Thursday, February 25, 2016

No. 146: Eugene R. Anderson—A Memorial Tribute

Eugene R. Anderson
The late Eugene R. Anderson is often referred to as the "Dean of Policyholders' Attorneys." Gene was a longtime close friend of mine. Shortly after he died on July 30, 2010 at age 82, I dedicated the October 2010 issue of The Insurance Forum to his memory. A recent newsletter distributed by his firm brought memories of Gene flooding back, and I decided to expand a bit on my 2010 tribute to that great man.

According to an obituary by Mary Williams Walsh in the August 2, 2010 issue of The New York Times, Gene was born in 1927 in Oregon and grew up in poverty during the Great Depression. He worked his way through college, eventually graduating from the University of California at Los Angeles. While hitchhiking across the country, he got a ride from an attorney who later helped Gene get admitted to the Harvard Law School. 

Gene served for a time as an Assistant U.S. Attorney in the office of Robert M. Morgenthau, the U.S. Attorney for the Southern District of New York. In 1969 he cofounded a law firm that is now Anderson Kill P.C.

The Keene Case
Gene was heavily involved in a famous liability insurance lawsuit involving Keene Corporation, a manufacturer of building materials that contained asbestos, and several major insurance companies that had sold comprehensive general liability policies to Keene at various times. Each company took the position that its insurance did not apply because it was not in effect when the injury occurred. An important appellate decision in the case was handed down in 1981. (See Keene Corp. v. Insurance Company of North America, U.S. Court of Appeals, District of Columbia Circuit, 667 F.2d 1034.)

Gene argued that all the companies were correct—about the others' policies—as to the coverage trigger. Gene was credited with developing what became known as the "triple trigger" theory—that coverage was triggered when the victim inhaled asbestos fibers, or when the illness manifested itself, or when the victim sought compensation. The beginning of the lengthy appellate ruling describes the nature of the case:
This case arises out of the growing volume of litigation centering upon manufacturers' liability for disease caused by asbestos products. In this action, Keene Corporation seeks a declaratory judgment of the rights and obligations of the parties under the comprehensive general liability policies that the defendants issued to Keene or its predecessors from 1961 to 1980. Specifically, Keene seeks a determination of the extent to which each policy covers its liability for asbestos-related diseases.
Between the years 1948 and 1972, Keene manufactured thermal insulation products that contained asbestos. As a result, Keene has been named as a codefendant with several other companies in over 6,000 lawsuits alleging injury caused by exposure to Keene's asbestos products. Those cases typically involve insulation installers or their survivors alleging personal injury, or wrongful death, as a result of inhaling asbestos fibers over the course of many years. The plaintiffs in the underlying suits allege that they contracted asbestosis, mesothelioma, and/or lung cancer as a result of such inhalation.
From 1961 to the present, Insurance Company of North America, Liberty Mutual Insurance Company, Aetna Casualty and Surety Company, and Hartford Accident and Indemnity Company issued comprehensive general liability insurance policies to Keene. From December 31, 1961 through August 23, 1967, INA insured Keene; from August 23, 1967 through August 23, 1968, Liberty insured Keene; from August 23, 1968 through August 23, 1971, Aetna insured Keene; from August 23, 1971 through October 1, 1974, Hartford insured Keene; and from October 1, 1974 through October 1, 1980, Liberty insured Keene. The policies that these companies issued to Keene were identical in all relevant respects....
The Recent Newsletter
Anderson Kill publishes Policyholder Advisor, a bimonthly newsletter. The lead article in the January/February 2016 issue is entitled "Your Insurance Company's Duty to Settle." The two authors are members of the firm: Robert M. Horkovich cochairs the insurance recovery group, and Anna M. Piazza specializes in insurance recovery and commercial litigation.

The article deals with the situation where the policyholder's liability has become fairly clear, the policyholder wants to settle within the policy's upper limit, and the policyholder's liability insurance company decides to "roll the dice" by going to trial. Should the verdict exceed the policy limit, the insurance company might be held liable for the full verdict even though it exceeds the policy limit.

General Observations
Seeing the recent article was reminiscent of the type of work in which Gene engaged throughout his distinguished legal career. The article shows that Gene's firm still engages in the work Gene loved—pressing insurance companies to honor their obligations to their policyholders.

Gene and I met face-to-face only once, for an enjoyable private lunch near his office in New York. However, we spoke frequently by telephone. Some of those calls were originated by Gene, and some by me. Gene was a mind reader, because he seemed to know exactly what matters would be of interest to me. He was squarely on target every time. I sorely miss him personally and professionally, and I cherish his memory.

Available Material
I am offering, with Anderson Kill's permission, a four-page complimentary PDF containing the recent newsletter. Send an email to and ask for the January/February 2016 issue of the Anderson Kill newsletter.