Posted on November 30, 2009 by Chip Merlin

John Pappas Explains the Importance of Preparation in Insurance Coverage Cases

I have known John Pappas since 1980. We were classmates in law school. I think I helped get him the job at the 100-plus person insurance defense law firm that now bears his name. Because we have been bitter adversaries on a number of cases, most people find it surprising that he was the best man at my marriage.

In Butler Pappas--A Familiar Foe, I wrote:

John Pappas and I were not only classmates, but also on the Law Review and Moot Court in law school. He was a hardworking student and a very competitive debater. When Paul Butler indicated that they needed to hire more attorneys because of the firm’s growth, I recommended John. I felt he would be a perfect fit for the type of practice Paul Butler was establishing. I have been proven right about that.

John Pappas is as dedicated to the insurance industry as I am to the advocacy of policyholders. It is not uncommon for tough feelings and bitter disagreements to come about between lawyers on opposite sides of a case where the stakes are high. Possibly as a result of competitiveness for our clients, John and I have not seen much of each other socially for a long time. However, while many who meet John may think he has a serious and unrelenting personality, he personally has a light sense of humor. I would encourage reading his From Beautiful Brazilians to Bear-Catchers to gain a glimpse of Pappas’ humor.

John Pappas' ability to use humor to make a point, as sarcastic as it might be, was demonstrated in a recent Mealey's article, Preparation For Deposition, 23-2 Mealey's Litig. Rep. Ins. Bad Faith 15 (2009), where Pappas seriously noted:

The deposition of the designated corporate representative of the insurance
company defendant is, often, the tipping point of the case.

Preparation is paramount to success. It isn't easy, and it isn't fun. The
designated representative usually is a company executive with many
responsibilities and pressures. But there is no substitute for time and effort.
There is no other way. Here is a case in point.

The humorous part included the following exchange:

"Ready for your some cross-examination by an obnoxious Plaintiff's attorney?"

"Yeah. Sure. Go ahead."

"Okay. State your name, sir."

"Kirk T. James."

"Who is your employer?"

"Who is my employer?"

"Yes."

"Ah, ah, XYZ Insurance Company?"

"Do you receive a W-2 form for tax purposes naming XYZ Insurance Company as
your employer?"

"I think so. I'm not sure."

"Does the W-2 form identify XYZ Insurance Company as your employer?"

"Well, you know. Now that you ask, I can't tell you technically who is my
actually employer - John."

"Okay, Kirk, lets stop role-playing for a moment. Before the deposition
begins on Thursday you need to find out the full name of your actual employer."

"Sure."

"Now lets continue with the role playing."

"Okay."

"Why did XYZ deny the claim?"

"Why did XYZ deny the claim?"

"Yes, sir. Why did XYZ deny the claim?"

"Because there's no coverage."

"Any other reason?"

"No."

"Why was there no coverage?"

"John, here is where I need to get more prepared."

"Yep, okay, Kirk. I'll leave you alone. Do you want to get together for
dinner?"

"John, if it's alright with you, I would rather relax at the hotel and try to
read more of these transcripts."

Reading what one's opponents are teaching and doing is an extraordinarily effective method of learning. When humorous as John can be when he wants, the learning can also be fun.
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Posted on February 27, 2009 by Chip Merlin

Butler Pappas--A Familiar Foe

Paul Butler was my first legal mentor. John Pappas was a classmate of mine at the University of Florida School of Law, and the best man in my wedding. They have built a hundred attorney law firm representing solely insurance companies. We have cases against them all the time. As they are physically located several floors below us in the same office building, and both David Pettinato and I worked at the firm in different eras, we have a pretty good idea of what our familiar foes are about.

