Recovery for Product Manufacturers
- Served as insurance coverage counsel to an automotive company in a dispute with its historic commercial general liability (CGL) insurance carrier regarding coverage for asbestos and environmental claims. The manufacturer and insurance carrier reached a confidential settlement of the dispute
- Represented a boiler manufacturer in asbestos coverage dispute with historic CGL insurance carriers, including mediation and settlement regarding choice of defense counsel, reasonableness of defense counsel rates, and use of national coordinating counsel.
- Represented a Fortune 500 manufacturer in obtaining coverage under historical CGL policies for the company’s entire portfolio of asbestos lawsuits and, in numerous cases, secured virtually complete coverage from the company’s historical CGL carriers for defense costs, settlements, and judgments.
- Served as insurance coverage counsel to an insulation company in an insurance coverage dispute and in the company’s bankruptcy, seeking so-called “non-products” coverage under historic CGL insurance policies. In that case, the insured reached numerous settlements with its carriers for over $300 million in coverage.
- Represented a defendant class in an insurance dispute regarding potential coverage for approximately 20,000 pending asbestos claims against a defunct insulation contractor. After a 35-day trial over the span of multiple months, the trial court ruled in favor of coverage on a range of critical issues, from application of the products and completed operations hazards, aggregate limits, number of occurrences, through trigger of coverage.
Resolution Through Arbitration
- Served as part of a team of insurance coverage counsel to an insulation contractor in an insurance coverage dispute, disputing the appropriate percentage of claims that should be covered as so-called “non-products” claims in a Wellington Agreement-related arbitration. The insured ultimately settled with its carrier for $449 million to resolve the dispute.
Securing and Coordinating Defense Claims and Related Success
- Represented a franchisor of residential painting services on the insurance coverage issues arising out of an unusual asbestos claim. We advised and assisted the franchisor in invoking the duty to settle, persuading the franchisee’s insurer to agree to pay the entire policy limit demand less than two hours before the demand would have expired.
Commercial General Liability
- Represented a manufacturer in complex claims regarding long-tail environmental pollution against multiple insurers, including bad faith claims against the insurers for failure to defend and indemnify.
- Represented a technology company in federal court litigation involving the issue of whether CGL insurance policies provide coverage for credit card data breaches and coverage for a demand letter. The demand letter asserted that the insured failed to properly protect a network that contained payment card data. The case resolved after oral arguments at the U.S. Court of Appeals for the Eleventh Circuit.
- Advised a manufacturer of specialty engineered products regarding the procurement of insurance and claim assistance and negotiation involving commercial general liability, fiduciary liability and D&O policies.
- Represented a company that leased out its facility for use as a group-entertainment venue when the company was sued by a third party claiming bodily injury at its facility. Claims were submitted under the company’s CGL policy and the group renter’s additional insured coverage. Recovery of defense costs and indemnity coverage resulted.
- Represented apparel companies in lawsuits alleging trade dress and/or copyright infringement triggering coverage under CGL policies. Represented a manufacturer that was sued by a buyer in a commercial action for supplying allegedly defective products, in negotiations to recover defense and indemnity costs for the client’s CGL carrier after the underlying lawsuit was settled with the buyer.
- Litigated claims on behalf of a Fortune 500 energy company arising from alleged asbestos premises liability claims against numerous CGL primary and excess carriers for bad faith and declarations of defense and indemnification obligations. The court granted the policyholder client’s summary judgment motion and ruled that Pennsylvania law applies to claims including application of Pennsylvania Bad Faith Statute, all sums allocation of loss, and single occurrence.
- Litigated CGL coverage for tens of thousands of asbestos-related bodily injury claims against insulation contractors and manufacturers, obtaining rulings regarding the application of the products hazard and aggregate limits, trigger of coverage and timing of alleged injuries, number of occurrences, and additional coverage issues, and reached numerous settlements, policy buybacks, and coverage in place agreements related to coverage, the use of defense counsel, and the duty to defend.
