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Robert A. Cutbirth

Partner
San Francisco, CA | D 415.617.2235 | F 415.617.2409
overview

Robert Cutbirth is a respected insurance coverage, employment, and business litigation attorney, as well as a frequent speaker at state and national conferences.

Rob also serves as outside general counsel to public agency risk pools and other clients, providing guidance and counsel regarding contract, internal corporate policies, privacy/data protection, regulatory compliance, risk management, and education law issues.

Insurance Coverage
Rob is a highly valued insurance coverage attorney who works with foreign and domestic insurers and government agency risk pools in drafting and analyzing policies and endorsements, managing first- and third-party claims, auditing defense fees and costs (where he has also served as an expert witness), and prosecuting and defending coverage and “bad faith” lawsuits in state and federal trial and appellate courts throughout the country.

Clients call upon Rob in a wide variety of insurance practice areas, including employment practices, professional liability/E&O, cyber-security, directors and officers/D&O, reinsurance/retrocession, fidelity/crime, product contamination, and business property owners policies. Rob’s insurance practice includes the successful management of claim and coverage matters involving nearly all commercial and personal coverage lines.

Working with all involved parties to develop the most appropriate strategy for minimizing costs and expenses associated with a particular claim or circumstance while ensuring clients’ rights and interests are fully protected, Rob proactively works with insureds, brokers, and involved counsel to ensure timely claim and coverage evaluations, efficiently communicate important issues with all interested parties in an effort to avoid unnecessary and costly disputes, and implement strategies that promote prompt and cost-effective resolutions.

Employment Practices
Clients regularly call upon Rob to help them develop sound and appropriate employee manuals, policies and procedures, and internal forms and processes that meet governing state and federal laws, while also providing clear guidelines and standards that help promote a stable and appropriate workplace.

Addressing specialized business needs and operations, Rob works with clients to draft legally sound and compliant job applications, retention letters, disciplinary/“last chance” documents, and termination letters, while also working with clients to address challenging employee behaviors and termination situations, as well as the complexities of handling disability accommodation, leave of absence/return to work, and actual and potential breaches of privacy and confidentiality obligations.

Rob is preferred defense counsel for many clients in proactively managing claims and litigation arising from wage and hour disputes (individual and class action); sex, race, disability, and age discrimination claims, employee misclassification (exempt/nonexempt) allegations, and unfair competition and trade secret lawsuits, and further including the defense of efforts to seek Private Attorney General Act (“PAGA”) fines, penalties and attorneys’ fees.

Data Privacy and Security
As our firm’s internal West Coast HIPAA/HITECH and privacy compliance contact, Rob develops and trains public agency and private firm clients on policies and procedures for ensuring compliance with governing medical, credit, and personal information privacy obligations, as well as appropriate responses to actual and potential data breach situations. He is frequently asked to speak at regional and state seminars on practical approaches to meet privacy and confidentiality laws.

Rob also provides risk management client reviews which, in part, help ensure that external contracts comply with governing privacy and confidentiality laws and “best practice” standards, while also containing practicable and workable risk transfer and additional insured provisions. In that effort, Rob reviews existing insurance policies and coverage programs to evaluate whether clients are suitably covered for primary risk exposures.

General Business Litigation
Rob serves as lead, trial, and appellate counsel in numerous general business disputes, including claims for breach of contract, unfair competition, product liability, and trade libel/defamation. He approaches litigation with an eye toward proactively addressing and resolving issues whenever possible through cost-effective strategies that best protect our clients’ overall interests, although he is also well prepared to address the challenges for more aggressive or antagonistic litigants, particularly those cases involving emotional or inflammatory allegations and contentions.

General Counsel
Rob works with several clients as outside general counsel, providing assistance and guidance on contract reviews and negotiations, risk management reviews, regulatory and legal compliance with operational standards and requirements, and general internal governance standards and policies.

education & admissions

education

  • University of the Pacific, McGeorge School of Law (J.D., 1987)
  • Southern Oregon University (B.S., cum laude, 1984)

state admissions

  • California, 1987

federal admissions

  • Supreme Court of the United States
  • United States Court of Appeals, Ninth Circuit
  • United States District Court, Central District of California
  • United States District Court, Eastern District of California
  • United States District Court, Northern District of California
  • United States District Court, Southern District of California
services & industries

service areas

industries represented

  • Insurance
  • Legal Services (Law Firms)
  • Public Agencies
  • Transportation
experience

Published Decisions of Note

  • Obtained Supreme Court decision applying the "recreational use" immunity doctrine to holders of licenses in real property, barring injured motorcyclist from proceeding against holder of cattle grazing permit on federal property
  • Successfully achieved California appellate decision interpreting and applying protective statute authorizing County Superintendent of Schools to intervene and prevent potentially wasteful or improper spending
  • Federal District Court agreed with client and held that workers’ compensation coverage providers, under traditionally worded policy provisions, are not obligated to provide a defense to civil claims brought under discrimination theories
  • Appellate Court decision clarified obligations of trucking liability insurers to extend coverage under specialized PUC Endorsements when two policies provide coverage to the same tractor/trailer
publications & events

Publications & Speaking Engagements

Rob is regularly called upon to speak at regional, state, and national conventions, as well as prepare and conduct internal client trainings and seminars. A few of the selected seminars and trainings are listed below.

