Issues Affecting Professional Liability Claims against Insurance Professionals in 2021
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WEBINAR Issues Affecting Professional Liability Claims against Insurance Professionals in 2021 Thursday, May 6, 2021 Joseph Francoeur Rebecca Rothmann Partner – New York, NY Partner – Chicago, IL 212.915.5638 312.821.6148 joseph.francoeur@wilsonelser.com rebecca.rothmann@wilsonelser.com
5/6/2021
Will 2020 Make 2021 The Year For Agent
E&O Claims?
AGENT AND
BROKER E & O 2020 was a year packed with events that trigger
CLAIMS: The claims and lawsuits.
Rebecca Rothmann
Partner
Aftermath of - The COVID 19 pandemic
Chicago
Joseph Francoeur
2020 - Climate Catastrophe – record-breaking wildfires and hurricanes
Partner
New York - Riots and Civil Unrest
- Cyber Threats
- Hardened Market
2
Why Pundits Predict Pandemic Will Lead to Wide Spread Losses Implicate Numerous
Surge of E&O Claims Policies
• Disasters are known to lead to increased claims – especially P&C claims
Losses from COVID potentially implicate insurance under numerous types
of policies including but not limited to:
• COVID “shut down” is unlike any other disaster we have faced
Commercial property
• Concentration of claims on previously untested policy provisions
Management liability
Employment practices liability
• Uncovered Losses will drive E&O claims against Agents and Brokers
Workers compensation
Event cancellation and travel ins. policies
• Natural Progression of double trigger claims:
Test policy for coverage and, if denied, turn on your broker
CGL Policies most commonly implicated due to Business
Interruption/Business Income in property policies
3 4
5/6/2021
COVID Shut Down and Business
Trend of BI Decisions Favor Insurers
Interruption Coverage Dispute
Insurers have won more than 80% of rulings:
• Thousands of nonessential business filed business interruption
claims due to widespread coverage denials · Louisiana: Cajun Conti LLC . Certain Underwriters at Lloyds, La. Civ. Dist. Ct. Parish of Orleans,
No. 2020-02558 (February 10, 2021 verdict in favor of insurer following trial in late 2020)
Most policies have physical damage trigger and virus exclusion · Illinois: Riverwalk Seafood Grill Inc. v. Travelers Casualty Insurance Co. of America, 2021 U.S. Dist. Lexis 5899
(N.D. Ill. Jan. 7, 2021)(insurer’s motion to dismiss based on the policy’s virus exclusion barring coverage caused directly
Carrier position is that the presence of COVID does not constitute or indirectly by any virus.)
“physical loss or damage”
· Georgia: Gilreath Family & Cosmetic Dentistry v. The Cincinnati Insurance Company, No. 20-cv-2248
(N.D. Ga., March 1, 2021) (no direct physical loss s defined by the policy; no virus exclusion)
Courts must determine whether a virus in the environment that results in a
pandemic which causes civil authority to limit access to business and · Nevada: Circus Circus LV, LP v. AIG Specialty Insurance Company, No. 20-cv-1240 (D. Nv., February 26, 2021)
results in BI qualifies as physical damage within the meaning of the (dismissed breach of contract and declaratory judgment counts based upon no physical loss and a virus exclusion)
CGL policy
Courts focus on Direct Physical Loss
See, Casa Colina Dismissal
• BI cases still in their infancy - only a few substantive decisions December 15, 2020, a California federal court found in favor of an insurance broker, dismissing a professional negligence claim whereby the plaintiffs alleged that the broker
failed to procure business interruption coverage sufficient to cover business interruption losses arising from COVID-19.
No consensus on what constitutes “physical loss or damage” Plaintiff alleged a negligence claim based on alleged failure to obtain appropriate coverage, failing to accurately represent and report the coverage obtained,
and failing to properly warn about potential coverage limitations, gaps or exclusions.
Decisions to date have generally favored the carrier and are on appeal Court found in favor of an insurance broker, court held that the broker was not negligent because none of the exceptions applied.
