Committee
News
Fall 2009
Fall
2016
Toxic Torts and Environmental
JointLaw
Automobile
Litigation
Committee
and Staff Counsel Committee
CARBON NANOTUBES: THE NEXT ASBESTOS?
Fionna Mowat, Exponent, [email protected]
Joyce Tsuji, Exponent, [email protected]
TIRE PLACEMENT & VEHICLE CRASHES
asbestos fibers—discussions of
First reported in 19913, CNTs
By:Carbon
Richardnanotubes
Sherman (CNTs) hold
promise for many beneficial
epitomize the emerging field of
parallels between these two
Tire placement
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that Thus,
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applications.
However,
there are
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and a calls
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the vehicles.
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control and crashes.
In this
article, automotive
engineer
moratorium
raised over
“mounting
manipulate,
and have
manufacture
injury and
the thousands
cases Drive
FrontofWheel
(FWD) vehicles
dominated
and
tire
expert,
Richard
Sherman
addresses
the
often
things
usually
between
1 drive
and
evidence” that CNT may be the
litigated each
year, U.S.
consideration
of
auto sales since the early 1980’s. By moving the
1
4
disputedasbestos,”
topic of tire
placement.
particular
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or
at leastThis possible
CNTs
are
a
type
100
nanometers.”
“new
implications
of
the
use
of
wheels to the front of the vehicle, underneath the weight
is an interesting
example
where industry
standards
and and in consumer
deserving
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toxicological
f c a r b oare
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e n g isuperior
neered
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logic
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attention” due to prior experiences
nanoparticle
formed
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which generally
is particularly
helpful
2
The
shape
and
size
with
asbestos.
Continued
on
page
18
Tire Placement & Vehicle Crashes: Guidelines for in low friction conditions (rain or snow). It seems that
of
some agglomerated
Replacing
Partial Tire CNTs
Sets are
Continued on page 13
similar to asbestos—the most
An often And
quoted
phrase,CNTs
“put your
“desirable.”
because
for best foot forward,”
The Next Asbestos . . . . . . . . . . . . . . . . . . . . . . . 1
is familiar utility
and certainly
applied
many inNanotubes:
their
structural
are long
and by Carbon
personal and professional
lives. Into
the case of automobile
thin—characteristics
thought
Editor’s Message . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
tires however,
the opposing
argument
is correct; when
impart
increased
potency
to
Tire Placement & Vehicle Crashes . . . . 1
Tatera v. FMC
purchasing only two new tires, manufacturers
and Corporation: When Is A Product No A Product? . . . 3
Message From The Chairs . . . . . . . . . . 4
engineers
typically
recommend
1qualified
Miller, G. automotive
2008. Mounting evidence
that carbon
Mexico’s
National Wastes Management Program. . . . . . . . . . . . . . . 4
nanotubes
may
be
the
new
asbestos.
Friends
of
the
placing the better tires (deepest tread) on the rear axle
Welcoming Insurance Staff Counsel . . . 7
Earth Australia. Available at http://nano.foe.org.au.
Environmental Risk During Restructuring And Bankruptcy . . . . . 5
2of the vehicle.
IN THIS ISSUE
IN THIS ISSUE:
Staff Counsel Attends Vetting for Vets
Event in Atlanta . . . . . . . . . . . . . . . . . . . 8
Staff Counsel Gives Back . . . . . . . . . . . . 9
Traffic Crash Simulation 101 . . . . . . . . 10
2016 - 2017 TIPS Calendar . . . . . . . . . 17
The Royal Society and Royal Academy of
Engineering (RS/RAE). 2004. Nanoscience and
Upcoming
TTEL Programs And Meetings . . . . . . . . . . . . . . . . . . . . 6
Though the ideal situation when replacing
tires would
nanotechnologies. Royal Society and Royal Association
beEngineers.
to replace
allThefour
the Available
same time,
there
are certain
at
of
London:
Royalat
Society.
Limitations
Of Toxicogenomic Studies To Assess Toxic Exposures
http://www.royalsoc.ac.uk/.
conditions
that
may
cause
a
consumer
to
purchase
only
3 Iijima, S. 1991. Helical microtubules of graphitic
And Injury From Benzene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
two. Nature
Goodyear,
Dunlop, Michelin, BF Goodrich and
carbon.
(London) 354:56–58.
4other
Burlington
Northern: The Requisite Intent For Arranger Liability
tire
manufacturers
recognize
scenario and
National
Science
and Technology Council
(NSTC). this
2007. The National Nanotechnology Initiative. Strategic
Cercla
specifically state in their literature to Under
place the
best. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Plan. Washington DC: NSTC, Committee on
tires
on
the
rear
axle
of
the
vehicle;
it
is
this
advice
Technology, Subcommittee on Nanoscale Science,
2009-2010 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Engineering, and Technology. December. Available at
http://www.nano.gov/ NNI_Strategic_Plan_2004.pdf.
