Insurance / Reinsurance

Commercial General Liability

• Represent Bermuda-based insurers with regard to various pharmaceutical, environmental and other types of claims.  For example, we represented an insurance company in an international arbitration with regard to property damage and bodily injury claims – both class action and hundreds of additional individual suits – arising out of an oil spill in New Orleans in connection with Hurricane Katrina.
• Represented our insurance company clients in many of the largest asbestos-related coverage actions including actions involving Exxon, Foster Wheeler, HK Porter, U.S. Gypsum, 3M, and Combustion Engineering.
• Acted as National coverage counsel for a risk retention group that insures large numbers of colleges and universities, we litigated a coverage action arising out of sexual abuse allegations made against members of the Duke lacrosse team.
• Served as strategic counsel to a major insurance company with respect to defending underlying silica claims, including claims asserted in the federal multidistrict silica litigation.
• Represent several insurance companies against direct actions brought by asbestos personal injury claimants in Texas, Ohio, and West Virginia.  These cases seek recovery directly from insurers on the theory that they allegedly failed to warn the claimants about the dangers of exposure to asbestos.  Obtained a favorable ruling from an Ohio appellate court affirming the trial court's dismissal of asbestos personal injury claimants' direct actions against numerous insurance companies that insured asbestos manufacturers and distributors.  The court determined that insurance companies do not owe asbestos injury claimants a duty to warn absent a special relationship between the parties.
• Defended a wide array of bad faith claims involving significant exposure to our clients.  For example, we obtained a full reversal, with retrial, of a $15 million bad faith verdict in a matter initially tried by another law firm involving the duty to defend and investigate a claim under the commercial general liability (CGL) coverage.  Represented our insurance company clients in numerous environmental coverage actions across the United States including one of the longest-running environmental coverage actions in New Jersey. Among other things, we obtained a favorable summary judgment ruling from a California trial court extending the California Supreme Court's landmark Powerine holding to a "non-standard" excess policy issues by our client. As lead appellate counsel, we then successfully defended the ruling in the Court of Appeal and then in the California Supreme Court.
• Assisting with drafting and review of cyber-liability policies, including negotiation with brokers and policyholders.
• Monitoring and providing strategic advice in connection with underlying cyber-related claims.
• Advising on coverage issues under cyber, crime, media and technology and other lines, including general liability, E&O and D&O policies.
• Handling first-party coverage issues involving costs of notification, forensic investigation, and business interruption.
• Counseling on coverage and claim-handling for third-party claims involving data breaches and alleged privacy violations.

