Kurt focuses his practice on writing coverage opinions for a wide variety of insurance product lines. When these positions are disputed, he defends them. The cases I enjoy most are those that derive from one-of-a-kind commercial insurance policies----cases that present brand-new issues to the courts and create new law. He has defended commercial insurance cases in 14 states----in mediation, arbitration, litigation, on trial and on appeal. Kurt also has experience serving as an arbitrator in private arbitrations involving insurance coverage disputes. Kurt also engages in reinsurance coverage opinion writing, mediation and arbitration----focusing primarily on facultative reinsurance agreements for property and casualty insurers. In addition to insurance coverage and commercial litigation, he defends clients----especially lawyers and accountants----faced with professional liability claims. He represents accountants confronted with disciplinary proceedings and malpractice claims, as well as other professionals in the fields of architecture, engineering, real estate and insurance. As an active member of the Professional Liability Underwriting Society, Kurt regularly speaks at this group's seminars on emerging issues in professional liability. He also represents real estate developers, with a focus on projects that include hospitality, medical and professional office buildings. He uses his knowledge of insurance coverage to advise clients on risk management issues----including procurement of insurance and drafting of construction contracts. Before I became a lawyer, I ran a small business, so I understand that legal issues are just one of the many concerns faced by business owners. I take great pleasure in helping them successfully resolve a conflict, so they can get on with their lives and their business. Kurt maintains close ties with his colleagues in the business community via his active involvement with the Scottsdale Chamber of Commerce, where he serves as Board Chair. Outside of the office, Kurt enjoys family activities, sports, coaching, travel and skating with other "over the hill" ice hockey players in local recreational leagues. Kurt was profiled in the April/May 2010 issue of Scottsdale@Work. Professional Affiliations · American Bar Association · State Bar of Arizona, Construction Law Section · Arizona Association of Defense Counsel · Association of Professional Responsibility Lawyers · Illinois State Bar · Scottsdale Chamber of Commerce, Chair, Board of Directors · Phoenix Chamber of Commerce · Professional Liability Underwriting Society · Defense Research Institute
- Commercial Litigation Committee
- Construction Law Committee
- Insurance Committee
-- Commercial General Liability
-- Professional Liability Insurance · Arizona Chapter of the American Institute of Architects, Affiliate Section Chairperson (2001- 2006) · The National Foundation for Women Legislators, Steering Committee (2005) Accolades · Selected as one of Arizona's Finest Lawyers (2011) · Former Editor-in-Chief of The John Marshall Law Review · Awarded the highest possible Martindale-Hubbell Peer Review Rating, AV® Preeminent ™ (AV is a registered certification mark of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies) Speaking Engagements · The Defense and Indemnity of Claims in Arizona, Navigators Group of Companies, San Francisco, California (August 2010) · Arizona State Bar CLE by the Sea in Scottsdale, Arizona, Ethical Considerations for Law Firm Management (June 2010) · Arizona State Bar CLE by the Sea in San Diego, California, Minding the Store, Internal Ethics and Liability Management (July 2009) · Hot Topics in Professional Liability Insurance: Electronic Data and Bad Faith, Professional Liability Underwriting Society in Denver, Colorado (April 2008) · Insurance Coverage Litigation, National Business Institute (September 2007) · Claim Notice Requirements Under New York Law (July 2006) · Construction Defect Claims Handling (July 2005) · Recent Developments in Design Professional Liability, Professional Liability Underwriting Society in Phoenix, Arizona (October 2004) · Construction Defect Litigation - A Primer on Claims and Coverage Issues (March 2002) · Design Professionals - A Primer on Claims and Coverage Issues (December 2001) Published Articles · "Continuous Impact" Best's Review 82 (June 2005) · "Lost Pay Damages - Employer Liability Grows" Arizona Attorney 44 (April 2002) · "Illinois Rejects Market Share Liability: A Policy Based Analysis of Smith v. Eli Lilly & Co." 79 Ky. L.J. 617 (1990-91) · Contributor, "Design-Build Contracts" Illinois Institute of Continuing Legal Education, 11-1 (1990) · "Punitive Damages: A Cat's Clavicle in Modern Civil Law" 22 J. Marshall L. Rev. 657 (1989) Recent Decisions · Scottsdale Ins. Co. v. R.I. Pools, et al., ___F.Supp.2d ___, 2011 WL 3563169 (D.Conn., August 15, 2011) (holding that insurance company had the right to reimbursement of defense expenses from the insured and awarding the insurance company $200,000) · Czapski v. Maher, 954 N.E.2d 237 (Ill.App. 