Practice Areas & Industries: Edwards Wildman Palmer LLP

 





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Practice/Industry Group Overview

The Department is widely known for its experience in coverage and claims litigation and advice, ranging from claims handling and defense of claims (including trial and appeals) to coverage and bad faith litigation. Our lawyers have the experience and expertise to guide our clients through complex coverage litigation and arbitration, including representation in state and federal courts in the US, and courts in the UK, Bermuda and Europe.

The lawyers in the Coverage & Claims practice regularly defend insureds in sophisticated and high-stakes property and casualty claims litigation. The Department also represents insurance industry clients in a wide variety of commercial disputes concerning such issues as RICO, ERISA, FCPA, employment practices, bad faith, breach of trade secrets, unfair competition, premium collection, securities law, real estate, lender liability and broker and producer issues.

In recent years, we have been involved in high profile coverage cases, including those arising from the September 11th attacks on the World Trade Center and the explosion of litigation between banks, producers, insurers and reinsurers in England and the US as a result of the underwriting of film finance risks in the 1990s. We are involved in most of the significant market disputes in London, including coverage for asbestos claims, accident & health disputes and pensions mis-selling claims.

Our success comes from understanding specialized areas of law, including:

Aviation

We have a dedicated aviation team with a long involvement in the aviation market which specializes primarily in advising on coverage disputes in the London market and on policy drafting and construction issues.

We act for insurers and reinsurers in the London market and also for airline clients. This includes acting for leading aviation insurers and reinsurers at Lloyd's and in the companies markets on matters including aviation bodily injury carve-out reinsurance, excess of loss reinsurance and residual value insurance

Bad Faith and Extra Contractual Liability

Our lawyers have successfully defended and pursued claims on behalf of insurance companies that involve allegations of bad faith or extra contractual liability. Our dedicated group of lawyers regularly represents insurance companies with regard to bad faith and extra contractual liability claims and litigation. As we have a broad base of experience addressing insurance coverage issues, including drafting of policy language and analysis of coverage, we are uniquely qualified to assist our clients in claims involving bad faith and extra contractual liability. Since punitive damages are often at stake, this experience can play a critical role.

Bermuda Form

We have unrivalled experience in handling arbitrations brought under the Bermuda Form and in dealing with the various strategic issues those proceedings involve. We have represented insurers in these arbitrations for 20 years and can advise on both the procedural and substantive law aspects of these disputes. The policies are typically subject to New York law and the disputes frequently involve questions of liability and coverage under US law. The cases we have dealt with have included D&O, professional indemnity, product liability, environmental liability and catastrophe insurance issues.

Coverage Opinions and Policy Drafting

Our lawyers regularly advise insurers on coverage issues arising from first party and third party claims. We guide insurers through issues presented by complex and large exposure claims, including the preparation of coverage opinions. We are frequently asked to advise on both standard and complex wordings and construction issues across a whole range of insurance and reinsurance business, such as arbitration and jurisdiction, insolvency, cut-through, aggregation, claims co-operation and notice provisions. We understand the role of coverage counsel in assisting insurers in their coverage determinations and minimizing the risks and exposures to insurers presented by challenges to those determinations.

Our knowledge of the coverage issues and challenges facing insurers also allows us to assist insurers effectively in developing new products, and we often work closely with insurers in structuring, negotiating and drafting new policy forms and endorsements. Our lawyers are highly experienced in addressing the coverage issues presented by a wide range of specialized areas, including professional liability, D&O, financial institutions, environmental, products liability, employment liability, general liability and property risks.

Fiduciary Litigation

We have handled numerous cases in many jurisdictions asserting breach of fiduciary duty claims. These suits have been brought against trustees of pension plans, charitable trusts and business trusts.

In addition, we have represented officers and directors of both public and private companies as well as not for profit organizations in the defense of breach of fiduciary duty claims. We have also represented investment advisers in the defense of breach of fiduciary duty claims under both US State law and the US Investment Advisers Act of 1940.

As a result of this substantive experience, we are particularly well qualified to advise insurance companies with respect to claims and coverage matters arising in fiduciary litigation.

Financial Institutions, D&O and Credit Risk

Financial institutions
The lawyers in the Department's D&O/Financial Institutions group service numerous primary and excess domestic and international insurers on a wide variety of significant claims against public and private companies and financial institution insureds. Our work involves not only coverage analysis and representation, but also analysis of the potential liability and damages associated with a claim against the insured and, when appropriate, participation in both settlement negotiations and mediations. In addition, when necessary, we represent our clients in coverage litigation.

D&O
In the D&O area, our experience ranges from the largest and most complex securities, antitrust and other commercial litigation exposures facing Fortune 100 companies to shareholder and employment related claims involving private companies, not-for-profit organizations and co-op/condo associations.