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to
Advance the Civil Justice System
Advance the Civil Justice System
Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
AUTOMOBILE LITIGATION LEADERSHIP ROSTER
Chair
Membership Vice-Chair
Farmers Insurance Group
3111 Camino Del Rio N, Ste 700
San Diego, CA 92108-5727
(619) 584-3366
Fax: (619) 280-4588
[email protected]
CNA
8200 Tower Suite 550
5600 W. 83rd St
Bloomington, MN 55437
(952) 285-3628
Fax: (651) 228-1780
[email protected]
Denise Di Mascio
Chair-Elect
Joel Zylstra
CNA
8200 Tower Ste 550, 5600 W. 83rd Street
Bloomington, MN 55437
(952) 285-3628
Fax: (651) 228-1780
[email protected]
Council Representative
Daniel Acosta
Farmers Insurance Exchange
500 Marquette Ave NW, Ste 1050
Albuquerque, NM 87102-5310
(505) 248-3503
Fax: (505) 246-2924
[email protected]
Diversity Vice-Chair
Briana Gornick
Farmers Insurance Exchange
444 Cedar Street, 1250 Ubs Plaza
Saint Paul, MN 55101-7740
(651) 265-3013
Fax: (651) 228-1780
[email protected]
Immediate Past Chair
Tamara Tomomitsu
Borden Ladner Gervais LLP
22 Adelaide St W, Ste 3400
Toronto, ON M5H 4E3
(416) 367-6063
Fax: (416) 682-2814
[email protected]
Law Student Vice-Chair
Samantha Embry
2317 Malden Park Dr
Buford, GA 30519
[email protected]
Joel Zylstra
Scope Liaison
Charles Eppolito
White and Williams LLP
1650 Market Street, Ste 1800
Philadelphia, PA 19103-7395
(215) 864-6302
Fax: (215) 789-6676
[email protected]
Technology Vice-Chair
Matthew Passen
Passen Law Group
1 E Wacker Dr, Ste 1750
Chicago, IL 60601-1980
(312) 527-4500
Fax: (312) 527-4435
[email protected]
Vice-Chairs
Tiffany Alexander
1323 Elbow Lane
Chester Springs, PA 19425
(484) 437-5509
Fax: (610) 964-1981
[email protected]
Christine Davis
Manatt Phelps & Phillips LLP
1050 Connecticut Avenue NW, Ste 600
Washington, DC 20036
(202) 585-6609
[email protected]
Hilary Fox
Farmers Insurance Exchange
444 Cedar Street, Ste 1250
Saint Paul, MN 55101
(651) 265-3018
Fax: (651) 228-1780
[email protected]
Laura Maki
Ashenden & Associates, PC
6111 Peachtree-Dunwoody Rd, Bldg D
Atlanta, GA 30328
(678) 587-3823
Fax: (770) 913-0651
[email protected]
Robert Maloney
Rivkin Radler LLP
926 Rxr Plaza
Uniondale, NY 11556
(516) 357-3445
Fax: (516) 357-3333
[email protected]
Michael Miller
SiebenCarey PA
901 Marquette Ave, Ste 500
Minneapolis, MN 55402-2842
(612) 333-4500
Fax: (612) 333-5970
[email protected]
Kirsten Soto
Henry Oddo Austin & Fletcher
1700 Pacific Ave, Ste 2700
Dallas, TX 75201
(214) 658-1912
Fax: (214) 520-1181
[email protected]
Latanishia Watters
Hand Arendall LLC
2001 Park Pl, Ste 1200
Birmingham, AL 35203-2700
(205) 502-0129
Fax: (205) 383-1925
[email protected]
Jay Wolman
Randazza Legal Group, PLLC
100 Pearl Street, 14th Fl
Hartford, CT 06103
(702) 420-2001
Fax: (860) 633-0438
[email protected]
Mark James Harris
Maxey Law Offices PS
1835 W Broadway Ave
Spokane, WA 99201-1819
(509) 326-0338
Fax: (509) 325-9919
[email protected]
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2
Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
STAFF COUNSEL LEADERSHIP ROSTER
Chair
Membership Vice-Chair
Farmers Insurance Exchange
5255 E Williams Circle, Ste 6600
Tucson, AZ 85711
Fax: (520) 519-1080
[email protected]
Farmers Insurance Exchange
11200 Richmond Ave, Ste 250
Houston, TX 77082
[email protected]
Cynthia Choate
Chair-Elect
Briana Gornick
Farmers Insurance Exchange
444 Cedar Street, 1250 Ubs Plaza
Saint Paul, MN 55101-7740
(651) 265-3013
Fax: (651) 228-1780
[email protected]
Council Representative/Diversity
Vice-Chair
Daniel Acosta
Farmers Insurance Exchange
500 Marquette Ave NW, Ste 1050
Albuquerque, NM 87102-5310
(505) 248-3503
Fax: (505) 246-2924
[email protected]
Diversity Vice-Chairs
Stephanie Carlson
American Family Insurance
13500 Riverport Dr, Ste 175
Maryland Heights, MO 63043-4824
(314) 542-0015
Fax: (866) 292-8815
[email protected]
Denise Di Mascio
Farmers Insurance Group
3111 Camino Del Rio N, Ste 700
San Diego, CA 92108-5727
(619) 584-3366
Fax: (619) 280-4588
[email protected]
Immediate Past Chair
M Gerard,Gregoire
Allstate Insurance
2775 Sanders Rd, Ste A2E
Northbrook, IL 60062
(847) 970-8010
[email protected]
Law Student Vice-Chair
Martha Tellez
2230 Sandridge Rd
Green Cove Springs, FL 32043
(904) 982-4047
[email protected]
3
Sherra Gilbert
Scope Liaison
Stacy Tees
Goldberg Segalla LLP
1700 Market Street, Ste 1418
Philadelphia, PA 19103-3907
(267) 519-6818
Fax: (267) 519-6801
[email protected]
Bjork Hill
American Family Insurance
6131 Blue Circle Dr,
Eden Prairie, MN 55343
(952) 933-9753 EXT 6218
[email protected]
Patricia Hughes
Allstate Insurance Company
27555 Executive Dr, Ste 270
Farmington Hills, MI 48331-3570
(248) 425-6941
Fax: (248) 324-1489
[email protected]
Marc Lapp
Troy Bachmann
Nationwide Insurance
515 Dielman Rd
St, Louis, MO 63132-3610
(314) 440-9337
[email protected]
Daniel Curriden
Farmers Insurance Exchange
8415 Allison Pointe Blvd, Ste 520
Indianapolis, IN 46250-4204
(317) 558-8562
Fax: (317) 558-8561
[email protected]
Vice-Chairs
American Family Insurance
6131 Blue Circle Dr
Eden Prairie, MN 55343-9130
(952) 261-4462
[email protected]
1101 Sable Mist Ct
Las Vegas, NV 89144-1632
(702) 822-9508
Fax: (702) 870-2886
[email protected]
Christine Davis
Manatt Phelps & Phillips LLP
1050 Connecticut Avenue NW, Ste 600
Washington, DC 20036
(202) 585-6609
[email protected]
Benjamin Eid
Law Office of Joseph A Kula
8800 N Gainey Center Dr, Ste 277
Scottsdale, AZ 85258
(480) 365-4610
[email protected]
Hilary Fox
Jaime Lopez
Thomas McNally
Chubb & Son Inc
PO Box 9372, 333 Earle Ovington Blvd, Fl 2
Uniondale, NY 11553-9372
(516) 745-8471
Fax: (516) 745-8259
[email protected]
Latanishia Watters
Hand Arendall LLC
2001 Park Pl, Ste 1200
Birmingham, AL 35203-2700
(205) 502-0129
Fax: (205) 383-1925
[email protected]
James Young
Farmers Insurance Exchange
444 Cedar Street, Suite 1250
Saint Paul, MN 55101
(651) 265-3018
Fax: (651) 228-1780
[email protected]
Young Scanlan LLC
11801 Gail Dr
Tampa, FL 33617
(813) 505-1019
Fax: (813) 870-3010
