A whopping dangerous religion $112 Million punitive harm verdict in an Indiana federal court docket final week seems to be the results of insurers attempting to “flip-flop” the policyholder’s knowledgeable marketing consultant.1 The trial court docket famous the problem, denying the insurers’ movement for abstract judgment of the dangerous religion motion:
Indiana GRQ argues that the insurers deceived it by hiring its remediation marketing consultant (Jeff Pope of Burns & McDonnell) to help the insurers. Indiana GRQ calls this dangerous religion. Mr. Pope was employed as an environmental marketing consultant for Indiana GRQ. He performed testing on the web site and produced an intensive report for Indiana GRQ. He produced an environmental remediation plan that Indiana GRQ signed. Mr. Pope testified that the insurers (by means of McLarens) retained him after his work for Indiana GRQ ceased and he stopped receiving fee.
Mr. Thoman (the McLarens adjuster for the insurers) testified that the insurers employed Burns & McDonnell (specifically, Mr. Pope) as a result of ‘they had an intimate knowledge of the complexity of what was happening on site’ He additionally stated he couldn’t recall one other declare the place insurers employed the insured’s earlier marketing consultant. Mr. Pope stated he was retained for just one assembly. He participated in a name with the insurers ‘to prepare [their] best estimates for the physical damage and seepage and pollution’ and to debate ‘opening a potential settlement’ with Indiana GRQ. Thomas Lovisa, the principle vendor performing the location remediation, testified this was ‘odd,’ however it strikes as way more disturbing. ‘Courts have been quick to find a confidential relationship in situations where the [consultant] previously worked for the opposing party,’ notably when that marketing consultant acquires confidential info in the course of the course of illustration. Thompson, I.G., L.L.C. v. Edgetech I.G., Inc., 2012 U.S. Dist. LEXIS 126808, Sept. 11 (E.D. Mich. Sept. 6, 2012).
On this document, an affordable jury might discover that hiring the very marketing consultant who as soon as labored for Indiana GRQ on this similar concern of remediation now to undermine the corporate’s efforts for extra remediation funds was in dangerous religion—an train of an unfair benefit over the insured to stress the insured towards a settlement. See id.; Koch Refin. Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181 (5th Cir. 1996) (flipflopping insurer and marketing consultant offered foundation for disqualification); Wang Lab’ys., Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991) (viewing this flipflop retention of a proposed knowledgeable as “clear” case of concern)…. The court docket thus should deny abstract judgment on this dangerous religion principle.
During the trial and in response to a movement for directed verdict, the policyholder argued:
Testimony concerning the Defendant Insurers’ furtive scheme to make use of after which formally retain Mr. Pope to work in opposition to the pursuits of IRG on the identical declare he was initially retained by IRG is malicious and reprehensible, and the proof introduced by IRG at trial has been overwhelming—together with the testimony by Mr. Pope himself. Additionally, testimony from Shawn Keating, each the claims consultant on the time for Zurich/American Guarantee and the lead adjuster for all the Defendant Insurer market (together with Interstate), helps IRG’s arguments that the retention and prior efforts to show Mr. Pope evidenced dangerous religion.
There is usually rather a lot to be discovered from instances that proceed to trial. This case has much more to be mentioned. The lesson and level of this submit is easy—insurance coverage firm adjusters who try to rent the policyholder’s knowledgeable could also be topic to claims of dangerous religion.
Thought For The Day
Punishment is justice for the unjust.
—Saint Augustine
1 Indiana GRQ v. American Guarantee & Liability Ins. Co., No. 3:21-cv-00227 (N.D. Ind. May 25, 2023).