New Section Created by the Govenor to Combat Employee Misclassification

On December 18, 2015, Governor McCrory issued Executive Order Number 83, which created a new section in the Industrial Commission to combat employee misclassification.  Employee misclassification is when employers classify employees as independent contractors to avoid liabilities and obligations required by state and federal law. 

The Order allows the Industrial Commission to employ inspectors and respond to complaints that employers may be misclassifying employees.  The Section will have liaisons from the Department of Revenue and the Employment Security Division.  In addition, the Commissioner of Labor and the Commissioner of Insurance have the opportunity to appoint liaisons to the section as well. 

While there is a need for an enforcement agency to respond to misclassification complaints, we hope that this joint-effort also creates an opportunity for North Carolina to take a thoughtful, coordinated approach to the new "gig" or "on-demand" economy model.   The gig economy is characterized by freelancers looking for short-term work or "gigs."  They are enabled by Uber, Lyft,  Airbnb, Etsy, and TaskRabbit.  The troubles of classifying these individuals have been reported on in several different  articles over the past year. 

Hiring Cause and Origin Fire Experts

This month's ABA journal has a very interesting article about our knowledge regarding arson investigation has changed over years, and the exoneration of people wrongly convicted of criminal arson.  It is well worth the read.

This topic brings to the forefront a related issue: the investigation of cause and origin of fires in insurance cases.  The denial of a fire claim based on the determination that it is an incendiary fires will often result in a bad faith lawsuit.  Thus, the hiring of a fire investigator is a key decision by the adjuster.  Before hiring a fire investigator, be sure to keep the following things in mind:

• First and foremost, make sure his or her experience is sufficient.  Request a CV and make sure that his or her experience is in fire investigation, not simply fire suppression.  More and more, investigators should meet the requirements in NFPA 1033: Standard for Professional Qualifications for Fire Investigator;

• Be sure he or she is knowledgeable on NFPA 921: Guide for Fire and Explosion Investigations.  This publication has been at the heart of many cross-examinations of fire investigators;

•  If possible, see if he or she has the ability to present complicated explanations in a simple matter.  For instance, it is common for a fire investigator to explain that a fire needs oxygen by securing the lid on a lighted candle jar.  Often, if your fire investigator trains other investigators, he or she will be a better witness, if it is eventually needed; and

• If possible, review a sample report from investigators you think you may want to hire in the future.    Be sure the report is clear; it shows methodology; and reflects the effort it takes to do a good examination.  By vetting investigators ahead of time, there will be little delay to initiate the fire investigation. 

The cause and origin expert is a central figure in  a fire investigation.  His or her opinion will help determine whether fire damage is covered by the policy.  If the claim is denied based on his or her opinion, the investigator will be one of the key witnesses in a potential bad faith lawsuit.

Insurance Requirements in Commercial Contracts (Part 5)

In the final part of our series, we will address certificates of insurance.  In Part 1, we touched on the importance of insurance provisions in commercial contracts, the use of outdated terms, and additional insured status.  In Part 2, we reviewed the difference between a deductible policy and a self insured retention.  In Part 3, we explained the difference in Loss Payee versus Lender Loss Payee status.  In Part 4, we discussed theft and crime coverage.

Business lawyers and deal makers are often given a Certificate of Insurance, which was typically prepared by the counterparty’s insurance broker on a standardized form (such as the Acord 25 form for liability insurance and the Acord 27 for property insurance).

Certificates of insurance should be considered, at most, to be a snapshot in time. They are a document that evidence that on a particular day, a particular insured had the insurance in place which is generally described on the certificate. However, the certificate will typically not note important exclusions. It will not discuss the deductible on the policy or whether it is actually a self-insured retention. And, if the insured cancels the insurance the very next day (or alters the coverage limits), the certificate holder will typically have difficulty finding out that the certificate represents a policy which is no longer in effect.  

Additionally, the “boilerplate” on these forms should be carefully read and considered by anyone who receives one. Certificates of insurance typically state that they are issued only for information purposes, and that they confer no rights. Certificates of insurance are not contracts, and they are especially not insurance contracts. Certificates of insurance, as the disclaimers plainly state, do not change the coverage that the actual policy provides.  

Because of this strong disclaiming language, and the fact that the certificates are usually prepared by the insurance broker, the certificates are unlikely to be binding on the insurer. When in doubt, also request a certified copy of the actual policy; do not rely on a certificate of insurance. If a counterparty balks at producing the actual policy, be concerned.