[email protected]
Mark Gilcreast
Joe Zylstra
Allstate Ins. Co.-Staff Counsel
21 Oak Street, Ste 201
Hartford, CT 06106
(860) 293-7046
[email protected]
CNA
8200 Tower Suite 550, 5600 W. 83rd St
Bloomington, MN 55437
(952) 285-3628
Fax: (651) 228-1780
[email protected]
3
Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
MESSAGE FROM THE CHAIR - Staff Counsel
This year marks the 15th anniversary of the Tort, Trial and Insurance Practice Section’s
creation of a new general committee – the Staff Counsel Committee. In this short time, our
Committee has earned a solid reputation within TIPS as a small, but mighty group of energetic
and passionate lawyers dedicated to improving our profession; and from where future Section
leaders have emerged. In fact, I have wonderful news to share – at the ABA’s 2016 Annual
Meeting in San Francisco, our Staff Counsel Committee received the “Overall Excellence
Award” from the TIPS Section. This is the top award given to a committee within the Section
each year and recognizes all the hard work our Committee and its leaders accomplished in
2015 – 2016. In my view, at certain times it can be invaluable to reflect on where one’s journey
began. Therefore, and with the author’s permission, we are republishing the “View from the
Chair” report from then Section Chair Richard P. Campbell, which gives the history of welcoming Staff Counsel
into TIPS in the Fall of 2001. It is a worthy read as it reminds all of us how we got started and will also educate
those new to TIPS as to our genesis. As Mr. Campbell aptly points out: “More than 50 years ago the ABA first issued
its formal ethics opinion addressing and rejecting challenges to the existence of staff counsel. It is appropriate,
deserved and timely to use this space to recognize staff
counsel’s contributions within our profession and to our
standards of professionalism.” His message remains
as relevant and important today as it was 15 years ago.
Thank you Dick.
As we move forward in 2016-2017, I am honored to
serve and lead this Committee as your Chair for a second
year. Our Committee’s mission remains the same – we
are focused on supporting the thousands of attorneys
who work as Staff Counsel for insurance companies
with our Committee activities; as well as giving back
to the communities we visit by participating in public
service and educational outreach programs. We will
champion this mission by continuing our efforts to provide relevant, affordable, and innovative CLE programming;
and opportunities for professional growth within our Committee and the Section. We will also continue to provide
timely information on challenges to Staff Counsel nationally, along with updates on case law and legislative issues.
Further, we will have a bit of fun along the way by providing several networking events attended by attorneys,
judges, and insurance industry executives and professionals. Our newsletters will cover issues relevant to our
practices and they provide excellent writing opportunities for our members (consider this a solicitation!) The Staff
Counsel Committee will also further our efforts to support TIPS’ important goal to increase membership over this
next year.
Lastly, I would like to highlight our TIPS meetings schedule for the upcoming 2016 -2017 year. Please mark
your calendars now as we hope you will make every effort to join us at one or more of these meetings. More
information can be found at the TIPS website.
• TIPS Fall Leadership Meeting - Coronado, CA – October 19 – 23, 2016.
• ABA Mid-Year Meeting – Miami, FL – February 2 – 5, 2017. Our Committee will be participating in our 3
year Strategic Planning session so we encourage you to attend.
• TIPS Section Conference – Chicago, IL – April 26 – 30, 2017. Once again Staff Counsel attorneys will be
offered free registration for over 25 hours of top notch CLE including ethics. If you attend one meeting this
year – this should be the one!
• ABA Annual Meeting – New York, NY – August 10 – 13, 2017.
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
As always, should you have questions about our Staff Counsel Committee or would like to become more
involved, please feel free to reach out to me at (520) 241-9076 or [email protected]. Also, to
learn more about leadership opportunities within the Committee, please join us on our monthly conference calls –
the third Thursday of each month at 3pm EST. Thank you.
Cynthia Choate
Chair, Staff Counsel Committee
MESSAGE FROM THE CHAIR- Automobile Litigation
Welcome! I am thrilled to be the new Committee Chair of the TIPS Automobile Litigation
Committee, following a long line of outstanding leaders. Our Committee is dedicated to
listening to our members and providing tangible products of interest that will help every
practitioner involved in automobile litigation. Our Committee continues to grow and with
every new member there is a new voice and a new opportunity.
In the upcoming year, our committee will continue to focus on programming that will
benefit our members. In the works are a webinar addressing the distracted driving epidemic
in our country and how we can attack this epidemic to help save lives. Our Committee is also
working on putting together a cybersecurity piece relating to the dangers of wi-fi in cars and
whether your car is vulnerable to being hacked.
Our next meeting will be in my hometown of San Diego, CA and we will meet for our business meeting on
Saturday, October 22 at 1:00 at the beautiful Hotel Del Coronado. Then we are off to Miami, FL in February for the
mid-year meeting. While we are not formally on the schedule, we will likely have an informal meeting and check
in with our membership to make sure everything is staying on track. In April, we will be in Chicago for the TIPS
Section Conference where there will be a plethora of CLE and opportunities to meet new people in the industry.
We will end out the year in New York, NY August 10-13, 2017 where we will springboard our Committee into
continued success for the upcoming year.
