- Articles
- May 10, 2021
- Risk Management Magazine
ARTICLES | May 10, 2021 | Risk Management Magazine
Managing risks to minimize exposure.
Our attorneys have extensive experience litigating and arbitrating primary and general excess liability claims under a wide variety of domestically created and international policies.
These policies cover:
- Commercial disputes
- Personal lines issues
- Personal and advertising injury
- Intellectual property infringement
- Unfair business practice claims
- Workers compensation premium and cancellation
- Asbestos coverage limits
- Clergy sexual abuse
- Chinese drywall
In addition, the firm handles disputes regarding new, specialty products such as:
- Cyber-risk
- Data breach
- Internet
- Media
We represent clients in contribution and subrogation disputes with other insurers. Where appropriate and necessary, we also assist our clients to reform or rescind policies based on misrepresentations or mistakes made during the underwriting process.
TEAM
EXPERIENCE
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Grande North Window ReplacementsIn 2021, a window supplier sued for coverage under an OCIP policy to recover the $2.5 million it paid to replace more than 2,000 windows at a condo tower in San Diego, California. The underlying window claims concerned dripping sealant, which created visual obstructions. It was undisputed that the sealant only damaged the windows and that faulty installation did not cause the sealant to drip. The court granted summary judgment in favor of the insurer, finding no coverage under the OCIP policy.
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Repeated molestation claims against religious organizationThe New York Court of Appeals adopted our position that repeated sexual molestations constituted separate occurrences and must be equitably allocated across all years in which they took place. The Court also concurred that our client had not waived its right to litigate these issues.
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SONY PlayStation breachIn 2011, hackers breached Sony Corporation’s PlayStation Network, stealing the personal information of millions of users. Sony sought coverage for multiple class actions brought by users, asserting that the resulting claims triggered the “personal and advertising injury” coverage under CGL policies.
Case Study
Case Study
Case Study
- Obtained summary judgment for excess insurer on the basis that additional insured vendor’s failure to properly inspect a returned electronic rat trap before placing it back on a shelf with batteries inside, resulting in injury to a customer, precluded any duty to indemnify the vendor for a $9 million arbitration award.
- Advised insurers regarding coverage for climate change litigation under commercial general liability, pollution liability, products, claims-made, Bermuda form, and other types of policies, from primary to excess levels.
- Defended insurers in state court coverage action concerning $50 million dispute over defense and indemnity under CGL policies, which included claims of bad faith.
- Defended insurers in state court coverage action concerning $60 million dispute over CGL coverage for environmental mass tort claims, which included claims of bad faith.
- Secured multimillion-dollar judgment requiring the insured and another insurer to reimburse our insurer client based upon a batch clause endorsement.
- Secured trial-court decision favoring excess London and domestic insurers in phased asbestos coverage trial on basis that policyholder failed to prove horizontal exhaustion of all applicable primary insurance policies.
- Obtained partial summary judgment for major property casualty insurer in federal court, terminating duty to defend based upon amendments to the underlying complaint.
- Obtained summary judgment in favor of excess insurer based upon late notice by additional insured that breached policy conditions.
- Representing international insurer in declaratory relief actions regarding allegations of product failure arising out of the concussion lawsuits filed by former NFL, college and high school football players, involving numerous coverage issues such as trigger, whether the claims are for damages because of bodily injury, and the impact of other policy terms and exclusions.
- Obtained dismissal of federal declaratory relief action involving novel coverage and standing arguments by third-party claimant.
- Obtained judgment that CGL insurer had no duty to defend a series of sexual abuse claims pursuant to policy's sexual abuse exclusion, defeating arguments by insured and underlying claimants that exclusion was both inapplicable and unenforceable as a matter of public policy.
- Obtained summary judgment for insurer in Cook County (Illinois) circuit court that there was no coverage for sexual molestation claim due to insured's knowledge of prior molestation.
- Secured affirmance of judgment releasing umbrella insurer from duty to indemnify insured for $3.5 million arbitration award.
- Obtained dismissal of claims by establishing that insurer was not obligated to defend numerous underlying lawsuits alleging privacy violations caused by insured's transmittal of text messages with the recipients' permission.
- Secured trial-court judgment for London insurers in contribution lawsuit against co-primary liability carrier seeking recovery of defense costs; obtained affirmance on appeal.
