Appellate

Case Study

• Repeated molestation claims against religious organization

  The 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.

• Secured multimillion-dollar judgment requiring the insured and another insurer to reimburse our insurer client based upon a batch clause endorsement.
• Successfully handled post-trial briefing and appeal regarding set-off and post-judgment workers' compensation lien waiver.
• Obtained affirmance of a jury verdict finding no coverage was owed for several class action settlements involving warranty claims arising out of insured's defective roofing products. 
• Preserved dismissal of coverage action on grounds that underlying allegations did not involve "advertising injury." 
• Persuaded California Court of Appeal to affirm demurrer in favor of insurer client; panel unanimously ruled that CGL insurer owed no duty to defend or indemnify the insured against an underlying action alleging violations of California Proposition 65.
• <p>Obtained affirmance of trial court judgment on appeal of issue of first impression in California regarding right to equitable subrogation as to defense costs incurred by insurer.</p>
• Obtained affirmance by California Court of Appeal of ruling that client owed no duty to defend under bodily injury/personal injury coverages relative to alleged conspiracy and fraud involving scheme to underpay uninsured/under-insured motorist benefits.
• In a case of first impression, affirmed summary judgment for insurer that prior publication exclusion barred coverage for trademark infringement suit because insured first used infringing portion of subject trademarks prior to policy inception.
• Affirmed summary judgment declaring that five policies comprising an OCIP provided maximum limits of $5 million for all the insured&#39;s projects, not for each project.
• Obtained affirmance of judgment against personal injury plaintiff in premises liability action.
• Obtained affirmance of summary judgment for insurer finding insured&#39;s defective workmanship did not cause property damage.
• Assisted in obtaining defense verdict on appeal of brain injury lawsuit by drafting and arguing critical motions-in-limine and jury instructions.
• Successfully defended meat supplier in a wrongful death and subsequent commercial litigation involving contractual indemnity.
• Attained Eleventh Circuit ruling affirming judgment for several insurers based on late notice in asbestos litigation.
• Obtained affirmance of summary judgment finding insured breached policy terms and insurer&#39;s claim handling did not constitute bad faith.
• 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&#39;s "advertising idea."
• Obtained judgment for insurer on basis that athletic participants exclusion barred coverage for hotel relative to boxer&#39;s personal injuries.
• Obtained affirmance of directed verdict for pediatrician in wrongful death case.
• Obtained summary judgment for insurer on basis that alleged credit-reputation injuries were not covered "personal injury."
• Secured reversal of a trial court&#39;s refusal to compel arbitration under the Federal Arbitration Act on the basis that the parties&#39; contract did not require a particular arbitrator and the arbitration agreement could not be set aside because of an arbitrator&#39;s refusal to serve.
• Successfully convinced the appellate court to uphold dismissal of counterclaims by the decedents&#39; estates in companion interpleader action.
• Obtained affirmance of judgment for apartment complex owner in premises liability action involving drowning minor decedent on grounds of inconsistency between the general verdict and special interrogatory.
• Secured dismissal of ERISA plan&#39;s lawsuit by arguing that ERISA precludes plan from seeking monetary recovery that is not from a specifically identified account or fund, establishing Seventh Circuit precedent; court recognized further that federal courts lack subject matter jurisdiction to declare that insurers owe coverage for unknown claims.
• Secured affirmance of summary judgment in favor of insurer client, agreeing client properly rescinded policy based on material misrepresentations in the application.
• Handled appeal seeking ruling of no coverage under UM policy&#39;s hit-and-run provision.
• Prosecuted Seventh Circuit appeal on issue of first impression related to "insider status" of LLC member under federal Bankruptcy Code.
• Obtained early dismissal of appeal in legal malpractice action for lack of appellate jurisdiction.
• Obtained dismissal of federal declaratory relief action involving novel coverage and standing arguments by third-party claimant.
• Successfully convinced Illinois Appellate Court to reverse $5.5 million judgment, which agreed that the trial court applied the wrong state&#39;s law of the incorrect jurisdiction and agreed that the known loss doctrine precluded coverage.
• In case of first impression under the Illinois School Code, obtained affirmance of trial court&#39;s dismissal of taxpayer derivative suit against school district superintendant.
• Secured reversal of trial court&#39;s order compelling client&#39;s production of documents under Illinois Mental Health and Developmental Disabilities Confidentiality Act. 
• Successfully defended school district on appeal from federal due-process claims brought by student who was expelled for using gang signs during a lunch room melee.
• Successfully asserted application of continuous trigger to asbestos-in-building claims; court held that all such claims arose out of a single occurrence and horizontal exhaustion applied to all primary policies.
• Negotiated favorable settlement during course of appeal, saving the client significant amounts relative to multimillion-dollar jury verdict being appealed.
• Obtained affirmance of summary judgment for insurer based on policy exclusion for the insured&#39;s dishonest acts of acts for profit, gain, or advantage.
• Crafted winning argument in a case of first impression involving reliance upon patient&#39;s comparative fault in a medical negligence claim involving the failure to diagnose an aortic aneurysm.
• Obtained affirmance of summary judgment on behalf of insurer who issued home, auto and umbrella policies to insured involved in an accident while driving a non-owned vehicle on grounds that no coverage was owed under the auto or umbrella policies because "other vehicles" exclusion applicable to family members did not cover the named insured; coverage was also precluded under the home policy&#39;s exclusion for bodily injury involving the use of a motor vehicle.
