The Restatements of the Law have played a vital role in the rationalization of American jurisprudence for nearly a century. As Justice Anthony M. Kennedy recently remarked at the ALI annual Meeting, the Restatements and the ALI “did for the American, Anglo-American judicial process and for the law in the 1920s what Blackstone had done 150 years earlier.”

I have been a member of The American Law Institute, the “author” of the Restatements, for more than a decade, and I feel compelled to comment on some recent articles that compare the new Restatement of the Law of Liability Insurance (RLLI) to insurance coverage law in a particular state.  First was a lengthy article from insurer-side coverage practitioners in Texas, who in a seemingly careful and balanced way explained where the black letter in the Restatement was consistent with Texas law and where it varied from state law in ways small and large. That sort of variation is to be expected, of course, and in fact is inherent in the nature of Restatements, which generally state majority rules in the black letter, and then in Comments and Reporters Notes discuss minority rules and the rationales for the differences in the common law of the 50 states. Still more recent articles by insurer-side coverage practitioners have tried to spin that prosaic observation into a cause for outrage, suggesting that any variation from the law in a particular state means that the RLLI must be an effort to undermine the public policy of that state. Quite simply, that makes no sense.

From its inception, the RLLI project faced external criticism and pressure from insurance industry advocates. All ALI Restatements are written and revised in a context of long meetings of ALI members—law professors, judges, and practitioners—who discuss in excruciating detail the case law and the language in the draft. The RLLI project took nine years.  There were many revisions in response to input from insurance-side practitioners, policyholder-side practitioners, law professors, and judges. The final product is a balanced work, thoroughly supported in the case law and transparent about majority and minority rules across jurisdictions, that conforms to the ALI’s guidelines for Restatements. I participated in all but one of the Advisers/Members Consultative Group meetings in which the RLLI was discussed. I also participated in every ALI Annual Meeting discussion of the RLLI.  In my twelve years as an ALI member, no Restatement project has been as closely vetted by the Membership as this one.

Those who are attacking the Restatement know that state courts and federal courts, including the Supreme Court of the United States, regularly cite Restatements in their decisions. But contrary to the arguments in their articles and in their lobbying of state legislators, courts do not simply accept a particular Restatement rule. Sometimes a court will adopt the rule, sometimes a court will follow a different rule. The influence or acceptance of each Restatement, or individual sections of the Restatement, rises or falls on the strength of the reasoning supporting it.  Some of the articles mischaracterize what some courts have done in cases in which there is discussion of the RLLI. It is not a rejection of the Restatement if a federal court in one state finds that it must apply the law of another state, and the rule in that state is slightly different from the black letter of the Restatement. And it is not a blind adoption of the Restatement rule by a court that finds a particular rule to be persuasive authority. Most recently there was an article discussing Century Surety Company v. Andrew, decided by the Supreme Court of Nevada on December 13, 2018.  Century Surety held that an insurer’s liability for a breach of the duty to defend an insured is not capped at policy limits, even in the absence of bad faith, a minority position also adopted by RLLI Section 48. The court cited Section 48, but its decision was based upon its own careful review of Nevada law and decisions from state and federal courts from around the country. Exactly as one would expect from any common-law court. 

The Restatements can be valuable support for a position where there is no controlling precedent, as the RLLI was in Century Surety. But the Restatements also serve a valuable clarifying function, presenting the language and structure of a substantive area of the law in a comprehensive and organized fashion. Reported cases, because of the nature of litigation, provide focused but limited insights into an area of the law. Especially in appellate litigation, having a broad view of the subject can be very helpful in making and justifying arguments. 

 During the drafting process of the Restatement a handful of state legislatures passed resolutions urging the ALI to revise some parts of various drafts. The ALI duly considered the resolutions and also considered comments from insurance industry and policyholder lawyers, among others. The final draft of the Restatement incorporates suggestions from a wide range of stakeholders. Some recent articles suggest that state insurance commissioners and state legislators have rejected the Restatement. In fact, no state insurance commissioner weighed in on the Restatement, either before or after it was completed. And comments from state legislators during the project drafting process were considered carefully. 

A handful of states have since passed bills and other resolutions urging their state courts to follow their state’s constitutions, statutes, and precedents when those are inconsistent with the Restatement. But none of them was necessary, since that is exactly how the Restatements have always been used and understood. Last year, for example, Texas enacted a “rule of decision” that simply clarified that the state’s common law continues to “consist of those portions of the common law of England that are not inconsistent with the constitution or the laws of th[e] state, the constitution of th[e] state, and the laws of th[e] state,” including any rules drawn from the RLLI. Texas’ courts already knew this, as the Texas legislature understood when it adopted that rule. As Representative Leach, the bill’s sponsor, pointed out in a statement of legislative intent read into the record, “Texas courts, including the Supreme Court of Texas, have long looked to the Restatements of the Law as a useful resource,” and “frequently have cited the Restatements of the Law.” Nothing in his bill changed that. Just the opposite, in fact. Even with that bill on the books, he explained, Texas’ courts should continue to feel free “to read Restatements, to consider Restatements, and to cite and quote from Restatements” just as they always have, the RLLI included.

The RLLI is both an accurate restatement of the general principles of the law of liability insurance and a balanced treatment of issues where there is disagreement among the states.  The critics of the RLLI unfairly characterize the work.  One of the guiding principles of the ALI is that members “leave their clients at the door” when they are evaluating project drafts. The RLLI’s critics are not members of the ALI, but in the interest of transparency, if they are speaking on behalf of their clients, they should say so. I strongly believe that any lawyer, regardless of who his or her clients may be, who objectively looks at the RLLI, can come to but one conclusion: the RLLI can and should be a valuable resource for lawyers and courts who are addressing issues in this complex area of law.

Reprinted with permission from the October 16, 2019 edition of the New York Law Journal © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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H. Mark Stichel

Astrachan Gunst Thomas

H. Mark Stichel is a Baltimore native, a civil litigator, a cyclist, a scholar, a former federal appellate law clerk, an organizer, a father, and a tea drinker, to name but a few facets of his life. Mark graduated Phi Beta Kappa from Duke University, was Order of the Coif at the University of Michigan Law School where he graduated 2 out of 366 and received the school’s highest honor, the Henry M. Bates Memorial Scholarship Award, was a Contributing Editor at the Michigan Law Review, and clerked for the Honorable Francis D. Murnaghan, Jr., of the United States Court of Appeals for the Fourth Circuit. That was a lot of accomplishment even before he began private practice.

As a practicing attorney over these thirty plus years, Mark has represented businesses and people in all sorts of civil litigation matters, inmates in state and federal post-conviction actions, and he has spent time litigating Maryland’s campaign finance laws—but this doesn’t even scratch the surface of his experience.

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