Specifically, the court ruled that (1) a broker warranting that plaintiffs would get “full and adequate insurance” is a generalized statement and insufficient to amount to a
misrepresentation that would trigger a heightened duty; (2) the broker did not have an affirmative duty to warn of potential coverage gaps or exclusions absent a specific inquiry;
and (3) the broker was not “holding out” as having expertise when it discussed business interruption coverage on the broker’s website.
5 6
BUT… Some Decisions Have Allowed BI
BI Claims against Brokers - Current Sprinkle
Suits to Proceed Against Carriers
·Texas: Derek Scott Williams PLLC v. The Cincinnati Insurance Co., 20 C 2806 Some Insureds have already added Agents in anticipation that their losses will
(N.D. Ill. February 28, 2021) (court dismissed “civil authority” coverage, but allowed
the other claims to proceed) not be covered
MDL Decision Allowing Lawsuits to Proceed:
• Diversity purposes
Society MDL No. 2964: February 22, 2021; Big Onion Tavern Group, LLC, et al. v. • Additional pocket of recovery
Society Insurance, No. 1:20-cv-02005; Valley Lodge Corp. v. Society Insurance, No. • Concern over shortened statute of limitations for broker claims
1:20-cv-02813; and Rising Dough, Inc., et al. v. Society Insurance, No. 1:20-cv-
05981.
“Society’s motions to dismiss and summary judgment motions are denied to Courts have dismissed where no independent wrong doing is alleged:
the extent that they target the claims for business-interruption
coverage. Those claims do survive. Also, the Section 155 claims survive in
Big Onion and Valley Lodge. But the summary judgment motions in the Big • Vandelay Hospitality Group v. The Cincinnati Insurance Company, et al, No. 3:20-cv-01348
Onion and Valley Lodge actions are granted as to the coverage theories
under the Civil Authority and the Contamination provisions, and in the (N.D. Tex. 2020)(Sept. 2020)
Rising Dough case as to the Sue and Labor clause.”
• Wilson v. Hartford Casualty Company, No. 20-3384 (E.D. Pa.)(Sept. 2020)
No specific virus clause existed in these cases.
7 85/6/2021
BI Claims against Brokers – Expected Flood Post-Covid Legal Theories
When will the Sprinkle Become a Flood? Same Duty Based Legal Theories
Experts predict that we will see a surge in broker liability claims as
economic damage caused by the pandemic (and coverage denials for
those losses) continue to mount.
When will the Flood Come?
Negligence Breach of Contract
When Coverage Denials are Final
What Will It Look Like?
Creative claims to hold brokers liable for failing to provide coverage Misrepresentation or Breach of Fiduciary Duty
necessary to protect the business from loss
Fraud
Will it be Defensible?
Absent failure to advise a client of the availability coverage for damage
caused by viruses or a pandemic, broker liability should be limited.
Prior to March 2020 Covid was an unforeseen event
1
9
0
Legal Theories Legal Theories – cont.
Negligence – A General Duty of Care Misrepresentation, Fraud and Concealment
Generally involves information conveyed or intentionally omitted about policy
To procure the coverage requested
• An insurance agent may be negligent if it fails to procure the specifically • Intentional Misrepresentation
requested coverage for an insured. - Requires specific pleading of facts
• knowledge/intent, materiality, causation and detrimental reliance
To act with the same care that a reasonably prudent broker would have - Imposes high burden on insured
used under the circumstance • Negligent Misrepresentation
- Broker provides information in the course of business for reliance by other that is false
Generally absent a special relationship, there is no affirmative duty to: - Reliance must be justified
• Recommend adequate coverage - Failure to exercise reasonable care in communications
• Advise that different coverage may be available
• Concealment
• Volunteer that additional coverage may be available • Generally need to establish a duty to speak/special relationship
• Ensure client has complete protection • Based on claim that insured would have acted differently
1 1. Evaluate the representation.
1 25/6/2021
Legal Theories – cont. Legal Theories – cont.