- Represented a product manufacturer and obtained a duty to defend, including the use of independent defense counsel, and indemnity coverage for a putative class action alleging various bodily injuries purporting to result from the use of personal care products.
- Represented the policyholder regarding CGL and excess insurance coverage issues in connection with a mid-nine figure demand arising out an alleged explosion and fire at a facility. We handled the insurance coverage issues through multiple mediations with the claimant and the policyholder’s entire tower of insurance carriers. Ultimately, we persuaded the insurance carriers to agree to and fully cover a settlement, which was within the limits of coverage, with five minutes to spare before the jury delivered its verdict (a verdict that would have exceeded policy limits).
- Represented a manufacturer regarding complex long-tail environmental pollution claims against multiple insurers, including bad faith claims against one of the insurers for its scheme to move the dispute to an insurance-company favorable jurisdiction to avoid coverage. Litigation in both states resulted in the application of the proper state’s law and all insurers indemnified the client for bodily injury and property damage claims, including an additional insured claim for the time the client leased its contaminated property to another company with a lease agreement that required naming the client as an additional insured.
- Served as lead insurance coverage counsel for a payment card-based cyberattack litigating whether CGL policies provided coverage for the losses, and reached favorable settlements with CGL and umbrella carriers for the matter.
- Represented numerous contractors on construction projects in negotiations with CGL carriers regarding defense and indemnification obligations for claims made by the owners of construction projects for alleged defective work by the contractors and/or subcontractors.
- Represented numerous companies – a waste management company, many manufacturers, and innocent purchasers of contaminated property – whose insurance companies initially denied them coverage for environmental property damage and bodily injury claims against CGL policies, resulting in litigation, and ultimately payment by the insurance companies for the clients’ defense and indemnity coverage.
- Represented a food service/food packaging manufacturer regarding the recovery of defense and indemnity costs incurred in connection with numerous individual claims of bodily injury and/or property damage against historic liability carriers.
- Represented an apartment complex in pursuit of CGL coverage for defense and indemnity of a law suit filed by a tenant against the apartment complex for bodily injury coverage due to a claim of lead poisoning.
- Represented a restoration contractor whose CGL insurer was on the way to botching the contractor’s defense of a high-value industrial damage claim. The contractor had done a seven-figure job to remediate a chemical plant after a major fire and had allegedly made serious mistakes that caused damage outside its scope of work. While the job was still in progress, the contractor’s CGL insurer hired an attorney to investigate the potential claim by the plant owner. Later, when the owner filed suit, the insurer agreed to defend under a reservation of rights and appointed the same lawyer to defend the contractor. Under applicable state law, the lawyer was required to obtain the contractor’s informed consent to his representation in the so-called tripartite relationship among insurer, insured, and defense counsel, and the lawyer was required to explain the insurer’s reservation of rights. He did neither. When the damage case went to meditation, he refused to share his analysis with the contractor he represented, and he made a settlement offer so low that the mediator suspended the mediation. The contractor then hired Barnes & Thornburg’s insurance recovery group. We first demanded the insurer replace the purported defense lawyer with other counsel of the contractor’s choosing. The insurer agreed and accepted another law firm we recommended. As the new firm got up to speed and provided an independent evaluation of the case, we separately analyzed the CGL coverage issues and emphasized that the lawsuit alleged that nearly all the damage was outside the contractor’s scope of work and therefore not subject to the “your work” exclusion, as well as the insurer’s duty to settle. We negotiated with the insurer so that it eventually paid the vast majority of the cost to settle the lawsuit with the owner of the chemical plant.
