Though I had been a lawyer for only six months at the time, I was 42 years old when I accompanied my father, William Shernoff, to oral argument in the California Court of Appeal. At 72, he had been a trial lawyer all my life and, at least as it seemed to me, all his life too.
It was October 2009 and my father was a late substitution for our firm's appellate specialist, who had suddenly taken ill. We were appealing a summary judgment granted against our client, whose health insurance policy had been rescinded - wrongfully, we alleged - by her insurer after she received treatment, incurred medical bills, and submitted a claim. The insurer contended that our client had intentionally misrepresented information on her insurance application, justifying the postclaim rescission.
As we entered the sanctum of the Second District court, subdued lighting emanated from concealed spots around the vast chamber and a luminous state seal hovered over four empty high-backed, black leather chairs. Eventually the justices arrived to fill their seats, and my father addressed the panel. A barrage of leading queries from one of the justices halted my father's delivery. Surprised by the interruption, he tried to improvise a response in the populist rhetoric that served him so well in trial. It got him nowhere.
I heard a justice intone "egregious," a catchword for our bad-faith insurance practice because we prosecuted egregious misconduct of big corporations. I thought my father must be winning. Then it dawned on me that the justice was referring to the conduct of our client.
The consummately prepared insurance company lawyer spoon-fed the appellate panel its predetermined opinion.
As we shuffled out of the courtroom, we passed a row of smug corporate counsel and defense lawyers, all of whom had come to the proceeding sensing plaintiff's blood in the water. I vowed to return.
We indeed lost. When the opinion came down, the court not only upheld the trial court's grant of summary judgment but - to our eyes - undid years of work on health care consumer rights (Nieto v. Blue Shield of Calif. Life & Health Ins. Co.
, 181 Cal. App. 4th 60 (2010)).
Two years later, I was unexpectedly back in the very same courtroom to argue a similar health insurance rescission issue and to oppose the same counsel as before.
But this time around I had beaten summary judgment. Now the sole issue was whether a conventional two-year statute of limitations applied, or whether three years applied, as was indicated in my client's policy. This distinction was important because my client filed her lawsuit two years and eleven months after her coverage was rescinded. The Court of Appeal seemed keenly interested in the issue and even delayed the hearing by several months in order to solicit supplemental briefing from the parties.
This time I was arguing the appeal. My worthy opponent went first. But this time around, he
came under fire. He withstood a solid dose of skeptical questioning from the panel. Always cool, he deflected well and even advanced a few novel positions that seemed to pique the panel's interest. As I listened to him, I quickly edited my argument.
When it was my turn, I stood tall at the lectern. My voice sounded oddly calm. Even knowledgeable. In measured tempo, I reviewed the insurance company's strongest points and explained their flaws. I exposed the incongruities in my opponent's last-minute theories. I argued for fairness yet stayed trained on the facts of my case and the applicable law. Then I thanked the panel for its time.
In its published opinion, the court agreed with me, unanimously denying the insurance company's writ and setting legal precedent (Blue Shield of Calif. Life & Health Ins. Co. v. Superior Court
, 192 Cal. App. 4th 727 (2011)). For my client and for California consumers, it was a modest victory. As an advocate, I had come of age in the Court of Appeal.
Howard S. Shernoff practices law in the Beverly Hills office of Shernoff Bidart Echeverria Bentley. He works closely with his father, insurance bad faith pioneer William M. Shernoff, in consumer rights litigation.