BY HAL COHEN

There’s nothing odd about a couplelawyers representing policyhold-ers against insurance companies.

Plaintiffs’ attorneys are a dime a dozenin Baton Rouge.

But there is something unusualabout Mark Mese and Todd Rossi goingafter insurers. That’s because Mese andRossi both work for Kean Miller, whichworks heavily in the energy and petro-chemical industries and is one of thelargest corporate law firms in BatonRouge.

“We represent policyholders, whichbasically makes us plaintiffs’ lawyers,”Mese laughs. “We’re the only plaintiffs’lawyers out of 110 at Kean Miller.”

Mese and Rossi have both been withKean Miller for 10-plus years, but eachalso has about a decade of experiencedefending insurance companies atother Baton Rouge firms. Kean Millerformally set up its Insurance CoverageGroup—Mese and Rossi, for the mostpart—in 2002. They represent clientsranging from national engineeringfirms down to local dry cleaners.

Kean Miller had never done all thatmuch business on the insurers’ side,because for them it made better busi-ness sense to side with policyholders.

“You have a choice of representingthe oil and gas industry or representinginsurers,” says Mese. “Kean Miller didn’twant to take a chance on losing bigbusiness clients that they had long-term relationships with.”

Mese estimates that by 2002, the firmhad fewer than 10 insurance clientsbecause it had already weeded outpotential conflicts with its oil-and-gasclients. The remaining insurers weremainly in areas such as malpractice andhomebuilding.

Mese and Rossi’s clients are typicallybeing sued by a third party—nearbyresidents, for example, filing a class-action against a chemical plant after anexplosion—whose insurers refuse tocover the damages or pay for thedefense.

Consistently taking the policyhold-ers’ side against insurers is unusual fora big firm.

“It’s real hard to maintain a practicefor policyholders,” says Timothy Burns,chairman of the American Bar Associa-tion’s Insurance Coverage LitigationCommittee and a partner in Chicago’sJenner & Block, one of the few big poli-cyholder practices in the country.

“Most law firms of any size will have

a few partners whowant to representinsurance companies,”he says.

That’s becauseinsurance companiesare good for business.For corporate transac-tions and representa-tion against re-insurers,“they pay very highrates,” says BreazealeSachse’s Doug Williams.“And they provide avery high volume of liti-gation work.”

Insurance compa-nies feature promi-nently on the client ros-ters of most corporatefirms in Baton Rouge—Breazeale Sachse aswell as Jones Walker,Taylor Porter,McGlinchey Stafford,Adams and Reese, andPhelps Dunbar.

Corporate law firmsthat represent insurersalso represent businessclients, of course. Whenthose businesses clientsget into suits againstinsurers who are not represented bysomeone else at the law firm, the attor-neys will gladly act as the plaintiffs’counsel.

The problem is when the law firmrepresents both clients. When suitsarise between clients (or when both arenamed as co-defendants), the lawyersmust choose which one to represent.Doing both would be a conflict of inter-est.

Williams says Breazeale Sachse’s fall-back position “is to recuse ourselves onboth sides. Ethically, we have to dothat.” But the firm’s preference is tohave the sides agree to a waiver of con-flict, which essentially allows the firm topick a side.

“Big clients understand that thesethings happen, and they don’t want tolose their relationship” with the lawfirm, he says.

When the conflict is waived,Williams says, the specifics of the situa-tion determine whether BreazealeSachse will represent the policyholderor the insurer. But the ABA’s Burns saysthat in general, large law firms chooseto represent the insurer.

So for a business to take action

against its insurance company in such asituation, it must turn to one of the fewbig firms that specialize in representingcorporate plaintiffs against insurers.Such firms are concentrated in NewYork, San Francisco, Chicago and Wash-ington, D.C.

Although many big law firms havelong prized the lucrative work they dofor insurers, Williams says there is adownside.

“When it comes to litigation anddefense of coverage issues, the insur-ance companies pay lower rates.” Theycan do this, he says, “because of the vol-ume they provide.”

“These are by nature very cost-con-scious, penny-saving companies,”Burns notes. “Especially on the claimsside, performance is measured in keep-ing costs down.”

Burns believes that insurers havebeen forced to become even morepenny-pinching by the lackluster econ-omy and the downturn in the stockmarket since the late 1990s. Big insur-ance companies make a large portion oftheir profits by simply investing premi-ums.

Shedding insurance clients might

make abstract sense for many lawfirms, but few can realistically do sobecause insurers are such a large part ofthe practice. Kean Miller got lucky—itrepresented relatively few insurancecompanies to start with.

Mese and Rossi see plenty of growthpotential for their group. Unsophisti-cated small businesses, they say, oftenassume they have no claim simplybecause the insurance companies tellthem so. Pollution exemptions are theclassic example in Louisiana.

The state Supreme Court in 2000ruled on the issue in a case stemmingfrom a 1998 incident in which a Chal-mette refinery was found to have con-taminated St. Bernard Parish’s water.Mobil Oil’s insurer denied the claimbased on a pollution exclusion.

The court ordered the insurer to paybecause its exclusion was too broad tobe valid.

“Just because an insurer put excep-tions in a policy doesn’t mean they canenforce them,” Rossi says.

HAL COHEN covers real estate and legal issues. Reach him at hcohen@businessreport.com.

42 Business Report, October 26, 2004

InFocus

LEGAL

Staking a claimKean Miller represents policyholders againstinsurers—a rare move for a corporate law firm.

PLAINTIFFS’ LAWYERS: Kean Miller’s Mark Mese (left) and Todd Rossi side with corporate clientsand small businesses against insurers.

MA

RIE

CO

NS

TA

NT

IN

Reprinted with permission of Baton Rouge Business Report