- Represented an engineering firm in a high-stakes lawsuit with its CGL insurer regarding the purported “professional services” exclusions in the policy. Our client was a design subcontractor on a construction project to reconfigure several highway intersections. During construction, an automobile accident occurred and left a child with permanent, devastating injuries. The primary CGL insurer agreed to defend the lawsuit under a reservation of rights. Almost a year into the case, the plaintiffs’ counsel made a settlement demand that exceeded the primary CGL limits. The CGL insurer responded to plaintiffs’ counsel by rejecting the demand because the insurer believed its professional services exclusions applied, the CGL insurer filed a declaratory judgment action, and the CGL insurer refused to provide any settlement authority at a mandatory mediation. The engineering firm hired Barnes & Thornburg insurance recovery attorneys, who helped the client’s professional liability insurers to settle the injury case and who also defeated the CGL insurer’s motion for summary judgment regarding the professional services exclusions.
- Represented a packaging manufacturer in connection with multiple claims by its food industry customers that the packaging was contaminated and causing foul odors and flavors. The claims involved complex CGL coverage issues, including whether there was “property damage” as defined by the policies, whether any such property damage was in the nature of loss of use of “impaired property,” and the extent to which the claims alleged damage to our client’s product. Although experts had determined the food was safe for human consumption, our client and its food manufacturer customers understandably wanted to avoid public litigation. Our attorneys represented the packaging supplier in a multi-party mediation that resulted in settlements of the customers’ claims, funded substantially by our client’s CGL and umbrella insurers.
Copyright, Trademark, and Media Liability
- Represented numerous entertainment and sports industry clients as insurance coverage counsel in connection with allegations of copyright infringement due to the alleged use of music.
- Represented apparel companies in lawsuits alleging trade dress and/or copyright infringement triggering coverage under commercial general liability (CGL) policies.
- Represented a client in obtaining coverage for the defense of counterclaims made in connection with an affirmative trademark infringement action.
- Represented a leading telecommunication company in a copyright coverage matter under a media liability policy.
- Represented a production company in a lawsuit alleging trademark infringement triggering coverage under a media liability policy.
- Served as insurance coverage counsel for a research and development company regarding coverage for a lawsuit alleging slander, among other claims. After the general liability insurance carrier filed a declaratory judgment action in federal court seeking a ruling of no coverage, Barnes & Thornburg filed a motion to dismiss on procedural and substantive grounds, arguing that the carrier’s duty to defend was so clear-cut and that litigation was futile. The carrier settled quickly thereafter.
- Represented numerous clients and obtained substantial coverage for both copyright and trademark based claims under CGL and media liability policies, including claims of defamation, disparagement, and false advertising.
- Represented apparel companies in lawsuits alleging trademark and copyright infringement triggering coverage under media liability policies.
Cybersecurity and Data Privacy Risks
Insurance Coverage for Losses After Ransomware Attacks
- Our attorneys have been insurance coverage counsel to several domestic and international companies and organizations suffering a ransomware attacks. In several events, our attorneys worked with multiple insurance carriers to maximize the amount of insurance available to pay the resulting losses arising from and related to the event. The events have included losses approaching nine figures. This has included recovering under first party property policies, kidnap, ransom, and extortion policies, and cyberinsurance policies, getting coverage for the cost of ransom, forensic costs, legal costs, extra expenses related to replacement and rental computers, and settlements with the policyholders’ customers. We also have worked on matters where insurance carriers have threatened to rescind the policy based on purported misstatements or misrepresentations in the application.
Business Email Compromise/Phishing-Based Wire Fraud
- Our attorneys have been insurance coverage counsel to multiple companies that suffered losses resulting from business email compromises. This has included wire frauds from social engineering or spoofed emails from cyberattackers who took over email accounts. Our attorneys have helped clients from multiple industries (such as financial institutions, family offices, commercial adjusting, international retail, music publishing, home building, automotive component manufacturing, wealth management, staffing, and more) recover funds through negotiations with their insurance carriers. In one matter where the carrier refused to compromise, we won multiple victories in District Court and the Court of Appeals. Addressing an area of insurance coverage in which there are very few pro-policyholder decisions, the 11th Circuit ruled that our client’s crime insurance policy unambiguously provides coverage for the losses. In other matters, we helped our clients obtain millions of dollars in coverage for liability due to a business partner sending out fraudulent wires after a cyberattack, and obtain millions of dollars for losses and liabilities after criminals entered into the policyholder’s system via a cloud provider.
