COORDINATED DEFENSE PROGRAMS: HISTORY AND ACTION

In the early seventies a concept was advanced to the J. C. Penney Company for a new approach to the defense of personal injury claims made against Penney, where these claims were for burn injuries and burn deaths due to an allegedly enhanced ignition and thermal burn characteristic of the company's lines of cotton/polyester fabric work clothing. Usually, the clothing was of a "50/50" blend, and sales included work shirts and heavy work pants. The Penney work clothing was very popular all over the country, because it was easy care wash-and-wear clothing needing no ironing. Also, the clothing was less expensive than 100% cotton clothing, and the fabric wore extremely well.

In the industrial work settings where Penney "50/50" was most likely worn, from time to time workers were exposed to flames or to radiative heat sources, and in some rare circumstances the clothing of a worker might be set aflame. The burn injuries associated with clothing ignition are oftentimes severe, and in some circumstances, fatal. Quickly, the plaintiffs' bar saw a good opportunity here with big injuries and a deep pocket defendant. Penney was hemorrhaging from losses due to about 200 claims per year for their line of work clothing. At that time, Penney was self-insured for one million dollars, with a first layer umbrella (regularly pierced and torn) provided by The Travelers, and with excess layers internationally provided under the aegis of C. V. Starr.

Penney decided to proceed with the new concept, a coordinated defense program, and many defense lawyers from all over the country, plus scientists and engineers from fabric research and testing laboratories, were gathered at a meeting. Plans were made for stalwart defenses to thwart the plaintiffs' attack. Briefing packages were developed, comprised of both legal materials and of scientific and engineering materials, to be furnished to all local defense attorneys assigned to a fabric flammability case lodged against J. C. Penney. For, the truth was that the thermal burn insult to the skin caused by burning of cotton/poly fabric was no greater than that caused by an equal-weight l00% cotton; further, under the same physical circumstances, the cotton/poly fabric could not be ignited any more easily than a l00% cotton fabric of the same color and weight. Because of the effectiveness of the coordinated approach to the defense of the fabric flammability claims, after a time it became almost impossible to bring, much less win, a work clothing fabric burn case against Penney.

The same coordinated defense program went into service for defense of claims made against other major American companies:

General American Transportation, Inc., the owners of the largest fleet of 33,000 gallon jumbo railroad tank cars, for death, injury and huge property damage claims associated with hazardous lading explosions of GATX's jumbo tank cars, the explosions having had taken place either on-line or in train consist assembly yards, both in flat yards and in hump yards.

Esther Williams Swimming Pool Company, for claims for death, or claims for paralyzing injuries sustained in head impacts with the pool bottom or sides, made against the Williams' line of above-ground swimming pools.

Magnavox Corporation, for burn death, burn injury, and fire damage claims made against Magnavox's line of American-made instant-on color television sets.

As time went on, captive insurance companies appeared on the scene, and off-shore captives were being set up for multiple member trade associations. With a single captive insurance claim office servicing the claims of many companies all making the same products or all providing the same line of services, the trade association captive was the world's most natural harbor for a coordinated defense program. The program went into service for:

• Scaffold Industry Association, for death and injury claims made against the members' lines of leased scaffolding equipment; also, equipment leasing agreements were standardized for the captives' members with provisions to limit liability.
• Truck Body & Equipment Association, for death and injury claims made against the members' lines of truck body equipment.

With the untimely death of Lamar Tooze, the program's originator and its legal coordinator, my participation in these coordinated defense programs came to an end. However, my firm, Morris & Ward, which for years handled the scientific and engineering component of the Tooze coordinated defense program, has recently joined forces with a new team of legal coordinators, the law firm of Tobin, O'Connor & Ewing, to form Coordinated Defense Programs, Ltd., which offers coordinated defense services to single member and trade association captives.