Insurance Coverage

Advertising injury claims present a unique challenge, as standard form comprehensive general liability policies increasingly restrict coverage. The Insurance Coverage Team litigates and counsels policyholders regarding coverage for their intellectual property and advertising injury claims.  For example, the Coverage Team represents Brothers International Inc. in a Third Circuit appeal and motion seeking to certify advertising injury liability coverage issues arising from a "blast fax" class action to the New Jersey Supreme Court. 
 
Our clients are varied, including major toy manufacturers, retailers and dairy producers. Our attorneys have assumed a high profile in this area:  one serves as the policyholder chair of the ABA's subcommittee on intellectual property and advertising injury insurance coverage, and another has authored an ABA book chapter on the subject.

The Insurance Coverage Team works closely with the firm's Intellectual Property attorneys to evaluate policy coverage related to defense claims including:

• Advertising Injury
• Copyright Infringement
• Trademark Infringement
• Patent Infringement
• Trade Dress (Packaging) Infringement
• Trade Libel
• Defamation
• Misappropriation of Trade Secrets and Confidential Information

Although business interruption insurance products are not new, corporations' increasing emphasis on business continuity and disaster planning have brought business interruption coverage matters to the forefront. Issues relating to valuation of loss, number of occurrences, and proximity to damage arise not only in the context of coverage for catastrophic losses (such as the $3.5 billion World Trade Center coverage dispute and the unprecedented losses caused by Hurricane Katrina), but with respect to the coverage for less extraordinary events, such as extreme weather events, floods, wildfires and computer virus attacks.

The Insurance Coverage Team has represented clients on a variety of issues involving business interruption insurance. For example, the Team successfully handled a high-profile international case involving a major bottling company, resolved a number of matters relating to the terrorist attacks on the World Trade Center, and counseled Fortune 500 companies regarding maximizing their coverage following the devastating 2005 hurricane season. In addition to advising clients about business interruption coverage, the Team lectures and publishes in this area.

The Insurance Coverage Team regularly handles construction defect, including mold-related, coverage disputes arising from both allegedly faulty workmanship and allegedly defective products. The firm represents companies engaged in every phase and aspect of the construction process: architects, developers, general contractors and subcontractors. These disputes typically require resolution of complex coverage issues such as the potential application of policy exclusions which purportedly limit coverage for damage to the policyholder's "own work" and "own product." Securing insurance coverage, in the face of these exclusions, requires an application of insurance coverage principles as well as experience with construction defect litigation.

The Insurance Coverage Team successfully concluded coverage litigation on behalf of a national manufacturer of allegedly defective roof sheathing for multi-family residences. The Team convinced the trial court to adopt an innovative legal theory which relieves the policyholder of proving actual damage property if the policyholder's product inevitably will fail and cause damage to third party property in a sufficiently high number of the units containing the product. After picking a jury, the remaining defendant insurer settled with the policyholder, which recovered nearly $100 million in defense and indemnity coverage for underlying claims filed around the country.

The Team also advises on insurance required for owners, developers, architects, engineers, contractors, vendors and end-users on major project sites including OCIPs and CCIPs for both private and public facilities such as tall buildings, stadiums and tenant fit-out.  Most recently, Team members assisted a major professional sports franchise analyze a contractor-provided insurance program and re-negotiate coverage terms with the contractor's insurer.

The Coverage Team has been sought out by professionals seeking to ensure that promised coverage is available when insurers hesitate in honoring their contracts.  A regional educational services commission retained the Team to bring suit to obtain coverage for errors made by its contracting officers in entering into multi-million dollar contracts.  Notwithstanding the initial denial, vigorous litigation brought full indemnity and defense, as well as reimbursement of legal fees.

The Insurance Coverage Team assists policyholders purchasing fiduciary and directors and officers liability policies and works with clients to develop new financial vehicles to meet their unique needs when traditional coverage is inadequate. 

The Team also litigates, arbitrates and settles disputes involving this coverage.  For example, our attorneys recently obtained favorable rulings for Sealed Air Corporation, rejecting its D&O insurer's novel use of a pollution exclusion to contest coverage for alleged federal securities violations in connection with an alleged fraudulent conveyance bankruptcy. 

The Team also recently represented:

• A telecommunications company in securing millions of dollars in fiduciary coverage, while it seeks millions of dollars more 
   
• A Fortune 500 corporation and its executive in a coverage case arising from their alleged fraudulent conveyance of nearly $1 billion of a subsidiary's stock
  
• A brokerage firm seeking recovery of approximately $30 million in losses caused by the alleged wrongful acts of its officers and directors
  
• Officers of an investment fund that was sued by both the SEC and its investors
  
• A company whose D&O insurer has declined to reimburse all of its directors' and officers' reasonable defense costs in securities and fiduciary matters.

The Insurance Coverage Team advises on, litigates, arbitrates and settles coverage disputes arising from employment-related claims. The Team secures coverage for these claims under the employers' liability insurance coverage provisions of policyholders' workers compensation policies and under the newer, more specialized, employment practices liability insurance policies. Each type of policy gives rise to different, and complex, coverage issues, which our Team regularly handles.