Reinsurance

• Successfully represented a cedent in connection with a reinsurer's refusal to pay declaratory judgment expenses in the absence of a loss payment.
• Successfully represented a cedent in connection with a reinsurer's non-disclosure/rescission claim, and the ceding company's alleged breach of its warranty of retention.
• Successfully represented a reinsurer in a dispute involving the reasonableness of a cedent's allocation of settlement costs.
• Represent a U.S. cedent in multiple arbitrations aimed at recovering reinsurance payments for asbestos, environmental, and other long-tail exposures under treaties issued by both alien and domestic reinsurers.
• Represent a reinsurer in a potential dispute over allocation and number of occurrences issues arising out of a series of losses ceded under an excess-of-loss reinsurance arrangement with an underlying insurance pool.
• Represent a reinsurer in a reinsurance arbitration involving a dispute over the proper method of allocating and ceding "non-products" asbestos settlements.
• Successfully represented a cedent in a dispute with its reinsurer over the proper application of an accident exclusion in an underlying insurance policy on which the cedent settled its policyholder's environment claim.
• Monitored Hurricane Katrina property reinsurance claims being submitted to London reinsurers.
• Following an extensive hearing, successfully defended a managed-care organization against claims that it had overcharged its reinsured by over $5 million.  In addition, the panel awarded our client over $18 million on affirmative non-solicitation claims.
• Successfully represented a reinsurer on issues arising from the underwriting, administration, and interpretation of treaty reinsuring variable annuity death benefits.
• Represent a reinsurer in establishing and implementing protocols for handling sunset, commutation, and notice issues arising out of multiple workers' compensation carve-out treaties.
• Successfully represented a reinsurer in a dispute with multiple retrocessionaires over the extent of coverage for long term disability coverage.
• Successfully represented the interests of a major U.K. reinsurer with respect to its reinsurance exposures on a program of long-tail property and casualty insurance written by the now-insolvent U.S. cedent.
• Successfully represented a reinsurer in commutation negotiations with the Texas liquidator of an insolvent insurance company relating to a reinsurance treaty covering workers' compensation carve-out business.
• Counseled a global reinsurer, in conjunction with our international dispute resolution attorneys, on reinsurance arbitration issues such as follow the fortunes in connection with a $60 million Latin American reinsurance dispute.
• Successfully represented a multinational reinsurer in its discussion with both a related corporate entity and the Treasury Department's Office of Foreign Assets Control regarding the propriety of claims made under reinsurance treaties impacted by losses in U.S. embargoed countries.
• Represented Bermuda companies in numerous treaty reinsurance disputes over a variety of claims, including class action employment discrimination claims, and environmental claims flowing from various types of sites including Manufactured Gas Plants (MPG) and chemical manufacturing facilities.
• Represented numerous London and Bermuda reinsurers in a treaty reinsurance dispute relating to surety losses on offshore Brazilian oil platform construction projects.
• Overcame reinsurer’s “Bellefonte” defense to recover expenses in addition to indemnity limits under facultative certificates. Secured $10 million judgment for client after bench trial in Pennsylvania state court using expert testimony and evidence of underwriting intent.
• Represent insurers in insurance coverage disputes and provide counseling concerning coverage for sports-related traumatic head injuries/concussions and a panoply of issues, including number of occurrences, expended/intended, fortuity, and notice.
• Represent risk retention group in connection with coverage disputes and reinsurance counseling arising from claims against major educational institutions alleging sexual molestation and sexual abuse by current and former employees and officials.
• Defeated ceding company’s attempt to rely on “paid or to be paid” language to accelerate reinsurer’s payment obligation, relying on evidence of underwriting history and intent and custom and practice.
• Defeated ceding company’s attempt to pro-rate reinsurance contract retentions in connection with cession of single occurrence losses under multi-year policies, relying on evidence of underwriting intent and contract language.
• Represent ceding company in dispute with reinsurer involving notice and allocation issues in the cession of losses arising from exposure to carbon black.
• Represent insurers, ceding companies and reinsurers in actions to compel or stay arbitration/litigation, to confirm and enforce arbitration awards, and proceedings involving arbitrator selection issues.
• Secured $10 million arbitration award against TPA for contractual indemnification of liability caused by deficient claims handling.
• Relying on underwriting intent and custom and practice, defeated reinsurer’s attempt to avoid payment of declaratory judgment expenses where the ceding company defeated the coverage claim and did not make any loss/indemnity payment.
• Represented a reinsurer in successfully challenging the reasonableness of a ceding company's allocation of settlement costs.
• Represented ceding company in several arbitrations aimed at recovering reinsurance payments for asbestos, environmental, and other long-tail exposures, rebuffing arguments challenging notice, number of occurrences, and reasonableness of allocation.
• Represented ceding company in dispute concerning challenges to allocation and number of occurrences issues under a series of excess-of-loss reinsurance contracts reinsuring losses sustained by an insurance pool.
• Represented reinsurer concerning the allocation of non-products asbestos losses, including fact-intensive analysis of proper number of occurrences.
• Represent large health insurance organization in dispute involving servicing, pricing, and reinsurance of substantial block of long term care insurance policies.
• Thwarted ceding company’s attempt to manufacture reinsurance recoverable by aggregating losses under a worker's compensation carve-out reinsurance contract involving September 11 rescue, recovery, and clean-up losses. Successful outcome was based on arguments regarding the proper interpretation and application of the contract’s “event” language, “occupational disease” exclusion, and the inclusion of actuarial projections of potential future exposure under “sunset” and “commutation” clauses.
• Represented reinsurer in retrocessional dispute concerning long term disability coverage.
• Defeated retrocessionaire’s attempt, based on alleged misrepresentations, to rescind retrocessional agreement covering losses arising from the Guaranteed Minimum Death Benefit (GMDB) and Guaranteed Minimum Income Benefit (GMIB) feature of variable annuities.
• Represent clients in civil and criminal proceedings concerning large finite reinsurance contracts and allegations of side-letters or side deals altering or purporting to alter the written terms of the reinsurance contracts and/or affecting risk transfer.
• Represented reinsurer in dispute involving the extent to which the ceding company could group risks together under a “Sole Judge of Risk” clause.
• Defeated reinsurer’s positions in dispute addressing coverage triggers and the definition of occurrence under a boiler and machinery policy for a large port side loader loss where the reinsurers refused coverage on the basis of exclusion for cranes and lack of an occurrence.
• Defeated ceding company’s allocation of subrogation recoveries across its large property reinsurance program, including surplus treaties, an underlying quota share treaty protecting the ceding company’s retention, excess of loss catastrophe treaties and proportional facultative reinsurance for that portion of the underlying risk not retained.
• Represented London market insurers upholding exclusion for damage to large turbines in Central America on the basis that the nature of the loss was a design fault and not damage, including considerations of the coverage and the LEG clauses.
• Represented reinsurer in discussions with the Treasury Department's Office of Foreign Assets Control regarding the propriety of claims made under reinsurance treaties impacted by losses in US embargoed countries.
• Represented Bermudan companies in treaty reinsurance disputes concerning class action employment discrimination and environmental claims arising from manufactured gas plants and chemical manufacturing facilities.
• Defeated foreign reinsurer’s attempt, based on alleged misrepresentations during placement, to rescind dozens of reinsurance contracts. Secured award of 100% of the attorneys' fees incurred by our client in connection with the dispute.
• Represented reinsurer of a Chinese microchip producer in connection with disputes regarding coverage for a business interruption loss where the interruption was within the period of cover but the causative occurrence was prior to the reinsurance contract’s inception.