I cannot emphasize enough that ALL members are welcome to participate at any business meeting or conference
call and if you want to be involved in a specific project or be published in the Newsletter, then we can make that
happen! We have conference calls on the first Thursday of every month at 12:00 noon PT. We hope you will join us
and let us know what the Committee can do for you.
If you would like more information about the Automobile Committee do not hesitate to reach out to me for more
information. I would be thrilled to help you get involved!
Denise M. Di Mascio
Chair, Automobile Litigation Committee
©2016 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312)
988-5607. All rights reserved.
The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Automobile
Litigation and Staff Counsel Committee. Articles should not be reproduced without written permission from the Copyrights &
Contracts office ([email protected]).
Editorial Policy: This Newsletter publishes information of interest to members of the Automobile Litigation and Staff Counsel Committee
of the Tort Trial & Insurance Practice Section of the American Bar Association — including reports, personal opinions, practice news,
developing law and practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section,
the Committee, nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority.
Copies may be requested by contacting the ABA at the address and telephone number listed above.
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
SAVE THE DATE
APRIL 26-30, 2017
JW MARRIOTT CHICAGO | CHICAGO, IL
Join your colleagues for the premier CLE conference for
insurance, defense, corporate, and plaintiffs attorneys.
THE THIRD ANNUAL TIPS SECTION CONFERENCE WILL FEATURE:
• More than 25 hours of top-notch CLE programming, including
ethics credit, to meet all of your education needs
• Substantive business meetings for 31
practice-specific general committees
• Practice area-specific CLE tracks featuring premier speakers
including judges and in-house counsel covering hot topics and the
latest developments
• Entertaining social events in the Windy City
For more information visit americanbar.org/tips
• Numerous opportunities to network with insurance, defense,
corporate and plaintiffs attorneys, judgets and local lawyers
• Exclusive networking events for young lawyers
TTIPSConf_FPad.indd 1
6
10/3/16 10:49 AM
6
Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
WELCOMING INSURANCE STAFF COUNSEL
By: Richard P. Campbell
I begin my first report as Chair and lawyers directly employed by the insurer. For this
of the Tort and Insurance Practice column, I focus on the group of highly professional
Section by acknowledging and and dedicated lawyers employed directly by insurance
celebrating the breadth and companies to defend their insureds, commonly known
diversity of TIPS membership. as staff counsel.
As many of you know, I am proud
At the 2001 ABA Annual Meeting in Chicago, the
to be a trial lawyer. For almost
TIPS Council unanimously approved the creation of the
30 years, I have had the privilege of appearing before
Staff Counsel Committee. The new general committee
juries on behalf of individuals and institutions both as
was proposed by the TIPS Task Force on Staff Counsel
counsel for the plaintiff and as counsel for the defendant.
Interests and Involvement, an extraordinarily energetic
TIPS has been my professional home because we are
and vibrant component of our Section. The Task Force
the only national forum where plaintiffs, defendants,
sponsored an exceptionally successful CLE seminar at
and insurance and corporate
the ABA Midyear Meeting,
counsel come together for
attracting record attendance for
As the New Jersey Supreme Court has
the exchange of common
such an event. While the Task
aptly stated: “These are not second-class
information and ideas. I am
Force is relatively new, the
proud to have the opportunity
lawyers; these are first-class lawyers
practice of law by staff counsel
to lead an organization that so
who are delivering legal services in an
has thrived for nearly a century.
highly values the contributions
evolving format.”
Indeed, when I first began
of members from all sides of the
practicing law, the late Jim
legal table.
Casey, chief attorney in Liberty Mutual’s staff counsel
To encourage diversity in our practices and our operation, was one of the giants of the Boston trial bar.
organization, TIPS has reached out to all segments of Despite this long history, there are lawyers practicing
the bar, and we all have benefited from the contributions with outside firms who hope that staff counsel will
received in return. For many years now, our Women simply disappear. More than 50 years ago the American
and Minority Involvement Committee has served the Bar Association first issued its formal ethics opinion
Section extraordinarily well by reaching out to lawyers addressing and rejecting challenges to the existence of
in various communities and specialty bar associations staff counsel. It is appropriate, deserved, and timely to
and offering immediate access to leadership in special use this space to recognize staff counsel’s contributions
standing and general committees. WAMI has enriched within our profession and to our standards of
all our members through its invaluable forums on professionalism. Let me review a few basic propositions
diversity and its networking efforts. Likewise, the concerning an insurance company’s use of salaried
Task Force on Plaintiff Involvement ensures that TIPS lawyers to defend its insureds in covered lawsuits.
meets its core value of representing the interests of all
Use of staff counsel is long established
lawyers and institutions involved in our civil justice
Virtually every major property and casualty insurance
system. As Bill Young, the chief judge for the United
States District Court for the District of Massachusetts, company has long had a staff counsel program. More
regularly tells his jurors, the jury is a cornerstone of than 8,000 lawyers nationwide currently practice
democracy. Our plaintiff and defendant trial lawyers insurance defense law within the structure of a staff
are the masons and bricklayers constantly pointing up counsel program. The ABA first approved this structure
1
the foundation. The defense bar itself is a patchwork of practice in 1950 in a formal ethics opinion and has
quilt of diversity, comprised of lawyers defending reiterated its support of staff counsel in subsequent
2
individuals and institutions often but not always informal opinions. Staff counsel lawyers are leaders of
pursuant to policies of insurance in at least three the bar, have served as officers of TIPS, and have held
different types or structures—lawyers selected directly other important positions in the ABA. They have also
by the individual or institutional defendant, lawyers served as directors and officers of other prominent bar
employed by outside law firms selected by an insurer,
Continued on page 15
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
STAFF COUNSEL ATTENDS VETTING FOR VETS EVENT IN ATLANTA
By: Joel W. Zylstra
On May 14, 2016, numerous Staff Counsel
members participated in the Law in Public Service
Committee’s “Vetting for Vets” event held at Fort
McPherson in southwest Atlanta, Georgia. Held at
a transitional housing center for homeless men and
women who have formerly served in the United States
Armed Forces, the Vetting for Vets program was a
free workshop designed to assist veterans in writing
resumes and preparing for interviews.
