REPRESENATIVE INSURANCE COVERAGE LITIGATION AND ENGAGEMENTS

• Picerne Military Housing, LLC et al. v. American Specialty Lines Ins. Co., Case No. 08-273 (U.S. Dist. RI): Charlie was lead counsel for a contractor of military housing against its legal liability insurance carrier with respect to the denial of a claim for the clean-up of demolition debris that was illegally dumped by a subcontractor. Clean-up costs exceeded $15 million dollars.

• Foulds, Inc. v. Liberty Surplus Ins. Corp., Case No. 1:14-CV-07047 (S.D. New York): Charlie was lead trial counsel for a pasta manufacturer against its food contamination insurer with respect to extent of business interruption loss. Jury verdict in favor of Foulds in the amount of $1,900,000.

• Bragg Communities, LLC et al v. Illinois Union Insurance Company, Case No. 5:14-CV-00240 (E.D. North Carolina): Charlie was lead counsel for an owner of military housing against its pollution legal liability insurance carrier with respect to the multiple discharges of sanitary waste.

• Morrow Equipment Co. v. Royal Insurance Co. of America, Case No. 02 CH 4408 (Circuit Court of Illinois, Cook County): Charlie represented the contractor AMEC/Morse Diesel in an insurance coverage dispute arising from the interaction between OCIP and general liability insurance. The case presented an issue of first impression with respect to the horizontal exhaustion in the context of OCIP insurance.

• Wausau Underwriters Ins. Co. v. Pronto Staffing, Inc., Case No. 11-CV-0928 (U.S. Northern District for the District of Illinois): Charlie represented an employment agency in a dispute with its workers’ compensation carrier over claim mismanagement and the amount of retrospectively rated premium adjustments.

• Workers’ Compensation Premium Refund Claims: Charlie regularly represents insureds in actions to recover workers’ compensation premiums where the carrier overcharged the insured by failing to properly apply the experience modification factor, the schedule rating factor or the contractor’s credit. Many of these cases have been successfully settled, while others have gone to judgment. See, West Bend Mut. Ins. Ins. Co. v. Procaccio Painting & Drywall Co., Inc., 794 F.3d 666 (7th Cir. 2015); CTF Illinois v. Wesco Insurance Company, Case No. 2:18-CV-02211 (C.D. Illinois); WireCo Worldgroup, Inc. v. Liberty Mut. Fire Ins. Co., 897 F.3d 987 (8th Cir. 2018). The Illinois Appellate Court affirmed that an arbitration clause in a retro-premium agreement does not require arbitration of the premium refund issue. See, Keeley & Sons v. Zurich American Ins. Co., 947 N.E.2d 876 (Ill. App. Ct. April 13, 2011).

• Country Mutual Ins. Co. v. Best Pallet, LLC, et al., Case No. 2009 CH 47205 (Circuit Court of Illinois, Cook County): Charlie was coverage counsel on behalf of the insureds in a coverage dispute involving an underlying race discrimination case.

• Prate Installations, Inc. v. Zurich American Insurance Co., Case No. 11 L 447 (Circuit Court of Illinois, Lake County): Charlie represented a roofing contractor against its general liability and workers’ compensation carrier with respect to the carrier’s breach of the duty to defend and indemnify with respect to construction defect claims and also to recover premium refunds on various workers compensation policies.

• Catholic Health Partners v. Lexington Ins. Co., Case No. 01 L 1941 (Circuit Court of Illinois, Cook County): Charlie represented a hospital/medical center against its hospital professional liability (medical malpractice) insurance carriers and the insurance broker with to sufficiency of notice of claims, proper allocation of claims/exhaustion of aggregate limits and applicability of the “knowledge of circumstances” exclusion. Circuit Court Judge Preston granted the hospital/medical center summary judgment against the insurance carriers in the amount of just over $10 million. The Appellate Court affirmed.

• Insurance Recovery for Environmental Claims: Charlie represented a post reorganization policyholder in its efforts to recover under its liability insurance program that was in effect from 1958 to 1985 for various environmental claims and cleanup costs for sites and facilities across the country. Environmental liabilities exceeded $50 million. Settlements were reached with various primary and excess carriers without resort to litigation.

• Romer v. PreferredOne Ins. Co., Case No.: CV-08-11910 (District Court of Minnesota, Olmstead County): Health insurance carrier rescinded private health insurance contract for allegedly false statements in application. Insured brought wrongful rescission action and carrier sued insurance broker and wholesale broker for contribution. Charlie represented the wholesale broker and prosecuted the wrongful rescission action to establish carrier liability for wrongful conduct.

• Brownstone Homes LLC: Charlie represented a general contractor/townhome developer as part of its defense of several construction defect lawsuits pending in Oregon State Court involving large multi-unit developments. Charlie’s responsibilities include pursuing insurance recovery from non-participating carriers, overseeing the defense provided by defending carriers, challenging reservation of rights, maximizing insurance recovery, participating in mediations and representing the client’s uninsured interests.