Sandy Burnette and I reminisced about Butler Pappas while he was editing his Guest Blog, Sandy Burnette Defends Insurance Fraud Fighters. Sandy joined Paul Butler while I was a law clerk in 1981. The firm was then known as Butler and Neilson. Lane Neilson is still practicing insurance defense in Orlando Florida. Sandy recounts that the prior names of the current Butler Pappas have been:

Wilson and Butler

Butler and Neilson

Butler and Burnette

Butler, Burnette & Wood

Butler, Burnette, Wood & Freemon

Butler and Burnette

Butler, Burnette & Pappas

Butler and Pappas

Butler, Pappas, Weihmuller, Katz & Craig

Attorneys have a peculiar way of coming and going at law firms. Few of us, especially litigators, ever stay in one place during our entire legal career.

Paul Butler came to Tampa via Atlanta. His mentor was Clayton Farnham. Paul is an ordained Methodist minister. Like Clayton Farnham, Paul is a consummate gentleman, driven, and very bright. Like many Methodist ministers, he can touch one’s soul with eloquent rhetoric. I was at a trial he won where the jury was crying with Paul during his closing argument.

John Pappas and I were not only classmates, but also on the Law Review and Moot Court in law school. He was a hardworking student and a very competitive debater. When Paul Butler indicated that they needed to hire more attorneys because of the firm’s growth, I recommended John. I felt he would be a perfect fit for the type of practice Paul Butler was establishing. I have been proven right about that.

John Pappas is as dedicated to the insurance industry as I am to the advocacy of policyholders. It is not uncommon for tough feelings and bitter disagreements to come about between lawyers on opposite sides of a case where the stakes are high. Possibly as a result of competitiveness for our clients, John and I have not seen much of each other socially for a long time. However, while many who meet John may think he has a serious and unrelenting personality, he personally has a light sense of humor. I would encourage reading his From Beautiful Brazilians to Bear-Catchers to gain a glimpse of Pappas’ humor.

Yesterday, I replied to a comment concerning Surplus Lines Insurers, Sinkholes, and the Law of Mars. I thought a lot about how attorneys and policyholders view our opponent’s representatives and wrote in part:

“The attorney in the above cited case, Donna Devaney, represented insurance companies at one of the largest law firms in Florida. After becoming a partner and finding that status was not all it seemed when she was younger, she switched over to the policyholder side with us.

Donna has always been successful. Fortunately for her, she is now able to use her considerable talents to help people.

One of the reasons I left the representation of insurance companies in 1985 is because I did not want to go see my Maker and explain that I used my talents to help save Travelers $25 million dollars. This is not to say that I do not respect my adversaries. The vast majority of insurance counsel are very honorable, good people, and play an important role in society. However, we all have a choice to make at the endeavors we try to be successful.”

I was very fortunate to have Paul Butler as a mentor early in my career. Indeed, I may have been blessed. Without Paul teaching me this line of legal work, I would never have become an attorney for policyholders. It is interesting how one thing leads to another in life’s journey.
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Posted on February 6, 2009 by Chip Merlin

Water Loss Denied? Ensuing Loss Provisions May Provide Coverage

"Ensuing loss" provisions are the "Lazarus" clauses in property insurance policies. Property damage claims otherwise excluded from coverage, are raised from the dead and paid as a result of them. They are difficult to understand and the court decisions seem inconsistent. However, when there seems to be an event that is excluded, many times a water damage event, these clauses are often the only means of recovery.

What is an "ensuing loss" clause and where are they found? The following wording is typical of an ensuing loss clause which is typically found at the end of exclusions:

* "...any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered."

* "Under exclusions ...., any loss that follows is covered unless it is specifically excluded."

These ensuing loss clauses act as exceptions to exclusions. As a matter of practice, all insurance adjusters and those analyzing coverage following loss, should carefully consider how a loss occurred and contemplate how an ensuing loss clause may provide coverage to the policyholder for a loss that at first glance, may appear excluded.

Butler Pappas attorney, Bill Lewis wrote an excellent article, "What The Heck is an Ensuing Loss?". Butler Pappas represents property insurers.

Bill Lewis is a frequent, and able, adversary to our firm. My only caveat of the paper is that it is slightly slanted towards construction that limits coverage--but that should be expected of an advocate for the insurance company. Otherwise, I strongly encourage my fellow "coverage nerds" to read this article regarding a very important aspect of property insurance coverage analysis.

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