Appellate Work & Law Creation

Law is created in many ways, and our lawyers are involved in all of them on behalf of the insurance industry.

Appeals and Amicus Briefs
From the beginning of the insurance litigation explosion in the 1980s, Crowell lawyers have been continuously engaged on behalf of the industry in appellate courts around the country. Beginning with state-by-state judicial efforts to craft interpretations of policy language pertinent to huge asbestos and environmental claims (e.g., pollution exclusion, owned property exclusion, occurrence definition, personal liability definition, horizontal and vertical allocation) and continuing on to today's emerging controversies (e.g., horizontal reinsurance allocation and "follow the fortunes," various legislative and judicial expansions of insurer duties), our lawyers have engaged dynamically and successfully for insurance clients in an era that has seen the creation of more insurance and reinsurance law than ever before.

We have represented insurers facing ten-figure claims in states where the relevant CGL language was under-interpreted and therefore open-ended. We have litigated major pollution exclusion cases to positive outcomes in state supreme courts. We have briefed and prevailed in cases posing arithmetically complex allocation questions. We regularly brief late notice issues for nearly every relevant coverage line. And our lawyers have, with great frequency, been retained as coordinating counsel for lines of exposure that turn on the interpretation of "standard" insurance policy language and for appeal of bankruptcy court outcomes in insurance-centric insolvency proceedings.

We also have regularly represented industry organizations seeking to advocate before the courts for the proper development of bodies of law that are of acute importance to insurers, particularly liability insurers. For example, over the past five years, we have filed amicus briefs on behalf of an insurance trade group in 17 legally significant tort or mass tort cases in support of attempts to restrict the expansion of tort exposures beyond clearly discernible limits based on science, sensible standards of causality, and market-realistic definitions of duties.

We consider appellate work central to our broad mandate on behalf of the insurance industry. We attribute our success in the field to more than just good preparation and a certain amount of insight about insurance and about the law. We consider our appellate presentations to be a bridge between a very complex industry facing intricate and interrelated legal challenges, on the one shore, and judiciaries generally intent on doing the right thing, but without the resources to develop an in-depth, nuanced understanding of insurance, on the other. We try to package readable, cogent content together with business-savvy themes to assist courts in understanding the full consequences of their rulings. In insurance, most often, everything relates to everything else, and we know how to communicate how important that is.

Legislatures and Regulators
Courts say that they do not make law, even though they do. But legislatures and regulators do not pretend to just interpret. Often writing statutes and regulations on blank sheets of paper, they can enhance or totally upend the carefully crafted mosaic of insurance law, and in fact they do so just about every day. Our lawyers have represented companies and trade groups in helping to craft legislation and regulation, in trying to oppose bad ideas, and in trying to make markets more open and efficient. The list of topics we have worked on is broad—asbestos, including the proposed asbestos trust fund; congressional proposals to limit offshore reinsurance or tax it into oblivion; federalism issues arising out of proposals for optional federal charter authority; capital requirements; conflicting international accounting and financial reporting regimes; global supervision of international insurers by individual states; and the general topic of inter-regulator clash.

Again, our approach is bridge building, on the theory that more and better information usually leads to more sensible outcomes, and on the theory that regulators, too, are intending rational outcomes to the best of their ability.  Because of this approach, we often find ourselves with leadership positions in coalitions and with good access to governmental decision makers.

Non-Governmental Organizations (NGOs)
Although they clearly do not make law, NGOs often initiate the processes that lead to law, and NGOs in the legal field are quite influential in moving judges and regulators in certain directions. Our lawyers have partnered with NGOs, and the academic world more generally, to assure that the voice of reason is heard before the voice of the bar or the academy is spoken publicly. We are participants, for example, in the ongoing ALI effort to create a new Restatement of the Law of Liability Insurance, and our lawyers speak regularly at conferences of the bar and the academy on topics of critical importance to the development of the law and the efficient delivery of financial security products.

Participation in many law-creation exercises not only allows us to represent our clients’ interests, but it also keeps us at the center of emerging developments in the law and in the industry.