Insurance Broker and Reinsurance Intermediary Defense

• Defended a wholesale insurance broker on malpractice claims asserted by fast food restaurant franchisees arising out of insurer's denial of coverage for business interruption losses sustained by franchisees following E. coli incident.
• Defended a wholesale insurance broker on malpractice claims in separate actions relating to exclusions of coverage for property loss for air-train derailment during testing and commissioning, and denial of coverage relating to fire loss sustained following disabling of sprinkler systems at construction site.
• Defended a commercial insurance broker on negligence, breach of contract and fraud claims relating to placement of loss portfolio transfer insurance in connection with acquisition of national trucking corporation.
• Defended a commercial insurance broker on claims arising out of insurer's rescission of D&O insurance based on misrepresentations by corporation's CEO in application for insurance concerning prior claims experience, and alleged duty owed by broker to review and verify statements made in insured's application.
• Defended marine insurance broker on claims alleging duties owed by broker to insurers to prepare marine "bumbershoot" insurance policy on behalf of insurers.
• Represented marine insurance broker in coverage litigation between insured and insurer involving interpretation of cargo insurance policy provisions, and valuation of cargo shipped by insured pharmaceutical company.
• Defended reinsurance intermediary on malpractice claims by cedent and reinsurer relating to transmittal of notification of claims and loss information to reinsurer, and construction and interpretation of terms and conditions of facultative reinsurance contract.
• Handled claims arising from the activities of reinsurance intermediaries and brokers relating to the placement of coverage, litigated claims against brokers and reinsurance intermediaries, and worked cooperatively with brokers and intermediaries to secure information germane to a dispute.

