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Monday, December 27, 1993
Home Edition
Section: PART A
Page: A-3

Preemptive Strike;
Farmers Insurance Was Poised to Fight for a Cut in Lawyer Fees--But
the Threat of a Powerful TV Ad Shifted the Balance of Power


No one at Farmers Insurance Group saw the commercial, and no
television station aired it. But the impact jolted executives at the Los
Angeles offices of the huge company.

The 30-second commercial prepared by the California Trial Lawyers
Assn., the insurance industry's bitter adversary, detailed how a judge
had ordered Farmers to pay $57 million and said the company had "lied,
cheated, stonewalled and tromped on the rights of the insured to escape
its own responsibilities."

The message was clear: If Farmers persisted in its plan to fund a 1994
California initiative to cut attorneys' contingency fees, the insurance
company would have a war on its hands. The television ad would be the
first salvo.

Farmers, the nation's third-largest insurance company with $2.8
billion in annual sales in California alone, abruptly dropped its plans
to back the initiative, known by supporters as the Lawyer Accountability
Act. As a result, the initiative, like the television ad, will never get
a public airing.
The tale of the ad that never aired and the initiative that never was
is a story about the behind-the-scenes maneuvering of some of
California's most powerful interests over one of the state Capitol's most
contentious issues--reform of the civil justice system.
On one side are insurance companies, big business and physicians who,
supported by Republicans, seek to limit liability. On the other side are
the attorneys representing plaintiffs in civil cases, who often find
support among Democrats.
These interests have fueled some of the Capitol's most legendary
battles and deals. Here is a look at the most recent fight, waged almost
entirely out of public view.
In the words of Browne Greene, a Los Angeles attorney and past
president of the California Trial Lawyers Assn., blocking the Lawyer
Accountability Act from appearing on the ballot was the organization's
finest hour.
The initiative had to be stopped, trial attorneys argued, because
limiting lawyers' contingency fees would deny poor and middle-class
people the ability to fight big corporations in the courts.
But Barry Keene, a lawyer and chief proponent of the initiative, said
the death of the Lawyer Accountability Act ensures that the state will
continue to suffer from "lawsuit lunacy." Keene called the lawyers'
unaired commercial "political extortion."
The fight over the initiative brought to an end a shaky truce
memorialized in 1987 on a linen napkin at a restaurant in Sacramento.
Trial lawyers, doctors, insurance companies and others agreed in the
so-called Napkin Deal to a five-year halt in attempts to either limit or
expand the right to sue.
The latest chapter began when Keene, a Democrat, resigned from the
state Senate last year because of what he saw as the special interests'
stranglehold on the Legislature. Keene took a job as head of the Assn.
for California Tort Reform, a decidedly Republican group funded by
insurance companies and big business. Its mission is to reduce litigation
in California.
Among his duties, Keene joined a group of influential business leaders
as part of an organization called Californians for Fair Liability Laws.
The members included Kirk West, president of the California Chamber of
Commerce; Steve Merksamer, former chief of staff to Gov. George
Deukmejian and a lawyer who represents corporate interests in Sacramento;
attorney Gene Livingston, representing insurance companies in the state
capital, and Jay Michael, a lobbyist for doctors and hospitals.
The group had been discussing the possibility of an initiative to
limit the cost of litigation and Keene was enthusiastic about it. In the
end, the group decided the best tactic was to go after lawyer's
pay--specifically lawyers who take cases on a contingency basis, agreeing
to file lawsuits against businesses, government or insurers on the
condition that they receive a third or more of the financial award.
Keene proposed capping contingency fees at 25% of the first $100,000
in a civil award, 15% for the next $100,000 and 10% of any amount beyond
He hired campaign consultants and pollsters to test-market the
initiative. Based on focus groups and random surveys, he concluded that
the public supported such limits by a huge margin. By late summer, Keene
thought he had a "slam-dunk" winner.
In September, Keene wrote a confidential memo to potential supporters
laying out reasons they should back the measure. He explained that the
trial lawyers, among the biggest donors to Democratic candidates, would
have to spend their war chest to defeat the initiative, leaving them with
less to spend electing friendly lawmakers.
Keene wrote that action in 1994 was urgent. The California Trial
Lawyers would have two allies heading the Legislature. In the Assembly,
Speaker Willie Brown of San Francisco often supports trial lawyer
positions and is the largest recipient of the group's money--$87,700 of
the $716,000 the group gave to campaigns in 1991 and 1992.
In the Senate, Bill Lockyer (D-Hayward) is likely to replace David A.
Roberti (D-Van Nuys) as president pro tem. Lockyer and Brown penned the
Napkin Deal in 1987. Since then, Lockyer has emerged as perhaps the
closest friend of the trial lawyers in the upper house.
Adding to the "peril," Keene cited the possibility that a Democrat
will unseat Republican Gov. Pete Wilson, who favors an overhaul of the
civil law system to limit litigation.
"If a governor is elected who can be coerced or cajoled into signing
off on a trial lawyer agenda," Keene wrote, "no one will be spared the
ensuing massacre."
Jay Michael, representing doctors and hospitals, was not persuaded.
The medical industry already is protected by the Medical Injury
