Insurance

Provided coverage advice to insurers on all lines of first and third party insurance throughout the United States, assisted in establishing and communicating the proper coverage position to the insured and other interested parties, and advised carriers regarding claim handling requirements and strategies.

In Federal Bankruptcy court, represented an insurer which issued an environmental remediation policy and paid its $75 million limit by devising a strategy to recoup funds, which included a settlement with the debtor securing a first lien position on real property, releasing all extra-contractual claims, the filing of actions against third party polluters, and bringing condemnation actions against a municipality, all of which reimbursed the client for over $55 million, and the total recovery will achieve almost full reimbursement after the sale of land and payment of the lien position.

In the California and Nevada Supreme Courts, established the right of carriers to recover defense fees paid when claims are later established to have not been covered by the applicable policy.

Successfully defended an insurer against a lawsuit filed by a National Basketball Association team alleging coverage under its advertising injury coverage for a suit filed against the team by the NBA, by convincing the trial court that the underlying suit did not arise out of advertising activities, but rather a contract dispute caused by the team's unilateral decision to relocate. The victory was successfully upheld on appeal by the firm.

Represented insurer regarding an excess verdict at least $150 million above applicable policy limits and helped strategize successful resolution of claims by insured and claimant.

Served as coverage counsel for insurer involved in large Hepatitis A Outbreak from food borne illness. Successfully negotiated settlement of more than 300 claims, and then pursued recovery of defense and indemnity from vendors and suppliers of the insured, winning award in the tens of millions of dollars.

Represented  insurance company whose insured general contractor tendered a complaint by plaintiff property owners, who were also the insured's business partners, after a multi-million dollar default was entered against the insured. The client agreed to defend the insured in an effort to set aside the default judgment, or alternatively, to reduce the amount of the default judgment. The trial court declined to set aside the default judgment, finding the insured made a conscious decision not to respond to the summons and complaint, and refused to reduce the amount of the judgment. On appeal, the court ordered the default judgment be reduced by several million dollars, but affirmed the trial court's decision not to set the default aside. Based on the default judgment, the terms of the policy, and the findings of the trial court, the client was able to decline to indemnify the insured for the default judgment.

Represented four excess insurers at varying attachment points in an asbestos claim coverage litigation involving complex allocation issues relating to unaggregated primary policies, stacking of underlying policy limits, and exhaustion of underlying coverage.

Served as coverage counsel for insurer providing advice regarding Multi District Litigation and Federal Trade Commission action concerning well known entity sued for making deceptive claims regarding its products.

Represented an insurance company in negotiating settlement of bodily injury and property damage claims maintained by more than 200 claimants one week prior to bellwether trial was scheduled to begin. Suit concerned allegations of contaminated groundwater due to business operations on property adjacent to the Plaintiff homeowners. Also represented insurer in a related action by other insurers seeking reimbursement and declaratory relief and by insured who alleged bad faith regarding each insurers’ duty to defend and indemnify.

Filed a reformation action on behalf of an insurer against major oil company in a suit involving coverage issues for cleanup of polluted sites in which client's $25 million policy did not contain a pollution exclusion. The case was won when the court granted reformation and ordered that a pollution exclusion, barring coverage for all claims, should be added to the policy.

Counseled excess carrier regarding primary/excess limits on issues arising out of claims involving over $1 Billion of claims arising from the San Diego wildfires.

Represented two insurers in connection with policyholder's claim in excess of $40 million for coverage for contamination arising from dry cleaning operations, providing an analysis of the insured's settlement demand and preparing a strategy for resolving the matter either by settlement or voluntary dismissal.

Counsel for plaintiffs subrogated insurance carriers in a matter involving alleged business losses in excess of $70 million and alleged personal injuries to hundreds of restaurant patrons, arising out of the distribution of contaminated foodstuffs by one or more of six defendant distributors to a single restaurant.

Obtained a binding arbitration award on behalf of client in a case involving a spin on the garden-variety carrier-versus-carrier dispute. The non-defending carrier did not have notice of the underlying action against the policyholder because here, the defending carrier repeatedly asked the policyholder to identify its other primary carrier, and the policyholder refused. Nonetheless, the Court was convinced that the equities in this matter favored rejecting the other carrier's contribution claims, finding that a carrier should not be obligated to equitably contribute to the defense or indemnity of a claim where the carrier never received tender or notice of the claim. Forcing the carrier to contribute under such circumstances would strip the carrier of its contractual rights, such as the right to control its insured's defense. As a matter of public policy, such an outcome may also discourage a defending carrier from taking timely action to identify other carriers and provide them with prompt notice of a claim.