Breach of Fiduciary Duty Breach of Contract
The relationship between an insurance broker and its client generally seen as a ordinary Based on oral promises or written terms
business relationship and is not the kind which generally gives rise to fiduciary duties.
Damages likely to track tort/negligence damages
Jurisdictions are split, but when recognized, some jurisdictions allow for recovery of
punitive damages or attorneys’ fee under this claim - But statute of limitations for tort claims is usually less than a breach of
contract claim.
Subsumed within a negligence claim so depends on the existence of an alleged duty by
the broker
Claims where funds received by agent, conflict of interest, self-dealing, excessive
compensation
1 1
3 4
Post-Covid Changes to Duty of Care? Expected Claims – Typical Claims
Rebranded
Failure to Procure Coverage
Most Common P&C agent claim arises out of the alleged failure to
Post-Covid Duty of Care
• Obtain coverage requested
• Obtain adequate coverage
Liability will turn on whether broker/agent owed • Identify Exposure and advise regarding coverage that knew or should have known
duties to make sure that the business had was required
protection against the pandemic
i.e. Agent failed to procure sufficient BI coverage
Pre Pandemic - General consensus is that Agent failed to advise that BI coverage contained virus exclusion
pandemic was unpredictable
Agent failed to advise that policy could be obtained without virus exclusion
Post Pandemic – No longer unpredictable and may
Agent failed to advise client who moved to a work from home environment about
have obligation to discuss BI and other implicated potential cyber risks and coverage
polices given the circumstances and timing
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5 65/6/2021
Expected Claims – Typical Claims Beyond BI Claims – Hardened Market
Rebranded Generated Claims
Misrepresenting coverage Hardened market contributes to increase in claims
• Improperly offering coverage opinions and/or advocating and misleading insured to believe
coverage exists
• Hard market generates more contested/denied claims
Improperly responding to coverage inquiries • Pandemic litigation already resulted in policy restrictions and new exclusions
• Improperly assuming that policies do not cover a COVID-19-related claim, when in policies that agents will have to learn and explain to their customers
may or could provide coverage
• Improperly assuming policy covers BI claim for COVID loss where explicit virus exception or
physical damage requirement suggests otherwise • Policy renewal pitfalls
Claims handling issues • Likely to see more claims for failure to notify client of policy
• Failing to notify all appropriate insurers of claim
amendment/change
• Failing to provide timely notice of claim under policies where no coverage is wrongfully
assumed
• Delays in performance including failure to submit premiums, reporting claims or events
1 1
7 8
Beyond BI Claims – Cyber Generated
Defenses – No Duty
Claims
Increase in Cyber claims exacerbated by transition to remote
workforce No Foreseeable Risk
Significant exposure increase due to inadequate cyber security
protection No Special Relationship
Pandemic-like issues:
Insurer not agent Liability
• New and varied claims, no solid record of policy responses
• Staggering loss potential with disaster type consequences
• No geographical or industry limits
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9 05/6/2021
Defenses – No Causation Defenses – No Damages
Lack of and/or Duplicative Damages
Even If Duty exists, Defense will Turn on Issue of Causation
• Brokers should also seek dismissal for lack of damages, i.e., the
monetary damages sought against the broker are identical to those
Plaintiff must prove that in addition to being negligent, the producer’s sought against the insurer co-defendant on a contract/coverage
claim.
