Robinson+Cole is proud to have developed a national practice in the field of property insurance coverage litigation. Our lawyers regularly handle some of the most complex property and business interruption insurance cases in the country, and have been at the vanguard of almost every cutting-edge coverage battle fought in the past two decades. We have substantial trial and appellate experience in cases involving all aspects of property insurance claims, including disputes under layered and quota-share excess programs, class actions, market conduct litigation, and other complex litigation. Members of our Insurance + Reinsurance Group also regularly advise and represent insurer clients in appraisals and arbitrations arising from disputed claims. We routinely assist with fraud investigations, and advise clients with regard to coverage for pending claims.
Our firm has represented major insurers in a national or coordinating counsel role in litigation and exposures with broad, industry-wide impact. For example, the firm recently served as national counsel for certain Write Your Own (WYO) flood insurers in class actions and other politically-charged litigation arising out of the National Flood Insurance Program and Superstorm Sandy. Robinson+Cole lawyers also played a leading role in the “Chinese Drywall” coverage litigation throughout the nation. As lead counsel for a joint-defense group, Robinson+Cole effectively coordinated with other counsel for non-firm clients to obtain favorable rulings and also brought a declaratory judgment action on behalf of a firm client in federal court in Virginia in what became a critical case cited throughout the country as dispositive of the coverage issues.
In addition, our team served as lead counsel for a number of insurers in coverage litigation arising from numerous catastrophes around the country, including Hurricane Katrina. In addition to handling numerous individual commercial claims, the firm was lead counsel in the most significant litigation arising out of Katrina -- the applicability of the flood exclusion that arose out of the levee breaches in New Orleans, and the litigation determining whether Louisiana’s Valued Policy Law applied to losses where most, but not all, of the total loss to a building was caused by excluded flood.
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Because many lawsuits involving property insurance and business interruption claims also include allegations of bad faith and unfair insurance claims practices, we have extensive experience defending extra-contractual claims asserted against property insurers.
Our team of property insurance lawyers is impressive in its depth and in the breadth of its experience and knowledge. We recognize that each case presents a unique set of issues and challenges. We pride ourselves in isolating the issues and developing the evidence in discovery that will support a dispositive motion. Where cases cannot be resolved at summary judgment, our team is uniquely qualified to defend them through trial and, if necessary, on appeal.
Our property insurance team includes nationally recognized trial lawyers who also have an unparalleled command of coverage law. Two of our partners are Fellows of the American College of Coverage and Extracontractual Counsel, and one is a Fellow of the American College of Trial Lawyers.
Finally, the attorneys in our Insurance + Reinsurance Group are leaders in the field of property insurance law. Many have assumed leadership roles in national and international professional organizations related to property insurance, including serving as Chair or Vice-Chair of the Property Insurance Law Committee of the Tort Trial and Insurance Practice Section (TIPS) of the ABA, and Chair of the Property Insurance Section of Federation of Defense and Corporate Counsel (FDCC). Members of the Insurance Group are also members of the International Association of Defense Counsel (IADC) and serve as regular panelists at meetings of the Loss Executives Association (LEA) and the Property and Liability Research Bureau (PLRB). In addition, several of our lawyers have developed and taught the course on Property Insurance Law which is taught as part of both the J.D. and Insurance LL.M. programs at the University of Connecticut School of Law's Insurance Law Center.
Our lawyers keep clients alerted to developments in property insurance through our blog, Property Insurance Coverage Insights, at www.propertyinsurancecoverageinsights.com.
From pre-suit through the appellate process, Robinson+Cole successfully represented a major insurer in the defense of a $100 million claim arising from a fire at a thirty-story midtown Manhattan building under construction, and a substantial claim for business income loss. The project’s lenders filed suit against the insured and our client seeking their alleged share of the insurance proceeds, $69 million. Our team succeeded in getting the claims against our client dismissed. Before the insured’s appeal of the dismissal order was decided, the case favorably settled at mediation.?
Represented an insurer in connection with its investigation and adjustment of a claim for the replacement of a 220,000-square-foot, pre-engineered steel building in Connecticut that collapsed under the weight of a massive snowfall. This complex, high-value claim presented a number of difficult issues, including the proper measure of the property's actual cash value and the priority of salvage rights, and required innovative strategies to avoid appraisal and litigation. In close collaboration with Great American’s adjuster and an independent adjuster, we were able to resolve the matter on very favorable terms and without litigation.