Represented an insurer faced with a time-limit demand for payment of a property damage claim. Replacement of an inside and outside sewer line was required due to a breach of the sewer line by tree roots. The insured's attorney and the insured were convinced to withdraw the claim for breach of the policy contract and bad faith based upon case law, supported interpretation of policy exclusions, and aggressive investigation of the facts, which revealed that the collapse of the inside sewer line was caused by old age. Wear and tear and the outside sewer line had been compromised by tree roots because of inadequate maintenance, which resulted in constant and repeated seepage of water over an extended period of time.

A multi-million dollar verdict in an insurance policy rescission action was obtained in United States District Court on behalf of insurance carrier, based on misrepresentation in insurance application by holding company with multiple corporate subsidiaries. Appeal to Ninth Circuit was successfully defended.

Pursued subrogation claim for an insurer, claiming rescission and/or reimbursement  for insurer's $2 million indemnity payment against defendant, and contribution/subrogation against other additional insured carriers for $875,000 paid in defense fees and costs. Judgment was obtained on client insurer's behalf, and over $1.5 million (of the $2 million) was collected as to the claims against the insured. In addition, approximately $950,000 was collected, including pre-judgment interest, in defense fees and costs from the additional insured carriers.

Obtained summary judgment in federal court case involving priority of coverage pursuant to underlying construction indemnification agreement and language of insurance policies, resulting in multimillion dollar determination in favor of client.

Represented multiple insurers in a lengthy, complex environmental insurance coverage litigation, where an insured oil company sought coverage for the clean-up of its refineries, oil fields and gas stations across America for pollution caused by the company over the years. Conducted extensive depositions of site witnesses, experts, and environmental consultants, and successfully obtained rulings against the oil company barring recovery for: (1) the oil company's pre-tender costs; (2) the oil company's claims that did not involve an actual lawsuit; (3) policies containing an absolute pollution exclusion; and (4) policies containing a "sudden and accidental" pollution exclusion. Our investigation and coverage determination lead to the client insurance company disclaiming a duty to defend or indemnify the named insured general contractor in a multi-million dollar suit for damage arising from the construction of a condominium/residential mixed use project. Through the investigation, we learned that although the contract between the insured and the property owner had been executed during the policy period, the policy was cancelled at the insured' request prior to the insured commencing work.

Represented excess carrier in claim against primary carrier that issued multiple policies and attempted to prematurely exhaust one primary policy to trigger excess coverage and avoid indemnity obligation under second primary policy. Filed declaratory relief action, which resulted in primary carrier abandoning its position and indemnifying the named insured under both policies.

On behalf of direct carrier for general contractor, pursued non-participating AI carriers and obtained over $1.6 million in defense reimbursement without need for coverage litigation. Coordinated joint defense agreement for all carriers to equitably share defense of general contractor between all insurers with a duty to defend the general contractor.

Successful negotiation as coverage counsel with well known "bad faith" counsel regarding $20 million default judgment against insured. Matter involved interpretation of manuscript endorsements and insured warranty endorsement resulting in settlement of $1 million.

Represented insurer in pollution coverage claim for clean-up of tideland waters near San Diego. The applicability of the "sudden and accidental" pollution exclusion was at issue. Negotiated a settlement involving a site release to compromise the insured's claim for coverage.

Represent multiple insurers in an asbestos coverage action where the insured is claiming that many of the claims filed against it are "operations" claims, and not "products" claims, and thus not subject to an "aggregate limit" in the insurer's policies, thus leading to perpetual coverage. Coverage determinations for the underlying asbestos claims involving complicated issues of successorship coverage have also been addressed. The matter also involves a bankruptcy of the insured.

Represented a major workers' compensation insurer in multiple cases in connection with recovery of unpaid policy premiums. These actions range from a policyholder simply being unable to pay premiums because of its despondent financial condition, to policyholders who undergo some corporate transactions and claim they are no longer responsible for the debts and obligations of their predecessors, to policyholders who allege claim mishandling, improper or inaccurate policy audits, or improper classifications of payroll codes by the insurance company. Our firm's record in these cases is extraordinarily positive.

Litigated a complex coverage and bad-faith action against purported assignees of insurance rights under policies issued many years ago to a single named insured. The multiple alleged assignees argue they acquired the right to make claims under the policies because they had obtained certain assets and liabilities from the original named insured in a series of sales transactions. The true corporate successor to the original named insured also claims it owns the policies in question and is likewise entitled to coverage under the same policies. Thus, the case involves a number of innovative arguments with respect to whether the successor of the named insured and the multiple assignees of various rights to make claims can actually "share" insurance.

