30 Years Protecting, Defending and Advancing Policyholders Rights
The United Policyholders Amicus Project helps preserve and enforce insurance promises – large and small – because lives and livelihoods depend on them. In state and federal appellate courts and in the nation’s highest court, we advocate for insureds on the full range of issues (from unfair claim denials to deceptive sales practices to improper exclusions) and the full range of products (including but not limited to individual and group disability, health, life, long term care and homeowner policies, commercial general liability, directors and officers and business owners’ policies).
We weigh in on exclusions: pollution, advertising injury, intentional acts, mold, water damage, anti-concur-rent causation. We weigh in on definitions: occurrence, accident, insured location. We weigh in on duties: fair and thorough investigation, equal consideration to the financial interests of the insured, the duty to defend and indemnify…just to name a few. We weigh in on standards for the recovery of economic, non-economic and punitive damages.
“A well-written and objective amicus brief is an invaluable tool with which to enlighten judges about the rights and needs of consumers.” – Stanley Feldman
As a non-party with a broad perspective and national direct contact with real-life insurance transactions, UP helps focus courts’ attention on the larger issues at stake. No meritorious case is too large or too small for the UP Amicus Project.
United Policyholders has filed over 300 amicus briefs to date in a wide range of important cases impacting policyholders’ rights and insurers’ duties. UP’s arguments have been adopted expressly and implicitly by the U.S. Supreme Court and many other courts. Numerous courts have specifically invited UP to brief certified questions as amicus curiae. When appropriate, UP is a co-amici with trade associations, government entities and other non-profits. Examples include AARP, Consumer Federation of America, the National Electrical Manufacturer’s Association, the American Institute of Architects, and the California Industry Association.
Our first brief was prepared in 1992 to educate a California Appellate Court on why property policies that purport to cover dwelling “replacement” should cover legally required (building code) upgrades. It was written by Amy Bach, who oversaw the UP Amicus Project as a volunteer for 13 years before becoming the organization’s full time Executive Director. She continues to manage the project today with help from a corps of experienced and dedicated policyholder advocate volunteers.
All of United Policyholders’ amicus curiae briefs are prepared and filed by experienced attorneys who specialize in insurance and/or appellate law. Volunteers and advisors to United Policyholders have prepared and filed pro bono 99% of the organization’s briefs.
We are honored and fortunate to be associated with an ever-growing team of volunteer brief writers and we are deeply grateful for the contributions they make toward helping us advance policyholders’ interests.
From 1995 until his death in 2010, Eugene Anderson of Anderson, Kill & Olick was the primary moving force behind the UP Amicus Project. Often referred to as the “Dean of Policyholder Attorneys,” Gene was a highly skilled and passionate insurance consumer advocate who personally drafted more than 75 amicus briefs for UP pro bono and encouraged his colleagues to do the same. He kept UP apprised of new cases and marketplace developments impacting policyholders, and was extremely generous in devoting his firm’s resources to the UP Amicus Project.
Numerous other Anderson Kill & Olick attorneys have written or helped write a substantial number of the briefs we have filed. The firm dedicates an extraordinary amount of pro bono attorney hours to preparing amicus briefs for United Policyholders each year and has inspired other firms to follow its lead.
Because of their genuine dedication to serving their clients and advancing policyholders interests across the board, Gene Anderson and his colleagues at Anderson Kill & Olick introduced UP to countless other firms, legal scholars, professors and sources of data. By so doing, Gene and Anderson Kill & Olick helped build the United Policyholders’ Amicus Project’s influence on courts throughout the United States.
“The insurance product is not made in the the Courtroom. The United Policyholder’s Amicus Project affords a significant opportunity to bring different considerations of insurance before jurists so a better decision can be made. My late friend, Eugene Anderson, always talked about the importance of judges understanding “the lore” of insurance and not just insurance law. It is the Merlin Law Group’s honor to participate in this very important service for United Policyholders.” – William “Chip” Merlin
The Value of UP as Amicus Curiae
The business of insurance is infused with a public purpose because insurance is a modern-day economic necessity. It enables anyone from an individual to a multi-national corporation to plan for financial protection against the risk inherent in living and conducting business in a complex society. It promotes peace of mind, instilled by a sense of certainty and predictability, which enables us as a society to plan and progress. Because policies are legal contracts, and insurers are regulated entities, insurance is a very active area of law with a high volume of cases affecting the public interest being litigated throughout the United States at any given time.
A brief amicus curiae is one that is presented to a court by a person or an organization that is not a party to a case the court is considering. Amicus briefs become part of the “record” the court reads and considers be-fore rendering a decision. Published judicial decisions (“decisional law”) and enacted statutes (“statutory law”) define insurance consumers’ rights and insurance companies’ obligations. Decisional law is critically important and has long-lasting impact on the market-place and consumer transactions.
The classic role of amicus curiae is to assist in a case of general public interest, supplement the efforts of counsel, and draw the Courts attention to law that es-caped consideration (Miller-Wohl Co. v. Commissioner of Labor & Indus. 694 F.2d 203, 204 (9th Cir. 1982)). Commentators have often stressed that an amicus is in a superior position to “focus the court’s attention on the broad implications of various possible rulings.” R. Stern, E. Greggman & S. Shapiro, Supreme Court Practice, 570-71 (1986) (quoting Ennis, Effective Amicus Briefs, 33 Cath. U.L.Rev. 603, 608 (1984)).
Insurers and their trade associations routinely deluge courts with briefs arguing their views. For example, the Complex Insurance Claims Litigation Association (formerly the Insurance Environmental Litigation Association) is a group of the largest commercial U.S. insurers that appears as amicus curiae in coverage and claims practice cases at the appellate level in almost every
state and frequently participates in oral argument of particularly significant cases by invitation. The Association is only one of hundreds of insurer entities that routinely file amicus briefs. In the majority of cases, judges get no briefs at all that advance the perspective of insureds or insurance consumers. Predictably, the results often favor the insurance industry. UP is changing this imbalance through our Amicus Project.
United Policyholders works in individual states with regulators at the National Association of Insurance Commissioners and we provide loss recovery support to citizens through our Roadmap to Recovery program. This work enhances our legitimacy as a true friend to courts, particularly when we file a brief in a state where we have sent staff or volunteers after a disaster.
Laws and practicality require that people and businesses buy insurance to protect real and personal property as well as business and individual income. Insurance contracts and relationships are complex. Interpreting policies and navigating the claim process requires specialized skills. It is an economic fact that because insurance companies (like all businesses) seek to be as profitable as possible, they have natural financial incentives to deny and underpay claims. All these factors make United Policyholders’ educational, amicus, watchdog, and advocacy roles critically important and necessary.