- Secured trial decision in favor of excess insurer in asbestos coverage lawsuit concerning interpretation of unique "occurrence" language and self-insured retention and deductible requirements.
- Obtained summary judgment for insurer by successfully arguing interpretation of asset purchase agreement that obviated coverage under a commercial general liability policy.
- Obtained summary judgment finding that insurer client had no duty to defend or indemnify the insured for underlying crop-damage case, on grounds that chemical drift from aerial application of chemicals did not potentially cause property damage and, if it did, pollution exclusion excluded coverage.
- Obtained judgment finding no coverage under aviation policy for purported additional insured who was sued by named insured subcontractor's employee for personal injury damages.
- Secured summary judgment in favor of umbrella insurer when court agreed that insureds' bad-faith and estoppel arguments should be rejected, and it was clear from the record that no damages were awarded because of personal injury or advertising injury.
- Obtained dismissal of complaint against excess insurer seeking coverage for lawsuit alleging that insured misrepresented its insurance to the underlying plaintiffs to induce them to settle for less than their damages.
- Obtained summary judgment for insurer in lawsuit for indemnity and contribution involving the interpretation of manuscript policy language addressing the qualification of additional insureds; secured affirmation of judgment on appeal.
- Obtained summary judgment in favor of insurers on insured's counterclaims for bad faith and breach of the implied covenant of good faith and fair dealing, which also resulted in defeat of insured's request for attorney's fees under Minnesota's "Morrison" exception to the American Rule.
- Obtained partial summary judgment for insurer finding that Illinois law applied to policies issued to Illinois-based insured even though accident occurred at insured's facility in Mississippi.
- Obtained summary judgment entitling insurer client to recover more than $1.8 million in defense costs and interest from another insurer who failed to defend their mutual insured.
- In a case of first impression regarding coverage for cyber/hacking claims, obtained summary judgment for insurer on grounds that "personal and advertising injury" coverage was not implicated under a CGL policy where the insured sought coverage for liability regarding the theft of personal data by third-party hackers.
- Obtained summary judgment for excess liability insurer in the Northern District of Texas, finding that there was no coverage under the underlying general liability and employers' liability policies for damages to temporary worker who suffered a de-gloving injury.
- Defended insurer in coverage action over wrongful incarceration claim that included issues concerning law enforcement and umbrella policies, and assisted in negotiating favorable settlement.
- Defended insurers in state court CGL coverage and bad faith action concerning $20 million coverage dispute involving mass-tort claims policies.
- Secured summary judgment for insurer finding that insured's $150 million settlement of claims arising under Louisiana PPO statute, including attorneys' fees award, were "penalties" not covered under healthcare E&O policy on the basis that the statutory awards were not connected to actual damages suffered by claimants.
- Persuaded court to grant summary judgment for insurer on basis that underlying settlement payments did not reduce self-insured retention.
- Secured dismissal with prejudice of declaratory judgment action on the grounds that policies were fully-fronted, such that the insured was lone interested party in a dispute over coverage for damages from an explosion at insured's slag-processing plant.
- Resolved claim alleging insurer's failure to settle and raising priority-of-coverage and allocation issues following multimillion-dollar "run-away" verdict.
- Obtained summary judgment for insurer rejecting insured's argument that reservation of rights letter was a separate contract to pay defense costs despite lack of defense obligation.
- Secured summary judgment for London insurers in contribution lawsuit involving recovery of defense costs from other primary insurer that asserted excess language and challenged allocation.
- Obtained ruling that other insurer's "other insurance" clause did not render homeowners' policy excess to client's CGL policy by persuading the court that the policies did not cover the same risks and the "other insurance" clauses were therefore inapplicable.
- Obtained summary judgment for insurer under CGL and Auto policies relative to stipulated multimillion-dollar judgment against named insured's former employee arising out of road-rage incident.
- Obtained summary judgment for insurer that personal and advertising injury claims against insured were excluded by exclusion related to publication of material that was first published prior to the policy period.
- Obtained summary judgment for excess insurer with respect to bad-faith claims handling allegations.
- Obtained summary judgment for umbrella insurer finding that the insured's untimely notice of lawsuit involving brain damage due to carbon monoxide exposure breached the policy's notice condition, because insurer lost the opportunity to investigate and defend against the suit, precluding any duty to indemnify insured for $3.5 million award.