Represented an insurer in connection with its investigation of a fire loss at a former manufacturing plant in Rhode Island where the authorities discovered an illegal butane hash oil manufacturing operation and violation of the policy’s protective safeguards endorsement. The $10 million claim was resolved favorably following commencement of a declaratory judgment action in federal court at an early mediation conducted prior to the commencement of significant formal discovery.
Currently represent a major insurer in a complex $21 million business income suit pending in New York that arises from a law firm’s business interruption claim related to a fire that disabled certain operations at its Manhattan offices.
Won summary judgment motions and motions to dismiss for several insurers in connection with the progressive deterioration and cracking of building foundation walls, on the grounds that the policy language at issue did not cover the gradual deterioration and cracking of concrete.
Successfully represented insurer in obtaining review by the New Jersey Supreme Court and on the merits in the first case that the court accepted involving a property insurance coverage issue arising from Hurricane Sandy. The court held that a flood sublimit applied to all losses relating to flooding, including debris removal.
Successfully defended a commercial property insurer in a Florida lawsuit seeking nearly $10 million in contract damages and attorneys' fees due to its alleged underpayment of a claim for hurricane damage to an office tower. The dispute centered on whether post-hurricane events involving the county building department triggered the policy's ordinance or law coverage and coverage for claimed rental value losses. Our defense of the case required a mastery of several Florida building codes, including the Florida Building Code, Existing Building, and the Florida Accessibility Code.
Represented an insurer in coverage litigation arising from damage to a 20-story office/condominium tower in Oklahoma City caused by cleaning and powerwashing of the exterior of the building that damaged all exterior windows. After vigorous discovery, we obtained summary judgment on all counts. The firm also successfully defended the matter on appeal to the 10th Circuit.
Obtained summary judgment in favor of our client in a large, complex commercial claim in Michigan involving the applicability of a water damage exclusion to damage to an underground sewer treatment facility under construction. The case was settled on favorable terms on the eve of oral argument before the Sixth Circuit U.S. Court of Appeals.
Represented an insurer in a multi-million dollar claim for property damage and business income loss arising from asbestos contamination of the insured’s fabrication facility in Brooklyn, New York. The case involved an issue of first impression in New York: whether the pollution exclusion in a first-party policy applied to indoor contamination, or was limited to environmental contamination. After vigorously litigating the matter, including complicated scientific discovery, we achieved a favorable resolution for our client at mediation.
Represented an insurance carrier in the defense of an adversary proceeding brought by Chapter 7 trustee and creditor banks of a publicly traded corporation involving a claim for over $100 million of inventory allegedly damaged in a warehouse fire. Our lawyers coordinated the fire investigation (determined to be arson), helped to root out fraud in the insured’s business practices, and uncovered evidence of fraud in presentment of the inventory loss. The case settled on the eve of trial prior to decision on motions to preclude the bankruptcy trustee’s accounting expert.
Defended an insurer in a matter in New Jersey state court arising from foul odors coming from the insured’s industrial facility. NJDEP ordered the insured to improve its processing system to eliminate the odors after numerous neighbors complained of smells coming from the plant. In response, the insured spent $4 million to enhance its air pollution controls, and presented an insurance claim for the costs. The central issues were the applicability of the wear and tear, and pollution exclusions, and whether the insured’s processing changes were upgrades in violation of the principle of indemnity. After completing months of scientifically-complicated fact and expert discovery, the matter was favorably resolved at mediation.?
Represented a builder’s risk insurer in its investigation and adjustment of a claim arising from the collapse of the steel structure of an indoor football practice facility being built on a university campus. The damage resulted from the faulty workmanship of a subcontractor in its erection of the steel and attempts to correct that workmanship. Following denial of the claim on multiple grounds, the matter was favorably resolved.
Represented an insurer in a case in the federal court in Georgia arising out of a fire at a large, historic mill complex. The principal issue in the case was whether the policy was extended for an additional one-year policy term by operation of law, because the mortgagee on the policy was not given proper notice of non-renewal. On an issue of first impression under Georgia law, the trial court found for our client. The case was subsequently resolved on very favorable terms.
Represented property insurer in $30 million coverage action pending in Houston involving insured's loss of permit for California landfill due to alleged contamination of groundwater.
Represented insurer in litigation in federal court in Iowa arising out of extra expense claim in excess of $25 million.
Successfully represented property insurer in trial of coverage case in Oklahoma involving claims in excess of $30 million for mold and other contamination.