For example, the Insurance Coverage Team has:

• Secured coverage for employment-related discrimination claims under an employers' liability policy, despite a facially applicable exclusion for such claims, by proving that state public policy requires coverage for bodily injury arising from such discrimination 
• Secured coverage under an employment practices policy, despite the policyholder's notice of the claim more than one year after the policy expired, by showing that the insurance company could not prove appreciable prejudice arising from the allegedly late notice 
• Under both types of policies, successfully represented one of the world's largest financial services firms in securing coverage for losses arising from a class action settlement of hundreds of employment discrimination claims

The Insurance Coverage Team has recovered hundreds of millions of dollars for clients' environmental losses and is actively pursuing hundreds of millions more for policyholders with sites across the country and abroad. While many of these claims fall within the scope of general liability policies, we have successfully prosecuted claims under environmental impairment liability and truckers insurance policies.  We have also counseled clients concerning Price-Anderson Act "facility forms," and pollution legal liability, cost-cap and finite risk policies.

Our attorneys have broad experience.  We have litigated in state and federal courts in New Jersey, Texas, Colorado, New York, Pennsylvania, Indiana, Ohio, California and Illinois and have been counsel of record or represented amici curiae in every significant New Jersey Supreme Court decision over the last ten years (see for example, Owens-Illinois; Pfizer; Carter-Wallace; Quincy Mutual; Spaulding Composites; and Benjamin Moore). 

The Coverage Team recently settled (during trial) significant coverage issues for G-I Holdings Inc. and its affiliates relating to insurance for past and future remediation costs for over 140 environmental sites located throughout the United States. 
The Insurance Coverage Team also recently convinced a New Jersey court to apply, over insurers' objection, the allocation law of the waste site in a multi-state, multi-site environmental coverage action. The court's ruling was the nation's first and most comprehensive allocation choice-of-law decision.

Cutting edge coverage issues are certain to arise as climate change litigation develops.  The Insurance Coverage Team is counseling utilities with nationwide facilities about their coverage rights and protection from future litigation.  The Insurance Coverage Team includes attorneys with substantial industry and regulatory backgrounds. Our attorneys can also turn to the firm's scientists in handling environmental losses of every kind, including those arising from alleged natural resource damages matters, PCBs, contaminated sediments, DNAPLs, abandoned landfills, leaking USTs, radionuclides and other accidental releases of alleged pollutants.

The Insurance Coverage Team has been involved in insurance broker malpractice actions relating to claim processing matters, and to alleged "gaps" or "shortfalls" in expected coverage for both insureds and major brokers. The firm's broker matters involve a variety of domestic and foreign brokers and intermediaries of varying size. The Team also counsels broker clients regarding regulatory compliance issues.

The Insurance Coverage Team possesses extensive mediation and arbitration experience in the United States and abroad.  Lawyers from the firm have acted as both counsel and as arbitrators in a wide variety of disputes, including arbitrations under the auspices of the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA).

Our attorneys, for example, represented a major U.S. pharmaceutical company in "Bermuda Form" international arbitrations involving product liability losses exceeding several hundred million dollars.  We handled several London-based arbitrations for another major U.S. pharmaceutical company involving insurance coverage for product liability losses, also with amounts exceeding several hundred million dollars.

An Insurance Coverage Team partner also has an active practice as an international arbitrator, serving as arbitrator in London-based arbitrations involving disputes between major U.S. energy companies and their insurers for environmental losses, and in Bermuda-based arbitrations involving insurance coverage for a Fortune 100 Company's employment discrimination claims.

For over twenty years, the Insurance Coverage Team has regularly represented corporate policyholders in complex coverage disputes involving primary, umbrella, excess and Bermuda-form policies.  During that time our lawyers have had intensive involvement with the key issues of trigger of policy coverage, allocation among policies, number of "occurrences," and the various defenses insurers commonly advance to prevent recovery.  We have litigated disputes arising under the products/completed operations clause and secured funding for clients' liabilities arising from asbestos, silica, breast implants, treated wood products, roofing shingles and polybutylene plumbing systems.

The Coverage Team recently helped a major pharmaceutical company faced with three "mass tort" pharmaceutical liabilities recover virtually all its losses within months of filing suit against its insurers.  The Team also:

• Won summary judgment that Liberty Mutual improperly exhausted Exel Inc.'s policy limits by making voluntary indemnity payments to an uncovered co-insured following a plant explosion in Corbin, Kentucky
  
  
• Helped Underwriters Laboratories Litigation resolve its asbestos insurance coverage claims against multiple carriers and preserve certain insurance assets to cover future claims.

Other litigated policyholder victories include decisions on stub policies, annualized limits, trigger of coverage and allocation of loss as well as the expected or intended, fraud and rescission defenses. In Owens-Illinois, Inc. v. United Ins. Co., for example, we convinced the New Jersey Supreme Court to apply a continuous trigger of coverage to long-tail asbestos bodily injury and property damage losses.  The firm's clients have recovered billions of dollars in insurance proceeds as a result of the Insurance Coverage Team's efforts.

Our lawyers handle a wide variety of reinsurance disputes with stakes into the hundreds of millions of dollars. Our clients have ranged from a reinsurer listed on the NYSE to much smaller companies.  These matters have included reinsurance for life and annuity policies, liability and first party property insurance, finite risk, and other lines of coverage. We have handled reinsurance matters for both cedents and reinsurers in arbitration, mediation and court.

For example, we represent Transamerica Corporation in complex litigation with a former subsidiary regarding insurance purchased as part of a consolidated risk management structure from a captive insurer and a formerly affiliated casualty insurer.

The Insurance Coverage Team represents banks and financial services firms in connection with their fidelity bonds, surety bonds, blanket-banker's bonds, professional liability policies and directors and officers policies, among others.  For example, the team:

• Represents a financial services firm in a coverage matter arising from a claim by a former corporate client alleging mismanagement of funds
  
  
• Recovered losses for a client under an employee dishonesty policy after it was the target of a check-kiting scheme
  
  
• Provided coverage advice to a mutual fund client in connection with its losses relating to late trading allegations.