Insurance Coverage For Payment Card Cyberattacks
- Our attorneys have been insurance coverage counsel to several clients who have suffered payment card data privacy incidents, and our attorneys have litigated two of the first insurance coverage lawsuits regarding the scope of coverage for PCI-based losses. Multiple events have involved alleged compromises of millions of card numbers. Our clients for these matters include multi-billion dollar retailers through smaller hospitality companies and retailers. Our attorneys have helped our clients pursue insurance coverage for the liabilities to the card brands and processors, as well as for class actions alleging harm due to the cyberattacks. This has included the pursuit and obtaining of coverage under cyberinsurance, directors and officers, crime, first party, general liability, umbrella liability, and package insurance policies. Our attorneys have litigated some of the very few publicly-filed cases under cyberinsurance policies to date, disputing the application of policy “sublimits” for “operational fraud” and “operational reimbursement.” We also have resolved claims at mediation, in circumstances where the insurance policy and the governing law required alternative dispute resolution as well as after an appeal was argued, and through strategic advice and counseling that resulted in full coverage for our client’s losses. Our attorneys also have litigated whether CGL policies provide coverage for losses due to a PCI-related cyberattack, handling the dispute from the initial filing to arguing at the Court of Appeals for the 11th Circuit, and ultimately resolving the matter through a settlement achieved shortly after oral arguments.
Sensitive Personal Information Compromise, International Dating Company
- Our attorneys acted as insurance coverage counsel to an international dating company that suffered a data privacy incident and cyberextortion threat. Our attorneys evaluated the entire insurance portfolio, gave notice of the claim, and advised the company on insurance-related issues.
Corporate Secret Data Privacy Incident, Global Software Company
- Our attorneys acted as insurance coverage counsel to a global software company that suffered a data privacy incident and theft of corporate secrets. Our attorneys evaluated the entire insurance portfolio and gave notice of the claim. One insurance company quickly tendered its limits, and our attorneys obtained coverage under the remaining policies.
Protected Health Information Data Breach, Health Care Company
- The advice from one of our attorneys helped this client obtain full coverage from cyberinsurance, E&O insurance, and D&O insurance carriers for its losses resulting from a breach of protected health information. Our advice resulted in multiple carriers agreeing to pay the costs of responding to a subpoena, pay the costs of defending against a putative class action, to indemnify the amount that the insured paid in a regulatory settlement, and to indemnify the settlement of the putative class action.
Protected Health Information Data Breach, Health Care Solutions Company
- The advice from one of our attorneys helped this client obtain full coverage for its losses resulting from a breach of protected health information. The company faced a class action, investigations from state attorneys general, an investigation from the Federal Trade Commission, and other claims. After the insurance company stated that only 50% of the policy limits were available, our attorney helped the policyholder obtain the full limits of its cyberinsurance policy, convincing the insurance company that a sublimit did not apply and that affirmative mitigation costs were covered under the policy.
Account Data Compromise Event, Real Estate Investment Trust
- Our attorneys advised a REIT that was seeking coverage for its losses for a data breach under multiple insurance policies, including a cyberinsurance policy. We ensured initial and full payment under the cyberinsurance policy, and worked to ensure that there is sufficient coverage and that the client can obtain coverage under other insurance policies with lower retentions.
Network Software Failure and Business Interruption, Manufacturer
- Our attorneys helped a company analyze its insurance coverage for a business interruption event after enterprise resource software failed. The company held cyber-specific business interruption coverage under an errors and omissions insurance policy. Our attorneys interviewed key business personnel, analyzed the policy language, and worked with the broker to present a comprehensive coverage analysis to the client.
Insurance Counseling for Personal Information Data Breach, Law Firm
- Our attorneys were insurance coverage counsel to a law firm that had a hard drive of backup client information stolen. The incident involved both an insurance claim and professional services claim. Our attorneys worked with the insurance company to withdraw the reservation of rights and drop efforts to pursue a potential rescission claim. We obtained full coverage for the losses.