 Conclusion

This series was intended to shed some light on insurance provisions commonly encountered by transactional lawyers or deal makers when reviewing commercial agreements.  These are just a few of the commonly-encountered insurance provisions that commonly occur.  Often, the language used in commercial contracts (whether they be financing agreements, contracts, leases, or other documents) does not actually provide for the risks which the parties sought to cover or require insurance for. Poorly worded insurance clauses can cause confusion, can require commercially-unavailable insurance, or can simply frighten away customers with unnecessary requirements. If clients or counsel are unfamiliar with insurance, they should seek assistance from their own insurance brokers or an insurance lawyer.

"Shadow insurance" captive life insurer class actions to be "heard in tandem" by Second Circuit

Yesterday, the Second Circuit issued an Order in Maria Del Carmen Robainas v. Metropolitan Life Insurance Co., 15-3504 (Dkt. 46) that the three pending XXX/AXXX life insurer class actions would be heard "in tandem."

Previously, as we reported last week, the Plaintiffs-Appellants in three cases (which were all dismissed for lack of standing at the District Court level), filed unopposed motions to consolidate the three appeals.

The three cases are:

• Yale v. AXA Equitable Life Insurance Co. No. 15-2665,
• Robainas v. Metropolitan Life Ins. Co. No. 15-3504, and
• Yarbrough v. AXA Equitable Life Ins. Co., No. 15-3553.

Under Federal Rule of Appellate Procedure 3(b)(2), separate cases can be joined or consolidated on appeal "[w]hen the parties have filed separate timely notices of appeal." This rule of appellate procedure does not give any guidance to a court as to the proper reasons for consolidation on appeal. The Advisory Committee note states that "In consolidating appeals the separate appeals do not merge into one. The parties do not proceed as a single appellant."

After denying the unopposed motion to consolidate, the Second Circuit explained that "the appeals will be heard in tandem." Thus, each appeal will remain a separate appeal, the parties will comply with the briefing requirements under the Yale, No. 15-2665 case. Both 'sides' of the case, can elect to file a single brief addressing all three appeals, and a single copy of that brief and its relevant appendix would then be filed in the other two cases. Finally, the Clerk's office will set all three cases for argument before a single three-judge panel.

By rejecting consolidation, each Plaintiff-Appellant is allowed to rely on unique differences in the pleading (the Complaint) in his or her case. The factual record for each appeal will be unique to that case. If the cases were consolidated under Federal Rule of Appellate Procedure 3, then the record/Joint Appendix would be unified. However, the Court's ruling that the cases will be heard in tandem allows for uniform consideration of the common issue(s) of law, while allowing the factual/pleading portion of each case to be independent.

Also noteworthy about the Order is that the Plaintiffs-Appellents' opening brief(s) "are due thirty days after the Supreme Court issues a decision in Spokeo, Inc. v. Robins, 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct. 1892 (U.S. April 27, 2015)(No. 13-1339).

Spokeo was argued on November 2, 2015. As a recent article by Lee Epstein, William Landes, and Judge Richard Posner, published in the Duke Law Review notes, the Supreme Court usually issues a decision within three months of oral argument, occasionally will a case take up to six months to be decided, and practically all opinions are released by the following June when the Court closes for its summer recess. The Best For Last: The Timing of U.S. Supreme Court Decisions, 64 D.L.J. 991, 993 n 5 (2015). So, it's likely that we will see the Spokeo opinion released in early February, at which point the opening briefs in these appeals will be due one month later. This briefing schedule gives both Appellants and Appellees plenty of time to find amicus party assistance if they desire.  At the absolute latest, the Spokeo opinion should be public by late June 2016 (which is the conclusion of the Supreme Court's October 2014 term).  

Has North Carolina Always Had Cumis Counsel?

Recently, the insurance industry was reminded of the limitations of a reservation of rights letter by the Nevada Supreme Court’s opinion in State Farm Mut. Auto Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74, (9/24/2015) which held that a policyholder is entitled to have its insurer provide independent counsel when the insurer and insured have opposing legal interest; i.e., when coverage is being provided under a reservation of rights letter.  When the insurer issues a reservation of rights letter, Nevada law now requires the insurance company to defend the policyholder by allowing the policyholder to select its own counsel, at the insurer’s expense.  This was held to be an expansion of the well-known Cumis counsel rule – that an insured has a right to independent counsel at the insurer’s expense when a conflict of interest appears – which originated in San Diego Navy Fed. Credit Union v. Cumis Ins. Society, Inc., 162 Cal. App. 3d 358 (1984). 

