in St. Louis, and he specializes in defending physicians, hospitals, and other medical professionals in medical malpractice claims.

Interested in joining the Young Lawyers Committee? Click here for more information.

Young Lawyers: Raising the Bar (Cont.)

Member Spotlight–Denver Smith

How and why did you join DRI?

I joined DRI in 2022 after hearing about the organization from my practice group leader, Art Spratlin. My mother had recently passed away, and Art encouraged me to “have some fun” in Atlanta at the Young Lawyers Seminar. Art is an active DRI member and was a member of DRI Young Lawyers. I took his advice and had a great time meeting other attorneys from across the country at the seminar. Since 2022, I have made several friends while attending DRI events, and it remains one of my favorite organizations to be involved in.

What is your favorite part about being a lawyer?

My favorite part of being a lawyer is helping those in need during some of their most difficult and challenging times. I enjoy being able to alleviate the stress of others by taking charge and finding resolutions to the issues they present.

When you are not practicing law, what do you enjoy doing?

I enjoy spending time with my family and exercising outdoors. My wife recently gave birth to our first child, so I have been spending most of my time with her and our daughter recently. I also enjoy running outdoors and watching sports in my free time.

What is the most important piece of advice you have been given related to the practice of law?

The practice of law is not a sprint— it is a marathon. It is critical that attorneys remember to care for themselves to avoid burning out. While sometimes difficult to achieve, a healthy work/life balance is a necessity for attorneys of all ages.

What is the greatest sporting event you have ever been to?

My wife and I went to Game 6 of the NLCS between the Braves and Dodgers. I have been a lifelong Braves fan and was able to witness the moment they punched their ticket to the World Series.

What was your very first job?

I worked as a lifeguard at a local waterpark during the summertime while I was in high school. Some of my favorite memories are from this period of my life and I still value the friendships I made during that time.

Denver Smith is an associate attorney at Butler Snow, LLP in Charleston, South Carolina. Butler Snow offers a full range of business law and litigation services to clients at an international level. The firm represents a broad spectrum of clients in a variety of legal areas. Denver is a member of Butler Snow’s Tort, Transportation, and Specialized Litigation team, and handles a variety of tort-based and commercial litigation matters.

Denver graduated cum laude from the University of South Carolina School of Law, where he served as a judicial extern at the Supreme Court of South Carolina for Justice Kaye Hearn. Denver attended Coastal Carolina University for undergrad, and obtained degrees in Intelligence and National Security, Philosophy, and Geographic Information Systems. While attending Coastal, Denver made the Dean’s list every semester and was active in various academic and volunteer organizations.

Denver is admitted to practice in South Carolina and is applying for admission into North Carolina’s bar. Denver is an active member of the Charleston Bar Association and DRI, serving as Co-Chair of the Recruiting Committee for DRI Young Lawyers. Denver is also a board member of the Palmetto Society of Human Resources where he serves as general counsel.

Diversity Month: How to Embrace Diversity in Your Everyday Practice

By Brianna Weis

As we enter April, which is recognized as diversity month, keep in mind the many ways we are diverse, and remember that these differences make us stronger as law firms and a civil defense bar as a whole.

To quote Walt Whitman “Be curious, not judgmental.” To be curious is to wonder, listen, and allow yourself to learn about others. To avoid judgment means not imagining the worst, coming up with hasty conclusions, or making assumptions at face value, but instead thoughtfully considering the perspective of your colleague.

Everyone wishes to be known, understood, and heard. This includes not only our colleagues and staff but also our clients and those we interact with in daily life. By approaching others with kindness—rather than judgment—we can help foster a world that embraces compassion. Below are a few tips to help us connect in meaningful ways with our colleagues.

First, ask meaningful questions. “How was your weekend?” is a standard question and often elicits the standard response: “Good.” Asking people instead about their hobbies or if they have anything special planned for summer can invite a dialogue that builds connections. It is important to note, however, that these questions can be a source of anxiety for those who wonder how much they can share and who they can trust with the things that make them different. Often your answers can demonstrate both your willingness to learn and allyship. Remember also that context is key—asking someone one-on-one might elicit a different response than a breakroom conversation. And if someone does share a plan or hobby, remember to follow up and ask them how it went/is going. This will further indicate that you are genuinely curious and invested in their life.

Second, we live in an age where information is at our fingertips. As a result, we can often find small insights or guidance into different cultural references, and religious or social practices. Utilize these resources to identify and learn about your prejudices, biases, or gaps in your knowledge. It is not your coworker’s responsibility to educate you on their particular beliefs or practices. There are numerous short videos or articles that can be shared or highlighted with colleges that will encourage discussion. Most people are willing to dialogue once there is a basis of knowledge.

Third, be understanding and flexible with people asking for time off or work-from-home accommodations. Although setting policies might be outside of your domain, recognizing that others may need particular days off that are culturally or religiously significant is an important step in embracing diversity.

Asking for time off for a significant event may feel daunting to a particular individual, especially if they are the only person in the firm to whom the event applies. Consider allowing individuals to block off a calendar with “Private” so that they can receive the time off without having the reason publicly shared on a group calendar. Consider also having a calendar meeting at the beginning of the year where individuals can put significant dates on the calendar well ahead of any potential conflicts. Many electronic calendars allow you to download additional holidays such as Ramadan or Rosh Hashanah. If these events are noted, you can wish your colleagues who practice them “Ramadan Kareem” or “Shanah Tovah.” It’s an easy way to help them feel like you saw them, remembered them, and continue to encourage connection.

Fourth, encourage an environment that fosters acceptance and curiosity. Understanding that everyone has a different experience is the first step in building an atmosphere that embraces curiosity. Not everyone holds identical beliefs or values. This is the very basis of diversity and is what makes the human experience unique. By fostering connections, we can address and reduce prejudice and biases. Although there will likely be topics that employees are uncomfortable discussing, providing the opportunity to engage in these discussions on their own time, perhaps even in the privacy of their own office, can sometimes allow for a greater discussion. This can also foster an environment where individuals do not feel they constantly have to defend their own beliefs.

Our differences allow for new perspectives and creative ways of solving problems. In discovering our differences, we often learn we have common ground. This common ground can increase productivity and collaboration, especially in an environment where everyone feels they can contribute. Our approaches to diversity can be as diverse as we are ourselves. We will not always agree with each other, but we can always respect each other. In considering our differences, we have a chance to allow everyone to succeed: for together we are greater than the sum of our parts. In conclusion, a quote from Dr. Maya Angelou: “We all should know that diversity makes for a rich tapestry, and we must understand that all the threads of the tapestry are equal and value, no matter what their color.”

Brianna Weis is a fourth-year attorney with Hartline Barger, LLP in Dallas, Texas. Her main practice areas are personal injury litigation and vehicle warranty litigation. She is a co-chair of the Young Lawyer Publications Subcommittee for the Briefcase. Brianna is involved with DRI Young Lawyers, DRI Women in the Law, and Dallas Association of Young Lawyers.

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