Cyber Coverage

• Assisting with drafting and review of cyber-liability policies, including negotiation with brokers and policyholders.
• Monitoring and providing strategic advice in connection with underlying cyber-related claims.
• Advising on coverage issues under cyber, crime, media and technology and other lines, including general liability, E&O and D&O policies.
• Handling first-party coverage issues involving costs of notification, forensic investigation, and business interruption.
• Counseling on coverage and claim-handling for third-party claims involving data breaches and alleged privacy violations.

Professional Liability / Financial Lines

• Represent an insurer in a Bermuda errors and omissions (E&O) arbitration flowing from lawsuits and investigations arising out of the payment of contingent commissions to brokers in the U.S. market.
• Counsel insurers in the London Market exposed to potential claims flowing from the Madoff and Stanford Ponzi schemes.
• Represented a captive insurer in a reinsurance dispute arising out of the settlement of an employment practices class action.
• Represented various London market insurers in a professional liability coverage dispute, including a four week trial, concerning the decommissioning of the Maine Yankee nuclear facility.
• Represented an international life reinsurer in a class action alleging material misstatements in financials concerning certain valuation allowances on deferred tax assets and the company's Sarbanes-Oxley certifications.
• Represented numerous reinsurers in a surety dispute based on the construction of several off-shore Brazilian oil platforms.
• Advised London insurers in the context of coverage issues in other professional matters, including in the health care and legal malpractice areas.
• Monitor underlying defense litigation with respect to directors and officers (D&O)/E&O claims, and act as both coverage and monitoring counsel.
• Conduct internal investigations of reserving practice of insurers and reinsurers.

Aviation Coverage

Aviation coverage counseling, litigation and ADR efforts:

• Trial counsel for alleged misrepresentation in procurement claim, resulting in a rescission action, as well as dispute over various aviation policy terms, conditions, and exclusions.
• Advising insurers and reinsurers on coverage issues such as Search and Rescue under Aviation Hull and Liability All Risks insurance (MH 370), hull war coverage (MH17), disputed crew Personal Accident coverage, coverage for terrorism under variations of AVN 52, and WTC aviation exposures.
• Counseling insurers on product liability coverage issues such as those arising from component failure allegedly caused by design fault, faulty maintenance, and/or an inherent defect in aircraft equipment; also represent insurers with respect to losses of aircraft and for a claim arising from the conversion of aircraft to unapproved use.
• Advising on Hanger Keepers’ liability in the context of the roof collapse on a large business jet facility at Dulles Airport, Virginia.
• Drafting policies of insurance for pre-launch, launch plus one year, and in-orbit satellite constellations which involved a bespoke definition of a constructive total loss.

Defense of aviation sector clients and their insurers and reinsurers:

• Led investigation of compliance and design issues with respect to regulatory, safety, certification, and exposure issues arising from a product defect; advised on testing, certification, and replacement of an allegedly faulty component, worked with FAA and EASA to develop airworthiness directives; defended commercial disputes with policyholder’s customers.
• Represented a repair station in defense of claim arising from an accident allegedly caused by sudden in-flight engine stoppage; defended a fixed-base operator against claims arising from ground handling and maintenance of jet aircraft.
• Handled international arbitration for airline in dispute with design and manufacturing firm concerning product certification, conformity, and installation issues with respect to subject parts; also represented operator in international litigation with repair station over commercial issues.
• Serve as national coordinating counsel for a major liability insurer, a commercial operator and a helicopter operator in connection with personal injury lawsuits arising from fatal aviation accidents.

Unmanned aircraft system (UAS or drone) matters, including operational and coverage issues:

• Provide legal and regulatory counseling on UAS compliance issues.
• Meet with government representatives responsible for UAS policy to discuss policy considerations for clients operating and insuring drones.
• Advise on use of UAS for insurance operations, such as roof inspections and catastrophe response.

