​Bernice E. Margolis (Partner-White Plains), Thomas O’Connor (Associate-White Plains), and Scott Stopnik (Partner-White Plains) successfully represented an insurance and bonding company – securing a discontinuance and the court’s endorsement of their position – after being substituted in as counsel in a seven-year running declaratory judgment action pending in the New York Supreme Court, New York County.  After reviewing years of inherited filings, Bernice, Tom, and Scott identified a critical procedural defect that had gone unnoticed for years: the plaintiffs were pursuing identical breach of contract claims in both the declaratory judgment action and the underlying liability action. They moved to dismiss under CPLR § 3211(a)(4), demonstrating that the actions involved the same parties, claims, and relief, and that the underlying action had already reached the summary judgment stage, and that the plaintiffs’ claims against our client were fully addressed in that action.

Opposing counsel later conceded they had no basis to resist dismissal and had included the client in the declaratory judgment action merely to obtain additional discovery. The White Plains team declined to delay the matter and instead proposed that the plaintiffs execute a Stipulation of Discontinuance as to the client in exchange for the withdrawal of the motion. At the subsequent appearance, the judge adopted this approach.

Through focused review and strategic motion practice, Wilson Elser extricated the client from a protracted action without further discovery, deposition activity, or costly litigation, eliminating duplicate exposure and streamlining related proceedings.

Mark Ledwin (Partner-NY), Valeria Granata (Partner-Los Angeles), and Natalia Duque (Of Counsel-Los Angeles) prevailed on a motion for summary judgment in the Superior Court of California, Los Angeles County, on behalf of the firm’s insurance company client. In this heavily litigated breach of contract case, the Wilson Elser team argued that while the workers' compensation insurance policy in question was enforceable, the defendant had breached the insurance contract by failing to pay our client the required premiums. Despite the defense counsel’s disputing the premium payment failure, Valeria’s lengthy and persuasive oral argument resulted in the court granting Wilson Elser’s motion for summary judgment, alleviating the need for trial, slated to start in just a few weeks.

Julia Young (Partner-Orlando, FL) and Sara McLaughlin (Associate-Orlando, FL) secured a summary judgment for our insurance company client in a case pending in the U.S. District Court for the Middle District of Florida. The court entered an Order striking both of the plaintiff’s experts, as the experts were neither timely nor properly disclosed, and then granted Julia and Sara’s Motion for Summary Judgment on the basis that the plaintiff lacked any admissible evidence that her property damage arose from a covered cause of loss during the subject policy period. In view of the judgment in favor of our client, as well as a prior Offer of Judgment/Proposal for Settlement served upon the plaintiff by our client and rejected by the plaintiff, the judge entered his Order awarding to our client attorneys’ fees in the amount of $36,324.50 and costs in the amount of $2,693.00. It is noted that, upon notice to the plaintiff’s counsel that we would be moving to strike the plaintiff’s experts and for summary judgment, the plaintiff moved the court for leave to voluntarily dismiss her Complaint, without prejudice to refile, and her request was denied by the court.

Julia Young (Partner-Orlando, FL) defended an insurance company client in a case involving a named-perils policy, which, under Florida substantive law, means the plaintiff’s initial burden in the case is to prove that damage was sustained to her property as the result of windstorm (a named peril under the policy). The property insurer investigated the claim and determined that repair of covered damages did not exceed the applicable policy deductible. The insured then filed suit for breach of contract, and sought damages in excess of $75,000. The matter was removed to the U.S. District Court for the Middle District of Florida. The plaintiff’s counsel failed to disclose any expert by the deadline, and one extension of time was provided to the plaintiff, who again failed to meet the deadline. Julia did not consent to a second extension of time, and contested the plaintiff’s motion seeking one; the court ultimately denied the plaintiff’s motion. Julia argued that, lacking expert evidence, the plaintiff could not meet her initial burden, and, therefore, the client was entitled to summary judgment. Judge Badalamenti handed down his order granting our motion, noting that, without expert evidence, the plaintiff could not demonstrate the necessary element of causation, and could not rebut testimony of our experts regarding whether damage arose due to windstorm or to age-related deterioration. Judge Badalamenti concluded his Order with: “This is a prime example of a complex issue outside the scope of a layperson’s knowledge that requires testimony from an expert witness.”

Julia Young (Partner-Orlando, FL) and Sara McLaughlin (Associate-Orlando, FL) secured dismissal of a case involving a dispute between a contractor, as assignee of the insured and our carrier client over payment for water mitigation services following a loss at the insured’s property. Julia and Sara moved to dismiss with prejudice, arguing the contractor lacked standing because its assignment of benefits (AOB) was invalid under Florida Statute §627.7152. Specifically, it was argued that the AOB failed to include the statutorily required written, itemized, per-unit cost estimate, and instead attached only a generic price list, and that noncompliance rendered the AOB void, eliminating any right to sue. Sara and Julia further asserted that the breach of contract claim failed for lack of a contractual relationship, and the quantum meruit claim was barred because any benefit from mitigation flowed to the homeowner. Lastly, the declaratory judgment count improperly sought an advisory opinion since the policy language is clear and no present controversy existed. The court agreed with Julia and Sara on all grounds and granted the motion to dismiss with prejudice.

