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FDCC Insights Editor
Bernd G. Heinze


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Coronavirus Special Report




A Journal for Civil Defense & Corporate Counsel and Industry Professionals


The Coronavirus will have wide-ranging impacts on various aspects of the insurance defense and coverage industries.


· Are the terms and conditions contained within the insuring agreements broad enough to afford coverage to current and prospective claims?

· Are the definitions specific enough to bring an "occurrence" within the coverage grant?

· Does the wording of an Exclusion restrict the scope of coverage in regard to the potential impact of the Coronavirus?

· What manuscript wordings should be added at renewal to protect the insured and insurer as to the intent of coverage?


In this Special Edition of Insights, FDCC Defense Counsel member Rick Hammond of the Hepler Broom law firm explores the impact of the Coronavirus on Business Interruption insurance.


Insurance Coverage



Rick Hammond

The Coronavirus’ Impact on Business Interruption Coverage:

Is “Direct Physical Loss” Being Redefined?

By: Rick Hammond, Partner

HeplerBroom, LLC, Chicago, Illinois


Currently, the number of people testing positive for Coronavirus is increasing in most areas of the world, at the same time that its impact on business is expanding its reach.Thus, there has been large-scale disruption of global supply chains, and possible forthcoming government-imposed closure orders.This situation is causing insurers and policyholders to closely examine whether their business insurance policies can be construed to provide coverage for the loss of business income associated with this developing pandemic.


Under that backdrop, this article will provide an overview of the underlying principles of business interruption insurance, discuss how courts may treat the business losses associated with the Coronavirus crisis, and examine whether the “direct physical loss or damage” requirement has been met when a business is impacted by this viral outbreak.


Spring 2020


A Journal for Civil Defense & Corporate Counsel and Industry Professionals


Welcome to the Spring 2020 online edition of FDCC Insights. This scholarly Journal is comprised of relevant and cutting-edge articles directly impacting defense and corporate counsel and industry professionals. The issue contains the following outstanding articles for your consideration:


· Eye on the Profession: Is the Billable Hour Impacting Our Mental Health? By Stephen Embry

· Insurance Coverage: Time Limit Demands & Bad Faith Setups - By Jay Russell Sever

· Employment Law: Whiplash? Agency Developments at the Department of Labor - By Helen R. Holden

· Data Privacy: Data Privacy Compendium - by Marisa Trasatti and Sean Fox

· Environmental & Toxic Tort Law: PFAS: Ubiquitous and Persistent Chemicals: Assessing Liability and Allocating Risk - By: Michael Walsh

· Appellate Practice: FDCC At Work:The Celotex Standard Is Not Just For Federal Courts - By: Peter O. Glaessener; Angela Flowers and Jamie Huffman Jones

· Trial Tactics & Litigation:

· What is the Reasonable Value of Future Medical Care? By Cara Scheibling & John Scneider, Ph.D

· Lessons Learned in Three Decades as National Coordinating Counsel - By: Scott Dickens

· Jury Selection & Challenges Presented by #MeToo - By Stuart Simon

· Corporate Counsel: The Corporate Attorney-Client Privilege & its Erosion in the Insurance Context - By: E. Todd Presnell

Eye on the Profession

Stephen Embry

 Is the Billable Hour Impacting Our Mental Health?

By Stephen Embry - TechLaw Crossroads LLC


Much has been written about the problems associated with the billable hour business model. Numerous pundits have slammed it, deified it and blamed it for the profession’s ills. None of this criticism has had much effect. The billable hour is still the primary way many clients pay their lawyers—and how lawyers make their money.


But sometimes lost in the discussion is the impact the billable hour model has on our collective psyche. However, more and more people in our profession are realizing that dependence on the billable hour is killing our mental health.




Insurance Coverage


Jay Russell Sever

Time Limit Demands & Bad Faith Setups

By: Jay Russell Sever - Phelps Dunbar, LLP

That liability insurers owe a duty of good faith and fair dealing to their insureds and can be heldliable for bad faith for failing to act with due care toward the rights and interests of theirinsureds is a well-worn axiom in our industry. Furthermore, it is well-accepted that an insurer’sfailure to accept a reasonable settlement demand within policy limits lies among the myriad groundsan insured may claim extra-contractual liability against an insurer.


But, can an insurer haveextra- contractual liability even if it never receives a demand from the claimant? Canextra-contractual liability exist even where the insurer was not presented with an affirmative

opportunity to accept a settlement?




Employment Law


Helen Holden

Whiplash? Agency Developments at the Department of Labor

By Helen R. Holden, Spencer Fane LLP

Even while the leadership changes at the Department made headlines, the regulatory agenda of the Agency has been moving forward. In the spring of 2019, the Department of Labor (“DOL”) published a long-awaited proposal for revising the regulations relating to the white collar exemptions from overtime and minimum wage under the Fair Labor Standards Act (“FLSA”).


A short time later, DOL also published a proposal to clarify and update several regulations that that relate to what may be excluded from the regular rate of pay for purposes of calculating overtime when employees work in excess of 40 hours per week. Additional proposed rules are reported to be on the horizon as well.