However, there is long-standing authority in North Carolina for a similar rule of law. The North Carolina courts have made it clear that an insurer which refuses to defend an action against its insured, when coverage is in dispute, does so at its own risk. To reduce that risk, insurance companies often defend under a reservation of rights, which is generally required to prevent the insurer from being estopped to deny coverage under the policy once the defense is conducted with knowledge of facts taking the loss outside of the coverage of the policy.

As the North Carolina Court of Appeals stated in National Mortgage Corporation v. American Title Insurance Company, 41 N.C. App. 613, 255 S.E. 2d 622 (1979), such a “conditional tender of defense does not absolve [the insurer] of its contractual duty to defend an action for a loss within the coverage of the policy…[The insured] is not required to accept a defense rendered under a ‘reservation of rights.’” Id. at 624.  Although this opinion was later overruled on other grounds by the North Carolina Supreme Court (finding that the policy did not cover the insured), the Supreme Court opinion made no mention of attorney’s fees or independent counsel.  

In the National Mortgage case, the Court held that the Plaintiff was entitled to reject the conditional offer by the insurance company and to seek indemnity for the costs of defending that action. As such, this case has been cited by litigants for the proposition that where the insurance company offers to defend under a reservation of rights, the insured is entitled to hire its own counsel and to have that counsel paid for by the insurance company.

As a result of National Mortgage Corp., insurers in North Carolina must be careful if reserving rights. If they defend under a reservation of rights in North Carolina, they may be faced with an argument that (1) a conflict of interest has arisene, (2) that the insurer’s panel counsel cannot be used, and (3) that they will have to indemnify the policyholder for its choice of counsel. 

Five Important Lessons on North Carolina Insurance Law from New NCG, Inc., Part 2

Previously, we explained in Part 1, the facts behind New NGC, Inc. v. ACE American Insurance Co., et. al, 3:10-CV-00022-RLV-DSC, 2015 WL 2259172 (W.D.N.C. May 13, 2015), as well as its application of West American Insurance Co., Plaintiff, v. Tufco Flooring East, Inc., 409 S.E.2d 692 (N.C. App. 1991) and how coverage in a putative class action can be driven by unnamed class plaintiffs and is not limited exclusively to the named class representative.

The third major takeaway from New NGC is that while insurance companies often argue that their duty to defend is determined by the allegations in the Complaint, the North Carolina Supreme Court has stated unequivocally that an insurer’s duty to defend may still be found where the insurer “knows or could reasonably ascertain facts, that if proven, would be covered by the policy.” Waste Management of the Carolinas, Inc. v. Peerless Ins. Co., 340 S.E.2d at 374, 379 (N.C. 1986). However, while the inverse of this proposition has not been addressed by the North Carolina state courts, it has been explicitly rejected by the Middle District of North Carolina in a decision in the Fourth Circuit Court of Appeals in St. Paul Fire and Marine Insurance Co. vs. Vigilant Insurance Company, 724 F.Supp. 1173, 1179 (M.D.N.C. 1989), aff’d. 919 F.2d 235 (4th Cir. 1990). In other words, the North Carolina courts will in all likelihood refuse to allow evidence outside the pleadings to negate allegations in the Complaint.

Fourth, the duty to defend only arises when the insurance company receives actual notice of the underlying action.

Fifth, a policyholder does not have to provide “specific citations to insurance policies and years of coverage for tender of notice to be proper as to the underlying claims” absent an express requirement in the policy. Memorandum and Order at 26. Instead, once notice of an underlying action is provided, it is up to the insurance company “to review the underlying suits and determine what obligations it may owe to [the policyholder]” under any and all actual policies issued by the [insurance company], whether cited by [the policyholder] or not.” Memorandum and Order at 26.

If you have questions about the scope of the duty to defend in North Carolina, please let us know.

North Carolina 2015 insurance legislation update

The long legislative session has closed, 2015 is almost over, and now is a perfect time to summarize the main statutory changes to North Carolina's insurance law.

Captive Insurance - The first insurance-related bill to pass, S.L. 2015-99, made a series of technical corrections to the North Carolina Captive Insurance Act.  This bill contained a number of clarifying and conforming language changes.  It also gave the Insurance Commissioner discretion in setting capital and surplus limits less than $250,000 in certain special purpose captives, depending on the business plan and feasibility study (akin to the provisions already in place for pure captives).  The bill also provides for captive insurers to establish one or more separate accounts. 
Importantly, the bill gives the Insurance Commissioner the ability to waive the filing of an annual report if the captive complies with the annual audit requirement.  This provision will provide real savings for certain captive owners who use NC as a domicile compared to many other states.  The bill also gives the Insurance Commissioner the authority to provide exemptions to inactive captive insurers from filing annual reports, making premium tax filings, or paying premium taxes.  In essence, the captive is allowed to go 'dormant' for certain years, rather than being completely unwound or dissolved.  This provision is not intended to allow shelf-registrations of captives.