Insurance Litigation Related to Cyberattack Resulting in Destruction and Theft of Data, Manufacturer and Holding Company
- Our attorneys were insurance coverage and investigation counsel to a manufacturer and its parent company in connection with a cyberattack that resulted in significant quantities of deleted data and stolen information. We helped the company obtain the full limits of coverage available under a first party all risks insurance policy. We litigated the crime insurance carrier’s denial of coverage for the event, winning the case on summary judgment. The court ruled that electronic data qualifies as tangible property, requiring coverage under a crime insurance policy. The carrier later settled after a confidential mediation.
Protected Health Information Data Breach, Healthcare Non-Profit
- One of our attorneys acted as insurance coverage counsel for a non-profit that suffered a data breach of protected health information. Our attorney helped the entity obtain coverage under a crime insurance policy and acted as counsel for claims made under a package insurance policy.
Insurance Counseling for Protected Health Information Data Breach, Medical Association
- One of our attorneys acted as insurance coverage for a medical association that suffered a data breach of protected health information. Our attorney provided advice regarding insurance that potentially could provide coverage, notice to the insurance carriers, and worked with the company to respond to the insurance company’s initial coverage position.
Insurance Counseling Related to Cyber Risks, Multiple Clients
- Our attorneys have advised retailers, banks and financial institutions, a pharmacy benefit management company, law firms, healthcare-related enterprises, an internet company, defense contractors, a construction firm, a chemical manufacturer, a healthcare-related software company, investment firms, and other enterprises about the scope of coverage under offered cyberinsurance policies. Their advice led to more favorable terms and conditions being offered and purchased.
Directors and Officers Liability
Insurance Coverage for Government Investigations
- Our attorneys have been insurance coverage counsel to companies facing government investigations and regulatory examinations. This includes claims arising out of CFPB investigations, Civil Investigative Demands, Grand Jury subpoenas, SEC investigations and other agency enforcement actions.
Insurance Coverage for Securities Claims
- Our attorneys have been insurance coverage counsel to both domestic and international publicly traded companies facing securities claims arising out of IPOs, class actions, derivative actions, undisclosed mergers, and financial disclosures. Our attorneys have helped secure coverage for multiple seven-figure settlement payments and defense costs in derivative actions for companies in the health care industry, hospitality industry, apparel industry, financial services space and tech companies. Our attorneys have also obtained substantial victories in both litigation and arbitration resulting in substantial payment of defense fees and costs arising from multiple class actions and derivative actions.
Insurance Coverage for Business Disputes
- Our attorneys have been insurance coverage counsel to several clients facing both company and director and officer liability for an underlying business dispute. For example, our attorneys have secured coverage for actions against companies and individuals alleging negligent misrepresentation, unfair competition, breach of contract, and even fraud.
Insurance Coverage for Books and Records Requests, Subpoenas, and Crisis Events
- Our attorneys have been insurance coverage counsel to companies in receipt of books and records requests, subpoenas, and other civil document and information requests that are often covered by D&O policies, thereby securing valuable policy benefits for expenses incurred in compliance that might otherwise be unrecoverable. B&T attorneys have also tendered crisis management claims under D&O polices and secured clients policy benefits in connection with the same.
Insurance Coverage for Qui Tam and False Claims Act Allegations
- Our attorneys have been insurance coverage counsel to several clients facing claims arising under the False Claims Act and related qui tam actions. In one matter where the primary carrier refused to provide coverage, we secured a substantive win in Delaware state court that effectively defeated the carrier’s primary defenses to coverage.
Insurance Coverage for Putative Class Actions
- Our attorneys have been insurance coverage counsel to several privately held organizations facing putative class action claims and litigation. B&T attorneys have helped multiple insureds persuade carriers to defend claims and indemnify settlements under entity coverage found in D&O policies.
