Public Service Center Dean Collects Win in 4th Circuit

Annie Kim

Public Service Center Director Annie Kim's last assignment for Albemarle County offered one of her greatest career challenges.

February 28, 2012

By day she leads the University of Virginia School of Law's public service programming and counseling efforts, but until recently Annie Kim spent many nights preparing to argue her most challenging case as an attorney yet. Kim added a final victory working as in-house counsel for the Albemarle County Attorney's Office last week when the 4th U.S. Circuit Court of Appeals released what could be an influential decision on an insurance law question.

"It was a tough case because most government attorneys don't get expertise in insurance coverage issues," said Kim, who left her county position this summer to become assistant dean for public service at the Law School. "You only have to learn it if it happens to you. And so I went into the case not having any knowledge of insurance law, and I had to pretty much educate myself."

When she heard the case would be heard by the appeals court, Kim hit the books at the Law School library.

"I had never actually done an appellate argument before, so I had to prepare. I had to go down to court to watch oral arguments and listen to oral arguments on podcasts," she said. "But it was fun, and the judges were incredibly cordial and smart."

The case came about following a lawsuit filed by a group of Albemarle County bus drivers and transportation assistants who said they were not paid properly under the Fair Labor Standards Act. The lawsuit was settled at the district court level, but questions lingered over whether the county's insurer would be liable for defense attorney fees and liquidated damages, in addition to plaintiffs' attorneys' fees.

"This case was about whether or not an insurance company must provide coverage under a wrongful acts policy when some part of the damages that are being claimed in the case can be excluded from coverage," she said. "There was unfortunately no case law that squarely supported our position."

A district court ruled in accordance with other district courts that said the insurer would not be liable.

But Kim told a 4th Circuit panel in December that the county's policy in particular did offer partial coverage.

"I argued that the concept behind that doctrine, known as the 'preexisting obligation doctrine,' simply didn't apply to deny coverage in our case," she said. "When you read the policy itself, it allows coverage."

On Friday, the 4th circuit released a decision that agreed with Kim's position.

"There was a gap in the case law across the country on whether this kind of loss should be covered," she said. "This should help other organizations and public organizations looking for insurance coverage."

Kim said it was possible the insurance company could ask for a full hearing by the 4th circuit.

"I would hope that they would not succeed," she said, adding that even if the full panel took a second look, it was unlikely to progress further. "I don't think this would fall into the kind of cases the Supreme Court would look at."


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