Robert A. D'Amico II Named Lawyer of the Year

The afermath of one of largest verdicts of 2006 has resulted in one of this year’smost significant court rulings in DeMarco, et al. v. Travelers Insurance Co., et al.

A Providence County Superior Court jury in 2006 had awarded $2.1million to aman whose leg was crushed in a pickup truck accident.The insurance company had rejected several offers to settle the case for the $1million limit.

In September of this year, a Superior Court judge found that the insurer had to pay the full verdict.

Judge Patricia A.Hurst ruled that the insurer was liable under the 1999 Rhode Island Supreme Court case of Asermely v. Allstate Ins. Co., which allowed for excess judgment in cases in which an insurer declines a reasonable offer within the policy limits.

The plaintiff in DeMarco was represented by Providence attorneys RobertA.D’Amico II andMark Dana, partners at the firm of D’Amico Burchfield.
D’Amico,whose practice covers a wide range of civil areas, also prevailed in last year’s Supreme Court case of Black v.Vaiciulis, et al., in which the
court found that an employer could be held liable for injuries sustained by a passenger in a company truck driven by an off-duty employee. He recently spoke to LawyersWeekly reporter Noah Schaffer about hismost recent win in the De-Marco case.

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Q.What’s the current status of the case?
A. Judge Hurst’s ruling has been appealed.We submitted an appellate mediation statement last week.

Q.What kind of settlement talks took place before the original jury verdict?
A. Leading up to the original trial of the case in 2006, the insurance company, Travelers,made no unconditional offers to settle the case.Their argument was that another claimant existed that had a significant claim, and the combined claims would exceed the policy limit. They did, however, on the day of trial,make their first unconditional offer of $700,000.And theymade it clear to us in connection with that offer that the carrier was only going to pay $550,000, and that they were asking their insured to contribute $150,000.

Q. You rejected that offer and went to trial instead.
What led to such a large jury verdict?
A. It was an indefensible case.There was no issue of liability. The injuries were severe.Mark Dana did an excellent job…using technology to bring
home the significance of the injuries and finally bringing in the doctors who performed the major surgeries.

Q.What transpired after the verdict?
A.The carrier,Travelers, hired extra contractual counsel to defend itself against the ultimate claimthat we would bring against themfor the excess judgment
and for bad faith. There were considerable negotiations with the defendant,who was now on the brink of bankruptcy because of the excess claimand the other claimthat remained out there.He was having trouble [getting credit] because of the judgment, so we negotiated with the defendant for an assignment of all of his rights against Travelers, as well as an assignment of the legalmalpractice claim that might have existed against the defense teamin connection with this litigation. Subsequent to [our] getting the assignment,Travelers had suggested all the parties get together for postjudgmentmediation. At thatmediation, their counsel suggested that the company was still not going to pay more than $1million. ...Travelersmade a payment of $550,000, because they had [after the DeMarco trial] paid $450,000 to settle fully the claim of the other plaintiff.

Q.What led to the most recent decision?
A. Unbeknownst to any of the parties present at the mediation, Travelers had filed for a declaratory judgment in federal court against both its own insured
and Mr. DeMarco. That lawsuit was pending but was not served upon us prior to mediation. Subsequent to mediation, we drafted our lawsuit in Superior
Court. The day we filed our suit,we were served with their federal lawsuit! Travelers removed our state court case to federal court. We litigated the matter for a year in federal court, where we were successful in winning a motion to remand our case to state court and dismissing Travelers’ federal court action.

Q.What was the significance of Judge Hurst’s ruling?
A. I think it has potential implications nationwide on issues relative to multiple claimants and what an insurance carrier’s obligation is when multiple claims exist that will far exceed the available insurance coverage. There is not much caselaw throughout the country that has a similar fact pattern to what transpired in this case. I think this decision will reaffirm that insurance
carriers must maintain control of the proceedings with respect to all claims with a particular policy, and their obligation is not to eliminate all risk of their insured to exposure but to eliminate as much risk as possible.

The reason for that is tied to Travelers’ argument in this case: that their goal was to eliminate all of the risk, but as the facts clearly demonstrate, their failure to address the claims by settling prior to the day of trial only served to increase the insured’s exposure. It didn’t eliminate it in any way. If they had settled the other claimant for $450,000, and with [our client] for $1 million, the insured’s total exposure would have been $1.45 million. Instead, [including interest awarded by the jury] the exposure became $3.25 million.

Q.What has it been like having such a long-running case with so many twists and turns?
A. From our perspective, we’ve been invested emotionally and professionally with our client for five years now. We’re committed to seeing this issue
through. It is less about the financial reward at this point than about prevailing on the issues. And we are well aware that the implications of this
ruling affect not only our success in this case, but hopefully go a long way toward assisting the plaintiffs’ bar in this state and perhaps throughout the country if the ruling stands and carries the significance that we think it does. Still pending are the potential bad faith and legal malpractice claims, which continue to be litigated. Right now, we’re waiting for discovery rulings.

Attorney D’Amico on ...

Born: Jan. 30, 1966; Providence

Bar admission: 1991

Education: Suffolk University Law School, Boston

(1991); Bentley College, Waltham, Mass. (1988)

Professional experience: D’Amico Burchfield(1994-present); Hanson, Parks & Whitman (1992-1994)

Professional affiliations: Rhode Island Bar Association,
Justinian Law Society

His most memorable moment at law school: “Graduating”

Highlight of his legal career: “The DeMarco case”

How he celebrates a big win: “Having dinner with colleagues, family and friends”

How he deals with a big loss: “Put it in its proper perspective, learn from it and move on”

His role models: “My father”

One thing about him that might surprise other people: “I’m a gourmet cook and an oil painter.”

What has kept him in the practice of law: “The opportunity to earn a living while having a significant impact on the lives of our clients”