Property Coverage

• Counseled insurer on coverage and claim handling rights relating to building collapse claim; resulting in a coverage denial being upheld in trial and appellate court litigation.
• Representing excess insurers on business interruption and third‐party loss claims from a large warehouse fire in San Francisco which caused extensive property damage and pollution in San Francisco Bay.
• Representing, through a cross-practice team, insurer in connection with a major property claim for losses resulting from the NotPetya cyberattack. The company sued its entire property coverage tower for the period when the cyberattack occurred. 
• Represented American Insurance Association, National Association of Mutual Insurance Companies, and Property Casualty Insurers Association of America as amici curiae in precedential litigation upholding flood exclusions where plaintiffs challenged their application to negligent design, construction and/or maintenance of man‐made levees whose breach resulted in the inundation of water into the City of New Orleans in Re: Katrina Canal Breaches Litigation (5th Cir. 2007).
• Representing an excess insurer in a coverage dispute relating to significant property damage losses arising out of an ash spill at a North American power plant.
• Advising insurers on significant coverage questions posed by a subsidence claim in a large warehouse complex in Northern England.
• Advising reinsurers in assessing legal issues and exposures associated with disputes emanating from certain weather-related losses in North America, mostly associated with Hurricanes Katrina, Ike, and Sandy.
• Representing reinsurer in litigating the extent of first-party property damage coverage for a set of condos/apartments that had experienced water damage.
• Handling a reinsurance dispute over the allocation of property losses associated with multiple apartment complexes that had lead paint in Baltimore, MD.

Self-Insurance and Captives

• Working with the risk managers of Fortune 500 companies in the structuring of internal self-insurance programs to assume portions of their crucial corporate property and liability coverages.
• Advising a group of financial institutions in the structuring, formation and ongoing counseling of a group liability insurance company.
• Advising a Fortune 50 company in the reinsurance of its employee benefits exposures in a wholly owned captive.
• Advising a group of energy industry companies in connection with a group liability insurance captive.
• Working with a group of healthcare industry entities on the formation and counseling of a self-insurance facility to support a concierge medicine program.
• Representation of a group of international auditing firms in counseling their group-owned professional liability captive.
• Design, formation and counseling of numerous risk retention and purchasing groups serving the corporate members of various U.S.-based industries.

Transactional Liability

• Representing the buyers and their insurers on environmental exposure.
• Assessing coverage for buyer litigation against third parties to protect the value of its investment and mitigate loss.
• Acting for directors and officers insurers on a dispute involving liability for tax on recently purchased assets, where transactional insurance was also implicated.
• Assessing scope of cover for breaches of warranties by the seller of a medical clinic network.
• Assessing coverage for seller fraud in hiding liabilities off-balance sheet and in the illicit removal of company technical knowledge.
• Assessing coverage for alleged conflict of interest by the sellers in setting up a competing business.
• Defending the buyers against breach of contract/negligence claims in a cyber tech setting.

Insurance Transactions and M&As

• Representation of a $20 billion insurer as issuer in a $200 million earthquake catastrophe bond transaction.
• Representation of a state insurance department as regulator in the demutualization of a major mutual life insurance company.
• Representation of a major health insurance company in the financing of its merger-of-equals with a competitor health insurance company.
• Representation of a reciprocal insurance company in its conversion to a stock insurance company.
• Representation of a major investment bank in its acquisition of a life insurance company.
• Representation of a mutual insurance company in its merger with a competitor mutual insurance company.
• Representation of a major life insurance company in the acquisition of a $500 million book of life insurance business via an assumption reinsurance transaction.
• Representation of a major insurance broker in multiple acquisitions of competitor insurance broking companies.
• Representation of a major commercial bank in multiple financing transactions for stock life insurance companies.
• Representation of a major mutual insurance company in surplus note financing transactions.
•  Representation of a major life insurance company in multiple guaranteed investment contract financing transactions.
• Representation of a major pharmacy benefit company in its acquisition of a life insurance company.
• Representation of a major title insurance company in multiple acquisitions of competitor title insurers.
• Representation of a private equity fund in the establishment and funding of a series of sidecar reinsurance facilities sponsored by a major reinsurance company.
• Representation of a private equity fund in its investment in an internet-based insurance marketing platform.