Insurance for mopeds - S.L. 2015-125 was hotly debated amongst many members of the bar (insurance lawyers, criminal lawyers, public interest lawyers, and personal injury lawyers).  Under this new legislation, mopeds must be insured, although they do not have to be titled and dealers do not have to be licensed (in the manner that automobile dealers are licensed). 

More specifically, various provisions were added to Chapter 20 and Chapter 58 of the General Statutes are changed.  If mopeds are to be operated on streets and roadways, they must be registered and they are only allowed to be registered if they are insured.  The North Carolina Rate Bureau will not be promulgating rates (neither liability, theft, or property damage) for mopeds.  Rates will be regulated through Chapter 58, Article 40 ("Regulation of Insurance Rates").  Moped coverage may be added to an automobile policy as a rider or endorsement.  Moped liability insurance cannot be ceded to a reinsurance facility. 

Technical corrections to various insurance statutes - S.L. 2015-146 provides various amendments to Chapter 58, the insurance chapter, of the General Statutes.  Periodically, the National Association of Insurance Commissioners (NAIC) meet to discuss insurance regulations.  These regulations are then sometimes codified as model acts or proposed statutes, which are then passed into law in each state.  S.L. 2015-146 contained various provisions originating from the NAIC, and passed to maintain accreditation by the NAIC, related to the governance of insurance company holding systems, risk-based capital requirements for life insurers, and corporate governance of risk retention groups. 

This bill will effect the mergers and acquisitions of domestic insurers.  It also gives specific outlines for the composition of the Boards of Directors of risk retention groups, including the requirement of a majority of the board members to be independent directors and contains other provisions to enhance the transparency of risk retention group board supervision and activities. 

Unemployment Insurance - S.L. 2015-238 made a number of changes to unemployment insurance.  During the recent recession, the State paid unemployment benefits by, in part, borrowing funds from the federal government (to the tune of $2.5 billion).  Unemployment insurance was overhauled in 2013 by the General Assembly, in part to collect funds to repay this amount.  North Carolina has quickly repaid the federal government and has been saving money in an Unemployment Trust Fund.  Pursuant to this statute, if the Unemployment Trust Fund reaches $1 billion by March 1, 2016, the currently-in-place 20% surtax on employers will be suspended. 

Principle-Based Reserving/Revision to Insurance Laws - Finally, S.L. 2015-281 amends Chapter 58 to require principle-based approach to life insurance reserving.  This should provide a more accurate valuation of life insurance reserves compared to the formulaic models currently used.  This bill also amends the standard non-forfeiture provision contained in N.C.G.S. 58-58-55 and provides some clarifying changes to laws regarding professional employer organizations, insurance company deposits, provides for a nine member advisory committee to be appointed by the Insurance Commissioner regarding continuing care retirement communities (which are under the supervision of the Insurance Commissioner in North Carolina), expedited health insurance external review, and an addition to N.C.G.S. 58-41-20 (the statute on notice of nonrenewals, premium rate increases, or changes in coverage).

Comment period open on N.C. insurance regulations for insurance agents, premium finance companies, and bail bondsmen

The North Carolina Department of Insurance is accepting comments regarding Chapters 6 and 13 of its administrative rules.  The comment period opened on December 1, 2015 and lasts until February 1, 2016. Under North Carolina law, as adopted in 2013, state agencies must initially review all of their administrative rules within five (5) years, and then re-review all rules once every 10 years. These administrative rules are codified in Title 11 of the North Carolina Administrative Code.

Chapter 6 governs the Agent Services division.  This includes licensing of individuals who receive an insurance license from the Department of Insurance (includes resident and non-resident agents) as well as pre-licensing education (requirements, courses, schools, instructors, etc.), insurance continuing education requirements, certain courses or course providers, and public adjusters. 

Chapter 13 governs the Agent Services division with regard to non-insurance entities such as premium finance companies, motor clubs, and bail bondsmen.

After the comment period, the Department will be required to evaluate each rule and determine whether that rule is: (1) necessary with substantive public interest, (2) necessary without substantive public interest, or (3) unnecessary.  Each of these three categories have sub-definitions. 