After introductions, a group presentation was led
by John Stephens, Chair of the Law in Public Service
Committee, and Jordan Howlette, a Law and Public
Service Committee member and veteran of the United
States Army.
Counsel members, to aid in both resume preparation
and to participate in mock interviews. Many veterans
attending asked questions regarding how to translate
former military occupations and experience to civilian
occupations. Veterans also questioned how to answer
difficult interview questions that may arise concerning
both their service and the time spent after the military.
ABA TIPS members stayed long after the time allotted
for this project answering the questions of all the
attendees. The Staff Counsel committee thanks all
that attended and encourages every Staff Counsel
member who attends the TIPS meetings in the future
to consider participating in a Law in Public Service
Committee Project.
After the group presentation, veterans met one-onone with practicing attorneys, including many Staff
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
STAFF COUNSEL GIVES BACK
On Saturday, August 6, during
the ABA Annual Meeting, a
number of our members spent the
morning preparing sandwiches
and assembling bag lunches at
GLIDE, an organization dedicated to
alleviating suffering and breaking the
cycle of poverty. GLIDE provides
an average of 2,163 meals per day
to the homeless, so they rely on
volunteers to be able to provide
that high level of service. We were
honored to be able to help.
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
TRAFFIC CRASH SIMULATION 101
By: Gregory Gravesen, ACTAR 592
Over the last decade, the field of traffic crash
reconstruction has seen a dramatic change in technology
which has assisted the crash reconstructionist in
becoming a better analyst of traffic collisions and
a more powerful, effective witness at trial. One of
these areas of improved technology involves the
use of computer simulation software in evaluating
traffic collisions. My intention with this article is to
provide a historical perspective regarding traffic crash
simulation, the potential uses for simulation software,
and how it benefits both the individual reconstructionist
and the attorney when presenting a case involving a
traffic collision.
Before diving into the topic of traffic crash
simulation, a clear distinction must be made between
computer animation and computer simulation. Forensic
animation is a technically accurate, computer-generated
visualization of a complex event. Generally, animation
provides the illusion of movement in a scene by showing
a series of still images in rapid succession. User specified
time and positional data is inputted, usually based on a
reconstruction analysis. Essentially, computer animation
is purely an illustrative tool.
Computer simulation software is totally different than
forensic animation. Simulation differs from computer
animation in that it works forward in time. Simulation
software is a series of mathematical models used to
predict the results of vehicle collisions and vehicle
dynamics. Generally, these software packages model
vehicle behavior using physics-based models to predict
vehicle trajectories based upon user-defined vehicle
parameters, environmental factors, initial positions,
initial velocities, and driver braking/steering inputs.
The simulation software then predicts information such
as vehicle positions, trajectories, acceleration, collision
forces, etc. The prediction of vehicle motion is based
on Newton’s Laws of Motion. There are a number of
validated simulation software packages commonly used
within the field of crash reconstruction. Some of these
software packages include, HVE, Virtual Crash, PC
Crash, and mSmac.
Computer simulations have been used by the scientific
community for several decades and is not a new or novel
technology. For example, the original Simulation Model
Automobile Collisions (SMAC) model was developed
in the early 1970s to assist in the area of highway safety.
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This SMAC model has been independently validated
by several sources and there have been numerous peerreviewed publications offered regarding its accuracy. In
addition, most common simulation software packages
used within the crash reconstruction community have
been independently validated by instrumented crash
tests and have peer reviewed publications outlining
the methodology used to confirm the accuracy of the
predicted results.
Computer simulation is a powerful tool used in
a number of ways. Computer simulation is used for
collision analysis and reconstruction, to study vehicle
dynamics, evaluate collision avoidance maneuvers, and
conduct hypothetical “if-then” scenarios. I will address
each of these applications and provide some examples
of each.
The most common application of computer
simulation software is using it for collision analysis
and reconstruction. Computer simulation is a physicsbased reconstruction tool that can be used to analyze
many different aspects of a traffic collision. The general
workflow for computer simulation is taking an initial set
of conditions (i.e. environment, vehicle specifications,
velocities, vehicle positions, etc.) then the software
predicts the results based on the application of the laws
of physics. Once the initial conditions are entered and the
program is executed, the user does not have the ability
to influence the results. In a broad sense, the computer
simulation software allows the user to conduct a “virtual
crash test” between two or more vehicles. In addition,
a full, three-dimensional simulation package can model
airborne events, including rollover crashes.
Simulations can be conducted to either determine,
or confirm, the following scenarios: impact speeds, the
area of impact, vehicle configurations at impact, and
to evaluate the validity of conflicting versions from
drivers and/or witnesses. Another common application
of simulating a motor vehicle collision is to offer an
independent methodology to validate a reconstruction
based on traditional methodology. For example, a
common method used to calculate vehicle impact speeds
is the Conservation of Linear Momentum (Illustration 1).
Many reconstructionists will use computer simulation
to validate and corroborate the results obtained in the
momentum analysis.
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
the actual tire forces at each wheel over very small
increments of time and distance. Computer simulation
offers a more accurate result that is specific to the
vehicles involved and the circumstances surrounding a
collision.
Illustration 1 – Simulation of an Intersection Collision
Another application for computer simulation software is
in the study of vehicle dynamics. Acceleration, braking,
steering, and any combination thereof, can be simulated
and the results incorporated into a reconstruction
analysis. For example, one can evaluate ABS braking
systems vs. non-ABS systems when both a hard steering
maneuver and full brake application are applied. As seen
in Illustration 2, the simulation software (Virtual Crash)
correctly predicts the vehicle with ABS brakes as having
available friction to steer the vehicle.
An additional application of computer simulation
is the ability to use it to evaluate collision avoidance
maneuvers and conduct hypothetical “if-then” scenarios.