negligence was a proximate cause of the loss
Brokers have successfully dismissed Post-Covid claims where
no independent wrongdoing and/or damages alleged
Case within a case - absent breach of duty, insured would be covered
• Was the coverage available to the particular insured for the loss? • Vandelay Hospitality Group v. The Cincinnati Insurance Company
• No coverage notwithstanding the error • Wilson v. Hartford Casualty Company
i.e. failure to provide notice of claim irrelevant where loss excluded Measure of Damages – that which would have been covered
2 2
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Defenses - Miscellaneous Wrap Up
Statute of Limitations COVID-19 Issues, BI Coverage Disputes & Difficult Market
-often much shorter than limitations period against insurer Conditions Increase Broker Exposures in 2021 and beyond
Affidavit of Merit Duties remain the Same
– failure to provide expert testimony on standard of care
Theories of Liability Remain the Same
Contributory Negligence
Insured’s failed to disclose/concealment of information Foreseeability as to Pandemic Exposures has Changed
Insured’s failed to read policy – depends on the state
Policy Language has Changed
Best Defense is Good Offense and Risk Management Risk Management and Defense Strategies remain the same
- Written Documented Communications
2 2
3 45/6/2021 Thank You Rebecca Rothmann Partner Chicago 312.821.6148 rebecca.rothmann@wilsonelser.com Joseph Francoeur Partner New York 212.915.5638 joseph.francoeur@wilsonelser.com 2 5
Joseph L.
Francoeur
Partner
Contact
New York
p. 212.915.5638
f. 212.490.3038
joseph.francoeur@wilsonelser.com
Joe Francoeur is an experienced trial lawyer and appellate advocate who concentrates his
Services
practice on professional liability defense and federal statutory litigation. He also represents
Appellate employers in discrimination claims, and handles numerous other general litigation cases. Joe
Commercial Litigation is pro cient in emerging issues in e-discovery, protecting clients from stinging penalties
arising from failure to properly preserve electronic documents while e ciently navigating the
Insurance & Reinsurance
electronic discovery age.
Coverage
Joe is the national co-chair of the rm’s Specialty Professional Risks practice, which includes
Information Governance insurance agents and brokers, real estate professionals and miscellaneous professionals. Joe
Immigration is also a member of the rm’s Legal Malpractice team, e-Discovery Committee and Pro Bono
Committee. In 2017, Joe was awarded the New York City Mayoral Service Recognition Award
Lawyers
from Mayor Bill de Blasio in recognition of his pro bono e orts.
National Trial Team
Joe has extensive ADR and trial experience at the state and federal levels. He has successfully
Pro Bono defended class action litigations and is well-published on issues relating to discovery in state
and federal cases. He also has handled appeals before state and federal appellate courts,
Professional Liability & Services
including arguing before the Second Circuit Court of Appeals and brie ng before the United
Securities Industry States Supreme Court. Joe shares his wealth of experience as a member of the rm's National
Professionals Associate Training team, providing training and oversight to the rm's newer attorneys on a
Statutory Consumer Protection national basis.
Defense Following ve multi-month secondments with various Lloyd’s of London insurance syndicates,
Joe has developed a unique understanding of the insurance market and an insider’s view of
e ective claims management, defense and reserving. While in London, Joe experienced rst-
Admissions
hand what critical steps must be taken immediately upon being given an assignment from a
Bars carrier. He learned the importance to the carriers of receiving early, substantive reporting
New York, New Jersey
from their counsel re ecting thorough investigation and exposure analysis as well as
Courts recommended strategies for early resolution – lessons that continue to bene t his clients on
U.S. Court of Appeals, Second Circuit a daily basis.
U.S. District Court, District of New
Jersey Areas of Focus
U.S. District Court, Southern District of
New York
Professional Liability
In his professional liability practice, Joe has successfully defended hundreds of attorney
U.S. District Court, Eastern District of
New York
clients and other miscellaneous professionals from claims brought under errors and
omissions (E&O) policies. In addition to representing lawyers, his E&O experience extends to
U.S. District Court, Western District of
New York
the defense of insurance brokers, accountants, consultants, managing agents, architects and
engineers, broker-dealers and other professionals. Joe has written and presented continuing
U.S. District Court, Northern District of
New York
legal education seminars on the basics of legal malpractice, strategies for the defense and
early resolution of legal malpractice claims.