• Handled appeal of a case of first impression to the Kentucky Supreme Court, in which Kentucky adopted the economic loss rule without recognizing an exception for calamitous or sudden accidents. 
• Obtained affirmance of summary judgment precluding coverage for class action settlement, arguing that defective product damages were not caused by an occurrence.
• 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.
• Obtained affirmation of judgment regarding scope of excess insurer&#39;s liability under theories of equitable contribution and equitable subrogation.
• Secured affirmance on summary judgment that business income loss to the insured&#39;s telecommunications company following a flood was limited to the period of restoration instead of the 12-month period the insured allegedly sustained due to suspension of its operations.
• 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.
• Represented excess insurer in appeal regarding insurer&#39;s right to limit who is an insured for purposes of UM/UIM coverage to permissive users.
• Persuaded the Massachusetts Supreme Court to reject insured&#39;s position that a single worker&#39;s compensation insurer respond to the underlying claims, and, instead, adopt client&#39;s position that both insurers must bear the loss.
• Obtained affirmance by Seventh Circuit of district court&#39;s ruling that bank acted reasonably by unfreezing certain accounts included in citation to discover assets.
• Secured Fourth Circuit&#39;s affirmation that, under North Carolina law, dozens of claims, arising out of hospital&#39;s alleged use of surgical instruments that were not properly sterilized, comprised a single occurrence; insured&#39;s elevator repair company used barrels to store used hydraulic fluid extracted during elevator maintenance at hospital.
• Secured affirmance of judgment releasing umbrella insurer from duty to indemnify insured for $3.5 million arbitration award.
• Obtained reversal of a $9 million business interruption jury verdict on basis that the client&#39;s first-party property policy did not owe coverage.
• Persuaded Illinois appellate court to affirm ruling that insurer client had no duty to defend or indemnify general contractor for construction defects caused by subcontractors.
• Successfully established validity of covenant not-to-compete.
• Representing insurer in appeal in North Carolina concerning the applicable trigger of coverage and method of allocation relative to various lawsuits alleging exposure to a chemical in the insured&#39;s product cause leukemia.
• Persuaded appellate court to reverse summary judgment denial to concrete contractor whose allegedly-defective sidewalk work was completed and accepted years before the accident.
• Successfully persuaded appellate court to uphold an "any auto" policy exclusion, precluding client&#39;s obligation to provide coverage for negligent snow removal operations involving parked vehicle.
• Obtained affirmance of judgment for non-supervisory contractor on claims involving alleged labor-law violations.
• Successfully obtained affirmance of summary judgment on grounds that advertising injury coverage does not include patent infringement claims.
• Prevailed on summary judgment and obtained affirmance by the California Court of Appeal in a published decision upholding the application of an intellectual property exclusion to preclude coverage for right-to-publicity claims.
• Successfully challenged denial of client's right to intervene to vacate default judgment against insured.
• Successfully obtained affirmance in favor of insurers from New York Appellate Division in connection with numerous church-abuse claims on grounds that there were numerous occurrences implicating coverage in effect over various policy periods, such that the applicable self-insured retentions were not fully and properly exhausted, precluding client&#39;s indemnity obligation for multi-million dollar settlement.
• Successfully defended appeal of trucking accident lawsuit involving brain injury, in which plaintiff sought more than $30 million.
• Obtained judgment on appeal in an $80 million class-action stigma damage action.
• Obtained reversal of trial court&#39;s finding for opposing party on client&#39;s <em>Frye</em> challenge, seeking to preclude plaintiff&#39;s expert witnesses&#39; reliance on a SPECT scan to diagnose plaintiff&#39;s closed head injury.
• Obtained appellate reversal of multimillion-dollar jury verdicts in two related catastrophic personally injury lawsuits.
• Obtained appellate affirmation in Texas action on grounds that product failure was not an occurrence law and, alternatively, insured failed to present evidence sufficient to allocate covered and uncovered damages.
• Handled post-trial briefing and secured affirmance of judge&#39;s ruling that trial property damage resulting from defects in insured&#39;s product was not caused by an occurrence in signifcant dispute pending in Texas federal district court.
• Obtained judgment for a subcontractor where the general contractor was seeking indemnification for its compensatory and punitive damage exposure for death and personal injury actions.
• Obtained affirmance that coverage action was properly dismissed in favor of another forum.
• Persuaded appellate court to agree that client was entitled to set-off for full amount of post-verdict settlement in wrongful death and personal injury actions.
• Secured summary judgment over claimant&#39;s $7 million consent judgment on the basis that it was executed without the insurers&#39; consent, breaching policy conditions, resulting in dismissal of $70 million bad-faith and punitive-damages claim; affirmed by the Eleventh Circuit.
• Secured summary judgment for excess insurer less than four months after moving to intervene in primary insurer&#39;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&#39;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.
• Obtained affirmance of judgment for first-party property insurer on an ordinance-and-law claim on basis that a sub-limit applied.
• 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 affirmance of summary judgment for insurer in declaratory judgment action on number of occurrences issue.