Insurance Recovery

Kasowitz’s insurance recovery practice group is one of the largest in the nation, with attorneys focusing exclusively on policyholder coverage.  Led by Robin L. Cohen, one of the preeminent insurance litigators in the nation and one of the "50 Most Influential Women Lawyers in America" according to The National Law Journal, the firm’s insurance recovery attorneys are nationally known for their innovative and aggressive strategies for maximizing coverage for their clients.  The firm’s attorneys pride themselves on understanding the business needs of their clients and working closely with them to address all of their legal insurance coverage needs, including high-stakes litigation, alternative dispute resolution, policy audits, risk assessments, state insurance regulatory matters, and due diligence associated with business transactions.  Given the firm’s reputation and experience, its clients often are able to maximize their recoveries without the need for protracted litigation, at significant savings. Insurance companies recognize that the firm is prepared to try every case in the event a fair and reasonable settlement is not offered.  The group has been successful in securing $2 billion of disputed insurance coverage for its clients.  Recognizing the talent, experience, and successes of the group, Chambers USA recently awarded the firm’s insurance recovery group with its 2011 “Award for Excellence for Insurance.”  The Chambers USA 2011 Awards for Excellence honors outstanding lawyers and law firms across the United States, reflecting preeminence in key practice areas, superior client service, continued strategic growth, and outstanding achievements over the last 12 months.  Chambers USA ranked Kasowitz as one of the leading insurance coverage practices nationally, and in Band 1, the survey’s top rating, in New York.  The insurance recovery team received a similar honor from Law360 which named Kasowitz a "2011 Practice Group of the Year," based on the significance, number, size and complexity of the insurance matters worked on in 2011.

The firm’s insurance recovery practice group and its attorneys’ notable representations include:

• Visa Inc. in its action to recover from its primary Professional Liability, Technology and Multimedia insurer for losses arising from a class action alleging violation of consent-to-record provisions of California's Invasion of Privacy Act and other similar state statutes.  In January 2012, the firm’s lawyers, led by Robin L. Cohen, obtained summary adjudication for Visa on one of the carrier’s major defenses, successfully arguing that fixed, minimum statutory damages available under the Act and similar statutes are not excluded under the policies.  In March, 2012, the California Supreme Court denied the carrier’s petition for interlocutory review of the decision.
• An Investment Company and its various subsidiaries that suffered tens of millions of dollars in losses as a result of the fraud perpetrated by Bernard L. Madoff, in pursuit of insurance coverage under a "fidelity bond" that protects against losses due to fraud and other dishonest acts by the plaintiffs' identified "outside investment advisers," including Madoff.  In March 2012, the trial court rejected the four defendant insurance carriers' position that they had to pay nothing, either because the cash withdrawals of the "net winner" plaintiffs should offset the cash deposits of the distinct "net loser" plaintiffs, or because the plaintiffs' settlement with the SIPC trustee eliminated any losses they may have suffered.  The court also rejected the carriers' argument that any coverage owed was subject to a distinct multi-million deductible per plaintiff.
• Louisiana Pacific f/k/a ABT Building Products Co., one of the largest manufacturers of building materials, in its action to recover from its general liability insurers for losses arising from lawsuits concerning allegedly defective hardboard siding.  The firm’s attorneys reached multi-million dollar settlements with all but one of the carriers.  With respect to the only “holdout” carrier, National Union Fire Insurance Company of Pittsburgh, Pa., the firm’s attorneys filed suit in the United States District Court for the District of North Carolina, and tried the action to the jury, obtaining a multi-million dollar verdict for breach of contract and, in addition, multi-million dollar verdicts for bad faith and punitive damages.  The firm also recovered all of ABTco’s attorneys’ fees and pre-judgment interest.  The jury verdict and court award were affirmed in their entirety by the Fourth Circuit Court of Appeals.
• Appleton Papers Inc. to recover from its comprehensive liability insurance companies for environmental liabilities arising from contamination of the Fox River in Wisconsin, one of the largest CERCLA sites in the country with clean-up costs that could exceed $600 million.  API was sued by its general liability insurers in a declaratory judgment action in Wisconsin.  At trial, the jury returned a unanimous verdict in favor of API.  The court of appeals has since affirmed the jury verdict in its entirety.
• MBIA Inc. in its action to recover tens of millions of dollars from its directors and officers insurers for losses associated with federal and state regulators’ investigations and related derivative actions.  Kasowitz obtained a landmark ruling from the U.S. District Court for the Southern District of New York awarding MBIA coverage for costs incurred by MBIA’s special litigation committee in responding to two shareholder derivative actions, as well as coverage for costs incurred in responding to the regulatory investigations.  Although the U.S. District Court denied MBIA coverage for certain costs that were part of MBIA’s settlement with federal regulators, that ruling was reversed by the Second Circuit.  The Second Circuit also affirmed all of the rulings in favor of MBIA.
• Tyson Foods, Inc. in its coverage litigation arising from losses suffered as a result of Hurricane Katrina.  The largest component of the loss arises out of the disruption of Tyson’s logistics network on which it relied to ship its frozen leg quarters into the international market.  Katrina damaged the port terminals and cold storage units along the Gulf Coast, and the resulting loss, which is in the tens of millions of dollars, falls under the contingent business interruption insuring provisions of the policies.  Kasowitz attorneys successfully settled this case on the eve of trial, recovering almost the entire loss in settlements. 
• The Port Authority of New York & New Jersey (“Port Authority”) in connection with the pursuit of insurance coverage arising from liabilities resulting from the 1993 terrorist bombing of the World Trade Center.  The American Excess Insurance Association ("AEIA"), who issued a $50 million insurance policy to the Port Authority, initially filed an arbitration against the Port Authority in Connecticut and the Port Authority responded with a suit in Essex County, New Jersey.  Because of the events of 9/11, the Port Authority has lost many of its insurance records.  Kasowitz filed suit on behalf of the Port Authority against all of the insurance company participants in AEIA who resisted efforts to obtain discovery.  Kasowitz attorneys successfully convinced the trial court to issue an order temporarily staying arbitration and provide the Port Authority with an opportunity to conduct discovery regarding the terms and conditions of the subject policy.  While discovery was in the early stages the Port Authority agreed to a beneficial confidential settlement agreement that confirmed that AEIA would meet its coverage obligation. 
• A pump manufacturer in an action seeking insurance coverage for thousands of asbestos-related claims.  The action, pending in Delaware Chancery Court, involves hundreds of insurance policies sold to one of the pump manufacturer’s predecessors by nearly 20 different insurance carriers from 1972 to 1985.  Notwithstanding anti-assignment provisions in the policies, the firm’s lawyers successfully obtained a declaration that their client was entitled to hundreds of millions of dollars in coverage under excess-layer insurance policies, and obtained a precedent-setting decision allowing the client to allocate asbestos claims under New York law using an "all sums" methodology. 
• Pella Corporation and Pella Windows and Doors, Inc. in their insurance coverage action against their general liability carrier, Liberty Mutual Insurance Company, for losses arising from two consumer class actions alleging that certain Pella windows were defective and seeking tens of millions of dollars in damages.  The firm’s lawyers obtained summary judgment for Pella on its coverage claims, successfully arguing that the alleged defect in millions of windows sold over many years was a single occurrence. 
• Philips Electronics North America Corporation and its subsidiary THAN in recovering hundreds of millions of dollars in insurance coverage for liabilities arising out of their alleged distribution of asbestos.  In this litigation in Illinois, the firm’s attorneys obtained a series of summary judgment rulings requiring the primary carriers to provide a complete defense against the underlying asbestos actions, resulting in significant settlements. 
• Givaudan Flavors Corporation in litigation seeking insurance coverage for losses relating to hundreds of underlying lawsuits alleging injuries from diacetyl in butter-flavored popcorn.  Within a few months of their involvement, the firm’s attorneys were able to achieve a significant settlement with the defendant insurer worth tens of millions of dollars, which exceeded that insurer’s policy limits. 
• Philips Lighting Company in its lawsuit against several insurance carriers in West Virginia concerning insurance coverage for approximately 4,000 toxic tort claims, successfully obtaining summary judgment requiring the carriers to provide a complete defense to Philips, after which all aspects of the coverage claim were fully and very favorably resolved. 
• A Financial Services Company in an arbitration seeking tens of millions of dollars under professional liability policies in connection with a multi-hundred million dollar settlement of an underlying arbitration.