Compensation Reform Act, a 1975 statute authored by Keene that limits
awards in malpractice suits. Doctors worried that by backing Keene's
initiative, they would be attacked in competing initiatives by trial
"You don't kick a mean dog for no reason," Michael said. "One of the
rules around this place is that if it doesn't affect your business, stay
out. That's a very good rule."
Some insurance companies also opted out. A lobbyist for the Assn. of
California Insurance Companies also feared that lawyers would retaliate
with competing initiatives.
The lobbyist dreaded the possibility of another year like 1988, when
insurance companies spent $70 million to beat or promote four
insurance-related propositions. Voters approved one, Proposition 103,
which directed insurance companies to roll back auto insurance rates.
But Keene entered October with crucial support from the Chamber of
Commerce, and two insurance companies, Farmers and State Farm, agreed to
help underwrite some of the $6 million the campaign was expected to cost.
Then things began to go awry. Harvey Rosenfeld, who sponsored
Proposition 103 in 1988, obtained Keene's strategy memo from a friend in
the insurance industry.
"My first reaction was disgust," Rosenfeld said. "Then I thought,
'Well, this is pretty damaging. I better let the public know.' I faxed it
to kingdom come."
The leaked memo led to the first newspaper reports about the planned
initiative. Keene shrugged it off, saying: "The logic and analysis is
fine for people to know. I wrote it for consumption."
A more serious event occurred in the Orange County Superior courtroom
of Judge C. Robert Jameson. Attorney Daniel J. Callahan, a member of the
California Trial Lawyers Assn., sued a Farmers' subsidiary on behalf of
Surgin Surgical Instrumentation Inc., contending that the subsidiary
failed to protect Surgin in a lawsuit.
On Oct. 7, Jameson awarded Surgin $57 million and said that the
Farmers subsidiary had "lied, cheated, stonewalled and tromped on the
rights of the insured to escape its own responsibilities." In an
extraordinary move, the judge directed Callahan to send his comments to
Insurance Commissioner John Garamendi and request an investigation.
Callahan obliged, summarizing the ruling in a letter to Garamendi on Oct.
Veteran political consultants Richie Ross of Sacramento and Jack Walsh
of Boston, hired by the California Trial Lawyers, saw the value of such a
ruling. As attorney Callahan put it, "They were the perfect quotes to be
used in connection with a political campaign."
Walsh produced a television commercial.
The trial lawyers would not say how much it cost them and they
declined to let The Times view the ad.
But Rosenfeld and others who saw it say the spot opened with Farmers'
motto: "Fast, Fair, Friendly." Then, a faceless narrator read Jameson's
comments as the judge's words scrolled over a black background. The ad
concluded by suggesting that Farmers customers with a problem should call
the Department of Insurance.
Political operatives showed it privately to at least one person
backing Keene's measure. A description of the commercial was relayed to
Walsh is blunt and unapologetic about the purpose of the ad. "It was a
glass houses thing," he said. "They started throwing rocks. We said to
them, 'We know where your glass house is, and we're going to give
directions to it.'
"The objective was to have good businessmen at Farmers look at this
thing and say, 'Wait a minute. What are we doing? If we started this
fight, let's find a way to end it right away.' "
At State Farm, corporate counsel Kenneth Cooley feared that his
company might be subjected to a similar attack.
The Orange County court ruling had other repercussions. At a news
conference in Sacramento on Nov. 15, Assemblyman Phillip Isenberg
(D-Sacramento), chairman of the Assembly Judiciary Committee, proposed a
law requiring courts to inform the Department of Insurance whenever an
insurance company loses a case in which punitive damages are awarded.
At the same news conference, Garamendi announced an investigation of
Farmers and suggested that Farmers could lose its license to operate in
Within days, and after learning of the commercial, Farmers withdrew
its support of the initiative. Spokesman John Millen would not discuss
why Farmers folded its hand. But a Farmers executive told a trade
journal, National Underwriter, that the commercial was one reason.
Millen noted that Farmers is appealing the $57-million judgment and
criticized Garamendi for his part.
"Garamendi was grandstanding for his own benefit and for the trial
attorneys," Millen said, calling the insurance commissioner's action
Replied Garamendi spokeswoman Elena Stern, "The only behavior here
that is reprehensible is Farmers' treatment of its policyholder."
Once Farmers withdrew support, the trial lawyers shelved the
commercial. On Nov. 23, Keene and West announced that they were calling
off plans to place the Lawyer Accountability Act on the ballot.
Keene said the experience reaffirmed his view that the initiative
process has become one more tool of special interests.
For its part, the California Trial Lawyers Assn. is not home free. The
association may be involved in at least one initiative fight in 1994.
Writer Andrew Tobias is promoting a so-called Pay at the Pump
initiative and has vowed to spend as much as $700,000 of his own money to
fund the signature-gathering effort. It would add a charge of 25 cents
per gallon to gasoline and raise vehicle registration fees to pay for
auto insurance. The initiative would eliminate most lawsuits over auto
accidents by creating a system of no-fault insurance.
But in the fight against Pay at the Pump, the California Trial Lawyers
will have powerful allies--the insurance industry, including the Farmers
Insurance Group, and the California Chamber of Commerce.


Copyright (c) 1993 Times Mirror Company


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