Memberships & A liationsAmerican Bar Association Federal Litigation
New York State Bar Association
Association of the Bar of the City of New
Joe defends a large volume of federal actions alleging violations of the Fair Debt Collection
York Practices Act (FDCPA) and Telephone Consumer Protection Act (TCPA), guiding most to a quick
DRI: The Voice of the Defense Bar and cost-e ective settlement. He has made a particular niche in FDCPA and TCPA law, a
Professional Liability Underwriters Society
burgeoning, fast- paced legal environment that strictly regulates collection conduct and limits
the use of automatic dialing systems, arti cial or prerecorded voice messages and mobile
Awards & Distinctions telephones, all of which involve rapidly changing technology and innovation in marketing
Wilson Elser’s Pro Bono Attorney of techniques. High-dollar settlements of class actions led under the FDCPA and TCPA have
the Year, 2016 prompted the ling of a record number of new cases in federal courts nationwide. Joe’s
approach to early evaluation and resolution prevents the potential exposure in FDCPA and
TCPA cases and class actions from escalating into the millions. In addition, he works to
Education
contain high-dollar settlements, aggressively defending the matters that he is unable to
Hofstra University School of Law, J.D.,
resolve at favorable terms.
1998
Binghamton University, B.A., 1994
Pro Bono Work
Joe is a member the rm's Pro Bono Committee, which seeks to expand the rm's potential in
providing valuable pro bono services to those in need. Joe spearheaded Wilson Elser’s
Certi cations/Licenses partnering with the Safe Passage Project to assist in providing legal counsel to the thousands
of unrepresented, unaccompanied immigrant children who are crossing the border into the
United States every day from Central America. The program trained more than 130 Wilson
Elser attorneys on the procedures and law for guardianship and immigration removal
proceedings to enable the attorneys to represent children who would not otherwise have
counsel.
Additionally, Joe works with non-citizen immigrants who have been victims of a crime,
assisting them in coming forward to help law enforcement secure a conviction while in the
process putting his clients on a path to legal status. He also has provided pro bono
representation through the Trial Lawyers Care program, assisting persons injured during the
attacks of 9/11 and seeking compensation through the 9/11 Victims Fund.
Insurance Coverage
Joe provides coverage opinions and defends coverage litigations in connection with the full
range of E&O and D&O claims, and has developed particular experience in construing the
limits of policy language when it runs contrary to public policy. In a recent matter of
importance to the London insurance market, Joe defended the London market from a $16
million coverage litigation claim that violated public policy. The decision before the Appellate
Court of Illinois, First Judicial District, applied New York law and a rmed the nding of the
trial court that payments a policyholder makes to the federal government to “settle” criminal
charges pursuant to a pretrial diversion agreement, even without a conviction or admission of
liability, are uninsurable as a matter of public policy.Rebecca M.
Rothmann
Partner
Contact
Chicago, IL
p. 312.821.6148
f. 312.704.1522
rebecca.rothmann@wilsonelser.com
Rebecca Rothmann has built a diverse civil litigation practice focused on professional liability defense and
Services
complex commercial matters. She has trial experience in the federal court for the Northern District of Illinois and
Accountants in state court in Cook County, IL.
Cannabis Law In the professional liability area, Rebecca is co-chair of the rm’s Specialty Professional Risks
Practice Team. She primarily represents accountants and attorneys in defending malpractice
Commercial Litigation
claims involving a wide range of issues. In addition, Rebecca defends insurers and their
Directors & O cers Liability agents and brokers in litigation and arbitrations involving a variety of claims, including ERISA,
Employee Bene ts life and health insurance coverage disputes and those arising out of the sale of investment
products. She has a growing practice representing property management companies, o cers
Employment & Labor
and directors, newspapers and other specialty professions.
Fair Housing & Discrimination
Rebecca also has handled complex commercial litigation, employment disputes, employee
Claims
dishonesty, and numerous other tort and statutory-based claims over the course of her
Insurance Agents & Brokers career.
Lawyers
Areas of Focus
Life, Health, Disability & ERISA
Professional Liability
Managed Care Litigation & Rebecca concentrates her practice in the defense of professional clients, including attorneys,
Compliance accountants and insurance brokers. With an emphasis on legal malpractice, she has
Professional Liability & Services defended lawsuits against attorneys arising in a range of areas, including complex
commercial transactions, real estate, probate and estate planning, divorce, personal injury,
Securities Industry
securities and patent/trademark law. Rebecca has represented attorney clients in disciplinary
Professionals
proceedings and is a frequent lecturer on issues related to risk management and lawyers
professional liability.