Successful mediation in favor of client insurer. In an underlying action, excess insurer contributed $9.0 million to satisfy a judgment that had been entered against putative insured general contractor. Client had insured the retrofitting subcontractor. The claimant had been severely injured when he fell down an elevator shaft. In a subsequent contribution/subrogation action, client insurer sought to recover the $9.0 million it contributed toward satisfaction of the judgment from the primary insurer for the retrofitting subcontractor, based on failure to settle the claim within policy limits. Client insurer also sought to recover from the general contractor's direct insurers. As to these defendants, client insurer maintained that the general contractor was not an insured under its policy because the underlying jury found that the accident arose out of the general contractor's sole negligence. By confidential settlement, this matter was successfully resolved to client insurer's satisfaction.

Provided insurer with analysis of coverage issues relating to the application of pollution exclusions under U.S. Virgin Islands law and application to insured's tender of EPA action letter.

Represented insurer of a local Diocese in connection with numerous molestation claims arising from temporary lifting of statute of limitations. Provided a comprehensive coverage analysis, created a resolution strategy, and played a key role in negotiating $100 million global settlement between Diocese, insurers, and claimants.

Coverage advice was provided to insurer in an underlying elder abuse claim. Most of the claims in the underlying complaint were not covered, but there was one claim for "bodily injury" so the insurer, with our advice, agreed to defend under a reservation of rights. The insurer then quickly settled the underlying case on behalf of the named insured. However, one of the insured's employees attempted to argue that she was entitled to coverage for a prior criminal restitution judgment entered against her for the same elder abuse claims. That party's attorney was ultimately convinced to refrain from filing suit against the insurer.

Successfully secured a sustained demurrer to the insured's complaint against the insurer client for breach of contract and breach of the implied covenant of good faith and fair dealing. The underlying action arose from the alleged mistaken euthanasia of a dog by client insurer's insured, an animal shelter. The insurer disclaimed coverage on the grounds that the allegations of intentional conduct resulting in "property damage" did not constitute an "occurrence" as that term was defined in the policy. The court agreed on demurrer that there was no "occurrence" as a matter of law, and that therefore, the insurer had no obligation to defend or indemnify the insured against the claims in the underlying action.

A motion for summary judgment was successfully obtained for our insurer client in a med-pay dispute. In the underlying case, the insured, a non-profit provider of after-school activities for underprivileged kids, was sued when an 11-year-old boy was hit by a table and sustained minor injuries. The insurer defended the insured and settled the case. The plaintiff, however, demanded additional money under the med-pay coverage portion of the policy after he turned 18. The court agreed with our client on summary judgment that the settlement of the underlying case years earlier collaterally estopped plaintiff from obtaining additional med-pay benefits.

Defended an insurer in an independent counsel ("Cumis") dispute. Insurer client and another insurer agreed to defend the insured in a patent infringement case under a reservation of rights, because the underlying complaint included allegations of "personal injury" as that term was defined under the policy. The insured claimed the right to Cumis counsel. The other insurer was convinced to share the cost of independent counsel with our client. The case then went to early mediation, where a successful settlement of the underlying case was reached for mostly non-monetary, injunctive relief instead of extensive indemnity money. This cut off the Cumis obligation early. A satisfactory hourly rate for the Cumis counsel fees was also negotiated.

Prevailed on a motion for summary judgment in favor of the insurer client arising out of a breach of contract/bad faith complaint. In the underlying action, a 14-year-old girl tragically drowned in an inner tubing accident. Her parents obtained a $5 million judgment in the underlying action. The insurer had issued an excess/umbrella insurance policy to the owners of the inner tube. Their adult daughter, who was with the girl on the inner tubing trip, sought coverage under her parents' insurance policy. In order for the adult daughter to be an insured, the inner tube had to be a "watercraft" as that term was defined under the policy. The court held that even if the definition of "watercraft" was ambiguous, it was not reasonable for the insured to expect the inner tube to be considered a "watercraft," and therefore granted summary judgment in favor of the insurer client.

In a binding arbitration between a shopping center and client security company, an award was obtained that, despite contractual indemnity provisions in the contract between the two companies, the security company had no duty to indemnify the shopping center for an action arising out of a fight between two teenagers, in which one of the teenagers suffered a skull fracture and a traumatic brain injury. Client security company was also awarded its attorneys' fees for the arbitration.

Defended client against a complaint for declaratory relief filed by named insured, which sought a declaration that the "deductible" provision in the policy applied, such that named insured was responsible to satisfy only one deductible payment of $5,000 when there was only one party suing the insured. A cross-complaint for collection of multiple deductibles was filed on behalf of defendant client, since numerous parties sued named Insured in each construction defect action. On the eve of the trial date, named insured was persuaded to make payment to client.