1st Dist. 2011) (holding that a test driver of an automobile is a "customer" within meaning of policy exclusion that customers do not qualify as insureds under $5 million dollar commercial umbrella policy, and holding that client had no duty to indemnify any part of a $13.7 million dollar wrongful death verdict) · Phillips & Associates, P.C. v. Navigators Ins. Co., ___F. Supp. 2d ___, 2011 WL 537509 (D. Ariz., February 11, 2011) (finding that subject to a determination of no coverage, a carrier has the right to recovery from the insured defense and indemnity payments so long as carrier properly reserves those rights) · Leflet v. Redwood Fire & Casualty Ins. Co., 226 Ariz. 297, 247 P.3d 180 (Ariz.App. 2011) (court restricts the use of Morris agreements and finds insureds who enter into such agreements to the benefit of one carrier and to the detriment of another carrier violate the policy's cooperation clause) · Goble, et al. v. Beckwith, et al., No. CV2008-051863 (Maricopa County Sup. Ct., Ariz., Dec. 2, 2010) (holding that legal malpractice claims are barred by the statute of limitations because plaintiffs knew or should have known of the damages they sustained as a result of the alleged malpractice more than two years before filing suit) · College Book Centers, Inc. v. Carefree Foothills Homeowners' Association, 225 Ariz. 533, 241 P.3d 897 (App. 2010) (reversing jury verdict against association that it had waived right to enforce CC&R's and ruling that implied easement claim failed as a matter of law) · Scottsdale Ins. Co. v. R.I. Pools, Inc., 742 F.Supp.2d 239 (D.Conn. 2010) (holding that insurer did not have a duty to defend and indemnify against 19 claims and lawsuits alleging cracking in the concrete walls and floors of high-end swimming pools because there was no "occurrence" under the CGL policies) · Nationwide Mutual Fire Ins. Co. v. Jones, 695 F.Supp.2d 978 (D.Ariz. 2010) (motor vehicle exclusion precluded coverage for ATV accident on public street) · Scottsdale Ins. Co. v. Market Finders Ins. Corp., 2009 WL 5125771 (9th Cir. 2009) (reinstating cause of action for professional negligence against managing general agent) · Johnson v. Clarke, 2009 WL 3756332 (Ariz. App. 2009) (holding that legal malpractice was time barred by two-year statute of limitation) · American Safety Cas. Ins. Co. v. City of Waukegan, 2009 WL 855795 (N.D. Ill. 2009) (granting summary judgment to carrier based upon insured's failure to timely tender defense of suit) · Colony Ins. Co. v. Events Plus, Inc., 585 F.Supp.2d 1148 (D. Ariz. 2008) (granting summary judgment to carrier based upon liquor liability exclusion) · National Cas. Co. v. Forge Indus. Staffing, Inc., 2008 WL 4874508 (N.D. Ill. 2008) (granting summary judgment to carrier holding that insured was not entitled to "Peppers" counsel) · Scottsdale Ins. Co. v. City of Waukegan, 2007 WL 2740521 (N.D. Ill. 2007) (granting carrier's motion to dismiss claim of bad faith) · Holy Trinity Greek Orthodox Church v. Church Mut. Ins. Co., 2006 WL 18488 (D. Ariz. 2006) (granting carrier's motion for summary judgment dismissing claim for bad faith) Experience Decision in favor of National Casualty Company in automobile test drive case. The case involved the death of Mark Czapski, who was employed by Motor Werks as a car salesman. Mr. Czapski was killed when Christopher Maher, an individual test driving a Motor Werks BMW auto that was for sale, was involved in an automobile accident. Ms. Czapski was a passenger in the vehicle during the test drive. Mr. Maher was sued by the Czapski estate and sought coverage under the National Casualty policy claiming to be an insured under the policy. National Casualty's policy included an exclusion that stated customers are not insureds under the policy. The issue before the court was whether Mr. Maher was a customer and, consequently, not an insured under the policy. Maher and the plaintiff argued that "customer" was not defined within the policy and, therefore, was ambiguous and that customer should include someone who makes a purchase. Reversing the trial court's finding of an ambiguity, the court held that a test driver of the vehicle is a customer within the common and ordinary meaning of the word, and that National Casualty did not owe a duty to indemnify Mr. Maher because he did not qualify as an insured. Kurt Zitzer represented National Casualty before the trial court, and Tom Crouch and Kurt represented National Casualty on appeal. Arizona Court recognizes an insurer's right to reimbursement. The District Court of Arizona held that under either California or Arizona law, a carrier that reserves the right to seek reimbursement of defense and indemnity payments may recover those payments from its insured if it is adjudicated that the policy of insurance ultimately did not cover the claim. In Phillips, the carrier provided the insured law firm with errors and omissions coverage. A suit was filed against the insured, and the carrier agreed to defend the insured subject to a reservation of rights that included issues of