David Simantob Partner

     

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David Simantob focuses his practice on complex insurance coverage and bad faith matters, appeals and the use of alternative dispute resolution involving errors and omissions, commercial general liability, media, personal lines and first-party property claims. During his more than 20-year career, David has advised insurers with respect to insurance coverage, drafting policy language and claims handling issues in a variety of matters, including intellectual property, entertainment, disparagement, habitability and various consumer class action claims. Through Wilson Elser’s expansive network, David regularly engages in alternative dispute resolution proceedings and appeals of complex insurance matters across the United States and abroad. Over the years, he has handled insurance coverage litigation and appeals in cases of first impression in California, Florida, Oregon and elsewhere.

David regularly acts as national coverage counsel for major insurance companies. Program Management is a dedicated practice area at Wilson Elser, comprising licensed attorneys who evaluate and investigate claims, offer opinions on coverage, issue coverage positions, retain and manage counsel for insureds, budget and manage litigation expenses, and make reserve recommendations. In this context, David’s negotiating skills provide leverage and can enhance cost-effective resolution of claims.

Representative Matters

Argued and won before the Florida Second District Court of Appeal, which affirmed earlier win on summary judgment and found no duty to defend an underlying class action complaint alleging that the insured falsely described its product as organic, as such claims did not constitute implied disparagement of and concerning the plaintiffs and where otherwise precluded by the policy’s quality of goods exclusion.

After winning in District Court, handled the appeal as part of the team before the Ninth Circuit, where the Ninth Circuit confirmed that any potential implied disparagement claims were precluded by the policy’s intellectual property exclusion.

The U.S. District Court for the Central District of California held that the insurer had no duty to defend because claims that the insured had labeled its products as organic did not constitute implied disparagement, infringement of an advertising idea or of a slogan, and was otherwise precluded by the policy’s intellectual property exclusion.

The Ninth Circuit in held that the insurer had no duty to defend or indemnify because the complaint against the insured did not seek “damages because of” any injury arising out of a “disparagement” offense, and a wrongful termination of a distribution agreement fell within the policy’s “breach of contract” exclusion. 

The California Central District Court held that the policy’s TCPA exclusion precluded coverage for the entire action, including all common law causes of action, arising out of unsolicited telephone calls by the insured as the common law cause of action arose out of the same facts as the TCPA claims.

As part of the team, obtained a unanimous decision before California Supreme Court that an action based on advertisements for product that resembled and had similar name to a competitor's product was not within “product disparagement” coverage, under personal and advertising injury provisions of the policy, and that the insured's advertisement that its product was “superior” did not give rise to a claim for disparagement of competitor's product.

The District Court held, and the Ninth Circuit affirmed, that the statutory violations exclusion in the policy precluded coverage for ZIP code collection cases brought under California’s Song-Beverly Act.

Argued and won appeal in which the California Court of Appeal held that an action based on advertisements for product that resembled and had similar name to competitor's product was not within “product disparagement” coverage of the insurer’s policy.

The Ninth Circuit held that the insurer was not subject to specific personal jurisdiction in California in an action to recover for injuries sustained at insured’s Connecticut home, where insurer’s purported contacts with California were directly attributable to insureds’ unilateral decisions to move to California.

Argued and won where the Court of Appeals of Oregon held in a case of first impression that the policy’s “employment-related” practices exclusion precluded coverage for a former employee's claim of defamation based on letter sent by insured to prospective employer.

Argued and won appeal where the California Court of Appeal held  that a non-settling insurer’s “excess other insurance” clause was not enforceable and that the carrier had a duty to contribute on a pro rata basis with settling insurers who had a “primary other insurance” clause.

The District Court held, and the Ninth Circuit affirmed, that judgment against insured was not covered because it was based on the insured failing to perform implied in fact contract and did not arise out of misappropriation of advertising ideas as required under the policy.

The District Court held that replacement cost is not payable until insureds actually repair or replace the damaged property.