Monthly Archives: December 2019

SJC Supports ‘Consent-to-Settle’ Insurance Clauses, in Keeping with BBA Amicus Brief

On December 16, 2019, the SJC announced its decision in Rawan v. Continental Casualty Company, a case that addressed whether an insurance company must honor a so-called “consent-to-settle” clause, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy. The BBA was pleased to see that the SJC accepted our argument that an insurance company must honor these clauses. (You can read our full statement on the ruling here.)

The BBA filed an amicus brief in support of the Defendant-Appellee Continental Casualty Company on the questions posed by the SJC in their request for amici briefs, “whether a liability insurer violated its duty, under G. L. c. 176D, § 3(9)(f), to effectuate a prompt, fair, and equitable settlement of a claim in which liability had become reasonably clear, where the insured refused to consent to a settlement and the insurance policy provided that the insurer would not settle any claim without the informed consent of the insured; whether such a provision is unenforceable as against public policy.”

The BBA brief, as drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody and Arnold, argued that:

“Consent-to-settle provisions promote public policy in two distinct ways. First, consent provisions enable lawyers to exercise their professional discretion in striking the appropriate balance among a host of unique, individualized considerations presented by malpractice claims. Second, consistent with the unique implications of such suits, well-established freedom to contract principles protect professionals’ abilities to tailor the terms of their liability insurance coverage.

Consent provisions ultimately incentivize the procurement of optional professional liability insurance in Massachusetts because they enable professionals to enjoy insurance protections while preserving autonomy in controlling the resolution of a malpractice suit. To invalidate consent provisions within the Chapter 176D context or otherwise would be to divest professionals of an important malpractice claim management device which insures to the benefit of the insured, not the insurer.”

It goes on to note that, like certain other professionals, attorneys are especially susceptible to the adverse reputational effect of a malpractice claim, and may thus choose to seek out insurance policies that grant them some measure of control over the handling of such a claim, “consistent with their individualized calculus”—especially since word of a settlement may only invite more additional claims.

Echoing that view, Justice Scott Kafker, writing for a unanimous SJC, asserted that:

“Consent-to-settle clauses also serve valuable purposes in the professional liability context, including the important protection of a professional’s reputation and good will. Moreover, consent-to-settle clauses encourage professionals to purchase this voluntary line of insurance, thereby providing more secure funding for the payment of third-party claims.

Consent-to-settle clauses serve important purposes in this optional line of insurance. Most importantly, they encourage professionals to purchase such insurance, thereby providing coverage for the insured and deeper pockets to compensate those injured by the insured.”

We were pleased to see that the Court upheld the right of professionals and insurance companies to enter into liability policies that include “consent to settle” provisions, the exact outcome that our brief argued for. We are thankful to the brief drafters as well as the entire BBA Amicus Committee—co-chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—for their work in this case.

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

The Death Penalty in the News

On Monday, the Justice Department asked the U.S. Supreme Court to let it resume the federal executions scheduled for December 9 by “setting aside” a district court’s injunction blocking it from carrying out lethal injections as planned. The November ruling held that the Justice Department’s proposed lethal injection procedure “is not authorized” by federal law. This order temporarily called off four executions scheduled for December and January, which would have been the first carried out by the federal government since 2003. The Justice Department’s new request marked an escalation of the Trump administration’s push to restart federal executions.

The BBA has opposed the death penalty for more than 40 years. In 2013, the BBA Death Penalty Working Group published a report outlining the three bases for the BBA’s position:

  1. that the inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
  2. that, in practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
  3. that death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

We have been committed to policy advocacy against the death penalty, for instance, by filing numerous amicus briefs, including in Commonwealth v. O’Neal, Commonwealth v. Colon-Cruz, and U.S. v. Darryl Green. You can read more about the BBA’s work on the death penalty here.

This week, Jim Petro, a former Ohio attorney general, published an opinion piece in the New York Times where he outlined why he, as someone who has seen the death penalty up close, believes that the death penalty is a “failed policy”. Mr. Petro outlined the following:

Another unfortunate reality is that the federal death penalty is marred by the same problems of racial bias and geographical disparity found in the state death penalty systems. Just three Southern states — Texas, Virginia, and Missouri — are responsible for nearly half of the federal death row population. People of color, particularly African-American men, also account for more than half of all current federal death sentences. And the overlap between these two areas of disparity is significant: Every person on the federal death row from Virginia and all from the Eastern District of Missouri are people of color. And people of color have received 75 percent of federal death sentences imposed in Texas in the modern era.”

He also explained that many of those in favor of the death penalty are under the impression that it is reserved for crimes affecting our national interests, such as terrorism and espionage, when in fact, only one federal inmate is under a death sentence for a terrorism offense, and none for espionage or treason. He concludes, “Capital punishment is costly, offers no proven deterrent benefit and delays healing for victims’ family members, while also traumatizing correctional officers and risking the execution of innocent people.”

As our amicus brief in Colon-Cruz noted, lawyers involved in these cases are traumatized as well: “The psychological and emotional burdens on counsel, particularly on the defense, are immense.”

We join Mr. Petro in urging the Trump administration to suspend the attempt to resume with the executions scheduled for next week. The federal government has not executed anyone since 2003, and the Trump administration should keep it that way.   

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association