ARTICLE ALERT: PROFESSIONAL LIABILITY INSURERS IMPOSE NEW RISKS ON THEIR INSUREDS
As published in the Daily Business Review Practice Focus/Insurance on September 30, 2019
The Florida Supreme Court could soon decide to reduce protection of attorney-client privileged information for insured professionals increasing their reputational risks. In Arch Insurance v. Kubicki Draper, Case no.: SC19-673 (Fla.), insurance carriers ask the court to allow them the right to prolong litigation relating to insured claims, provoking defense lawyers to reveal the insureds’ confidential, privileged, and negative information, and keeping the insured’s alleged mistakes and wrongdoing in the courts and press long after the original insured claim has been settled. Is this what professionals and others bargained for when they bought professional liability policies?
Florida adheres to the rule that only clients should be able to sue lawyers for negligence. In the near future, the Florida Supreme Court will decide whether to treat insurance carriers as clients of defense counsel, without the consent of the insured, so that carriers can sue counsel appointed to represent their insured policy owners. Significant conflicts arise between insured and insurer—and between former clients and defense counsel—with respect to such suits.
On the surface, Arch Insurance Co. and the American Property & Casualty Insurers Association have a sympathetic argument: When an insured claim is handled badly, the insurer pays the defense costs and any settlement or judgment. Therefore, the insurer should have the right to sue defense counsel to recoup those costs. Otherwise, they argue, the negligent lawyer suffers no consequences.
On more considered thought, however, the insured client would suffer more harm from such suits than can be justified by theoretical consequences imposed through additional litigation. Naturally, the financial expenses of litigation against defense counsel will simply be paid by their own insurance company and have little direct effect on the allegedly negligent defense lawyer. Regrettably, the intangible costs of such litigation are instead imposed on the original insured professional, who loses control over its privileged communications and negative information, remains entangled in litigation despite resolution, and suffers additional investigation and reporting recapping the original suit.
If an insurance carrier sues defense counsel, it might recover if it proves that there would have been a different result—not necessarily an exoneration of the insured client, but a lower cost for settlement and defense. However, the defense lawyer who previously zealously advocated for the insured and looked for every fact or argument that might exonerate the former client is now incentivized—and permitted—to demonstrate just how bad the case against the insured really was.
In defending themselves, lawyers would no longer be required to keep their communications with clients, their factual and legal research, or their assessments and thoughts about the case, the people and the client private. When the carrier sues defense counsel, relevant confidential or privileged communications can be revealed in the lawyer’s defense. Any thoughts the lawyer had about the credibility of the witnesses might become part of the record in the new case the insurer pursues, if it supports an argument that the outcome of the case would have been no better. With this new suit, the carrier creates a conflict between the insured and its former defense lawyer.
The insured would also suffer continued business disruption. Generally, settling a case allows the defendant to put the distraction behind it. When the carrier sues former defense counsel, professionals and employees may be required to testify again, and they may have to talk about their communications with counsel, their worries about the suit, as well as internal matters that post-dated the incident giving rise to the suit. Information not disclosed in the original suit may be revealed, because the lawyers’ analysis of the case and witnesses is relevant. The lawyers’ conversations with managerial employees not involved in the underlying incident may be disclosed. Only the insurer benefits from returning employees to the hot seat for testimony. The former client has little ability to protect itself in the new case, but continues to be involved against its will.
The insurer’s suit against defense counsel is public. The errors the insured is accused of making, the quality of the insured’s work, the tensions in management, the speculation about the former defendant’s future … the insured’s reputation is back in the press and in the public eye, even though the claims against the insured were resolved.
Despite these risks and costs to its policy holders, Arch Insurance and other insurers want the right to bring such suits without considering the insured’s position or interests. Because the insurer chooses counsel and has experienced claims representatives reviewing and monitoring counsel’s work, it has tools to protect its self against poor representation without this proposed additional right to bring suit. In contrast, the insured often has limited ability to select or oversee counsel to protect its interests during the suit. If Arch Insurance has its way in the Florida Supreme Court, the insured will also lose control of its privileges, collateral litigation, and ongoing distraction after its claim is resolved, but receive no corresponding benefit. Is this the new and hidden price of professional liability insurance? Or will Florida protect the insured client’s rights over the insurer’s desire to bring more litigation? We should know the answer by early 2020.
Deborah Sampieri Corbishley is a shareholder in the Miami office of Kenny Nachwalter, P.A. where she focuses her practice on legal malpractice defense, multidimensional business litigation and legal ethics counselling. She may be reached at email@example.com.