Represented property insurer in Florida and Louisiana litigation arising out of $19 million contractor kickback scheme arising out claims by owners of subsidized housing for damage caused by Hurricane Andrew.
Successfully defended insurer and its employees in an action for malicious prosecution and defamation arising from an arson loss. At the trial court level, we obtained summary judgment by demonstrating through effective discovery techniques that the insurer’s only pre-arrest communication with the authorities was providing a copy of its investigative file to the state fire marshal, as it was required by statute to do. In a precedent-setting decision, we preserved the win on appeal.
Represented insurance company against $3.75 million claim for alleged water intrusion and mold damage to home. Prevailed in motion for summary judgment on mold exclusion and faulty design exclusion.
Represented insurance company in multimillion-dollar lawsuit involving claim for alleged sinkhole damage to shopping center complex, where insured waited several years to notify insurer of damage and sought coverage for business income losses suffered long after the last insurance policy expired. Moved for summary judgment on common law defenses (fortuity requirement and manifestation trigger) and policy defenses (late notice, faulty design exclusion, earth movement exclusion), paving the way for extremely favorable settlement.
Defense of insurer concerning $80 million coverage issue related to a deep rock tunnel built 100 meters underground through difficult geological conditions. The case involved issues relating to design defects, workmanship, and remedial costs as well as experts in tunnel boring, grouting, hazardous chemicals, and construction engineering/management.
Represented numerous insurers in defending class actions as well as litigation involving individual claims arising out of Hurricanes Katrina and Rita, as well as the 2004 Florida hurricanes. Class actions involve challenges to the applicability and enforceability of flood exclusions. Additional class actions involve challenges to the application of the Valued Policy Laws in Louisiana and Florida. Individual claim litigation involves these issues as well as disputes over coverage for business interruption and losses of income caused by orders of civil authority. Litigation is pending in Louisiana, Mississippi and Florida.
Representation of insurer in defense of litigation from construction defects from the "Big Dig" project in Boston. Specifically, the matter involved the failed installation of an underwater tunnel segment, resulting in flooding and movement of a large concrete tunnel segment. The issues included both design and workmanship concerns.
Represented insurers in defense of numerous large lawsuits arising out of claims for business losses resulting from the September 11 terrorist attack. Largest claims were in excess of $100 million, and most were in excess of $10 million. Litigation spawned many of the country's most frequently cited judicial decisions in business interruption.
Obtained summary judgment from federal court in Atlanta in defense of civil authority claim prosecuted by owner of airport stores throughout the United States.
Represented property insurer in a property loss claim in excess of $30 million caused by anthrax contamination of a commercial building in Florida.
Defense of insurer in arbitration and state court proceedings in Florida in $300 million property damage, business interruption, and consequential damage claim brought by owners of Miami Beach resort because of Hurricane Andrew. After 23 days of evidentiary hearings, case was resolved on very favorable terms (less than was offered before arbitration commenced).
Knowles v. Standard Fire Insurance Company 133 S. Ct. 1345 (Supreme Court of the United States, 2013)— This appeal was heard by the Supreme Court of the United States and resulted in a 9-0 opinion in favor of our client. Our petition for certiorari was granted by the Supreme Court after the Eighth Circuit had declined to hear a discretionary appeal and after the Supreme Court had denied a petition for certiorari on the same issue the year before. This is the first case in which the Supreme Court granted review under the Class Action Fairness Act of 2005. The issue on appeal was whether a named plaintiff in a putative class action can defeat federal jurisdiction under the Class Action Fairness Act of 2005 by stipulating to limit damages to $5 million or less even if the amount potentially recoverable by the putative class would exceed the federal jurisdictional amount in the absence of the stipulation. The Supreme Court accepted our argument that the federal court jurisdiction could not be defeated by such a stipulation. The underlying case involved the alleged failure to pay the general contractor overhead and profit as part of the settlement of property insurance claims and was voluntarily dismissed by the plaintiff after the case was remanded to the federal district court.
Travco v. Ward?468 Fed. Appx. 195 (4th Cir. 2012) and 284 Va. 547 (Va., 2012)?– This was the nation's leading case on the question of whether coverage existed under property insurance policies for losses caused by the presence of Chinese Drywall. We brought this declaratory judgment action on behalf of the insurer, which was a Travelers subsidiary. We successfully obtained summary judgment from the United States District Court for the Eastern District of Virginia. On appeal, after briefing and argument, the US Fourth Circuit certified most of the coverage issues to the Virginia Supreme Court. The Virginia Supreme Court then affirmed the rulings of the federal district court, and the US Fourth Circuit subsequently affirmed the judgment in its entirety. Steve Goldman argued the motion for summary judgment before the district court and the appeals in both the US Fourth Circuit and the Virginia Supreme Court.