These scenarios often evaluate collision avoidance
maneuvers as well as evaluate what would have occurred
if the speeds of one or both of the vehicles were adjusted
(i.e. traveling the speed limit). Another application of
simulation is using it to evaluate conflicting driver’s
versions and other conflicts in testimony that may
occur. Each version can be simulated and the results
are evaluated against the known facts of the case (i.e.
final rest positions, post-impact paths of the vehicles,
etc.). This is an important tool for the reconstructionist
because computer simulation is objective, not subjective
like witness statements.
Some software packages such as Virtual Crash and
PC Crash also offer a multi-body impact model. The
multi-body impact model allows the user to evaluate
collisions involving pedestrians, motorcycle, and
bicycle collisions (Illustration 3). As with the other
collision models, the multi-body impact models have
been independently tested and validated.
Illustration 2 – Simulation Demonstrating
ABS vs. Non-ABS
A vehicle’s pre-impact and post-impact trajectories
can also be modeled. Some crash reconstructions
measure the total distance a vehicle travels post-impact
and assumes an average deceleration rate over this
distance. In collisions where vehicle post-impact travel
involves both rotation along with translation, this method
can have inherent error. A rotating vehicle that does not
have its wheels locked does not decelerate at a uniform
rate. Instead of assuming an average deceleration rate
over the entire distance, computer simulation calculates
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Illustration 3 – Simulation of a
Vehicle vs. Pedestrian Collision
One important topic relating to computer simulation
is the ability to create a video illustrating the results of
the simulation. The video output from the simulation is
very different from computer animation in that the user
cannot alter the results. This is important because 75% of
what we learn is received visually. Studies have shown
the combination of both verbal and visual information
is six times more effective than verbal delivery alone!
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
Visual evidence strengthens a case in many ways. It aids
the jury in better understanding the facts of the case and
substantially increases the chances for success.
As this article demonstrates, computer simulation
can be used in various ways to corroborate traditional
reconstruction methods and thoroughly evaluate a
collision sequence. However, as with any computer
software, the quality of the simulation is dependent on
the quality of the initial data. The old adage “garbage in,
garbage out” certainly applies. The reconstructionist’s
initial assumptions and inputs should be carefully
scrutinized for accuracy and reasonableness. After the
simulation software has been executed, one should
carefully compare the simulated results against the
known facts of the case such as tire evidence, final resting
positions of vehicles, and other tangible evidence to
confirm the simulation solution models a specific case.
Lastly, not all simulation programs are equal.
Some simulation software packages claim to be fullyfunctional 3D simulators. However, some programs do
not simulate certain conditions properly. For example,
if a vehicle is on a decline and does not have its brakes
activated, the effect of gravity will cause the vehicle to
slowly accelerate as it rolls downhill (Illustration 4).
Some software packages require a user-entered velocity
before it begins to move. I would argue these programs
are not true 3D simulation software packages because
they are not correctly modeling the effects of gravity.
Illustration 4 – Simulation of the Effect of Gravity on a Free
Rolling Vehicle
In summary, when properly utilized, computer
simulation is a powerful tool for the crash reconstructionist.
It provides an accurate and independent method for
evaluating traffic collisions that compliments a typical
workflow used by crash reconstructionists. In addition,
simulation also assists the trier of fact to effectively
present a case in a manner which increases the chances
for success.
Mr. Gravesen has been an ACTAR Accredited Accident
Reconstructionist since 1994. He is the principal reconstructionist
with Northwest Crash Analysis, LLC and has provided expert witness
services to the insurance and legal communities for over 20 years.
He can be contacted at (651) 788-0803 or email at greg@nwcrash.
com for additional information.
VISIT US
ON THE WEB AT:
http://www.americanbar.org
http://ambar.org/tipsstaffcounsel
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
TIRE PLACEMENT & VEHICLE...
Continued from page 1
Fall 2016
to ease-off the accelerator and slow the vehicle is
sufficient to regain traction without incident. Oversteer
situations, on the other hand, are more perilous; this
type of situation is nearly impossible for the typical
driver to recover from and will often result in the
vehicle spinning uncontrollably or leaving the intended
line of travel.
much of the misconception surrounding tire placement
involves the fact that the front tires on FWD vehicles are
tasked with steering, accelerating, and performing the
majority a vehicle’s braking. It is understandable why
the lay person might think it beneficial to place their best
Vehicle manufacturers recognize the hazards
tires on the wheels that are tasked with doing so
associated with oversteer and
much, but they are incorrect.
intentionally
design
their
In the event of a hydroplaning
Reducing the Risk and
automobiles
to
have
a
bias
event, having the better tires on the rear of
Severity of a Crash in
for understeer. The most
the vehicle will cause the vehicle to handle
Hydroplaning Events
common collisions involve
in a more predictable manner.
frontal impacts and the safety
The rationale for placing a
equipment
found in vehicles (i.e.
vehicle’s best tires on the rear axle is
based on how a vehicle behaves during a loss of traction. airbags, crumple zones, etc.) is designed for this
In a hydroplane situation, which occurs when the tire situation. In the event of a spin or slide, the sides and
is no longer in contact with the road due to the tire’s rear of the vehicle more frequently become the point of
inability to sufficiently disperse water, it is the tire(s) impact for a crash, which affords vehicle occupants less
with the least tread that will lose traction first. When protection. The resulting injuries associated with side
a vehicle’s front tires lose traction, the vehicle will impacts are far more severe than those experienced in
typically understeer. When a vehicle’s rear tires lose frontal collisions with similar impact forces.
traction, the vehicle tends to oversteer.
The Final Word on Tire Placement
Placing the better tires on the rear of a vehicle will
increase its stability. In the event of a hydroplaning
event, having the better tires on the rear of the
vehicle will cause the vehicle to handle in a more
predictable manner.
Front tires typically wear faster than the rear tires,
but that is dependent upon the vehicle and the conditions
they are exposed to. Maintaining a vehicle to include
proper rotation of tires, at 5000 to 7500 mile intervals,
will allow them to wear more evenly. Actual wear rates
between the front and rear axle can vary and intervals
may need to be adjusted to compensate.
