Kirk A. Patrick is a partner in the Litigation Department in Gibson, Dunn & Crutcher's Los Angeles office. Mr. Patrick has a general business trial practice with areas of specialty in insurance class actions and managed care, including "bad faith" actions, representing numerous carriers on a variety of policy types.
Mr. Patrick also has considerable class action experience, principally in California state courts. Those class actions have involved several workers' compensation misreporting cases and class actions. Mr. Patrick has also handled individual and class action litigation in cases alleging violation of California's unfair trade practices laws (Business & Professions Code § 17200, et seq.). In addition, Mr. Patrick has handled a variety of securities cases in State and Federal Court as well as in NASD arbitrations.
Mr. Patrick's recent class action and insurance experience includes the following representative actions:
ALTA V. Zurich American Insurance Company, et al. - Successfully represented Zurich American Insurance Company, Fidelity & Deposit Company of Maryland, Colonial American Casualty and Surety Company, and Empire Indemnity Company in a Federal Court action brought by the American Land Title Association ("ALTA") against our clients and several other insurers. ALTA alleged that defendants' mortgage impairment or lien priority policies offered throughout the United States were actually "title insurance" which defendants were not licensed to sell. ALTA sought to prevent defendants from offering those products throughout the country.
Acting as lead counsel for the defense group, Gibson, Dunn successfully moved to dismiss the action on the ground that there was no subject matter jurisdiction.
Barton, et al. v. Princess Cruises, Inc. - Represented passenger cruise line in nationwide class action in Los Angeles County Superior Court challenging client's practice of advertising and collecting "port charges" in addition to cruise fares. Obtained summary judgment based upon application of maritime law against ten of twelve initial plaintiffs on claims of negligent misrepresentation, and violations of California Consumer Legal Remedies Act, Business & Professions Code Section 17200 and False Advertising Act. Class certification motion brought by two remaining plaintiffs was denied. Plaintiffs appealed both rulings. The summary judgment was reversed, but the denial of the class certification was affirmed. After remand plaintiffs unsuccessfully attempted to bring another class certification motion. The case settled on an individual (non-class) basis on very favorable terms.
Gross v. Princess Cruises, Inc. - Currently representing passenger cruise line in a purported nationwide class action in Los Angeles County Superior Court alleging that defendant engaged in unfair business practices by advertising certain itineraries and then cancelling certain ports of call due to security warnings that preexisted the passengers' booking of the cruises. The case is still in its early stages.
Gass v. Wellpoint Health Networks, et al. - Successfully represented Aetna Health of California, Inc. and affiliates in UCL class action against six California managed care companies and affiliates alleging that defendants have engaged in unfair business practices in failing to prevent their contracted medical providers from overcharging subscribers. The case was designated "complex" because of the class action claims. The Complaint was filed before the November 2004 amendments to the UCL (Proposition 64) but we successfully urged the court to apply those amendments. Our demurrer for the Aetna defendants was sustained without leave to amend.
Apple One v. American Home Assurance Company - Represented American Home in state-wide bad faith and unfair competition class action alleging that American Home misreported costs of defense of medical-legal examinations under workers' compensation policies during the period 1985-1992, which caused inflation of the future premiums of the class member insureds. Case was removed to federal court, where plaintiffs voluntarily dismissed the Section 17200 claims in order to obtain remand to the Los Angeles County Superior Court. Once back in Superior Court without the 17200 claims the action was settled before class certification.
My Friends, My Family, My Community v. Fairmont Insurance Company, et al. -Represented five of sixteen workers' compensation insurer defendants in a Business & Professions Code § 17200 action in the San Francisco Superior Court alleging that defendants failed to properly report defense medical-legal expenses under California workers' compensation insurance policies issued from 1/1/84 through 12/31/92. Demurrers based on statute of limitations were sustained without leave to amend. Affirmed on appeal.
Wilner v. Sunset Life - Defended life insurance company in class action in Los Angeles County Superior Court alleging fraud in sales of universal life insurance products. Following a grant of class certification the action was settled on a class wide basis.
Yedalian v. Aetna Health of California, Inc. - Represented Aetna Health in UCL representative and purported class action challenging the use by Aetna Health of binding arbitration in its California health plans. The class claims were deleted before Aetna Health responded to the Complaint. Aetna Health's initial response to the Complaint was a motion under C.C.P. § 425.16 (anti-SLAPP statute). Before ruling on that motion the court invited a motion for judgment on the pleadings which we filed and was granted. Over our objection the plaintiff was given leave to amend, but Aetna Health renewed its anti-SLAPP motion, which was granted before our Demurrer to the Amended Complaint could be heard. Plaintiff appealed but before briefing dismissed the appeal in exchange for a waiver by Aetna Health of the attorneys' fee award made in its favor by the trial court in granting the C.C.P. § 425.16 motion.