Data Privacy


Marisa Trasatti

Data Privacy Compendium

By Marisa A. Trasatti and Sean M. Fox - Wilson Elser, Baltimore, MD

Understanding cybersecurity regulations around the world is critical when collecting and retaining an individual’s personal information. Organizations are thus tasked with understanding complex, multi-jurisdictional rules and guidelines or risk severe monetary and criminal penalties. This Compendium provides an overview of the key data privacy laws affecting businesses today.




Environmental & Toxic Tort Law


Michael Walsh

PFAS: Ubiquitous and Persistent Chemicals: Assessing Liability and Allocating Risk

By: Michael Walsh - Clark Hill Strasburger, Dallas, TX

There is a growing focus of regulatory and judicial attention on a ubiquitous substance once generally recognized as safe but now questioned as pernicious. PFAS users and processors, manufacturers, packers and sellers may look to lessons learned (and some currently being forged) from enforcement and tort litigation concerning other chemicals to understand the risk profile of these chemical in this new regulatory and litigation climate.


While the breadth and scope of the litigation and regulatory enforcement action to come are currently unknown, we will look at this controversy through the lens of prior similar industry challenges to apply lessons learned and examine strategies that worked and those that failed.




Appellate Practice


Peter O. Glaessener


Angela Flowers


Jamie Huffman Jones


FDCC At Work:The Celotex Standard Is Not Just For Federal Courts


By: Peter O. Glaessener - Allen, Glaessner, Hazelwood & Werth, LLP (San Francisco, CA);

Angela Flowers - Kubicki Draper (Ocala, FL); and

Jamie Huffman Jones - Friday, Eldredge, & Clark, LLP (Little Rock, AR)


In a trilogy of cases decided over 30 years ago, the United States Supreme Court adopted a summary judgment standard now known collectively as the Celotex standard. This standard provides structure and fairness to dispositive motion practice.These cases are Celotex Corp. v. Catrett, Anderson v. Liberty Lobby, Inc., and Matsushita Electric Industrial Co. v. Zenith Radio Corp.


This article is largely taken from an amicus brief filed by FDCC in the Supreme Court of Florida in the case of Wilsonart, LLC v. Lopez, SC19-1336. It also includes a chart of the manner in which the Celotex standard has been considered and its status in states across the country.


Trial Tactics & Litigation


Cara Scheibling


John Schneider, Ph.D.


What is the Reasonable Value of Future Medical Care?

By: Cara Scheibling and John Schneider, PhD – Avalon Health Economics

In the health care industry, products and services are not always easily defined, and current medical “prices” tend to not reflect reasonable value or fair-market value in the economic sense.Instead, current prices reflect antiquated “chargemasters” and rate sheets that feature prices that literally nobody pays.


In fact, the best way to describe medical care prices is that they are “aspirational;” a medical provider would like to receive those “retail” prices, but instead they routinely settle as payment in full for amounts considerably lower.There are countless examples of this—it is a characteristic of the U.S. medical industry that has endured for decades.




Scott Dickens

Lessons Learned in Three Decades as National Coordinating Counsel

By Scott Dickens - Fultz Maddox Dickens PLC

The purpose of this article is not to extol the proven advantages of the NCC model for the defense of liability claims and lawsuits (consistency, efficiency, and expertise, to name a few). Rather, I want to share some of the important lessons that I have learned along the way.


Although many of them apply equally to other forms of the attorney–client relationship, I include them here because I think that they are particularly useful for purposes of maintaining the long-term and high level of client satisfaction required of anyone who is, or wants to be, in an NCC role.




Stuart Simon

Jury Selection & the Challenges Presented by #MeToo

By: Stuart Simon - American Jury Centers

The success of the voir dire process during jury selection depends considerably on the willingness of prospective jurors to disclose information about their past experiences (e.g., whether they have been victims of crime or sexual harassment) and their existing

attitudes relevant to the trial (e.g., dispositions towards claims of sexual misconduct).


When members of the jury panel are not forthcoming during voir dire, there is a greater chance that persons who hold certain biases will be seated on a jury, thus undermining the goal of an impartial jury to try the case.




Corporate Counsel

Attorney - Client Privilege


E. Todd Presnell

The Corporate Attorney-Client Privilege & its Erosion in the Insurance Context

By: E. Todd Presnell - Bradley Arant Boult Cummings, LLP

Avoiding privilege pitfalls—is easier said than done, especially for in-house counsel. While the attorney–client privilege appears simple when considering one lawyer representing one client, the complexities increase exponentially when lawyers represent corporate entities acting through various executives, employees, and third-party agents. And courts introduce additional uncertainties by often assuming that in-house lawyers supply business advice as much or more than legal advice.


It is important for corporate counsel to remain abreast of this ever-evolving—and sometimes surprising—area of privilege law. To that end, this paper reminds readers of their ethical obligations of confidentiality, provides a brief overview of the corporate attorney–client privilege, and then highlights recent case-law developments on some particularly thorny issues in

the insurance context.





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Have a relevant and topical article you would like to share with the industry and FDCC members? Please send your submissions for FDCC Insights and any questions to:







Copyright © 2019

Federation of Defense & Corporate Counsel

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Please contact us at:

610 Freedom Business Center | Suite 110 | King of Prussia, PA 19406


Bernd G. Heinze, Esq. - Executive Director







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