• Transportation Ins. Co., et al v. Baxter & Woodman, Inc. et al., Case No. 07 CH 30091 (Circuit Court of Illinois, Cook County): Charlie represented and engineering firm in a coverage dispute arising out of a wrongful death action at a work site. Coverage issues include the professional services exclusion in an Owners and Contractor’s Protective policy, an OCIP exclusion in a CGL policy and application of other insurance provisions in excess and E&O policies.

• JDA Associates/Blasting Claims: Charlie acted as coverage counsel for a construction partnership doing blasting work for the expansion of Chicago’s Deep Tunnel project. Coverage issues concern allocation and number of occurrences resulting from claims for property damage from blasting activity.

• Formosa Plastics USA/April 23, 2004 Plant Explosion: Holland & Knight deployed a team of lawyers to represent Formosa with respect to a catastrophic loss from a plant explosion in the spring of 2004. Charlie provided guidance on all insurance coverage issues, which ranged from pollution legal liability to the adjustment of a property and extra expense loss in excess of $100 million.

• Connecticut Specialty Ins. Co. v. Pinnacle Corp., Case No. CT 03-015259 (Fourth Judicial District, Hennepin County, Minn.): Charlie represented a contractor against its primary general liability insurance carrier with respect to denial of advertising injury claim for copyright infringement.

• EastBanc, Inc. v. Ace American Ins. Co., Case No. 1:05 CV 735 (U.S. Dist. of Columbia): Charlie represented a developer in a coverage dispute with its first party property carrier over the extent of business interruption and denial based on the defective design exclusion.

• I/N Kote, Inc. v. Hartford Steam Boiler Inspection Ins. Co., 115 F.3d 1312 (7th Cir. 1997): Steel manufacturer suffered loss following breakdown of refining furnace. Charlie defended the boiler and machinery carrier that denied the multimillion-dollar property and business interruption claim.

• Shriver v. Utica Mutual Ins. Co.: Insurance broker sued for failure to pay premiums for renewal coverage. E&O carrier denied defense and indemnity. Charlie prosecuted the coverage dispute on behalf of the broker and obtained a ruling in the trial court that the carrier had breached the duty to defend.

• Smolka v. Marshall Field’s Chicago, Inc., Case No. 98 L 14893 (Circuit Court of Illinois, Cook County): Contractor brought third-party claim against its insurance carrier and its insurance broker claiming that the insurance carrier must provide coverage for contractor’s customer, Marshall Field’s Chicago, Inc., or alternatively, that the insurance broker was liable for failing to provide notice of the claim to the carrier on behalf of the contractor’s customer. Charlie defended the broker. Liability turned on the broker’s agency status, adequacy of the broker’s notice and duty to provide notice for additional named insureds.

• Evergreen Park School District No. 124 v. Federal Insurance Co., 276 Ill. App. 3d 766, 758 N.E.2d 1235 (1995): Insured school districts sought declaratory judgment that first party property policies covered asbestos-related property damage. Charlie defended an insurance carrier and obtained favorable rulings in the circuit and appellate courts on a variety of substantive coverage and notice-related issues.

• Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (Ill. 1993): Insured brought declaratory judgment action against liability insurance carriers seeking defense and indemnification for cleanup costs associated with Waukegan Harbor. Charlie defended certain excess carriers and while many issues were thoroughly litigated, Charlie’s clients obtained summary judgment on the known loss doctrine.

• CPC Inter., Inc. v. Northbrook Excess & Surplus Ins. Co., 739 F. Supp. 710 (D.R.I. 1990): Charlie defended the defendant excess insurance carrier concerning coverage for environmental contamination caused by a train car derailment.

• Shell Oil Co. v. Aetna Cas. & Sur. Co., 158 F.R.D. 395 (N.D. Ill. 1994): Charlie defended various insurance carriers in litigation with Shell Oil pending in California and Illinois concerning coverage for environmental claims, polybutylene resin claims and bodily injury claims.

• Abercrombie & Kent, Inc.: Charlie represented a tour operator in litigation brought by hundreds of club members in lawsuits pending in California, Tennessee and Illinois seeking recovery of over $200 million in club memberships on theories ranging from securities fraud, common law fraud and false advertising. The claims provoked denials and reservations of rights from E&O, D&O and general liability carriers. In addition to the defense of the underlying lawsuits, Charlie was responsible for maximizing the client’s insurance recovery for the underlying lawsuits.

• Insituform Technologies, Inc. v. American Home Assurance Co., Case No. 04 10487 GAO (U.S. Dist. of Mass.): Charlie represented a contractor against its excess general liability insurance carrier with respect to denial of a contractor’s rework claim. Following an award of summary judgment, the trial court entered a judgment on March 31, 2007 for damages and prejudgment interest in the amount of $7,683,817.04.

• Nagengast v. Crowe, Chizek and Co., LLP, Case No. 1:05 CV 533 (W.D. Mich.):  Charlie prosecuted an ERISA claim against the employer’s group health insurer for wrongful denial of long-term disability benefits.