You can comment on rules in Chapter 6 or 13 here on the Department of Insurance's website.  We are also available to assist you in making comments to rules.

NC legislative retirements present challenges for captive insurance industry

The North Carolina House of Representatives and Senate will undoubtedly see leadership changes in 2016 because several senior leaders and incumbents have already announced they are not standing for re-election.  Additionally, some of the lawmakers in Raleigh who were involved in the initial passage of captive insurance legislation in North Carolina in 2013 have stepped down from the legislature in the past two years.  The cumulative result is that the captive industry will have at least a half-dozen new faces on Jones Street in 2016 to introduce and explain captive insurance to. 


Notably, Senator Tom Apodaca, current co-chair of the Senate Standing Committee on Insurance and Chair of the Senate Rules Committee, has announced his retirement.  Additionally, Senators Bob Rucho (Mecklenburg), and Josh Stein (Wake County) have also announced they will not be standing for relection.  Josh Stein has announced he will be running for Attorney General.


In the House of Representatives, one of the original sponsors of North Carolina's captive insurance enabling act, Rep. Paul Tine (Dare County) will be stepping down.  Additionally, Leo Daughtry (Johnston County) and Paul Stam (Wake County) have both announce their retirement from the General Assembly as well.   


Each of these six lawmakers supported North Carolina's initial foray into captive insurance in 2013 and technical corrections bills in 2014 and 2015.  Their replacements - regardless of party affiliation - will likely have to be educated regarding the benefits to North Carolina and middle market businesses which the captive insurance industry has brought to the state. 

XXX/AXXX life insurer class action appeals likely to be consolidated

We previously reported how life insurers were successful in winning dismissal of two putative class actions filed in the Southern District of New York. 

Both cases challenged the use of certain Regulation XXX/AXXX reinsurance transactions issued to life insurers by life insurer-owned captive insurance companies.  Both of those cases were dismissed under Rule 12(b)(6), for a lack of standing, because the plaintiffs failed to articulate any personal injury or actual harm in their allegations against the life insurer defendants. 

Robainas has been appealed by the plaintiffs to the Second Circuit Court of Appeals.  In a related case, Yale v. AXA Equitable Life Insurance Co. (No. 15-2665, 2d Cir.), the Plaintiffs-Appellants have moved to consolidate their case with Robainas v. Metropolitan Life Ins. Co. No. 15-3504 and Yarbrough v. AXA Equitable Life Ins. Co., No. 15-3553.

The motion was unopposed, so it is expected that the motion to consolidate and adopt a uniform briefing schedule will be granted.

The motion to consolidate also notes that "the dispositive legal issue in all three cases may be significantly shaped by the pending decision in Spokeo, Inc. v. Robins, No. 13-1339, 2014 WL 1802228 (U.S.) cert. granted, 135 S.Ct. 1892 (2015), which involves the scope of Congressional authority to create Article III standing by virtue of a federal statute authorizing a private right of action."  Spokeo was just argued on November 2, 2015 so it is unlikely that we will see an opinion issued by the end of the year.

Each of these putative class actions alleged that the life insurer defendants violated New York Insurance Law Section 4226, which entitles policyholders of life insurance or annuities to recover a statutory penalty if the life insurer makes any "misleading representation" or "misrepresentation" concerning its financial condition or reserves.  The plaintiffs allegations - closely following the Shining a Light on Shadow Insurance report published by the New York State Department of Financial Services - that certain life insurers used captive reinsurance transactions under Regulations XXX/AXXX to artificially inflate their financial position.  What the Plaintiffs did not - and could not - allege was any concrete and personal harm or injury-in-fact which they had suffered. 

We will be watching these cases closely and regularly reporting on developments.   

Interview with Self Insurance Institute of America on NC's captive ethics code

The North Carolina Captive Insurance Association is the first state-level captive insurance association to create an aspirational code of conduct.  I was recently interviewed for an article in the Self Insurance Institute of America's monthly magazine on the topic. 

The NC Captive Insurance Association is the only captive insurance trade group dedicated to representing the interest of captive owners and captive insurance professionals in the North Carolina domicile.

The Association’s board established an ethics subcommittee composed of members who represent a variety of professional interests (accounting, actuary, captive management, legal, and insurance). At the direction of the board, the subcommittee drafted (and the board approved) an aspirational Code of Ethics for the members of the Association. We believe that this is a first-in-the-nation ethical code for the industry. The code is composed of ten canons of conduct, along with an explanatory comment after each canon.