California Consumer Health Care Council v. Aetna Health of California, Inc., et al. - Representing Aetna Health and affiliates in this UCL representative action challenging the disclosure of Aetna Health's binding arbitration provisions in its California health plans. The action was filed before the November 2004 amendments to the UCL (Proposition 64). Before Aetna Health's Demurrer to the Complaint was heard, the parties asked the court to stay the action pending resolution by the Courts of Appeal whether Proposition 64 applies to cases pending on the date it became effective. Now that the Supreme Court has ruled that Proposition 64 does apply to pending cases, we will now urge the Court to dismiss the action since the plaintiff is not able to meet the "injury in fact" standing requirement.
Designs Alive v. Travelers - Represented Travelers in an Orange County Superior Court action alleging that Travelers failed to properly report defense medical-legal expenses under California workers' compensation insurance policies issued from 1/1/84 through 12/31/92. The Complaint state claims for bad faith, breach of contract, negligence and fraudulent concealment. After limited discovery the action was settled very favorably prior to class certification motion being filed.
Dal-Tile, et al. v. N.C.C.I., et al. - Counsel for Zurich Insurance Company and affiliates in class action filed in Riverside County Superior Court alleging that Zurich and several dozen other workers' compensation insurers conspired to violate the Cartwright Act, to defraud class members and for violation of the UCL with respect to the charging of residual market loads on California policies to recoup losses incurred in other states on residual market business. Demurrer sustained to original complaint, but was reversed on appeal. The case is now pending settlement with no class certification motion having been filed.
Mr. Patrick also has handled individual and group life insurance cases, including defending contestability clause rescissions on individual policies, defending determinations of suicide on individual life policies, and both individual and group accidental death cases. He has handled class actions alleging improper sales practices on life policies, including replacement practices and "vanishing premium" issues. Mr. Patrick has handled both individual and group "bad faith" disability cases. In the managed care field he has more recently handled cases involving "bad faith" and wrongful death claims under both employer-based health and Medicare plans. Many of the group insurance cases have involved issues of ERISA preemption. In a recent case of first impression, Mr. Patrick persuaded a federal district court to conclude that the California Managed Care Liability Act (Cal. Civ. Code § 3428) was preempted by ERISA.
Mr. Patrick joined the firm in 1974 following graduation from the University of Minnesota Law School, where he was a member of the Order of the Coif and an Editor of the Law Review .
A summary of some of Mr. Patrick's trial experience is as follows:
Sampson v. Aetna - First chaired a two-week Los Angeles County Superior Court jury trial (Judge Reed) involving a terminated Aetna general agent seeking post-termination commissions. JNOV granted after jury verdict for the plaintiff. Sustained on appeal.
Halm v. Northwestern National Life - First chaired a three-week Los Angeles County Superior Court jury trial involving claim of bad faith denial of accidental death benefits under a group life insurance policy. Jury verdict for the plaintiff. Punitive damages kept from the jury. Eventually settled on appeal.
Koire v. Occidental Life - First chaired a five-week Los Angeles County Superior Court jury trial (Judge Arthur Baldanado) concerning bad faith denial/termination of disability benefits under an individual policy. Plaintiff verdict of $75,000 including punitive damages.
Ezzell v. Occidental Life - Second chaired a six-week Los Angeles County Superior Court jury trial (Van Nuys) involving claim of bad faith denial of health and disability benefits for injury (off duty) to a Los Angeles policeman. Defense verdict.
Rosenberg v. Aetna U.S. Healthcare of California - First chaired a seven week Los Angeles County Superior Court case (Judge Gregory Alarcon) involving claims of wrongful death and bad faith under a Medicare Plus Choice Plan. Small plaintiff verdict with no punitive damages.
Freidenfelt v. Whittaker Corporation - First chaired an eight-week Los Angeles County Superior Court jury trial involving claims of breach of contract and fraud by six Swedish nationals recruited to work in defendant's Saudi Arabian hospitals. Split verdict, i.e., some plaintiffs recovered, defense verdicts re others. No punitive damage went to the jury as the court was persuaded to apply the damages law of Sweden .
Venuto v. CIGNA Securities - First chaired a two-week Orange County Superior Court trial (Judge Randall Wilkinson) involving claims of fraud and breach of contract concerning financial planning services and the purchase of two tax advantaged limited partnerships. Judgment entered for the defendants.
In addition, Mr. Patrick has handled several insurance and non-insurance arbitrations (both AAA and court ordered) to conclusion. Also, several other jury trials were commenced, including jury selection and presentation of evidence, but those cases were settled before a verdict was reached.
Mr. Patrick has also handled numerous cases in the group health insurance field, many of which involved ERISA preemption issues. Most of those cases resulted in settlements, though several were won on summary judgment.