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  • "They are extremely bright, always well prepared - even on short notice - and extremely personable while being completely professional. These attorneys have the ability to make people feel at ease and comfortable." 

    A number of clients comment that the firm represents strong value for money. One states: "In terms of value, their rates are the best I have found for the level of service." 

    "They deliver timely and cost-effective legal services and practical advice, combined with superior local knowledge of the courts and opposing counsel."

    "I think highly of them. They are the preeminent insurance litigation practice from a policyholder standpoint."
    - Chambers USA

Insurance Coverage

With more than 25 attorneys, McCarter & English’s Insurance Coverage Group represents corporate policyholders, nationally and abroad. It has been involved in matters involving virtually every U.S., European, London Market and Bermuda insurer. We have secured—both by judgment and settlement—billions of dollars in insurance assets for a broad range of policyholder clients, including the nation’s largest corporations and industrial concerns. We also provide advice to clients assessing their potential risks, analyzing new insurance products and considering the adequacy of their insurance programs.

The Coverage Team has broad and deep experience with environmental, property,  business interruption coverage, construction defect coverage, directors and officers, crime and fiduciary, employment, general liability, cyber liability, inland marine, financial products, personal and advertising injury, and reinsurance coverage, as well as broker malpractice, captive formation and management, and international insurance arbitrations.

Advertising Injury & Intellectual Property

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, we recently recovered insurance to reimburse a retailer for defense and settlement of various copyright infringement claims pending in California federal court.

The Coverage Team also helped secure coverage for the president of a publishing company, reimbursing for the defense and settlement of a “blast fax” class action.

Business Interruption

Although business interruption insurance products are not new, corporations increased 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 more than $50 million Superstorm Sandy claim for certain New York, New Jersey and Pennsylvania supermarkets, a $2 million Superstorm Sandy claim involving a Pennsylvania-based clothing retailer, the $3.5 billion World Trade Center coverage dispute and the unprecedented losses caused by Hurricanes Katrina, Irene, Lee, Maria and Harvey), 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, we have 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 recent and devastating hurricane season.

In addition to advising clients about business interruption coverage, the Team regularly lectures and publishes in this area.

Construction & Construction Defect

The Insurance Coverage Team 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 including, but certainly not limited to, 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 knowledge of and experience with  underlying 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 and apply an innovative legal theory which relieves the policyholder of proving actual damage to third party 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 who recovered nearly $100 million in defense and indemnity coverage for underlying claims filed around the country.

We also advise on the procurement of insurance for owners, developers, architects and engineers, contractors, vendors and end-users on major project sites including in the area of OCIPs and CCIPs for both private and public facilities, including tall buildings, stadia and tenant fit-out. Team members recently assisted a major professional sports franchise analyze a contractor-provided insurance program and re-negotiate coverage terms with the contractor’s insurer.

Directors & Officers / Fiduciary Liability

The Insurance Coverage Team assists policyholders purchasing fiduciary and directors and officers liability policies in this hard market, and works with clients to develop new financial vehicles to meet their unique needs where traditional coverage cannot do so. The Insurance Coverage Team also regularly advises on, litigates, arbitrates and settles disputes involving this coverage.

By way of example, the Coverage Team recently helped a financial institution obtain insurance coverage for investigative costs and a portion of the settlement it reached with the Department of Justice relating to its investigation of certain Federal Housing Administration (“FHA”) loans.

We also secured favorable rulings for Sealed Air Corporation, rejecting its D&O insurer’s novel use of pollution exclusion to contest coverage for alleged federal securities violations in connection with bankruptcy alleged fraudulent conveyance.

The firm also helped a prominent telecommunications company secure millions of dollars in fiduciary coverage, while it seeks millions of dollars more. The firm likewise represents: 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; directors and officers of a large industrial concern whose D&O insurer declined coverage for securities claims based on a pollution exclusion; and a company whose D&O insurer has declined to reimburse all of its directors’ and officers’ reasonable defense costs in securities and fiduciary matters.

Employment Liability

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 insurance policy gives rise to different and complex, coverage issues, all of which we handle regularly and proficiently.

The Insurance Coverage Team, for example, 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. The Team also has 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. The Insurance Coverage Team, under both kinds 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. We also have substantial experience with issues arising under workers’ compensation policies and their relationship to other types of insurance.

Environmental Coverage

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, and also counseled clients concerning Price-Anderson Act "facility forms" and pollution legal liability, cost-cap and finite risk policies.

The Insurance Coverage Team experience has depth and breadth. We not only have litigated in state and federal courts in Texas, Colorado, New York, Pennsylvania, Indiana, Ohio, Kentucky, California and Illinois, but we have been counsel of record or represented amici curiae in every New Jersey Supreme Court decision of moment over the last ten years (see, e.g., Owens-Illinois; Pfizer; Carter-Wallace; Quincy Mutual, Spaulding Composites, and Benjamin Moore and Sealed Air.)

For example, a multidisciplinary legal team, which includes insurance coverage, environmental, and bankruptcy attorneys, represents Lone Star concerning claims by private parties regarding claims arise from U.S. EPA, Federal, State and Tribal Trustees’ assertions of hundreds of millions of dollars in clean-up costs and damages. The matter involves issues regarding the enforcement and effect of prior bankruptcy discharges, plaintiffs’ claims to avoid bankruptcy, plaintiffs’ claims to potentially reach insurance, insurance carriers efforts to thwart plaintiffs’ claims through bankruptcy and the rights of various parties to obtain recovery from Lone Star. The matter has spawned litigation in bankruptcy, federal and state courts.

