Anderson Kill represents Schleicher & Stebbins Hotels in a suit filed in NH State court on June 19, 2020 under the first $150,000,000 of a $600,000,000 property insurance program, seeking coverage for business income losses stemming from the Covid-19 pandemic. Estimated losses exceed $100,000,000. The insurance company’s motions to transfer and dismiss the case were both denied. The plaintiff filed a motion arguing that the insurance companies’ defense based on “physical loss or damage” does not preclude coverage under the terms of the policies they sold or under established NH Supreme Court precedent. On June 15, 2021, Superior Court Judge John C. Kissinger Jr. held that the coronavirus causes “a distinct and demonstrable alteration” to property that triggers business interruption coverage and granted summary judgment in plaintiffs’ favor on that issue. The judge also determined that a “microorganism” exclusion did not preclude coverage but ruled that one insurance company with a different exclusion specifically mentioning “virus” was excused from the case. The ruling on physical loss or damage is grounded in a New Hampshire Supreme Court ruling in Mellin v. Northern Security Insurance Co. that the impact of a persistent odor of cat urine on property can constitute “physical loss.” Following the Superior Court’s ruling on the cross-motions for summary judgment, AK filed a motion seeking leave to file an amended complaint, including a cause of action for bad faith based on the insurance companies’ alleged failure to consider New Hampshire law or the terms of the policies when considering whether the claim was covered. The ruling is one of the few so far to affirm policyholders’ contentions that pre-pandemic precedent from numerous states requires coverage for business interruption losses caused by conditions that do not result in structural damage.

Anderson Kill represented Sonneborn LLC, a leading manufacturer and supplier of high-purity specialty hydrocarbons and vegetable-based emollients, in an insurance coverage action against several insurers in Pa. Court of Common Pleas seeking tens of millions of dollars for losses resulting from a refinery fire. The case involved novel and complex issues relating to “ordinance or law” coverage for safety upgrades to refinery processing machinery and equipment implemented after the fire. In particular, and of potentially broad significance, the case involved novel issues of whether the OSHA General Duty clause, which applies to every construction contract but does not specify safety requirements for particular situations, constitutes a law or ordinance which triggers coverage, when in the past OSHA has studied the type of problem which triggered the explosion at issue. A settlement favorable to the policyholder was finalized and the case was dismissed in November 2021.

In the matter of BDO Puerto Rico PSC v. Chubb Insurance Company of Puerto Rico, we successfully argued that where a policyholder seeks summary judgment on the duty to defend, the insurance company cannot rely on information that it did not have when it first denied coverage and, as such, cannot seek a stay of the motion for summary judgment in order to pursue discovery. Chubb pursued its argument all the way to the Puerto Rico Supreme Court, which denied Chubb’s Petition for Writ of Certiorari on February 24, 2022.

After the U.S. District Court for the Northern District of Texas found in 2020 that insurance company EMCC was right to deny coverage for a lawsuit seeking damages stemming from a faulty roof, we convinced the Fifth Circuit to reverse in 2022. The court accepted our argument that EMCC’s reading of the underlying complaint was “overly narrow” and that the insurance company has a duty to defend under Texas law.

Siplast Inc. v. Employers Mutual Casualty Company, Case 3:19-cv-01320-M (N.D. Tex.). The case settled.

Anderson Kill filed an amicus for United Policyholders in this case, Huntington Ingalls Inc. et al. v. Ace American Insurance Company et al., in the Vermont Supreme Court. Reversing the trial court, the state high found on Sept. 23, 2022 that under Vermont law, the nation’s largest military shipbuilder may have suffered “direct physical damage” from COVID-19 that would trigger business interruption coverage. Remanding the case back to the trial court, the high court ruled that Huntington Ingalls Industries, Inc and its captive insurer may seek coverage from its reinsurers for “direct physical loss or damage” to property and resulting business interruption losses. The high court concluded that while “direct physical loss” requires a “distinct, demonstrable, physical change to property,” such a change “need not necessarily be visible; alterations at the microscopic level may meet this threshold.”

Selected by the State of California as lead trial counsel. Won jury verdict securing coverage for the Stringfellow Acid Pits, described as the most complex environmental clean-up in the world. Recovered gross settlements of over $121 million plus defense before trial.

The Louisiana Court ruled that ConocoPhillips is entitled to defense against bodily claims as an additional insured arising from discharged-product recovery effort.

Among other things, ABM sought Business Income and Extra Expense coverage in excess of $100 million.  Aside from the building owner, Silverstein Properties, ABM’s claim is believed to be the largest litigated 9/11-related claim made as a result of the events of that day.

Purdue is a pharmaceutical manufacturer.  Beginning in 2001, numerous lawsuits were brought against Purdue by individuals claiming that they had been harmed by one of Purdue’s products, OxyContin Tablets©.  Purdue sought defense and indemnity from its products liability insurance companies.  Purdue sought to select its own counsel and control its own defense of these cases with its insurance companies funding the defense.