whether the claim had first been made against the insured during the policy period, whether the insured had prior knowledge of the existence of the claim before the carrier issued the policy, and whether the insured failed to disclose a potential claim to the carrier when the application for insurance was made. The carrier subsequently settled the suit against the law firm, under reservation of rights, and with the consent to the insured. The insurer client moved for judgment on the pleadings, requesting that the court determine whether the carrier has a right of reimbursement from the insured if the policy ultimately did not cover the claim. The court found that because the carrier had reserved its rights to include the right to seek reimbursement, and because the insured had consented to the settlement with the prior knowledge that the carrier had reserved its rights, the carrier was entitled to be reimbursed from the insured for the defense and indemnity paid to settle an uncovered claim. In so holding, the court noted that public policy favors such a result: "If an insurer waived its coverage position simply by settling a claim for the insured, the insurer would be forced either to refuse to settle and face a bad faith claim, or to settle the lawsuit and lose its coverage defenses. [citation omitted] The 'resulting Catch-22 would force insurers to indemnify non-covered claims,' violating 'basic notions of fairness.' Permitting an insurer to make a reservation of rights not only protects against unjust enrichment of the insured, but also 'advances significant public policy considerations." Kurt M. Zitzer represented Navigators Insurance Company as counsel along with co-counsel from the firm of Wiley Rein. Arizona Court of Appeals restricts use of Morris agreements. The Arizona Court of Appeals held that Morris agreements do not extend to agreements that included one insurance company "setting up" other carriers who are allegedly not participating in a mutual insured's defense or indemnity. Leflet was a construction defect case. The putative insured, Hancock Communities, was defended by its own carrier, and sought additional insured coverage from several other carriers. A dispute arose over defense and indemnity allocations between Hancock's own primary carrier, and the additional insurers, referred to in the agreement as the "Non-Participating Insurers." To resolve the case, Hancock's carrier paid a fraction of its policy limit, and entered into an $8.4 million Morris agreement along with its insured and the claimant. While the court reaffirmed the rule that a carrier must first have notice of a Morris agreement to be bound by its terms, the court clarified that notice means actual and meaningful notice, and not just constructive notice that the parties are contemplating a Morris agreement. Further, notice of the Morris agreement must include terms sufficient to cause the agreement, if entered into, to be binding and enforceable. More important, however, was the court's holding that a Morris agreement which benefits one carrier against another is not a Morris agreement at all. The policy behind Morris was to remove the insured from the potentially crushing exposure of personal liability, and transfer the risk of coverage and collection of the judgment upon the claimant. As the court noted "an insurer that reserves its rights may not employ Morris to reduce its liability below policy limits, and an insured that facilitates such an effort breaches its duty to cooperate with its other insurers." Kurt M. Zitzer and John C. Hendricks represented the client at the trial court and were successful in winning summary judgment. Thomas H. Crouch successfully represented the client on appeal, and argued the case on behalf of all the insurance carriers. $25 million legal malpractice case against law firm dismissed after undisputed evidence showed plaintiffs were warned about potential claims and then did not timely file suit. Meagher & Geer defeated a $25 million dollar legal malpractice case within months after the suit was filed and before any discovery was taken or significant legal expenses were incurred. Plaintiffs were a group of investors who alleged they were not diligently represented in an underlying complex litigation case by several elite lawyers in the Phoenix area. Although those lawyers obtained a multi-million dollar settlement for Plaintiffs in the underlying case, Plaintiffs nevertheless sued alleging the settlement could have been more had the lawyers prosecuted the case differently. Meagher & Geer moved to dismiss the investor suit as untimely, arguing that Plaintiffs knew about their cause of action against their former lawyers and incurred some damages more than two years before filing suit. The Maricopa County Superior Court agreed with Meagher & Geer and dismissed the case. In doing so, the court rejected Plaintiffs' novel arguments that the statute of limitations should be tolled until they learned the full extent of their damages. Defective construction not an "occurrence" in Connecticut. The United States District Court for the District of Connecticut held that 19 claims and suits alleging defective construction of swimming pools did not state an "occurrence" under the CGL policy. The insured built high-end swimming pools in Connecticut. The swimming pools cracked and failed: their walls and floors cracked. During the insured's attempted repairs, the appurtenant structures and surrounding landscaping were damaged. Nineteen pool owners made claims and/or filed lawsuits against the insured pool builder. Meager & Geer persuaded the Chief Judge of the District of Connecticut that defective construction is not an "occurrence." There was no published or precedential Connecticut case law. Meagher & Geer showed that the courts in Connecticut's backyard - New York, New Jersey, Massachusetts, and Pennsylvania - all held that resulting damages to the insured's work is not caused by an "occurrence" or "an accident." An "occurrence" implied a degree of fortuity that was not present in the claims and suits for defective construction. The damages to the appurtenant structures and landscaping were likewise not caused by an "occurrence." The nature of the repairs could not create coverage where none existed. The subcontractor exception to the "your work" exclusion did not manufacture coverage under the CGL policy's insuring agreement. Courts in Pennsylvania, Massachusetts, New York, and New Jersey had already considered and rejected such an argument. Homeowners' association did not waive the right to enforce its CC&Rs and on that basis properly prohibited lot owner from using his property to construct a road to an adjacent planned subdivision. Meagher & Geer represented a homeowners' association in a lawsuit brought by a developer. The developer sought to build a road across a lot he owned in a subdivision in order to gain access to adjacent land for development. The developer claimed the association that governs the subdivision had waived the right to enforce the deed restriction that prevents the building of the road. A jury found that waiver had occurred, but on appeal, Meagher & Geer successfully persuaded the court that the waiver claimed should have been dismissed as a matter of law. The court of appeals found that the developer had not presented sufficient evidence that the association's actions in the past regarding the development constituted waiver of the deed restrictions. Court Upholds "Insured Location" limitation to liability coverage. The United States District Court for the District of Arizona held that an ATV accident resulting from the use of the insured's ATV on her cul-de-sac did not occur on an "insured location" under homeowners liability coverage. Whether the area directly adjacent to an insured's home qualifies as an "insured location" for an ATV accident has generated divergent case law. The issue was recently certified by the U.S. Court of Appeals for the Second Circuit. Arrowood Indem. Co. v. King, 605 F.3d 62 (2nd Cir. 2010). Two women were in a catastrophic accident while riding the insured's ATV. The ATV rolled-over on the cul-de-sac directly in front of the insured's home. The insured testified that the cul-de-sac was "my cul-de-sac." The two women were not wearing helmets, and one was knocked into a coma. She had over $500,000 in medical bills. The homeowners policy provided liability coverage for the ATV while on an "insured location." "Insured location" was defined by the standard policy as the residence premises or "premises used in connection with the residence premises." Meagher & Geer persuaded the Arizona federal court that the homeowners policy was structured to provide liability coverage for the ATV only while on the insured's private property or premises integral to the private property, such as a deeded right-of-way or easement. The homeowners policy never afforded liability coverage for an ATV when on a public street. Although out-of-state case law suggested the regular use of a field, trail, or private street near the insured's home could allow for coverage, the homeowners policy never covered an ATV accident on a public street. The homeowners policy could not be squared with a motor vehicle accident on a public street. News January 20, 2011, Clients Prevail: Arizona Court of Appeals Restricts use of Morris Agreements September 23, 2010, Ruling in Swimming Pool Defect Cases Favors Client Scottsdale Insurance July 23, 2009, Kurt Zitzer on Legal Ethics Panel April 1, 2009, Court's Ruling Favors Client Scottsdale Insurance Company March 31 2009, Summary Judgment Win for Client, Scottsdale Insurance March 18, 2009, Kurt Zitzer is Faculty Member for Bar Association CLE April 30, 2008, Kurt Zitzer Elected to Chamber of Commerce Events October 5, 2011, The Professional Liability Underwriting Society (PLUS) Southwest Chapter Educational Conference
Insuring the Information Age
Chaparral Suites & Resort
Scottsdale, AZ June 17, 2010, Zitzer on Ethics Panel June 15-18, 2009, Kurt Zitzer is Faculty Member for Bar Association CLE |