Represented excess carrier in claim against primary carrier that issued multiple policies and attempted to prematurely exhaust one primary policy to trigger excess coverage and avoid indemnity obligation under second primary policy. Declaratory relief action was filed, resulting in primary carrier abandoning its position and indemnifying the named insured under both policies.

Summary judgment was granted in favor of client insurer in a case in which a general contractor of a large apartment complex filed a judgment creditor action, based on a default judgment obtained as a result of an arbitration award against the named insured. General contractor sought over $300,000 in satisfaction of the judgment, interest, and costs of suit, but was denied recovery on the basis that coverage was precluded pursuant to a "Development/New Construction Residential Exclusion."

In a multi-million dollar insurance bad faith action, the insured sought reimbursement for the clean-up of pollution at its aerospace testing facility. The key issue was whether the insured "expected" or "intended" the damage caused by its dumping of trichloroethylene ("TCE") and rocket fuel onto the soil which leached into the groundwater and surrounding neighborhoods.

In a coverage action arising out of a $47 million construction defect action involving a resort, a voluntary dismissal was obtained when it became clear that our client was likely to prevail on summary judgment under an "Ongoing Operations" additional insured endorsement.

Successfully defended a suit filed in federal court by Mexican nationals who were arrested on charges of illegal importation of a vehicle after crossing the border into Mexico in a rented car. Plaintiffs sued the rental car company, claiming it failed to tell plaintiffs that they would be arrested when crossing the border. Plaintiffs also asserted that the Mexican insurance policy it purchased was inadequate because it did not provide Mexican nationals with a paid defense to the criminal action. Plaintiffs appealed the District Court order dismissing the complaint and entry of judgment in favor of defendants. The 9th Circuit Court of Appeals affirmed.

Represented insurer in multiple bad faith lawsuits concerning OCIP policies. Addressed issues regarding priority of coverage and policy exclusions which limited or precluded coverage for the various insurer.

Represented insurer in a coverage action concerning a dispute over responsibility for underlying defense and indemnity amounts paid on behalf of a mutual insured. A settlement was achieved that resulted in a recovery for our client in the amount of $500,000.

Represented three insurance companies in three separate coverage actions filed by plaintiff insurer. Although plaintiff initially sought several million dollars from our clients based on allege coverage obligations owed to a mutual insured under various CGL policies, the cases settled weeks before two of the coverage actions were scheduled to go to trial. Notably, the settlement amount was less than one-tenth of the initial demands made by plaintiff.

Acted as lead counsel for an insurance carrier client in an action for declaratory relief wherein a restaurant chain sought a determination that the client's policy afforded coverage for in excess of $100 million in lost revenue and profits due to an outbreak of illness which was claimed to be linked to contaminated food stuffs. The court granted client's summary judgment motion, agreeing that the subject policy does not afford coverage for claims for lost revenue and profits.

Obtained summary judgment in favor of client insurance company as to five policies, in an action for declaratory relief involving coverage for claims against a media entity for environmental contamination at multiple California sites and one overseas site. The issues primarily involved which state's law governed the dispute and the interpretation of the various versions of the pollution exclusion contained in each of policies.

On behalf of an insurer and its adjusters, a complete dismissal was obtained by summary judgment of all contractual and extracontractual claims brought by the insured, based on alleged improper investigation of a property damage claim resulting from a water leak below a bathtub.

Summary judgment was obtained on behalf of an Errors & Omission insurer for a realtor, on the basis that bodily injury at issue did not arise from a professional service.

Summary Judgment was obtained in favor of insurer and general agent in a breach of contract dispute arising from a first-party property matter. The insured had requested coverage for store inventory, which ultimately was not provided by insurance policy. Court found that the mistake was attributable to the insured's own agent, not insurer or general agent. Summary Judgment upheld on appeal.

Summary judgment was obtained in an action in which a predecessor corporation claimed insured status under a "products-completed operations policy." The ruling was a matter of first impression under Washington State law, and allowed the client to quickly resolve the remaining liability issues in the underlying personal injury action.

Represented client insurer in two different coverage lawsuits filed to recover amounts paid in defense and indemnity in connection with nearly 100 underlying construction defect cases. On the eve of the fourth phase of trial for one of the cases, achieved settlement for the client that resulted in a recovery of more than $10 million.

Defended carrier and third party administrator against bad faith lawsuit arising out of an underlying construction defect matter. Obtained early dismissal of third party administrator via motion for judgment on the pleadings and settled bad faith claim against insurer for low five figure settlement (nuisance value) after plaintiff initially claimed he would accept nothing less than high six figure settlement.