Liabilities and litigation resulting from sub-prime lending transactions present a range of coverage and litigation management issues for D&O and E&O insurers arising under management liability, professional liability and other coverages, including cost-of-corrections coverage. Unique to the sub-prime area is the need for an experienced and sophisticated understanding of the liability, defenses and damages issues raised by these claims, which present exposure to, among others, the investment managers and mutual funds, investment banks that packaged and sold collateralized debt obligations, mortgage lenders, hedge funds, pension funds, and credit rating agencies.

Credit risk
The lawyers in the Department advise primary and excess insurers in the US, London, Bermuda and continental Europe on a wide variety of significant claims and underwriting issues involving mortgage-backed securities, collateralized debt obligations and other securitized and sub-prime debt issues involving public and private companies and financial institution insureds. Unlike boutique insurance practices with limited relevant experience in structuring, negotiating and defending these transactions, our lawyers bring the collective experience of our entire firm to the handling and resolution of these claims. We also have extensive experience with issues concerning the assumption of credit risk by insurers and reinsurers, including acting in the leading US and UK cases in this area.

The types of financial institutions with which we have had significant experience include the following:

  • banks
  • broker/dealers 
  • insurance companies
  • investment advisors 
  • mutual funds 
  • registered representatives 
  • venture capital, private equity and hedge funds

Products Liability and Mass Tort

For the past two decades we have been at the forefront of mass tort/class action claims. In the US, as coordinating counsel, we have defended and handled lawsuits alleging bodily injury, property damage and personal injury arising from exposure to numerous substances including the following:

  • asbestos 
  • cellular telephones 
  • defective drugs 
  • electro magnetic fields 
  • HIV infected blood 
  • latex 
  • lead 
  • medical devices such as heart valves and breast implants
  • mold and other bio-aerosols 
  • MTBE 
  • organic solvents 
  • pesticides 
  • polychlorinated biphenyls 
  • silica 
  • thimerosal 
  • tobacco

The Products Liability Group has considerable experience in successfully dealing with claims involving a wide variety of products including:

  • amusement rides 
  • asbestos 
  • automobiles 
  • ceramics 
  • chair lifts 
  • construction materials 
  • consumer products 
  • dietary supplements 
  • industrial materials 
  • medical devices 
  • pharmaceuticals 
  • recreational products 
  • toxic materials (benzene, silica, PPA, etc.)

We provide a complete array of legal services specific to these related industries, including intellectual property, regulatory, risk management and corporate/transactional services. Our lawyers in the Products Liability Group have also qualified for listing on the panels of several leading insurers to serve as defense counsel on products liability claims, and they are well-known and sought-after presenters and panelists at international, national, regional, and local conferences.

Professional Liability

Over the years our lawyers have successfully represented design professionals in cases ranging from slip and fall to complex commercial construction claims arising from allegations of design errors and omission. Our lawyers are knowledgeable not only of the legal issues arising from such claims, but also in all technical areas of the construction process, from pre-design phases through final completion. Several of our lawyers have post-educational and career experience in architecture and engineering. As a result, we have sensitivity to the concerns of our design professional clients and represent architects and engineers with the utmost discretion. In short, we have all the resources to provide architects and engineers with the most efficient, cost-sensitive representation possible.

Property/Energy Claims

We assist our clients with complex coverage matters and regularly represent insurers or reinsurers in relation to sophisticated and high-stakes property / energy claims, whether in litigation or arbitration.

Our work has included disputes relating to:

  • an explosion at a chemical plant in Louisiana
  • losses involving oil platforms in the Gulf of Mexico 
  • disruption in the construction of dockyards in Sri Lanka 
  • an explosion at an oil depot in the UK 
  • damage to chemical and other industrial facilities as a result of the Katrina and Rita hurricanes 
  • delays in the operation of a gasification plant in Italy 
  • a failure of infrastructure on a North Sea oil platform

This work has involved issues such as:

  • the definition of occurrence and whether business interruption losses flowed from physical damage
  • the effect of a 72 hours clause
  • the effect on cover of an order by Civil Authority
  • the contractual interpretation of the excess point in a reinsurance contract
  • subrogation and recovery claims
  • co-insureds and circuity of action
  • analysis of business interruption and critical paths
  • the number of retentions
  • aggregation of claims
  • recoverability following a global settlement of covered and non-covered claims

Articles Authored by Lawyers at this office:

An Illinois Appellate Court Again Refuses to Recognize that Innocence Does Not Bar Rescission of an Insurance Policy
Patrick Frye, January 07, 2014
Illinois law permits rescission of an insurance policy if, in negotiating for the policy, the insured made an innocent, but material, misrepresentation.

NAIC: Bermuda, Germany, Switzerland and UK Now Qualified for Reduced Collateral Requirements
Amber S. Mills,Nick Pearson, January 06, 2014
On December 18, 2013, the National Association of Insurance Commissioners (NAIC) approved four jurisdictions as "Conditional Qualified Jurisdictions," meeting its year-end goal for expedited review of certain jurisdictions. The four jurisdictions are Bermuda, Germany, Switzerland and the...