Included in this case is a class action lawsuit which is the most comprehensive and far reaching insurance coverage-related litigation arising out of the aftermath of Hurricane Katrina.  In the most significant pro-policyholder decision arising out of Hurricane Katrina, a Federal Judge in Louisiana ruled that all-risk homeowners insurance policies sold by several insurance companies covered losses resulting from the ruptured levees in the Greater New Orleans Metropolitan Area.

Cleaver-Brooks, Inc. v. AIU Ins. Co., 351 Wis.2d 643, 839 N.W.2d 882 (2013), rev. denied, (2014). Established that excess insurance companies sharing a layer of coverage can be ordered to pay the policyholder simultaneously and not sequentially.

Following a settlement with various insurance companies for a major property loss, the Roman Catholic Diocese of Greenburg Pennsylvania won a multi-million jury verdict against its third party administrator.

This case was the first insurance coverage lawsuit brought against various state guaranty funds arising from losses sustained by companies that sold consumer extended warranty contracts.  In a novel approach, the state funds were sued in one jurisdiction rather than in each state venue.  As a result of the litigation, the claim was settled for approximately $1 million.

This was one of the earliest insurance coverage lawsuits arising from the attacks on 9/11/01. The complexity of the claims and issues of proof involved were extraordinary.  The claim was for $71 million and the lawsuit ultimately settled for a confidential sum close to that amount.

Fuller-Austin Insulation Co. v. Fireman’s Fund Insurance Co., et al., No. BC116835 (Los Angeles Superior Court) (May 5, 2003).  Jury verdict of $188,793,014 in favor of policyholder against Lloyd’s, Stonewall Insurance Company and Highlands Insurance Company in an asbestos insurance coverage case (a top 10 jury verdict in the U.S. in 2003).  Affirmed in part and reversed in part on appeal.  Two previous bench trials.  Gross settlements of over $190 million from 14 different insurance companies achieved before trial.  Over $50 million in settlements achieved after trial.

Settlement involving 250 waste sites, with Travelers Indemnity Company, accomplished in September, 1990. The Wall Street Journal reported the following: “This is the first settlement of environmental liabilities of this magnitude. Many thought cases of this size could not be settled,” said David Ichel of the New York law firm Simpson Thatcher & Bartlett, a lawyer for the Travelers Corp. unit.

Over $45 million in settlements with over 30 insurance companies of environmental liabilities in less than 2 1/2 years.

A very substantial settlement involving over 25 waste sites and more than a dozen insurance companies.

Successful settlement of approximately $45 million or close to 50% of Champion’s estimated damages, after only a little more than 18 months of litigation.

Successful settlement of Albuterol MDL class action during trial by posing of insurance company letters of credit. No litigation with insurers.

Settlement of insurance claims arising from polybutylene plumbing systems. Reached coverage in place agreements or lump-sum settlements with all but one carrier before trial. Verdict for policyholder at trial.

Settled significant business interruption claim within seven months of filing complaint, for an amount that was 20% greater (in excess of $1,000,000) than the client’s “best case” scenario”.

Recovered over $55 million in settlement in a litigation brought by the Superintendent on behalf of the policyholders of Union Indemnity Insurance against its corporate parent, Frank B. Hall and others.

Recovered more than $300 million in settlement from, among others, AIG, Employers of Wausau, CNA, and Home Insurance Company.  The settlements with AIG, Wausau, and CNA were for full policy limits in addition to defense costs.

Settlements with all insurance companies (more than 20), recovering virtually all of Schering’s environmental cleanup costs.

Significant settlements were achieved before trial with more than one dozen insurance company defendants, which enabled the policyholder to collect dollar amounts that well exceeded its full litigation costs.

Successfully concluded a multi-million-dollar settlement to pay for Magma’s flood damage first party property claim.

Achieved a substantial settlement for a large percentage of this scap metal recycler’s damages in remediating environmental property damage and in defending itself from federal and state environmental authorities, as well as other potentially responsible parties.

Bad faith jury trial involving construction defects settled after plaintiff called the first witness.

Over $25 million in successful settlements with all of the defendant insurance companies in this environmental insurance coverage litigation involving sites in New Jersey, New York and elsewhere

McLean v. Continental Casualty Co., 95 Civ. 10415 (HB).  (U.S. District Court, Southern District of New York).  (1997).  Won jury verdict and judgment for full policy limits in travel accident life insurance case; also won attorneys’ fees.

Cascade Corp. v. American Home Assur. Co., et al., No. 9205-03083.  (Oregon Superior Court, Multnomah County).  (July – October 1998).  Won trial establishing Lloyd’s missing policies, jury declared $11 million in environmental clean-up costs covered; declaratory judgment to pay certain future environmental clean-up costs; also won attorneys’ fees.  All but Lloyd’s and Employers Re settled before trial.  Affirmed by Court of Appeals on appeal.