Admissions
Bars Commercial Litigation
Illinois During her career, Rebecca has defended a wide range of contract, statutory and tort-based
claims on behalf of corporate clients and their directors and o cers. She also has
Courts
represented owners and employers in claims arising from non-competition, non-solicitation
Supreme Court of the United States
and non-disclosure agreements. In her commercial litigation practice, Rebecca has
U.S. Court of Appeals, Seventh Circuit
represented clients in arbitration proceedings before the American Arbitration Association
U.S. District Court, Central District of and defended adversary cases in bankruptcy court.
Illinois
U.S. District Court, Southern District of
Illinois
U.S. District Court, Northern District of
Indiana Representative Matters
U.S. District Court, Southern District of
Professional/Specialty Liability Defense
IndianaU.S. District Court, Eastern District of Vito Miulli and Bob Rado v. Law O ces of Warren Prescott, Ltd. and Warren Prescott, Case
Wisconsin
No: 2010 L 1510 (Circuit Court of DuPage County, IL, February 2, 2012): Obtained dismissal in
U.S. District Court, Western District of malpractice case based on plainti ’s nine-month delay in obtaining service.
Wisconsin
Kroner v. Deer, Case No: 07-L-67184 (1st Dist. Appellate Court, August 25, 2011): Obtained
summary judgment in favor of attorney and a rmed on appeal on grounds that the
Memberships & A liations existence of actual damages was too speculative to establish a cause of action for legal
American Bar Association, Section on Tort malpractice.
and Insurance Practice
Illinois State Bar Association Lawrence Rolak v. Dalton & Dalton (09-L-1081) (Circuit Court of Will County, IL, April 2011):
Chicago Bar Association Won dismissal of legal malpractice action arising out of complex commercial transaction
Defense Research and Trial Lawyers
based on arguments of unclean hands and proximate cause.
Association (DRI), Life, Health, Disability
and ERISA Committee Joseph Johnson v. Niew Legal Partners, Inc. (10-L-1020) (Circuit Court of DuPage County, IL,
March 2011): Won dismissal of legal malpractice claims based on argument that plainti ’s
Awards & Distinctions claims did not arise from legal services and obtained dismissal of broker negligence claims
based on argument that claims were statutorily barred.
Selected for inclusion in Illinois
Super Lawyers for Professional Szal v. River Plaza O ce Condominium Association, Gus Bahramis, and Masis Sarkisian (09-
Liability Defense, 2012, 2014-2015, CH-037526) (Circuit Court of Cook County, IL, August 2011): Won dismissal of claims against
2017, 2018 condominium association and board members based on argument no viable cause of action,
Selected for inclusion in Illinois proximate cause or damages.
Super Lawyers Rising Stars, 2008-
2011, 2016
Morris v Paci c Life Insurance Company et al., Case No. 07L17 ST (Circuit Court of Whiteside
County, IL, March 10, 2011): Won dismissal with prejudice of claims for fraud and negligence
arising from sale of insurance investment products.
Education
Svela v. American General, et al. (07-L-35 ST); Schriener v. Paci c Life Insurance Company et
Chicago-Kent College of Law, J.D., 1996
al. (07-L-64); Beetz v. American General et al.(08-L-51 ST) (Circuit Court of Whiteside County,
University of Wisconsin–Madison, B.A., IL, March, 2011): Won multiple dismissals of all claims arising out of massive Ponzi scheme by
1993
life and annuity broker.
Paul et al. v. ING Financial Partners et al., 3-09-0588 (3rd Dist App. Ct) (Sept. 10, 2010); Moore
Certi cations/Licenses v. American General Life Insurance Company et al., 3-09-0587 (3rd Dist App. Ct) (Sept. 10,
2010): Won dismissal of fraud and negligence claims involving agent’s Ponzi scheme wherein
plainti s sought to hold various clients liable for investment fraud under agency theory.
