Best Lawyers: Insurance

Given the abundance of attorneys who practice some form of insurance law in Colorado, it takes a lot to stand out in the crowded legal area. 

Law Week asked some of the attorneys listed in Best Lawyers 2020 for insurance law and litigation what makes their practices unique in a realm that’s so broad, and what it takes to build the kind of reputation required to be a Best Lawyers honoree.

Dedication and attention to detail is a must, according to Denver 2020 “Lawyer of the Year” Nelson Waneka.

“Insurance litigation is very motion heavy and very law heavy, and [cases] take years to resolve,” said Waneka, who is an attorney at Levin Sitcoff. “I feel you have to be very invested not just in a single case but your entire practice.”

Waneka represents individuals and businesses as plaintiffs in insurance coverage claims and appeals. He said it’s important to distinguish these cases, particularly bad faith, from personal injury.

“[Bad faith litigation] is super esoteric, and quite frankly dangerous for a lot of people who don’t know what they’re doing to be litigating in,” he said. Attorneys crossing over into insurance coverage might not know to look for certain fatal flaws in a case, such as a policy’s contractual limitations period that could preclude a plaintiff’s coverage. Insurance coverage contains so many nuances that if a lawyer in that area leaves a firm, they’re difficult for the firm to replace. It takes almost five years to train someone in the eccentricities of bad faith litigation, Waneka said.

Still, an increasing number of personal injury lawyers are holding themselves out as bad faith lawyers in Colorado, Waneka said. Competition among plaintiffs’ attorneys for bad faith cases is growing, but so are the number of filings.

“Our state is a hotbed of litigation when it comes to bad faith law,” said Muliha Khan, managing partner of Zupkus & Angell who is also listed in Best Lawyers 2020 for insurance litigation.

The double and treble damages, as well as attorneys’ fees and costs plaintiffs stand to gain from bad faith lawsuits, are “a huge motivation” for many plaintiffs to file, Khan said. But another factor enabling more cases in recent years is litigation financing, which allows plaintiffs to receive funds from a third party in exchange for a stake in their case.

“[That] is having a huge impact on the legal industry in general, particularly in Colorado,” Khan said.

Khan litigates insurance cases on the defense side in addition to working on employment matters. As her firm’s managing partner, she balances running the firm and maintaining a highly active practice. “We are fortunate enough to be very, very busy,” she said, adding that she’s taken three cases to trial so far this year. 

The net that “insurance law” casts, at least as far as Best Lawyers is concerned, is wide enough to encompass the worlds of not just personal injury but also employment, health care, real estate, construction defects and other legal areas. It follows that some of Colorado’s best-known practitioners in insurance have carved out niches for themselves.

Franklin O’Loughlin has an insurance niche that he even describes as “a very fun practice.” The Lewis Roca Rothgerber Christie partner, who is a Best Lawyers Insurance Law listee since 2008, represents insurance guaranty associations in matters that cross over from litigation to regulations to transactions.

When an insurance company fails, a state guaranty association may intervene to protect the company’s policyholders, who risk losing their benefits in the fallout. With the help of counsel like O’Loughlin and other professionals, the associations work to transfer the insurance policies to a healthy insurance company. But those transfers are subject to state regulations and statutes, and they’re carried out in a process similar to receivership. “So everything’s done in the litigation atmosphere, and sometimes you do actual litigation,” O’Loughlin said. Transactional practice comes into play when he participates in the sale of insurance companies. “It’s kind of a comprehensive insurance practice.”

O’Loughlin’s practice has him and his team hopping around the U.S. Last week he was in Illinois representing that state’s guaranty association in a matter before jetting off to Oregon for another matter. “I’ve gone over 100,000 miles this year,” he said. Statutes governing different states’ guaranty associations are fairly uniform, except in the rehabilitation and liquidation phases of the process, and lawyers have to familiarize themselves with statutes, regulations and court rules very quickly in a practice like O’Loughlin’s.

To succeed in the insurance guaranty niche, he said, “you have to be creative because there’s not a lot of case law in the guaranty association world.” Attorneys have to look to the various statutes for the associations’ powers and duties, and then they have to figure out how to continue policyholders’ coverage within those bounds.

In another niche, Paul Yarbrough, a member in Hall & Evans’s Denver office and Best Lawyers honoree in Insurance Law since 2018, handles insurance matters for clients in trucking, motor sports, and other transportation-related industries. In fact, he’s been longer recognized in Best Lawyers’ Transportation Law list — since 2007.

A typical case for Yarbrough might be representing a trucking company and its insurer when one its drivers is involved in an accident. For his smaller trucking clients who might not carry as much liability coverage, a catastrophic injury could place the entire business at risk. 

He might get a call at 6 a.m. from a client and then begin directing an investigation into the accident.

Responsiveness, Yarbrough said, is what helps a lawyer stand out in his line of work. Sometimes that’s as simple as always returning a client’s call.

“That sounds pretty basic, but I’m always amazed at what I hear from my clients [talking about other attorneys], quite often is ‘The guy doesn’t call me back,’” Yarbrough said. “Call your client back.”

Being invested in the client is another key to success in insurance law, Yarbrough said. “Be proactive. Be interested. Be enthusiastic.”

Khan also said responsiveness is vital to standing out in the insurance law space. She may have a motion due for filing one day, but if a client emergency comes in that day, she makes a point of dealing with that emergency even if it means a later evening finishing the motion.

Focusing on the quality of the work is another key to growing an insurance litigator’s reputation and business, Khan said. “Doing excellent work is a form of marketing in and of itself.”

— Doug Chartier

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