Solvency II†- ECIROA Raises Concerns Over Solvency II for Captives
Kimberley Cottrell,Chris Finney, December 26, 2013
The European Captive Insurance and Reinsurance Owners’ Association (ECIROA) has written to the Internal Market and Services Directorate General of the European Commission, and the European Insurance and Occupation Pensions Authority (EIOPA).

UK: Notification of ‘Circumstances’ Need Not Specify An Incident
Ajita Shah, December 20, 2013
The Court of Appeal in European Risk Insurance Company HF v Collette Ann McManus & Ors [2013] EWHC 18 (Ch), has upheld a High Court judge’s decisions to a) refuse declaratory relief and b) award the claimants 60% of the costs of the hearing, stating that the first instance judge had given...

EU: European Insurance and Occupational Pensions Authority (EIOPA) Reports on the Need for Regulatory Scrutiny of the ILS Market
Jane Elphick, December 19, 2013
In its latest report on the financial stability of the continent's insurance and pensions industry, the European Insurance and Occupational Pensions Authority (EIOPA) has expressed the need for close regulatory scrutiny of the insurance-linked securities (ILS) market to ensure it does not threaten...

An Indiana Court Allows a Bad-Faith Claim Even Though the Insurer Denied Coverage Correctly
Patrick Frye, December 18, 2013
Until last week, Indiana courts were strict in their treatment of an insurance bad-faith lawsuit. Not only must the plaintiff show ill will by the insurer, he must show that the insurer denied coverage wrongfully. E.g., Foster v. State Farm Fire & Cas. Co., no. 1:10-cv-20 (N.D. Ind. Aug. 17,...

California Adds New Hazardous Financial Condition Regulations
Barry Leigh Weissman, December 16, 2013
Effective January 1, 2014, the California Department of Insurance has added six new regulations to Title 10 of the California Code of Regulations. These can be found at Title 10, Chapter 5, Article 22 Sections 2598 through 2598.6. The purpose of the new regulations is to provide the Insurance...

UK: Supreme Court Refuses a Stay of Proceedings, Allowing Insurers to Pursue Damages for Breach of Settlement and Jurisdiction Agreements
Jane Elphick, December 13, 2013
The Alexandros T [2013] UKSC 70 concerned the application of Articles 27 and 28 of EC Regulation 44/2001 (the Brussels Regulation). Where proceedings are issued in more than one Member State and involve the same cause of action, Article 27 requires any court other than the first seised to stay...

California Court of Appeal, Third District Holds In-House Attorney May Be Liable for Malpractice for Failing to Warn Employee About Conflict
Nora A. Valenza-Frost,Barry Leigh Weissman, December 06, 2013
The California Court of Appeal, Third District, in Yanez v. Plummer, 2013 WL 5915639, Cal. Ct. App. 3d Dist., No. C070726 (Nov. 5, 2013) recently held that a former employee deposed in connection with a co-worker’s personal injury suit may pursue malpractice claims against in-house counsel...

The Seventh Circuit Puts an End to Litigation Attacking the Cost of Force-Place Insurance
Patrick Frye, November 25, 2013
In Cohen v. American Security Insurance Co., the Seventh Circuit rang the death knell on mortgagors’ lawsuits complaining about the cost of force-place insurance bought by the mortgagors’ bank. When a bank makes a loan and takes a mortgage, the mortgagor’s real estate often is...

UK: English High Court Denies Attempt to Relitigate Issues Already Decided in Arbitration Proceedings
Russell Anderson, November 25, 2013
In Arts & Antiques Limited v Peter Richards & Towergate London Market Limited & Zurich Insurance Plc [2013] EWHC 3361 (Comm), the Court struck out claims by Arts and Antiques Limited (A&A) which sought to relitigate issues that were subject to a binding arbitration award.

UK: English High Court Rules on the Application of a Follow the Settlements Clause
Mark Everiss,Sam Tacey, November 25, 2013
The case of Tokio Marine Europe Insurance Ltd v Novae Corporate Underwriting Ltd [2013] EWHC 3362 (Comm) concerned losses suffered by a Thai subsidiary of Tesco plc arising out of severe floods in Thailand in 2011. The Tesco subsidiary claimed for losses of approximately £125m under various...

The Federal Reserve Board Seeks to Cement its Status as a Global Regulator of Insurance; Applies for Membership with the International Association of Insurance Supervisors
Alfred J. Kritzman, November 06, 2013
On October 25, 2013, the Board of Governors of the Federal Reserve System (the “Board”) applied for membership with the International Association of Insurance Supervisors (“IAIS”), a voluntary membership organization of insurance supervisors and regulators from nearly 140...

California Appellate Court Issues Bad Faith Duty to Settle Opinion
Gregory D. Pendleton, October 29, 2013
On October 7, the California Court of Appeal, Second Appellate District, held that a liability insurer, in the absence of any demand or settlement offer from a third party claimant, need not initiate settlement negotiations or offer its policy limits, even where liability is clear and there is a...