Fidelity Bonds and Commercial Crime Policies
Fraudulent Wire Transfers
- Secured two rulings in favor of the insured for losses resulting from a business email compromise and a fraudulent wire transfer. The District Court and Court of Appeals ruled that the loss was covered under a crime insurance policy. At that time, these were two of the only pro-policyholder rulings on this point in the country, and those rulings remain the leading pro-policyholder decisions regarding funds transfer fraud coverage phishing losses.
- Served as lead counsel providing insurance coverage advice for company suffering business email compromise and wire fraud. Helped client obtain full coverage for losses under crime insurance policy.
- Served as lead counsel to a manufacturer that suffered a computer hacking, data destruction, and theft and circulation of confidential information. Won a summary judgment ruling that a crime insurance policy provided coverage for the losses. The matter settled at mediation, with the summary judgment decisions vacated as a result.
- Served as lead counsel to a financial institution that suffered financial losses as a result of hacking and unauthorized access to and manipulation of accounts. The matter settled at mediation without litigation.
Employee Theft and Dishonesty
- In this action, the insured suffered losses stemming from alleged thefts and forgeries at a company that the insured owned. Defeated the insurance carrier’s motion to dismiss, with the court ruling that the insurance policy language was ambiguous, and obtained a favorable ruling on a motion to compel. The matter settled at mediation.
- In this action, the firm obtained a court ruling denying summary judgment for the insurer under Employee Dishonesty/Employee Theft coverage. The client’s employee committed theft in collaboration with employees of the client’s vendor through submission of, and approval of payment for, inflated invoices. The firm defeated summary judgment for the insurer, with the Court holding that the availability of coverage was a question of fact. The case subsequently settled.
- Represented a bank in successful litigation for coverage under a bankers blanket bond. The bank issued a loan that was to be used to finance renovation and continued operation of a hotel, the borrowers absconded with the money and abandoned the hotel. Another law firm initially represented the bank and had the bank’s president sign a sworn proof of loss contending that coverage was available for “employee dishonesty” because the bank’s loan officer participated in the fraud. After another firm failed to win coverage or the client, our attorneys took over the case and convinced the court to allow a change in coverage theory, namely that the loss was caused by “forgery” because the borrowers had altered the hotel’s financial statements submitted to the bank’s loan committee. After defeating the insurance company’s renewed motion to dismiss, our attorneys obtained a significant settlement for the bank.
- Represented multiple clients dealing with complex financial fraud schemes engineered by former employees and assisted those clients with resolving those claims via claims handling and litigation efforts.
- Served as counsel for a national telecommunications provider and garnered $10 million claim payment for first party losses without litigation.
- Represented a commercial property owner in a lawsuit against an insurer for breach of contract and bad faith arising out of water intrusion from a neighboring property.
- Advised a manufacturing client regarding a multi-million dollar flood claim.
- Represented hotels and other corporations damaged by Hurricane Matthew in connection with insurable physical damage, business income, extra expense and other losses under first party property and time element policies.
- Represented, as part of a team, a major food company on an insurance claim for contingent business interruption losses resulting from Hurricane Katrina. The claim resolved favorably through multiple settlements.
- Represented an entertainment establishment in pursuit of insurance coverage for extensive vandalism property damage and business interruption. Litigation involving a claim of bad faith denial of coverage resulted in a significant recovery.
- Represented numerous clients on a multitude of first party property claims—under commercial property, inland marine, PLL and event policies. In the aggregate, the claims total in the billions of dollars and address a variety of complex coverage issues arising out of events such as hurricanes, floods, riots and civil commotion, COVID, electrical arcing incidents, building collapse, among others. The coverage issues include dealing with the application of limits and sub-limits of coverage, number of occurrences, the operation of deductible provisions, resulting loss exception to exclusions, preservation of property, valuation, causation and anti-concurrent causation clauses, business interruption and extra expense, timeframe for period of recovery and extended period of recovery.