- Secured summary judgment for insurer on basis that there was no potential for personal injury or advertising injury liability where insured did not disparage or defame the underlying plaintiffs.
- Defended insurers in state court in a multimillion-dollar coverage dispute concerning CGL policy where there are claims of bad faith and allegations that the insurers owe a duty to defend and indemnify. Obtained favorable settlement.
- Successfully represented excess insurers in mass-tort product recall, including the development and implementation of claimant settlement valuation matrix.
- Obtained reimbursement of millions of dollars in defense costs and prejudgment interest following reversal of erroneous coverage ruling against client.
- Secured affirmance of summary judgment for insurer in declaratory judgment action on number of occurrences issue.
- Obtained favorable settlement for primary and excess insurers in complex litigation involving multiple bodily injury claims arising out of a fuel cross-delivery.
- Obtained favorable, unanimous decision from arbitral panel finding no coverage for $25 million claim for alleged "property damage" to coke oven batteries.
- Obtained affirmance of summary judgment for insurer finding insured's defective workmanship did not cause property damage.
- Successfully resolved claim seeking coverage for litigation involving insured's allegedly defective drinking-water filtration system, which allegedly resulted in regulatory action against claimant municipality requiring it to purchase and build entirely new filtration system at a cost of $15 million.
- Successfully convinced Illinois Appellate Court to reverse $5.5 million judgment, which agreed that the trial court applied the wrong state's law of the incorrect jurisdiction and agreed that the known loss doctrine precluded coverage.
- Obtained affirmance of summary judgment precluding coverage for class action settlement, arguing that defective product damages were not caused by an occurrence.
- Secured summary judgment for insurer concerning application of manuscript automobile exclusion to claims of concurrent negligence by insured resulting in injuries during the use of an auto.
- Negotiated favorable settlement for excess insurer after $36 million judgment was entered for two individuals injured in an explosion.
- Successfully defeated claims for CGL coverage with respect to damages involving the failure of thousands of computer servers on grounds that there was no covered property damage.
- Obtained affirmance of judgment granted for insurer in declaratory judgment action involving Florida law concerning whether allegations of price-fixing in an antitrust suit implicate the "advertising injury" offense requiring use of another's "advertising idea."
- Obtained judgment for insurer in declaratory judgment action on basis that insured's subsidiaries, formed after policy expiration, could not retroactively be deemed insureds.
- Obtained summary judgment in favor of an insured after discovery revealed the insured did not violate Indiana's Dram Shop Act.
- Obtained affirmation of judgment regarding scope of excess insurer's liability under theories of equitable contribution and equitable subrogation.
- Obtained summary judgment for insurer that there was no coverage for class-action settlement of claims for improper dissemination of personal medical information.
- Successfully assisted client to resolve claims against municipality in an underlying suit alleging wrongful arrest, conviction, and imprisonment of man convicted twice of murder and wrongfully imprisoned for more than 10 years.
- Obtained judgment in Minnesota federal court, finding that insurer's modification of coverage position was not a breach of the implied covenant of good faith and fair dealing.
- Took the lead in formulating comprehensive strategy for excess insurer with respect to resolving claims under Canadian law for damages occasioned by catastrophic turbine failure at power plant.
- Obtained reversal of trial court decision that insurer was required to pay defense in addition to liability limits of uniquely-worded excess policy, following a re-trial resulting from policyholder's failure to disclose it had information about additional umbrella insurance.
- Resolved claim favorably to excess insurer by devising arguments concerning the proper allocation of property damage arising from faulty braided steel water-supply lines.
- Obtained summary judgment for insurer on basis that alleged credit-reputation injuries were not covered "personal injury."
- Obtained summary judgment for insurer on basis that CGL policies provided no coverage for series of class-action antitrust and price-fixing lawsuits against insured, persuading court to reject argument that lawsuits involved "personal injury and advertising injury."
- Obtained summary judgment for insurer in state-court coverage dispute concerning CGL coverage (defense and indemnity) for multimillion-dollar contractor dispute.
- Secured summary judgment, affirmed by Fifth Circuit, that class-action settlement over defective, mold-resistant decking was not for damages caused by an "occurrence."