Allen v. USAA?790 F.3d 1274 (11th Cir. Fla., 2015) – In this putative class action, the plaintiff alleged that our client violated the Florida statutes regarding mandatory code upgrade coverage. Steve Goldman obtained summary judgment for our client in the federal district court for the Northern District of Florida and successfully argued the appeal before the Eleventh Circuit, which affirmed the judgment in favor of our client.
Thatcher v. Hanover Insurance Company?659 F.3d 1212?(8th Cir. 2011) – This appeal also arose out of a putative class action alleging a failure to pay general contractor overhead and profit as a part of the settlement of property insurance claims. After we removed the action (originally brought in Circuit Court of Miller County, Arkansas, a notorious "magnet" jurisdiction) to the federal court, the plaintiff moved to voluntarily dismiss the case without prejudice so that he could file a more "streamlined" complaint in the state court that would defeat federal jurisdiction. After the federal district court judge granted the plaintiff's motion, we appealed, arguing that a Rule 41 dismissal cannot be used as a forum shopping vehicle. The Eighth Circuit agreed, and reversed the district court, reinstituting federal jurisdiction. Steve Goldman argued the appeal before the Eighth Circuit.
MBS Management Services, Inc. v. Homeland Insurance Company?In re MBS Mgmt. Services, Inc., 690 F.3d 352, 356 (5th Cir.2012) – This was a business interruption case that arose out of losses caused by Hurricane Katrina. After several years of litigation, on the eve of trial, we obtained rulings from the federal district court that the plaintiff could only recover for losses that were caused by the interruption of the insured's business, and could not recover for losses caused by the interruption of the insured's affiliate, which was not insured under the policy. The plaintiff came to the conclusion that this ruling would be fatal to its case, and voluntarily dismissed the case so that it could pursue an appeal before the 5th Circuit. On appeal, the 5th Circuit affirmed the trial court, resulting in our client's escaping any liability. Steve Goldman was lead trial counsel in the trial court and argued the appeal before the Fifth Circuit.
Moore v. Travelers?312 Fed. Appx. 911 (11th Cir. 2009)?– This appeal also arose out of a putative class action alleging a failure to pay general contractor overhead and profit as a part of the settlement of property insurance claims. Here, our client demanded appraisal of the named plaintiff's claim after the action had been commenced in the US District Court for Georgia. We moved to dismiss on the grounds that the plaintiff had not complied with the conditions precedent in the policy before commencing suit. The District Court granted our motion. On appeal, the 11th Circuit affirmed.
Sher v. Lafayette Insurance?Company?973 So. 2d 39 (La.App. 4 Cir., 2007) aff'd 952 So. 2d 683 (La., Mar. 13, 2007) (Louisiana Court of Appeals?and Louisiana Supreme Court) – This case was critically important to the?insurance industry, as it established that the flood insurance exclusion in?property insurance policies applied to the flooding that took place in New?Orleans following Hurricane Katrina.
In re Katrina Canal Breaches?Litigation?524 F.3d 700 (5th Cir. 2008) – This case was the federal court predecessor to the Sher case, and the opinion of the US 5th?Circuit was critically important to the Louisiana Supreme Court when it took up the appeal in Sher. Following the District Court's decision finding the flood exclusion ambiguous and unenforceable, the 5th Circuit reversed and found the exclusion unambiguous and enforceable.
Globecon v. Hartford Fire Insurance Company?434 F.3d 165, 176 (2d Cir. 2006) – This appeal arose out of a business interruption claim arising out of the 9/11 catastrophe in New York. The insured under The Hartford's policy attempted to assign their rights after the loss to an entity that purchased the insured's assets. The Second Circuit found that the purchasing entity could only pursue a claim if they could show substantial compliance with the policy conditions and, even then, they could not pursue any claims for their own loss of business income subsequent to the date of the assignment. Similarly, the Second Circuit found that the purchaser's claim for consequential damages could not be pursued.