Bijan Designer for Men, Inc. v. Fireman’s Fund Insurance Co., No. 603814/97.  (New York Supreme Court, New York County).  (December 1999).  $9 million jury verdict in favor of policyholder on insurance claim arising out of the St. Regis Hotel fire.

ZRZ Realty Company, et al. v. Beneficial Fire & Casualty Company, et al., Circuit Court No. 9708-06226.  (Oregon Superior Court, Multnomah County).  (October – December 1999).  Won trial establishing defense obligation and declaratory judgment to pay future environmental clean-up costs; also won attorneys’ fees.  All but Lloyd’s settled before or during trial.

Waste Management, Inc. v. Admiral Insurance Co., et al., Docket No. HUD-L-931-92.  (New Jersey Superior Court, Hudson County).  (October 2001 – January 2002).  Won trial of insurance coverage for environmental liability at five New Jersey sites.  All but a few insurance companies settled before or during trial.

Wausau v. Tektronix, CCV 9908032 (Clackamas County, Oregon).  (June – August 2002).  Jury verdict and declaratory judgment in favor of coverage at six environmental sites despite Wausau’s claim that alleged 15-year late notice was worst in Wausau’s history; also won attorneys’ fees.  Bench trial regarding coverage for RCRA – rather than CERCLA – clean-up.

Successful settlements with both primary insurance companies came after precedent-setting decision on the duty to defend policyholders against environmental clean-up claims.

Represented policyholder to recover proceeds of commercial crime policy.

Represented policyholder to recover insurance coverage on account of construction accident.

Represented policyholder to recover insurance for alleged environmental liabilities in multi-site, multi-insurance company action.

Represented policyholder to recover D&O liability insurance on account of civil and criminal antitrust claims.

Represented policyholder to recover insurance for alleged commercial crime claims. Also represented policyholder pursuing directors’ and officers’ liability insurance coverage.

Represented policyholder to recover insurance for advertising injury on account of patent infringement liabilities.  CMI Corp. v. National Union Fire Ins. Co., et al., No. CIV-92-462-M (W.D. Okla.).

Represented policyholder to recover proceeds of insurance coverage for alleged advertising injury for copyright infringement.

Represented policyholder that sought coverage for alleged liability on account of exposure to radiation. Picker International, Inc. v. Travelers Indemnity Co., 35 F. Supp.2d 70 (1998).

Represented policyholder to recover D&O liability insurance and prevent rescission action.   Federal Ins. Co. v. Kozlowski, 18 A.D.3d 33, 792 N.Y.S.2d 397 (1st Dep’t 2005).

Won summary judgment that insurance company duty to defend was triggered by lead paint claim. Lefrak Organization, Inc. v. Chubb Custom Ins. Co., 942 F. Supp. 949 (1996).

Represented policyholder in United States ex. Rel. Montaperto v. New Parkway Hospital, et al., 05-CIV-4911 (LDW); and United States ex. Rel. Gelfand v. Special Care Hospital Management, et al., 02-CIV-6079 (EDNY) (LDW).

Represented policyholder in class action securities case in In re NBTY, Inc. Securities Litigation, No. CV 04-2619 (EDNY) (LDW).

Won summary judgment for policyholder in health care industry regarding merger-related liability insurance coverage. St. Paul Fire Ins. Co. v. MetPath, Inc., 38 F. Supp.2d 1087 (1998).

Trial court ruling to enforce trade name protection and food-borne illness insurance policy relating to 2006 e-coli outbreak.  Quick Service Mgmt Inc., et al. v. Lloyd’s, MID-L-4861-07 (June 12, 2009).

Trial court ruling regarding obligation to defend asbestos claims, Travelers v. Alfa Laval, Inc., No. 650667/2009 (November 22, 2011), extended (July 2013).

Summary judgment as to liability in D&O case.  Trustees of Princeton University v. National Union Fire Ins. Co. of Pittsburgh, PA., 83 N.Y.S.2d 437, appeal dismissed, 11 N.Y.3d 847 (Nov. 24, 2008)

Utah Supreme Court rebuked an attempted “perverse manipulation of risk” by an insurance company, ruled that an insurance company does not have a right to reimbursement against a policyholder.  AK filed an amicus brief in the case on behalf of United Policyholders.  U.S. Fid. & Guar. Co. v. U.S. Sports Specialty Ass’n, No. 20090657 (Utah Jan. 24, 2012).

Summary judgment to advance defense costs in D&O case.  HLTH Corp. v. Agricultural Exc. & Sur. Ins. Co., 2008 WL 3413327 (2008), appeal as to certain insurance companies Axis Reinsurance Co. v. HLTH Corp., No. 565, 2009 (2010).  Final insurance company, New Hampshire Insurance Company withdrew “recoupment” claim (2013).