Insurance

I. It Begins With Experience and Understanding Insurance

The scope of Don’s experience in insurance matters has resulted in his having been retained as an insurance expert by both the insurer and policyholder sides. In September 2012, he was accepted by the Circuit Court of Cook County to testify as an expert witness on insurance in the case of Rudolph v. State Farm Insurance. Very few lawyers have attained this recognition.

  • Coverage: Don has handled over 75 litigated insurance coverage cases on a national basis and has provided coverage opinions and advice on numerous claims under different types of insurance policies. But his understanding of insurance coverage goes beyond analyzing and litigating coverage under existing policies, as important as that may be. Based on his knowledge of how insurance coverage works, Don has been called upon to design and draft policies for new forms of coverage. He drafted some of the first policies covering leaking underground storage tanks, asbestos removal, lenders’ environmental risk and mold remediation. Most recently he has designed and drafted a policy assuring small construction contractors will be paid for their work and a new policy form providing specific loss of rent coverage for landlords. Don has written numerous articles on insurance coverage and claims resolution.
  • Claims Process: Don served for 8 years as outside general counsel to an insurance industry pool that was responsible for running off nearly $300,000,000 of claims and liabilities. He oversaw the claims function, managed settlements and litigation, oversaw outside counsel, and set case reserves and policies governing the claims process. He also assisted several insurance companies in establishing their policies and procedures for responding to environmental and toxic tort claims. Don recently testified on behalf of large national insurance company as an expert witness on insurance claims handling, specifically what constitutes an adequate investigation and sufficient facts for an insurance company to deny coverage. The insurance company wanted an individual with the valuable perspective of having represented both policyholders and insurance companies. The insurance company prevailed before the Cook County jury.
  • Companies: An attorney, such as Don, who has represented numerous insurance companies on coverage and other claims, gains a decent understanding of how insurance companies make decisions and some of the issues that drive those decisions. Don’s tenure as outside general counsel of an insurance industry pool broadened and deepened his understanding. He dealt directly with both the Board of Directors and claims committee, which were comprised of senior business and claims representatives from 10 different companies. Interaction with these groups for a period of 10 years increased Don’s understanding of how insurance companies approach claims and liabilities
  • Policy Drafting and New Programs: Don’s understanding of insurance has resulted in his being retained to both draft insurance policies and help establish new forms of insurance coverage. His policy drafting experience includes a pet insurance policy, a mold inspector liability policy and various sophisticated environmental insurance policies. He recently drafted a mechanics lien liability policy that assures that contractors can get paid for the work they properly performed. This was the first insurance policy of its kind. One cannot draft insurance policies, especially for new forms of coverage, without a thorough understanding of insurance coverage, risk management and the business of insurance. Again, few lawyers have this broad insurance experience.

II. The Following Recent Representations Reveal How Experience and Understanding Can Be Applied

  • An insurance company denied coverage under a homeowner’s policy for extensive mold in policyholder’s attic. When retained, Don identified two facts important to coverage: 1) the two site investigation reports prepared for the insurance company cited different probable sources for the moisture that had caused the mold and 2) 18 months after a new roof had been put on the home the owner found that the vent pipe from the master shower area had been knocked off, causing the steam from the shower to vent into the attic instead of outside. Neither insurance company investigation acknowledged moisture from the dislodged vent pipe as a potential cause of the mold. The dislodged vent pipe arguably constituted a burst pipe under the policy, and the policy covered all water damage from a burst pipe. Within a week of initiating the coverage action the insurance company paid the loss.
  • A tenant in California was alleged to have caused a fire that damaged the apartment building and personal property in other rental units. The tenant’s insurer sought to tender its policy limits to the apartment owner and terminate its duty to defend. Through presentation of the claim and negotiations with the tenant’s insurer, the insurer agreed to waive the policy provision ending the duty to defend upon payment of policy limits and to continue to defend the tenant after tendering its policy limits.
  • The issuer of a surety bond took the position that according to the terms of the bond only losses in ERISA accounts were covered. A review of the application and underwriting material showed that balances in non-ERISA accounts were also used in setting the amount of premium. Before answering the declaratory judgment complaint the insurer settled and paid for losses in the non-ERISA account.
  • A small company in Massachusetts was denied coverage under a garage liability policy for an environmental claim. A large Boston firm representing the policyholder accepted the denial. Don was retained several years after the denial. He brought suit in Massachusetts which caused the insurer to abandon all of the reasons it had previously given for denying coverage. Summary judgment was obtained without any discovery and over $500,000 was recovered for the policyholder. Claims for multiple damages under the Massachusetts bad faith statute are pending.

III. Deliverables from Experience and Understanding

  • Thorough, prompt and efficient analysis of all potential insurance coverage issues.
  • Solid and creative approaches to framing and presenting coverage positions.
  • Developing effective strategies and tactics for determining coverage questions.
  • Credibility in negotiations with insurers and policyholders on coverage.
  • Efficiency and effectiveness in either supporting counsel or handling coverage litigation directly