- Represented a family in a coverage dispute with its Homeowner’s carrier for damages to the structure and personal property that was destroyed when an out building on the property burned down. The insurer argued, alternatively, that the building was not covered, that the coverage was limited, and that the insurer had not shown the value of the personal property that was damaged. The homeowners reached a favorable settlement.
- Represented homeowners in lawsuits against insurers for breach of contract and bad faith arising out of flood and other water damage claims.
- Prosecuted various first party, business interruption, contingent business interruption, and extra expense claims due to losses suffered by corporate policyholders across various industries during Hurricanes Wilma, Rita, Katrina, and other catastrophic events.
- Represented a homeowner in a lawsuit against an insurer for breach of contract and bad faith arising out of hillside collapse.
- Represented a company in a first party property insurance dispute regarding coverage for losses due to mine subsidence. After the carrier asked for endless amounts of information, with demands appearing to be like formal discovery requests, and no indication of forthcoming payment, we filed suit against the carrier for coverage. Shortly after discovery uncovered crucial documents, the parties engaged in mediation, and reached a favorable settlement.
- Represented a restaurant in fire loss litigation for property damage and business interruption against an insurer that selectively passed along evidence to police authorities in an effort to persuade that the fire was the result of arson. At trial, the insurance company’s bad faith resulted in a significant award in excess of the policy’s coverage limit.
- Represented a Fortune 500 media company in pursuit of coverage for first party and time element losses resulting from severe damage to broadcasting studio in New Orleans during Hurricane Katrina.
- Represented the owner of a building that was just finishing being rehabilitated for senior citizen apartments, when a windstorm tore off a part of the roof, damaging the roof and allowing rain to enter the building and cause water damage in multiple floors.
- Represented homeowners in a dispute with insurers over losses arising out of jewelry theft.
- Represented a client in a property insurance claim resulting from a lightning strike to a client’s facility. After the insurance carrier took an aggressive position regarding coverage for repair, remediation, and cleanup work already performed, the team worked with the client and carrier to get the claim resolved favorably.
- Represented a food company in connection with a property damage, business interruption, and extra expense claim arising out of a catastrophic fire. Worked with the insured, forensic accountants, and equipment consultants to recover significant payments without litigation.
- Represented a paper manufacturer regarding the recovery of defense and indemnity costs incurred in connection with numerous claims of bodily injury and/or property damage against insolvent liability carriers.
- Represented a manufacturer in claims of Tenant’s Prohibited Access coverage and property damage arising from COVID-19.
- Represented apparel companies, a real estate and investment management firm, a hotel owner, a restaurant owner, casinos, and professional sports teams in COVID-19 business interruption claims, and obtained one of the only appellate court victories for an insured regarding property insurance coverage for COVID-19-related losses.
- Represented a property management group in losses arising from COVID-19.
- Represented a health care organization in losses arising from COVID-19.
- Represented a franchisor in recovering losses arising from COVID-19.
Ocean Marine and Cargo Coverage
Cargo Lost During Transit/Supply Chain Issues
- Represented major retail manufacturers in losses occurring during intercontinental transit, including but not limited to handling RFIs issued by insurers’ adjusters, responding to insurer and adjuster-related correspondence, and negotiating favorable settlements.
- Represented major retail manufacturers in handling and resolving their supply-chain related issues.
Claims of Employee or Third-party Dishonest Conduct
- Represented a major physical commodities trader that discovered a significant, eight-figure loss overseas, which involved the interpretation of a “dishonest act” exclusion present in many ocean marine cargo policies. After the insurers wrongly denied coverage for the claim, we traveled to the client’s headquarters, interviewed their employees, and gained a better understanding of their operations and the claims at issue. We defeated summary judgment on the insurers’ defenses, including the application of the dishonest act exclusion.
Hull and Machinery Coverage
- Represented a shipping and marine transit company in connection with a claim under marine insurance policies, seeking coverage for significant damage to a commercial vessel.
Insurance Coverage for Healthcare Providers and Professionals
- Our attorneys have been counsel to major healthcare providers, representing them in disputes with their primary and excess insurers over coverage of major medical malpractice litigation.