Ball v. Kotter et al.,No 08-CV-1613 (N.D. Ill, Oct. 18, 2010): Obtained summary judgment for
attorney on claim that negligence deprived Estate of legal interest in real property valued
over $1 million for failure to present su cient evidence on standard of care.
Bober v. Rothke et al.,08 L 6829 (Circuit Court of Cook County, IL, Aug. 16, 2010) (appeal
pending): Won dismissal of claim for professional negligence, fraud, conspiracy and abuse of
process based on statute of limitations and other grounds.
Brown, Trustee of the Bankruptcy Estate of Steven Racz v. Synergy Law Firm et al., 07 C 6554
(N.D. Ill, July 16, 2010): Obtained summary judgment on Bankruptcy Trustee’s claim that
attorney negligently advised debtor to set up irrevocable trust.
David Lehman v. Peter J. Berman, et al., No. 04 L 10587 (Circuit Court of Cook County, IL),
appeal dismissed, No. 06-2397 (1st Dist. App. Ct.): Obtained dismissal of trespass, conversion,
abuse of process and malicious prosecution claims against the defendant lawyer arising from
his prosecution of a legal malpractice claim against the plainti . The trial court dismissed on
June 2, 2005 the trespass and conversion claims as time-barred under the applicable statutes
of limitations, dismissed on March 13, 2006 the malicious prosecution claim for failure to
state a claim under Illinois law, and dismissed on July 24, 2006 the abuse of process claim as
time-barred. The plainti appealed the dismissals, which appeal the appellate court
dismissed for want of prosecution by Order dated February 5, 2007.
Life, Health, Disability & ERISA
Rich v. Principal Life Ins. Co., 222 Ill.2d 623, 862 N.E.2d 238, 2007 Ill. LEXIS 1157 (2007):
Successfully argued before Illinois Supreme Court no coverage for plainti ’s claim for lifetime
disability bene ts on basis claim was for a “sickness”, not an “injury”, and therefore subject to
policy limitation.
Mutz v. Paci c Life Ins. Co.,1-05-3147 (Ill. App. 1st Dist. April 18, 2007): Won dismissal of
plainti ’s putative class action seeking statutory interest on life insurance claim since delay inpayment due to good faith claim investigation. Stilwell v. American General, 2007 U.S. Dist. LEXIS 43095 (C.D. Ill. June 14, 2007) (J. McCuskey): Obtained summary judgment on plainti ’s claim that life insurance bene ts were wrongfully paid to creditors, the Court applying rules of construction to determine validity of assignments. Bosco v. Prudential Insurance Co. of Am.,No. 96 CH 8032 (Circuit Court of Cook County, IL, December 12, 2006): Obtained summary judgment on Consumer Fraud Act Claim brought by former judge arising from denial of life insurance policy application. Taylor, et al. v. Prudential, et al., No. 49D03-0208-CT-001418 (Circuit Court of Marion County, IN, March 23, 2006) (J. McCarty): Won dismissal of plainti ’s claims for securities fraud, unlawful practices by investment advisor, common law fraud and breach of duciary duty concerning security components of life insurance product. Chimney v. Prudential Ins. Co. of America, No. 03 C 6628 (N.D. Ill. April 20, 2005) (J. Zagel): Obtained summary judgment on ERISA disability bene ts case. Riordan v. Golden Rule,No. 4:02-CV-60605 (S.D. Iowa, May 23, 2005) (J. Sheilds): Defeated plainti s’ claims for bene ts and won summary judgment on cross claim for rescission of health insurance policy based on material misrepresentations made on application. Miscellaneous E&O Coverage CNA Casualty of Cal. v. E.C. Fackler, Inc., et al., 361 Ill.App.3d 619, 836 N.E.2d 732 (1st Dist. 2005) petition denied 844 N.E.2d 964 (Ill. 2006): Obtained reversal of trial court, and judgment on appeal in favor of insurer client, nding there was no coverage