Regulatory Counseling and Compliance

• Advising a captive insurer and its parent on streamlining claims handling.
• Ensuring that an insurtech start-up in which our client invested millions was in regulatory compliance.
• Counseling a leading auto insurer on handling a major market conduct examination by the New York Department of Financial Services.
• Assisting in-house legal teams in educating management and building compliance procedures to protect the company and its individual managers.

Bankruptcy, Insolvency, and Restructurings

• Serve as counsel to insurers in many of the nation's leading asbestos-related bankruptcies, including W.R. Grace, Federal-Mogul, Combustion Engineering, Thorpe Insulation, Quigley, Plant Insulation, JT Thorpe, Flintkote, ASARCO, Burns & Roe, Porter Hayden, Lloyd E. Mitchell, and Skinner.
• Served as lead trial and appellate counsel for several insurers in the landmark Combustion Engineering case (see In re Combustion Eng'g, Inc., 391 F.3d 190 (3d Cir. 2004)).
• Obtained a stay pending appeal of a confirmation order in a "pre-packaged" asbestos bankruptcy (see, In re JT Thorpe Co., Nos. 03-20112 and 03-20135 (5th Cir. 2003)).
• Counseling a consortium of leading American insurance companies concerning issues relating to bankruptcies arising out of mass tort claims, and recently counseled a major manufacturing company concerning the potential impact if its former parent, an asbestos defendant, filed bankruptcy.
• Served as lead counsel for the debtor's insurance carriers in In re U.S. Brass Corp., a Chapter 11 case involving thousands of products liability claims by persons allegedly damaged by failures of the debtor's polybutylene plumbing products.
• Represent insurers in the mass tort bankruptcy of a former manufacturer of allegedly defective home heating furnaces.

Economic Sanctions and Insurance

• Advising insurer and reinsurer clients on the impact of the U.S. withdrawal from the Iranian nuclear deal and the impact of the E.U. Blocking Statute.
• Providing guidance to insurers on the use of the sanctions and territorial exclusion clauses in light of the conflict of laws arising between U.S. secondary sanctions and the E.U. Blocking Statute.
• Advising reinsurer controlled by U.S. persons on impact of the U.S. withdrawal from the Iranian nuclear deal.
• Advising insurer and reinsurer clients on the developing U.S. Venezuela-related sanctions; the impact of designation of PdVSA and assisting clients to identify and mitigate risks.
• Responding to almost daily sanctions compliance questions raised by International Group P&I insurers including underwriter guidance and assisting with due diligence enquiries both at the pre-bind and claims stages.
• Advising marine insurers on impact of recent OFAC marine advisories and providing guidance on updating and developing due diligence procedures and compliance programs in light of the advisories.
• Advising insurer on the extraterritorial scope of U.S. Russia-related sanctions and steps to be taken to limit Russia risk.
• Providing regular internal sanctions training to underwriting and claims teams for International Group P&I insurers and for global insurer.
• Providing guidance on internal sanctions compliance policies and procedures for global insurer and assisting with integration of financial crime program.
• Reviewing existing sanctions policies and procedures and updating to take into account sanctions developments.
• Providing advice and assistance to insurers in relation to due diligence enquiries made by third party suppliers.
• Attending monthly sanctions working group meetings for global insurance client.
• Advising global (re)insurers on implications of designation of Russian oligarchs and the businesses they own and control and providing guidance on practical considerations relating to termination of policies.
• Planning and hosting full-week training program for insurer’s global compliance team on how to manage sanctions developments in a business-friendly manner.

InsurTech

• Using blockchain for underwriting, claims handling, and documenting transactions.
• Avoiding compliance problems for start-ups selling insurance over the internet.
• Counseling clients seeking to use smartwatches to benefit health insurance consumers and telematics to underwrite auto insurance.
• Advising on newly imposed cybersecurity requirements affecting insurers and other licensees in New York and other states.
• Drafting a licensing agreement for use of customized predictive model in the life insurance space.
• Acting as principal insurance regulatory counsel to one of the world’s largest sellers of personal tech devices.