Oversteer is the condition in which the rear of the
vehicle attempts to overtake the front in a turning or
sliding event. This is commonly referred to as fishtailing or as a car being “loose.” In understeer, a vehicle
will travel closer to a straight line compared with
steering input. Understeering is sometimes referred to as
a vehicle “pushing.”
In the event of understeer, most drivers are able
to maintain or regain control of the vehicle without
crashing. In most cases, the driver’s natural reaction
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Tires are the only thing between the vehicle and the
road. It is preferable to replace all four tires at the same
time; however, when replacing only two tires, drivers
should remember to always mount the better tires on
the rear of the vehicle, maintain proper air pressure,
and replace tires when, or before the tread depth
reaches 2/32”.
INDUSTRY RESOURCES ON TIRES PLACEMENT
Goodyear
(www.goodyear.com/email/faq/care.html)
• When you select a pair of replacement tires in the
same size and construction as those on the car, we
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
recommend you put them on the rear axle. A single
new tire should be paired on the rear axle with the
tire having the most tread depth of the other three.
Michelin
(www.michelinman.com/US/en/safe-driving/tiresafety/mixing-tires.html)
• When replacing two new tires instead of four,
be sure that your new tires are the same size and
tire type as your current tires, and that your dealer
always installs the new tires on the rear axle of your
vehicle.
Tire Rack (www.tirerack.com/winter/tech/techpage.
jsp?techid=52)
Fall 2016
partially worn tires moved to the front. New tires on
the rear axle help the driver more easily maintain
control on wet roads since deeper treaded tires are
better at resisting hydroplaning. Richard Sherman is an automotive engineer specializing in
tire design and failure analysis. He applies his expertise to the
investigation of vehicle crash incidents, with a particular focus on
those involving failed or damaged tires. Richard approaches his
forensic casework with experience gained working in engineering
positions for tire, vehicle, and automotive component manufacturers.
Prior to joining Robson Forensic, Richard worked for the Goodyear
Tire & Rubber Company where he was engaged in the design,
manufacture, and quality assurance of passenger vehicle tires.
• When tires are replaced in pairs […], the new tires
should always be installed on the rear axle and the
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
WELCOMING INSURANCE...
Continued from page 7
organizations. As the New Jersey Supreme Court has
aptly stated: “These are not second-class lawyers; these
are first-class lawyers who are delivering legal services
3
in an evolving format.”
The long tradition of staff counsel, by itself, does
not establish its propriety under state laws and rules
governing the practice of law. The decades of actual
practice experience does, however, establish the ability
of lawyers to practice within this employment structure
while also fully complying with the ethical rules that are
applicable to all lawyers. While those who challenge the
practice may choose to speculate that staff counsel might
find ethical lines “difficult to draw” or raise the specter
of staff counsel impermissibly disclosing confidential
information, the record of staff counsel performance
proves otherwise. If the fears of the challengers had
any meaningful basis in fact, we would expect that
these supposed inherent conflicts would have resulted
in a long list of misbehavior, client complaints, and
disciplinary actions. To the contrary, there is no evidence
of problems experienced by staff counsel in this area
different from that experienced by outside counsel.
With a long history providing a record upon which to
base judgments, responsible participants in discussions
about ethical issues for staff counsel should rely on the
demonstrated record and avoid resorting to the purely
theoretical or speculative. Any individual exceptions
to professional standards of conduct can and should be
prosecuted with the same vigor as are transgressions
by any lawyer, no matter where or how employed. It is
simply inappropriate and unacceptable to make blanket
accusations of unethical conduct where there is no
factual support for such accusations.
Overwhelming weight of legal authority supports
staff counsel
There are two arguments advanced against staff
counsel operations. The first challenge rests on the
principle that corporations cannot practice law. The
argument is that it is the unauthorized corporate practice
of law for insurance companies to use salaried employees
to fulfill their contractual promise to defend their
policyholders in covered lawsuits. The second argument
is that the employment relationship creates an inherent
and irreconcilable conflict of interest. Virtually every
jurisdiction that has addressed the question has upheld
the propriety and appropriateness of the use of staff
15
Fall 2016
counsel, with the more recent decisions acknowledging
the overwhelming weight of authority in support of staff
counsel. Court opinions in Florida, Tennessee, Illinois,
Ohio, Connecticut, Georgia, Missouri, Indiana, and
4
the Eighth Circuit expressly uphold the staff counsel
structure against ethical attack. Ethics opinions in
Alabama, Arizona, California, Illinois, Michigan, New
Jersey, New York, Texas, and Virginia also support
5
6
Staff counsel. Two jurisdictions—North Carolina and
7
Kentucky —took a different and unaccommodating
view, and staff counsel do not practice in those states.
The 1999 Supreme Court of Indiana decision in
8
Cincinnati Insurance Company v. Wills contains a
full collection of the authority on these issues and a
persuasive statement of governing legal principles.
On the issue of unauthorized practice of law, the court
explains that while many activities (including, but
not limited to, the practice of law) are required to be
performed by licensed professionals, an unlicensed
legal entity may generally employ licensed agents
to perform those acts requiring a license. When an
insurance company employs lawyers to represent its
insureds on covered lawsuits, it does not mean the
insurance company unlawfully practices law. On the
issue of inherent conflict of interest, the court teaches,
It is of course true that conflicts may
arise in the course of representation of
an insured by house counsel. The same
is true if the insurer pays for a law firm
to represent its insured. . . .The potential
for conflict [exists] whether the attorney
is house counsel or outside counsel,
and the employment relationship is not
qualitatively different in this respect.
There is an ethical equivalency of staff counsel and
outside counsel in complying with issues that arise in the
tripartite insurance defense relationship. While it is true
that the staff counsel lawyer has one source of insurance
defense business, and the outside lawyer may have
multiple sources (although in practice many outside
defense lawyers have only a few sources of defense
assignments), it is certainly odd to suggest a sliding
ethical scale based on whether the business comes from
one referral source or many. Clearly no one advocates
the disqualification of outside lawyers with practices
dominated by referrals from one insurance company.