Trial counsel in a jury trial involving claims for breach of contract and bad-faith refusal to pay a judgment arising out of the death of a minor. At the conclusion of plaintiff's case in chief, the court granted client's motion for directed verdict. Legal issues involved the interpretation and application of an "Assault and Battery Exclusion" in the subject policy, viability of judgment creditors' claim for bad-faith refusal to pay judgment and defenses available to defendant insurer against assignee of insured's rights under policy.

Trial counsel in connection with a bench trial in an action for equitable contribution between insurance companies as to indemnity. The case focused on the interpretation and application of a Contractors Warranty Endorsement and a Known Injury and Damage Endorsement, and involved the trigger of completed operations coverage, among many other issues. On appeal of the judgment in favor of client, the firm prevailed, resulting in a published decision. Notably, the Mealey's Litigation Report: Insurance includes this case in its "Top Ten Most Important Insurance Coverage Decisions of 2009."

Represented an excess insurer in a "duty to settle" dispute in Washington. In the underlying case, the plaintiff was paralyzed after a shooting incident at a nationally-known restaurant. The plaintiff claimed that security at the restaurant was inadequate; the insured disputed liability. The primary carrier offered policy limits, and the plaintiff demanded in excess of the policy limits available under our client's excess policy. There was excess insurance above our client's layer, and those insurers demanded that the case be settled within our client's policy limits. While the underlying action was in jury deliberations, we negotiated a "high-low" settlement with the plaintiff. The jury came back with a verdict in excess of our client's policy limits, but due to the "high-low" settlement, the amount paid was significantly below policy limits.

Represented an insurance company in a breach of contract/bad faith case in which the insured sought insurance coverage under a Broker/Dealer Financial Services Professional Liability Policy, which was a claims-made and reported policy. The plaintiff in the underlying complex case, a life insurance company, alleged that the insured, an authorized sales representative of the plaintiff, engaged in a scheme involving the sale of short-term life insurance policies designed to allow the insured to illegally obtain sales commissions from the plaintiff. Our client insurance company took the position that the underlying action was not covered because the plaintiff in the underlying case was not a "client" of the insured, as that term was defined in the policy. The insured disagreed and demanded binding arbitration of the coverage dispute (the policy included a binding arbitration clause with a California choice-of-law provision). After a binding arbitration hearing, the arbitrator ruled in favor of our client and agreed that there was no duty to defend or indemnify the insured.

Victory was obtained in a case in which plaintiffs pursued bad-faith related claims against client, a short-term lessor of vehicles. Plaintiffs made demands on clients in an attempt to establish unlimited joint and several liability against the short-term lessor for the lessees' negligence. Through motion practice, arguments were crafted based on recent Nevada Supreme Court cases to establish clients' compliance with Nevada's financial responsibility law and statutory limits on short-term lessors' liability.

Successfully defended an appeal from summary judgment entered in favor of insurance company client on the premise that it did not have a duty to defend or indemnify its insured based upon a Named Driver Exclusion.

Represented excess insurer in a multi-million dollar subrogation action against co-insurers, involving the threshold legal issue of whether the general contractor was covered under an additional endorsement that did not apply to liability arising out of the general contractor's sole negligence. The action was successfully mediated, resulting in a $4.6 million award to our client.

A $2 million settlement was obtained for insurance carrier client following a $20 million default judgment against a racetrack insured, without need for direct action lawsuit or alternative dispute resolution.

In a case against a general contractor alleging over $350,000 in damages related to a property remodel, the client insurance company was able to settle on behalf of the insured general contractor for $50,000. At mediation, following the general contractor's representation that he had no assets, we argued and convinced plaintiff, an attorney, most of the alleged damages sought were precluded from coverage under the terms of the client insurer's policy.

A neighboring property owner filed suit against a general contractor that constructed a single family residence on the adjoining property. Our investigation and coverage determination supported the client insurance company's declination of a duty to defend based on a land subsidence exclusion, as the only damages sought were for loss of lateral support.

Successful resolution of a multi-million dollar construction defect claim in favor of our client insurer, which insured a general contractor. When the general contractor was sued by a school district for alleged defective construction of a science building, client insurer denied a defense based on application of the faulty workmanship exclusions. The contractor sued its builders risk insurer and its general liability insurer, client insurer. During the phase I trial of this breach of contract/bad faith action, the matter settled with a nominal contribution by client insurer.

Represented insurer in claim involving death of an individual during construction activities, including issue of whether the decedent was considered an employee under the subject general liability policy.