for $5 million claim asserted by Insurance Commissioner as Liquidator of failed workers’ compensation trusts against trusts’ administrator based on exclusions for insolvency and governmental intervention. Commercial Litigation Aetna v Carr,2010 U.S. Dist. LEXIS 13778 (N.D. Ill, December 30, 2010): Obtained summary judgment against defendant for common law and statutory fraud based claims. Sanchez & Daniels v. Koresko & Assoc., et al. v. Krislov, et al., 503 F.3d 610 (7th Cir. 2007), a rming 2006 U.S. Dist. LEXIS 82222, 2007 U.S. Dist. LEXIS 1186 (N.D. Ill. November 8, 2006, January 3, 2007) (J. Kennelly) a ’d 2007 U.S.App. LEXIS 22610 (7th Cir. September 24, 2007): Won dismissal of third-party claims brought against several parties for tortious interference, defamation, abuse of process, conspiracy, ERISA violations, RICO and other claims arising from the settlement of a nationwide insurance market practices class action. Bock v. Computer Associates Intl., Inc. and Platinum Technology, Inc., No. 99 C 5967, 2000 WL 310288, 2000 WL 1053974, 257 F.3d 700 (7th Cir. 2001), 2001 WL 1195842 (N.D. Ill. Oct. 5, 2001); 2002 WL 511560 (N.D. Ill. April 3, 2002): Obtained a nal judgment after trial, Seventh Circuit appeal, and remand, of $2 million for plainti client on claim under ERISA for severance bene ts, including award of attorneys’ fees and costs. Much v. Paci c Mutual Life Ins. Co., 266 F.3d 637 (7th Cir. 2001), reversing 1999 WL 146586 (N.D. Ill. February 26, 1999): Obtained reversal and judgment for client on appeal before Seventh Circuit after adverse judgment entered against client at trial on agents’ claims for past and future commissions on more than 200 life insurance policies pursuant to employer program that terminated agents, valued at potentially $2 million at time of trial. Mutz Residuary Trust v. Paci c Life Insurance,No. 04 L 6941 (Circuit Court of Cook County, IL, August 29, 2005) a ’d No. 1-05-3147 (Ill. App. 1st Dist. April 18, 2007): Defeated class action claims arising from alleged violation of Illinois Insurance Code based on argument of rst impression that no private right of action existed and successfully dismissed contract claims based on timing of proof of loss. A rmed on appeal. Zellweger v. DOD Technologies, No. 03 CH 778, (Circuit Court of McHenry County, IL, June 17, 2005) (J. Caldwell) a ’d No. 2—05—0705 (Ill.App.2d Dist. January 25, 2005): Obtained dismissal of Temporary Restraining Order prohibiting DOD Technologies from using or employing any proprietary or trade secret information of Zellweger in its business and defeated motion for preliminary injunction, after three weeks of testimony. A rmed on appeal.
Samarah Holding Co. v. Phoenix Container, Inc., No. 99 L 2064 (consolidated with 99 CH 3125) (Circuit Court of Cook County, IL, December 30, 1999), removed while motion to reconsider pending, No. 01 C 9318 (N.D. Ill. May 31, 2002): Obtained dismissal of plainti ’s claims for $1 million and other relief on basis promissory note not properly authorized by defendant’s Board of Directors pursuant to Nevada Business Corporation Act. Also obtained dismissal of related multimillion-dollar lawsuit for breach of duciary duty by minority shareholder against other shareholders, Phoenix Container L.P., et al. v. James Florio, et al., 235 F.3d 352 (7th Cir. 2000) on remand to Circuit Court of Cook County, IL, No. 99 L 2065 (November 24, 2004) for lack of personal jurisdiction, and dismissal on the merits of related lawsuit for breach of duciary duty and legal malpractice, Samarah v. Schonfeld, No. 99 L 1730 (Circuit Court of Cook County, IL, November 24, 2004).
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