The Coverage Team also 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 likewise 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 continue to arise in climate change litigation. The Insurance Coverage Team is counseling nationally operating utilities regarding protecting itself from such litigation and their coverage rights.

Because the successful resolution of environmental coverage disputes requires keen technical knowledge, the Insurance Coverage Team includes attorneys with substantial industry and regulatory backgrounds. Scientists and science librarians assist in handling environmental losses of every kind, including ones arising from alleged natural resource damages matters, PCBs, contaminated sediments, DNAPLs, abandoned landfills, leaking USTs, radionuclides and other accidental releases of alleged pollutants.

 

 

Errors & Omissions / Professional Liability

Professionals make mistakes and purchase insurance when things go awry. We recently resolved a coverage matter for a regional accounting firm, obtaining coverage for claims of fraud, misrepresentation and negligence brought against it by a large hedge fund that sustained losses when a real estate developer defaulted on loans. In another matter, a regional educational services commission retained our firm 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 the legal fees incurred in procuring coverage.

Food & Beverage Industry Coverage

Companies throughout the food supply chain face a wide variety of insurable risks. Beyond traditional exposure to lawsuits, today’s food suppliers must navigate an increasingly complex regulatory landscape. The menu of insurance options can be bewildering; risk managers must not only negotiate and procure CGL and first-party property policies, but also consider business interruption insurance, food contamination and recall policies, director & officer coverage, cybersecurity insurance, and more. Worst of all, many businesses only belatedly see the shortcomings in their insurance portfolio—when faced with an insurer denial of a loss which they believed to be covered. McCarter’s Insurance Coverage Group can help. We represent bottling companies in connection with such matters, and have recovered millions of dollars on their behalf in connection with recall claims.

Beyond our core strength of securing coverage from recalcitrant insurers, we help companies evaluate the adequacy of their insurance coverage by reviewing existing coverage and procedures and providing recommendations vis-à-vis a company’s risks. These services provide special value in relation to those types of insurance—such as recall coverage—written on an individualized, or “manuscript,” basis. The Insurance Coverage Group can evaluate your business’ particular needs, analyze risks and make firm recommendations as to coverages whose value justify their expense. If your insurer ultimately tries to duck its obligations, our Insurance Coverage team offers unparalleled experience and success in negotiation, and if necessary litigation, against delinquent insurers. Our insurance practitioners are also skilled in drafting and implementation of procedures to best position our clients for insurance recovery.

Insurance Broker Malpractice Disputes

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, for example, presently handles three multi-million dollar broker "shortfall damages" cases. 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.

International Insurance Arbitrations

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 variety of disputes, including arbitrations under the auspices of the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA).

For example, we represented a major U.S. pharmaceutical company in “Bermuda Form” international arbitrations involving product liability losses exceeding several hundred million dollars. Our firm 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.

Liability/Mass Tort Insurance

For more than 40 years, the Insurance Coverage Team has regularly represented corporate policyholders in complex coverage disputes involving primary, umbrella, excess and Bermuda-form policies. The Insurance Coverage Team has litigated disputes arising under the products/completed operations clause and has secured funding for clients’ liabilities arising from (among other things) asbestos, silica, breast implants, treated wood products, roofing shingles and polybutylene plumbing systems.

The Coverage Team recently obtained summary judgment ordering a primary insurer to reimburse all costs insured by a company involved in asbestos litigation for over two decades, and defend the company, including under certain “lost” policies. In so doing, the New York court awarded the client its fees and costs in connection with the coverage suit.

We recently secured insurance for a client sued by community water districts, alleging that their water systems have been contaminated by a herbicide manufactured by the company.

The Coverage Team recently helped a major pharmaceutical company recover virtually all of its losses in connection with three “mass tort” pharmaceutical liabilities within months of filing suit against its insurers.

We also serve as lead counsel for the U.S. subsidiary of an international cement company. The firm tracks and analyzes the company’s ongoing silica and asbestos claims under complex claims services agreements, manages ongoing claims coverage issues with numerous insurers, and pursue insurance coverage in these and other matters for the policyholder client.

The Coverage Team 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.

We recently 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 (among other things) to apply a continuous trigger of coverage to long-tail asbestos bodily injury and property damage losses. As a direct result of The Insurance Coverage Team’s efforts, the firm’s clients have recovered billions of dollars in insurance proceeds. The Team has had intensive involvement extending back twenty years with the key issues of trigger of policy coverage, allocation among policies, number of “occurrences,” and the defenses which insurers commonly advance to prevent recovery.

Reinsurance & Captive

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 substantially smaller companies. While some of these engagements, particularly those involving arbitration proceedings or advice, require confidentiality, the subject 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 in arbitration, mediation and court, and have represented both cedents and reinsurers.

The Coverage Team, for example, represents Transamerica Corporation in connection with environmental matters involving its captives; it also represented Transamerica 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.

 

 

Surety & Financial Products Coverage Disputes

The Insurance Coverage Team represents and advises banks and financial services firms in connection with coverage under, among other things, fidelity bonds, surety bonds, blanket-banker’s bonds, professional liability policies and directors and officers policies. The Insurance Coverage Team, for example, represents a respected financial services firm in a coverage matter arising from a claim by one of its former corporate clients alleging mismanagement of funds. We recently recovered losses for a client under an employee dishonesty policy after it was the target of a check-kiting scheme, and provided coverage advice to a mutual fund client in connection with its losses relating to late trading allegations.