Shri Gayatri LLC v. The?Charter?Oak Fire?Insurance?Company?206 F. Supp 3d 684 (US District Court, Mass., 2016) Successfully obtained summary judgment on behalf of an insurance company client in federal court, defeating plaintiff’s allegations of breach of good faith. The owner of a hotel had sought to recover for the total loss of the business due to a 2011 tornado in Massachusetts followed by rain and ice storms later that year. The court agreed with the insurer that the insured’s failure to repair or replace the property within two years of the date of loss, as required by the insurance contract, meant there was no coverage for replacement cost, rejecting the insureds’ argument that delays in claim resolution were the carrier's fault, and should extend the two-year period.
Poretsky v. HiRise Engineering, 2016 WL 5678380, (US District Court, ED New York, 2016) Represented insurance company in obtaining dismissal of RICO claims alleging improper conduct in adjustment and settlement of flood insurance claims under federal flood insurance policies.
Emsbo v. Fireman’s Fund Insurance Company, 950 F.Supp.2d 369 (D.R.I. 2013) – District court granted motion for summary judgment holding that damage to residence caused by torrential rainstorm fell within the scope of the water damage exclusion of homeowner’s policy.
Chapman v. Standard Fire Insurance Company, 2012 WL 3644778 (D. Me. 2012) – In case of first impression under Maine law, district court concluded that statutory unfair claims practices counts were time barred based on suit limitation provision in homeowner’s policy.
Colony Bank v. Hanover Insurance Company, 2011 WL 5419459 (M.D. Ga. 2011) – District court granted summary judgment on breach of contract claim for failure to pay $4.7 million dollar claim for fire damage to historic textile mill because court concluded that policy did not automatically renew under Georgia statutes. The district court also granted summary judgment of the bad faith claim, concluding that Hanover had reasonable grounds to contest the claim and no reasonable factfinder could conclude otherwise. The district court did allow the bank’s claim for breach of contract for failure to notify the bank of the non-renewal of the policy to survive.
Indian Harbor Insurance Company v. Assurance Company of America, 2010 WL 2346654 (D.R.I. 2010) – District court granted builders risk insurer’s motion for summary judgment on grounds that project owner’s procurement of permanent property policy terminated the coverage under the builder’s risk policy.
Imperial Trading Co. v. Travelers Property Casualty Company of America, 654 F.Supp.2d 518 (E.D. La. 2009) – District court granted motion in limine to exclude the testimony of policyholder’s bad faith expert.
Paradies Shops, Inc. v. Hartford Fire Insurance Co., 2004 WL 5704715 (N.D. Ga. Dec.15, 2004) - Obtained summary judgment from federal court in Atlanta in defense of civil authority claim prosecuted by owner of airport stores throughout the United States.
Wells Dairy v. Travelers 241 F.Supp.2d 945, 966 (N.D.Iowa 2003) - Defended insurer in $30 million bad faith and breach of contract action arising from the denial of a national ice cream producer's extra expense claim.
Garson Management v. Travelers No. 4169/99 (NY Sup. Ct 2000) aff'd Garson Mgt. Co. v. Travelers Indem. Co. of Ill., 300 A.D.2d 538, 539, 752 N.Y.S.2d 696 (New York Supreme Court, Appellate Division – 1st Department, 2002) – This case involved the question of coverage for structural damage to an apartment complex in Yonkers, New York. We obtained summary judgment for the insurer and successfully defended the appeal.
Chapman v. Norfolk & Dedham Mutual Fire Insurance Company 39 Conn. App. 306, 665 A.2d 112 (Connecticut Appellate Court, 1995) – This appeal arose out of the trial of an arson case in which the insurer was allowed to introduce otherwise hearsay evidence in order to defend itself against allegations of bad faith and violations of Connecticut's Unfair Trade Practices Act. The argument for the admissibility of the evidence was that it was information that the insurer's decision-maker had at the time the decision to deny was made, and that the insurer had a right to put that information before the jury. The Appellate Court affirmed the trial court's ruling allowing the evidence to be admitted.
Rego v. Connecticut Insurance Placement Facility 22 Conn.App. 428, 430, 577 A.2d 1105 (1990), rev'd on other grounds, 219 Conn. 339, 593 A.2d 491 (1991) (Connecticut Supreme Court and Connecticut Appellate Court) – This appeal involved the question of the burden of proof regarding the Misrepresentation/Fraud condition in property insurance policies. The issue was whether the insurer's burden of proof could be met by a preponderance of the evidence, or whether the insurer could only meet its burden of proof with clear, convincing and unequivocal evidence. The Connecticut Supreme Court upheld the preponderance standard.