Representations and Warranties
- Served as counsel for a private equity firm in negotiating a multi-million dollar coverage settlement with their R&W Insurance carrier.
- Represented a buyer in pursuing coverage under a buyer-side representations and warranty coverage dispute where the seller was alleged to have sold a damaged assert suffering from a latent defect.
- Assisted a Chapter 11 Plan Administrator evaluate a claim under a Buyer-Side Representations and Warranties Insurance Policy.
- Represented a claim under a representation and warranty policy where the insurer denied coverage based on its interpretation of an exclusion.
- Represented a buyer in pursuing coverage under a buyer-side representations and warranty coverage dispute where the seller was alleged to have sold business assets with significant undisclosed liabilities.
- Helped place and negotiate terms of representations and warranty policies.
- Counseled clients with respect to procurement of “buyer-side” and “seller-side” Reps & Warranties policies in connection with various M&A transactions.
Workers’ Compensation and Employers’ Liability
Insurance Coverage for Claims by Injured Employees
- Our attorneys have litigated against insurance companies for denying coverage under WC/EL policies. For example, a policyholder’s employee may assert intentional tort claims in court to try to recover more than the statutory benefits provided by the workers compensation system. The insurance company may try to deny coverage of such a claim, citing exclusions related to intentional conduct. But those exclusions do not necessarily apply or relieve the insurer of all duties to the policyholder. Our attorneys have substantial experience litigating against insurance companies in this type of situation.
- Our attorneys won millions of dollars for a client whose workers compensation claims had been mishandled by its TPA. Our client was a group of fast food restaurant owners that banded together and formed an entity that the state authorized to self-insure the workers compensation claims for all the restaurants. Our client hired a TPA, which happened to be a subsidiary of a workers compensation insurance company, to handle all the claims. The client started to hear negative feedback from its member-owners and their injured employees about problems such as missed deadlines, incorrect decisions about whether particular claims were compensable under state law, and miscalculations of benefits properly owed to employees. Eventually, the client noticed that its overall claim costs appeared to be escalating significantly above its well-established history, but the TPA disclaimed responsibility. We filed a lawsuit and obtained the TPA’s internal files showing, among other things, that the TPA’s internal auditors knew there were pervasive problems on our client’s account, but the TPA’s management had withheld that information from the client. We also retained an expert witness who, in addition to having over 30 years of experience adjusting workers compensation claims, had written the official study guide of the state’s adjuster licensing exam. We obtained access to the TPA’s claim system, allowing our expert to carefully review the TPA’s internal files on dozens of claims that revealed rampant mishandling and led to his expert opinion that there were patterns and practices that likely pervaded the roughly 3,000 claims handled by the TPA. In contrast, we won a Daubert motion to strike the TPA’s expert witness, who had run the claim departments of several major insurance companies but had never himself handled a workers compensation claim and was not licensed in the relevant state. Our attorneys tried the case to a federal judge, who awarded several million dollars in damages measured by the overall increase in the client’s claim costs during the period of the TPA’s mishandling. Our attorneys also argued the insurance company’s appeal, and the federal appellate court affirmed the multi-million dollar judgment for our client.
- Our attorneys have fought on behalf of multiple clients whose insurance companies overcharged premiums by misclassifying the clients’ workforce. For example, we have helped several clients that operate elder care facilities. Insurance companies disregarded job descriptions and classified office staff as workers directly involved in resident care, which involves higher risk and generates higher premiums. Our attorneys have also assisted temporary staffing companies and professional employer organizations (PEOs), for which workers compensation is not only a fundamental legal requirement but also can be the single largest cost of doing business. Our attorneys have helped clients show that the insurers used higher-risk class codes for individuals or even entire PEO client companies, resulting in inflated premiums. But these kinds of issues can arise for almost any employer in virtually any industry. Our attorneys have represented clients in litigation, arbitration, and negotiation to obtain class code corrections and fairer premiums.