- Analyzed primary and excess exposure for amounts paid to settle class-action lawsuit involving failed plumbing-system components installed in residential and commercial buildings across Canada.
- Provided counsel on personal injury/advertising injury coverage in connection with defamation and false advertising claims against insured textile manufacturer.
- Obtained favorable settlement after strategically litigating certain aspects of coverage action involving alleged claim-handling errors and legal malpractice on behalf of a syndicate of international and domestic insurers faced with $100 million in bad-faith exposure.
- Advised client regarding potential coverage for mass tort product recall, including the development and implementation of claimant settlement valuation matrix.
- Secured summary judgment for excess insurer less than four months after moving to intervene in primary insurer's declaratory judgment action when court found that driver facing $14 million in underlying judgments did not qualify as an "insured" under an auto dealership's policy, due to the fact that the dealership did not own the car at the time of the accident, despite lack of sale documentation before the accident. Affirmed on appeal.
- Established Eighth Circuit precedent by securing ruling regarding application of batch clause in the commercial products context.
- Advised client regarding potential coverage under multiple insurance policies providing domestic and foreign coverage for products-liability claim by German automobile manufacturer, due to the insured's use of inadequate plasticizer, resulting in alleged damage to automobiles in China, Canada, United States, Germany, Sweden, and other countries.
- Obtained judgment for insurer in declaratory judgment action involving issues of first impression under Delaware law with respect to scope and limits of coverage available to an additional insured.
- Achieved favorable resolution of disputed claim arising out of policyholder's alleged manufacture and supply of defective or unsuitable inks for printing on plastic packaging.
- Counseled primary and excess insurers regarding exposure for insured's defective product which allegedly caused plumbing system components used in residential and commercial installations across the United States and Canada to fail.
- Negotiated settlement by multiple insureds and multiple insurers of bodily injury lawsuit involving industrial accident.
- Obtained summary judgment in favor of excess insurer that late notice of catastrophic bodily-injury lawsuit precluded coverage.
- Resolved additional insured's tender of underlying lawsuit involving bodily injury during pipeline installation project and accompanying priority-of-coverage issues.
- Advised client regarding potential coverage for products liability claim asserted against the insured by a French hotel and French general contractor arising from the insured's films used in wallcovering products.
- Provided coverage advice regarding construction defect claim involving water intrusion through building envelope of 113-acre, mixed-use commercial and residential development.
- Advised insurance company client regarding potential coverage under U.S. primary and excess policies, as well as an Austrian Master policy for product defect claim against the insured for supplying defective bottle caps for soda pop bottles.
- Assisted insurer client in defense of direct action by French shipbuilder presenting trigger and allocation issues, among others. Shipbuilder alleged that it used resins supplied by client's policyholder to build boat hulls that were not suitable for marine use, causing the hulls to prematurely blister after few seasons of use.
- Obtained partial summary judgment and negotiated favorable settlement for excess insurer in complex litigation relating to common carrier bodily injury case under Massachusetts law.
- Advised domestic insurer covering worldwide activities of secretive religious organization on widely publicized, high-exposure sexual abuse claims brought by multiple victims in the UK and Argentina, and assisted insurer with development of a protocol for handling anticipated future claims.
- Achieved favorable resolution of construction defect claim involving alleged defective grout and concrete installation for gantry crane rail system at port.
- Advised insurer client regarding potential coverage under U.S. and Netherlands policies for a product defect claim asserted against insured by multiple customers regarding contaminated food ingredients used in the baking of various food products.
- Obtained judgment in favor of insurer in declaratory judgment action under Massachusetts law involving issue of first impression as to whether antitrust claims that discussed disparagement by insured could trigger personal injury coverage, such that a defense obligation is owed even if the alleged disparagement was not directed at the underlying claimant.
- Advised domestic insurer client and Japanese attorneys on strategy for coverage dispute litigated in Japan under policies with non-specific "U.S. law" choice of law provisions. The insured supplier of component parts for water heaters faced multi-million-dollar exposure as a result of product defect claims by both the water heater manufacturer and consumer end users.
- Advised insurer regarding potential coverage under Bermuda-form policy issued in London for U.S. and Canadian product defect lawsuits asserted against the insured for tens of thousands of defective exhaust systems in semi-truck engines.