The lawyer’s obligation runs to his or her client, whether
the lawyer is paid a salary, an hourly rate, or some other
compensation agreement.
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Let marketplace issues be decided in the
marketplace
While dressed up in the clothing of ethics rhetoric,
one real issue is, of course, law practice economics.
Staff counsel can and do compete with outside counsel
for assignments from insurance carriers. Daunting
economic forces pull and tug on private law firms from
every direction. However, in this country we revel in
competition; we do not abhor it. And I do not believe
for a moment that the organized bar intends to use the
Rules of Professional Conduct as a tool of economic
protectionism.
In the words of the Indiana Supreme Court,
“Ultimately, the marketplaces of ideas and premium
charges will sort this out and strike a balance between
claimed cost advantages and perceived desirability of
wholly independent counsel. We find nothing in our
Rules of Professional Conduct to prevent the parties from
continuing to duke this issue out in the marketplaces
without interference from the judiciary.”
I take no position on whether the savings in total loss
costs claimed by insurers with staff counsel operations
are in fact achieved or whether, as claimed by some
outside counsel, overall results in comparable cases
Fall 2016
will ultimately prove the wisdom of outsourcing the
work. I believe marketplace arguments should stay in
the marketplace and that the attacks on the ethics and
existence of staff counsel have no serious merit. We at
TIPS welcome all lawyers who practice in the area of
torts and insurance and, under our wide tent, believe that
there is ample room in our profession for all defense
lawyers, whether choosing to practice inside or outside
the insurance companies that are their source of business.
Far more is to be gained by focusing our energies on
improving the service provided to our clients than in
attacking competing segments of the bar.
As Chair of TIPS, I welcome the creation of the
Staff Counsel Committee and I look forward to the
participation of an increasing number of staff counsel in
the important work of the Section.
Richard P. Campbell is the founder and now serves as Of Counsel
to the firm he founded over 30 years ago, Campbell Campbell
Edwards & Conroy, P.C. Dick is a Fellow of the American College
of Trial Lawyers. He is a Past President of the Massachusetts Bar
Association. Dick is Founding Chair of the Board of Overseers at
Boston College Law School and was awarded Boston College Law
School’s highest honor, the Founders Medal. Dick can be reached at
(617)-241-3061.
Notes
1. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 282 (1950).
2. ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1370 (1976); ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1402 (1977).
3. In re Weiss, Healy & Rea, 109 N.J. 246, 536 A.2d 266 (1988).
4. In re Rules Governing the Conduct of Attorneys, 220 So. 2d 6 (Fla.1969); In re Youngblood, 895 S.W. 2d 322 (Tenn. 1995); Kittay v. Allstate, 78 Ill. App. 3d 335, 397 N.E.2d 200
(Ill. Ct. App. 1st Dist. 1979); Strother v. Ohio Casualty Insurance Company, 14 Ohio Op. 139 (1939); King v. Guiliani, 1993 Conn. Super. LEXIS 1889, 1993 WL 284462 (Conn.
Super. Ct. 1993); Coscia v. Cunningham, 250 Ga. 521, 299 S.E.2d 880 (Ga. 1983); In re Allstate Ins. Co., 722 S.W.2d 947 (Mo. 1987); Cincinnati Insurance Company v. Wills, 717
N.E.2d 151 (Ind. 1999); Joplin v. Denver-Chicago Trucking Co., 329 F.2d 396 (8th Cir. Mo. 1964).
5. Alabama Ethics Op. RO-81-533, Arizona Ethics Op. 75-4 (1975); California Standing Comm. on Professional Responsibility and Conduct, Formal Op. No. 1987-91; Colorado Bar
Ass’n Formal Ethics Op. 91 (1993); Illinois State Bar Ass’n, Advisory Opinion on Professional Conduct, Op. No. 89-17 (1990); Michigan Ethics Op. CI-1146 (1986); New Jersey
Supreme Court Comm. on Unauthorized Practice, Op. No. 23 (1984); New York State Bar Ass’n, Professional Ethics Comm. Op. 109 (1969); Texas Ethics Op. 167 (1958); Virginia
State Bar, Legal Ethics Op. No. 598 (1985).
6. Gardner v. North Carolina State Bar, 316 N.C. 285, 341 S.E.2d 517 (1986).
7. American Ins. Ass’n v. Kentucky Bar Ass’n, 917 S.W.2d 568 (Ky. 1996).
8. 717 N.E.2d 151 (Ind. 1999).
VISIT US ON THE WEB AT:
http://www.ambar.org/tips
http://ambar.org/tipsstaffcounsel
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Joint Automobile Litigation and Staff Counsel Committee Newsletter
Fall 2016
2016-2017 TIPS CALENDAR
December 2016
5
TIPS Free Member Monday CLE
Contact: Ninah Moore – 312/988-5498
Free Teleconference
January 2017
12-14 Midwinter Symposium on Insurance &
Employee Benefits
Contact: Ninah Moore – 312/988-5498
Hyatt Regency
Coral Gables, FL
19-21 Fidelity & Surety Committee Midwinter Mtg
Contact: Felisha Stewart – 312/988-5672
Roosevelt Hotel
New Orleans, LA
February 2017
2-5
ABA Midyear Meeting
Contact: Felisha Stewart – 312/988-5672
Miami, FL
23-25 Insurance Coverage Litigation Midyear Mtg Arizona Biltmore Rst
Contact: Felisha Stewart – 312/988-5672
& Spa, Phoenix AZ
March 2017
8-10 Transportation Mega Conference Sheraton New Orleans Hotel
Contact: Donald Quarles – 312/988-5702
New Orleans, LA
25-29 TIPS/ABOTA National Trial Academy
Contact: Donald Quarles – 312/988-570
TBD
April 2017
6-7
Motor Vehicle Products Liability Program Arizona Biltmore Resort
Contact: Donald Quarles – 312/988-5708
& Spa, Phoenix AZ
7-8
Toxic Torts & Environmental Law Midyear Mtg
Arizona Biltmore
Contact: Felisha Stewart – 312/988-5672 Resort & Spa, Phoenix, AZ
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