The list of professional associations which have adopted ethical codes is nearly endless (but includes engineering, medicine, the law, psychological counseling, financial planning, commercial insurance, and countless others). However, to our knowledge, no state association has set out to describe the contours of ethical conduct in the industry; including conflicts of interests, best practices, and what is considered acceptable conduct. This aspirational code is designed to raise awareness of ethical issues confronted by captive insurance professionals.

Most professionals engaged in the captive insurance industry will likely read the code and realize that, consciously or subconsciously, they were already conducting their business affairs in that same manner. They attend seminars, stay up to date on industry trends, are diligent in attending to client matters, act as ambassadors for the useful business purposes of captive insurance, and avoid breaking the law or advising clients to break the law. The canons of conduct are not designed to impose onerous new burdens on the industry; instead, they highlight best practices that have already been widely adopted.

Other state associations may copy this code of ethics, or choose to create other similar rules of guidance. Either way, additional energetic and intelligent professionals will be thinking about these issues and how the industry can best address them. This dialogue is necessary as the industry grows, matures, and gains increasing recognition as a useful and valid tool of risk financing.

Ultimately, this code should be the catalyst for conversation. Both conversations within an office setting when potential ethical conflicts arise, as well as an industry-wide conversation between stakeholders and domiciles. By having a written code with certain boundaries of conduct, captive insurance professionals will be better equipped to spot potential conflict areas. The mere creation of a written code raises awareness of the issues which captive insurance professionals face, while its content provides guidance in those areas.

Hopefully, the adoption by the North Carolina Captive Insurance Association of a formal Code of Ethics will initiate a broader discussion within the industry on the appropriate conduct, appropriate client service, and the ethical operation and utilization of captive insurance. 

You can find the entire article here.

A rare insurance coverage defendant class action lawsuit in Ohio

Law360.com recently published my article on The Medical Protective Company v. Center for Advanced Spine Technologies in its Expert Analysis section. 

This is not the first time I've written on the topic of defendant class actions.

As readers of this blog will know, it is not uncommon for insurers to file declaratory judgment actions in federal court against a policyholder to determine coverage obligations.  Courts even explicitly sanction or advise insurers to file declaratory judgment actions when coverage is questionable.  These coverage cases often include litigating the question of whether a duty to defend exists and whether there is any obligation to provide indemnity to a policyholder.

Occasionally, questions arise as to who is a necessary party in the coverage action.  We blogged about that several weeks ago, as reflected in a recent (and I believe, ongoing) case in North Carolina.  http://wombleinsurance.blogspot.com/2015/10/scottsdale-ins-co-v-b-fitness-center.html  In Scottsdale Insurance v. B&G Fitness Center, the injured tort plaintiffs from the underlying state court action were found to not be required under Federal Rule of Civil Procedure 19 to be parties in the coverage action. 

Contrast that with The Medical Protective Company v. Center for Advanced Spine Technologies, Case No. 1:14-CV-5, United States District Court for the Southern District of Ohio.  There, the insurer specifically wanted to include all possible known and future claimants against Dr. Durrani and his practice and have them bound by the judgment. Dr. Durrani — as a result of fleeing to Pakistan and refusing to participate in American civil  litigation — was not expected to defend the insurance coverage declaratory judgment and thus the future claimants were necessary parties. A defendant class action under Rule 23(b)(2) was the procedural tool that the insurer used to include those parties.

After the defendant class was certified - containing all known patients of Dr. Durrani's practice - the court also ruled that Dr. Durrani and his practice are waived and are estopped from asserting their consent to settle rights under the policy.  This frees the insurer to mediate and settle claims under these policies without Dr. Durrani’s participation and shields the insurer from potential bad faith liability. The Medical Protective Company v. Center for Advanced Spine Technologies, (Sept. 23, 2015, S.D. Ohio).

Winston Under 40 Leadership Award

I am happy to report that the Winston-Salem Chamber of Commerce chose me as a winner of its 2015 Winston < 40 Leadership Award.  I was the only private practice attorney to win the award this year. 

 The Winston < 40 Leadership Award is awarded to 20 individuals 40 years of age or younger who are excelling in their respective fields and are actively influencing the growth, prosperity and quality of life in Winston-Salem and Forsyth County. For me, it was my legal practice. 

The Leadership Award winners were honored at a gala the week before Thanksgiving in Winston-Salem and were featured in a special section of the Winston-Salem Journal.

My co-worker, Sonny Haynes also received the award in 2014.