APCIA Insurer Group Rejected for Offering Duplicative Arguments

The Supreme Court of Delaware, in an order responding to an insurance trade group’s motion for leave to file an amicus curiae brief in a coverage appeal before the court, denied the trade group’s motion and rejected the brief.

The court is reviewing consolidated appeals in a set of related insurance coverage disputes.  The American Property Casualty Insurance Association (“APCIA”), a national trade association representing insurers, filed a motion for leave to file an amicus curiae brief in support of the insurers.  The policyholder objected arguing that the brief offered no new interpretive arguments and raised issues not argued by either party.

The court noted that an amicus curiae brief is appropriate where it will offer “a unique perspective or expertise” and the court will benefit from the “unique supplemental assistance” the brief offers.  Further, the bar is much higher for a brief if:  (1) the parties do not both consent to the brief, (2) the parties are both well-represented and sophisticated, and (3) the unique expertise is not readily apparent.  Finally, Delaware law provides that when the parties are represented by counsel, an amicus curiae brief may not present an argument on an issue not included in the opening brief.

The court found that the APCIA brief failed on all of these counts:  the brief was duplicative, the parties were well-represented, and APCIA’s unique expertise was not readily apparent.  Thus, the objection was sustained and the motion for leave to file the brief was denied. This is the second recent instance in which a policyholder has objected to a request by a national trade association representing the insurance industry to file an amicus curiae brief.  Just recently in a matter pending before the Connecticut Supreme Court, R.T. Vanderbilt Co. Inc. v. Hartford Accident & Indemnity Co., (Ct. S.C. Nos. 20000, 20001, 20003 ), policyholder Vanderbilt Minerals, LLC (f/k/a R.T. Vanderbilt Company, Inc.) (“Vanderbilt”) objected to a request by the Complex Insurance Claims Litigation Administration (“CICLA”) to file an amicus curiae brief.  Like APCIA, CICLA is a national trade association representing the interests of the insurance industry.  Vanderbilt opposed CICLA’s request, arguing that officers/directors of CICLA are employed by insurer defendants in the coverage action and, therefore, CICLA is not a third-party friend of the court.  Vanderbilt also argued that CICLA’s proposed amicus brief was largely duplicative of the insurer defendants’ briefs.  The opposition was rejected by the Connecticut Supreme Court without comment.  The Verizon and Vanderbilt amicus objections suggest that more such challenges will be asserted, as most state and federal rules open the door to such arguments.  In re Verizon Insurance Coverage Appeals, Nos. 558, 560, 561,2018, (Del. Feb. 21, 2019) (ORDER).