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 $3 billion of disputed insurance coverage for its clients. Recognizing the talent, experience, and successes of the group, Chambers USA has previously awarded the firm’s insurance recovery group its “Award for Excellence for Insurance.” The Chambers USA Awards for Excellence honor 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:

• Securing a decisive November 2012 jury verdict against several of the nation’s largest insurers in favor of a Pump Manufacturer facing thousands of asbestos-related bodily injury lawsuits. Among other things, the jury found that the client’s underlying insurance policies were properly exhausted, its settlements and defense costs to date have been reasonable, its excess policies follow form to the underlying insurer’s broad defense obligations and are triggered by injury at the cellular and microscopic level (which effectively allows the policyholder to trigger all policies in effect from the date of the claimant's first significant exposure to asbestos), the policies’ non-cumulation clauses do not apply to limit coverage for separate occurrences or claims, and certain Aetna XN policies have to pay from dollar one once directly underlying insurance coverage has been exhausted (and not only when a single claim exceeds $25.5 million as Aetna had argued). Combined with an October 2009 summary judgment ruling allowing the client to collect “all sums” from any insurer once its policy is triggered, the verdict clearly affirmed the client’s right to tender claims to any triggered policy year, and access hundreds of millions of dollars in excess layer coverage immediately.
• Representing Syracuse University in pursuing a claim under a Not-For-Profit Individual and Organization Insurance Policy. In March 2013 the University was awarded summary judgment for costs it incurred responding to and conducting an investigation in connection with a number of state and federal grand jury subpoenas concerning facts and circumstances relating to allegations of sexual abuse, and in particular the allegations against the University's former Associate Basketball Coach.
• Securing multimillion-dollar settlements, and a jury verdict on claims for coverage and insurer bad faith against the sole non-settling defendant, on behalf of 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. With respect to the only “holdout” carrier, National Union Fire Insurance Company of Pittsburgh, Pa., a team led by Ms. Cohen filed suit in the United States District Court for the District of North Carolina, which was later tried to a jury resulting in a verdict for breach of contract, bad faith and punitive damages worth tens of millions of dollars. The team 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. 
• Obtaining summary adjudication on critical coverage issues of first impression in California, followed by a highly favorable settlement, on behalf of Visa Inc. 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 Ms. Cohen, obtained summary adjudication for Visa against its primary Professional Liability, Technology and Multimedia insurer 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, after which the case settled in August 2012.
• Defeating insurers’ claims for declaratory judgment that they were not required to insure Appleton Papers Inc. 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 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. 
• Obtaining full coverage in a Second Circuit appeal on behalf of 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. The District Court, however, denied MBIA coverage for certain costs that were part of MBIA’s settlement with federal regulators. On appeal, the Second Circuit affirmed the District Court’s ruling in favor of MBIA, and reversed that portion of the District Court’s ruling in favor of the insurers, resulting in a full recovery for MBIA. 
• Negotiating extremely favorable settlements on the eve of trial on behalf of Tyson Foods, Inc. in its coverage litigation arising from losses suffered as a result of Hurricane Katrina. The largest component of the loss arose 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. The settlement negotiated by Kasowitz attorneys covered almost the entire loss.
• Securing an early settlement on behalf of The Port Authority of New York & New Jersey 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. 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 in New Jersey 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. 
• Obtaining a 2012 agreement which increased by $20 million the insurance available to the Adelphia Recovery Trust in connection with claims against Buchanan Ingersoll arising from the circumstances leading to Adelphia’s bankruptcy in 2002. The Trust claimed that many of the transactions in which Buchanan had represented Adelphia had allowed former executives to loot hundreds of millions of dollars from Adelphia. Buchanan and its insurers contended that there was a single policy limit of liability available for all claims against the firm. Kasowitz attorneys argued that more than one limit of liability was available to address the Trust’s claims, and obtained an agreement under which the insurer paid an additional $20 million solely to the Trust. 
• Winning summary judgment for 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 seeking millions of dollars in damages based on allegations of defects in certain Pella windows. The firm’s lawyers successfully argued that the alleged defect in millions of windows sold over many years was a single occurrence. 
• Recovering millions of dollars of asbestos coverage proceeds on behalf of Philips Electronics North America Corporation and its subsidiary THAN. In coverage actions brought 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. 
• Achieving a multimillion-dollar settlement on behalf of Givaudan Flavors Corporation in litigation seeking insurance coverage for losses relating to hundreds of underlying lawsuits alleging injuries from diacetyl in butter-flavored popcorn. That settlement came within a few months of the involvement by the firm’s attorneys, and actually exceeded the insurer’s policy limits. 
• Obtaining summary judgment requiring insurers to provide a complete defense to Philips Lighting Company in connection with 4,000 underlying toxic tort claims, after which all aspects of the coverage claim were fully and very favorably resolved. 
• Representing 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.