- Advised client regarding potential coverage for underlying lawsuit in China alleging that insured's color-products used for making children's chalkboards contained an unacceptably high level of chemical harmful to children.
- Advised domestic insurer and counsel based in the United Kingdom on coverage issues arising out of defamation lawsuit filed against labor union by a well-known owner and operator of casinos.
- Obtained summary judgment in case of first impression in Missouri enforcing an athletic participant's exclusion for claim that insured failed to provide adequate medical care to boxer after a fight resulting in permanent brain injury; affirmed by the Missouri Appellate Court.
- Evaluated number of occurrences and trigger of coverage under Washington law for underlying class actions and individual lawsuits in Hawaii alleging insured sold scallops contaminated with Hepatitis which infected restaurant's patrons.
- Represented excess insurer in coverage litigation relating to correct policy attachment point for lawsuit in Wyoming against the insured coal company's supervisory employees; underlying Wyoming lawsuit resulted in first impression decision by the Wyoming Supreme Court finding conduct falling short of intent to injure satisfied the state's statutory "intentional act" exceptions to worker's compensation exclusivity.
- Advised insurer client regarding coverage for fatal boat accident in Missouri involving U.S. and Canadian insurance policies and a Canadian-named insured.
- Advised excess insurers on coverage obligations and restatement of limits issues arising out of a) Sago Mine disaster in 2006 that resulted in the death of 12 miners, and b) Upper Big Branch explosion incident that resulted in deaths of 29 coal miners in April 2010. The Upper Big Branch incident remains the worst mining accident in the U.S. since 1970 in terms of fatalities, and was preceded for that distinction by the Sago Mine disaster.
- Evaluated whether trucking lawsuit pending in New Hampshire involved a covered auto Virginia and New Hampshire law, and evaluated priority-of-coverage issues under multiple business auto policies.
- Evaluated coverage for claims arising from cervical-cancer screening scandal.
- Evaluated coverage of named and additional insureds relative to lawsuit arising out of delamination of exterior paint on commercial vessel while traveling in the Pacific Ocean and resolved issues concerning responsibility for high-value (eight-figure) deductible.
- Advised client as to coverage for fatal accident involving insured's grain storage system in Mexico.
- In a case with significant industry implications, secured summary judgment that title of auto passed with delivery, regardless of title document, meaning the dealership's policy did not cover an accident after vehicle was delivered.
- Advised client on coverage litigation for numerous underlying bodily injury claims arising out of insured's alleged support of Colombian National Army, which allegedly used the support for terrorist activity.
- Obtained summary judgment that injury, which occurred while claimant was unloading steel cages from a truck at a construction site in New York, did not result from the use of a covered auto.
- Represented global insurer in declaratory judgment action pending in Alabama federal court regarding coverage for a construction site fatality.
- Successfully navigated clients through state and federal court litigation that included bankruptcy court involvement, culminating in a favorable decision of first impression by the Illinois Supreme Court affirming that property damage coverage is triggered only by an actual leak in the insured's polybutylene pipe, resulting in third-party property damage, and therefore the cost to replace defective pipe that is not leaking is not covered "property damage" under a CGL policy.
- Evaluated coverage for casino and contractors with respect to claims involving electrocution of patrons.
- Successfully resolved claim without any contribution from global insurer client in connection with insured's contaminated product sold under a private label agreement.
- Evaluated whether lawsuit pending in Tennessee, alleging that failure to update computer software led to customer defections, constituted "personal and advertising injury" covered under a policy issued to plaintiff's competitor.
- Defended insurer in a declaratory judgment arising out of an engineering- and construction-defect claim in South Carolina with respect to the Lake Blalock Dam and Reservoir.
- Evaluated whether lawsuit in Texas arising out of theft of wine owned by insured country club's member and overcharging customers for other wines alleged "property damage" that was otherwise excluded by the care, custody, and control or "impaired property" exclusions.
- Evaluated coverage for arsenic-poisoning claim arising out of insured's operation of slag-processing facility in Montana.
- Represented global insurer in federal court with respect to coverage for claim involving off-road stunt that killed a spectator.
- Successfully represented insurer in coverage litigation concerning several class-action lawsuits alleging defects in windows caused water intrusion in their homes.
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