  • "The Road Back to Work: Safer Paths to Occupational Disability Accommodations," American Public Transportation Association (APTA) Risk Management Seminar, San Diego, California (August 2017)
  • "Occupational and Non-Occupational Disability Accommodations: Avoid the Risks!", Disability Management Employer Coalition (DMEC) 2017 Annual Conference, Anaheim, California (August 2017)
  • "Three Key Employment Lessons From Uber," Tucker Ellis Employer Update (June 2017)
  • "Alliance of Schools for Cooperative Insurance Programs (ASCIP) Workers’ Compensation Roundtable," Cerritos, California (January 2017) and Clovis, California (February 2017)
  • "Successful Management of Risks and Responses in Return to Work and Disability Accommodation Requests in the Workplace," California State University Risk Management Conference, Sacramento, California (November 2016)
  • 2016 Risk Management Boot Camp, North Bay Schools Insurance Authority, Napa, California (November 2016)
  • "Identifying, Responding, and Defending Current Risks to Employers – 2016," 2016 In-House Counsel Summit, Tucker Ellis LLP, Cleveland, Ohio (October 2016)
  • "Some Current Issues All Multi-State Employers Should Address in 2016," Hot Topics in Employment & Employee Benefits Law, Tucker Ellis LLP, Cleveland, Ohio (October 2016)
  • "The Advantages and Risks of Social Networks: A Look into the Future," CAJPA 2016 Conference, South Lake Tahoe, California (September 2016)
  • "Piecing Together Data Policies That Make Sense in an Ever-Changing World," Practical Tips and Tools to Deal with Cybersecurity Challenges, Tucker Ellis LLP, Cleveland, Ohio (July 2016)
  • "Hidden Pitfalls in WC/Employment Law Ramifications," California Coalition on Workers’ Compensation 14th Annual Conference, Anaheim, California (July 2016)
  • "Successfully Navigating the Tripartite Relationship Between Insurers, Insureds, and Defense Counsel," Professional Liability Underwriting Society Northern California Chapter Workshop, San Francisco, California (May 2016)
  • "The Interactive Process in California," NonProfits United Webinar (March 2016)
  • "Dazed and Confused? Navigating the Evolving Legalized Marijuana Landscape," Panelist, 2015 In-House Counsel Summit, Tucker Ellis LLP, Cleveland, Ohio (October 2015)
  • "Insurance: Buying the Right Coverage," Tucker Ellis Privacy and Data Security Risks: Are You Prepared?, Cleveland, Ohio (July 2015)
  • "Technology in the Workplace: Tailoring Policies to Your Organization," Tucker Ellis Privacy and Data Security Risks: Are You Prepared?, Cleveland, Ohio (July 2015)
  • "Psychiatric and Stress Claims: How Not to Go Crazy Just Because Your Employee Did," California Public Agency Risk Management Association Statewide Conference (February 2015)
  • "Managing Employer Risks, Exposures and Compliance Obligations under the Affordable Care Act – Essentials for Ensuring Compliance with Ever Changing Roles and Responsibilities," EPlace Solutions webinar (February 2015)
  • "Data Security: Managing the Crisis," 2014 In-House Counsel Summit, Tucker Ellis LLP, Cleveland, Ohio (October 2014)
  • "Challenges Arising from the Interaction Between the ADA, Workers' Compensation and Return to Work Programs," California Workers' Compensation & Risk Conference (September 2014)
  • "Risk Management Boot Camp," North Bay Schools Insurance Authority (August/September 2014)
  • "Going Cold Turkey: Opioids, Prop. 215 and Other Drugs: Strategies to Manage and Minimize Abuse," California Public Agency Risk Management Association State Conference (February 2014)
  • "Private and Confidential: What You Need to Know About HIPAA/HITECH/CMIA/CIPA, etc. in 2013," North Bay Schools Insurance Authority Special Presentation, instructor/presenter (October 2013)
  • "The Advantages and Risks of Social Networks and a Look into the Future," California Association of Joint Powers Authorities Annual Conference (September 2013)
  • "Boot Camp: Overview of Public School Risk Management Needs and Obligations," North Bay Schools Insurance Authority Special Presentation, instructor/presenter (September 2013)
  • "Employment Law 2010 with Disability Law Primer," North Bay Schools Insurance Authority, Manager’s Training Program, instructor (February 2010)
  • "Disputes with Members, Reinsurers and Excess Insurers," Association of Governmental Risk Pools Fall and Spring National Conferences (October 2009 to General Member Session; March 2009 to General Counsel Session)
  • "Jurisdictional Issues Affecting The Insurer-Insured Relationship," panelist and co-author of Associated White Paper: American Bar Association, Tort Trial and Insurance Practice Section, Semi-Annual Conference (February 2009)
  • "Emerging Trends in Directors and Officers and Errors and Omissions Policies," panelist and co-author of Associated White Paper: American Bar Association, Tort Trial and Insurance Practice Section, Semi-Annual Conference (February 2008)
  • "Practical Methods to Limit, Negate and Transfer Risk Exposures," California Association of Joint Powers Authorities Annual Conference (September 2007)
  • "Duty to Defend," Property Liability Research Bureau, National Claims Conference (2000-2004)

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