Otis Felder (Partner-Los Angeles, CA) obtained a ruling by the United States District Court for the District of Hawai'i in which the Magistrate Judge issued findings and a recommendation to grant Certain Underwriters at Lloyd’s, London, judgment against a construction company, confirming that there is no insurance coverage for claims related to a disputed construction project in Kauai. The ruling stems from allegations by homeowners regarding serious construction deficiencies in their custom retirement home. According to court findings, the insured’s insurance application contained material misrepresentations, failing to disclose known disputes and contractor defaults before the Lloyd’s policy was issued. The court also determined that coverage was barred for multiple independent reasons, including that the claims arose before the policy’s retroactive date; the allegations involved construction activities that were outside the scope of the covered “business activities" as defined by the professional liability policy covering design work; and other policy exclusions applied for workmanship, breach of contract, and known claims. If adopted by the district judge, the ruling will relieve Certain Underwriters at Lloyd’s from any duty to defend or indemnify the insured in connection with the project. The recommendation now moves to the district court for final approval.

Doug Kemper (Of Counsel-Louisville, KY) succeeded in a motion to dismiss the firm’s insurer client. Plaintiff homeowners claimed the client’s Insured, a home inspection company, conducted a negligent pre-purchase inspection of the home and failed to discover and report numerous problems that if properly disclosed would have negated the purchase. Plaintiffs asserted claims of negligence, breach of contract, violation of the Kentucky Consumer Protection Act, negligence per se, and fraud, and sought punitive damages for alleged misrepresentations about the insured company’s work and certification that the inspection would be conducted by a licensed professional. Our client carrier denied coverage for the claims, which were specifically excluded in an endorsement. The plaintiffs then amended their complaint to join our carrier client in a Declaratory Judgment action obligating the carrier to provide coverage for the plaintiffs’ claim. Doug filed a Rule 12 motion to dismiss for failure to state a claim, arguing that (1) because Kentucky is a “no direct action” state, the plaintiffs could not assert a claim directly against the carrier, and (2) the plaintiffs lacked standing to bring a Declaratory Judgment action to litigate a coverage issue between an insurer and its insured. Upon review of our Motion to Dismiss, counsel conceded that the motion was well taken and offered to enter an Agreed Order to dismiss the carrier with prejudice.

James Thurston (Partner-Chicago), Daniel Tranen (Partner-St. Louis, MO), and Robert Curtis (Associate-St. Louis, MO) secured a declaratory judgment dismissal on motion on the pleadings for an insurance company client in U.S. District Court for the Western District of Missouri. The plaintiffs in this matter, executives at a company insured by our client, sought coverage for a lawsuit and a demand letter arising out of their provision of personal guarantees to the company for more than $14 million in debt to a lender and a supplier. The client had denied coverage because these personal guarantees were not made in the executives' capacity as officers of the company. The executives argued that they would not have made the personal guarantees but for the fact that they were officers of the company. However, the court agreed with the insurance company client that personal guarantees are personal obligations, and therefore, cannot be made by the executives in their "capacity" as officers of the company, particularly since if they had done so, then it would have been the company guaranteeing its own debt.

Michael J. Duffy (Partner-Chicago) and Sarah (Sally) Fry Bruch (Of Counsel-Milwaukee, WI) secured a declaratory judgment and dismissal of all claims with prejudice in the Milwaukee County Circuit Court on behalf of Wilson Elser’s insurance company client. The plaintiff, a business owner, allegedly sustained damages and business losses during a construction project, filing claims for breach of contract, fraud, and professional negligence against our client (under Wisconsin’s Direct Action Statute) and its insured, a licensed architect.

Mike and Sally, citing long-standing Wisconsin law, argued that there was no initial grant of coverage for the plaintiff’s breach of contract and fraudulent misrepresentation claims under the client’s Business Liability Insurance Policy. They further argued that the plaintiff’s professional liability claim was expressly excluded under the plain language of the policy’s Professional Services Exclusion and Endorsement, which excluded coverage for property damage arising out of rendering, or failing to render, any professional service by an insured. Following briefing in support of the motion by Wilson Elser and opposition briefing by plaintiff, and Mike’s compelling oral argument, the Court ruled in favor of Wilson Elser’s client. In its twelve-page Decision and Order, the court concurred that the client’s Business Liability Insurance Policy provided no coverage for the plaintiff’s claims and held that our client had no duty to defend or indemnify the insured in the underlying matter, with all claims against Wilson Elser’s client dismissed with prejudice, and granting the client statutory costs and fees.

Diana Hendry (Of Counsel-Madison, NJ) and Michelle Press (Partner-Los Angeles, CA) obtained a motion for summary judgment on behalf of an insurance company and broker in a case disputing the cancellation of a homeowners’ policy. The plaintiff homeowner applied through his mortgage broker for a homeowners’ policy, which was issued based on the information provided. Shortly thereafter, the insurer discovered that the information provided by the homeowner was incorrect and timely sent a notice of cancellation to the policyholder by U.S. Mail and email. The home was destroyed by fire many months later; plaintiff’s claim was denied and the plaintiff asserted he had never received notice of the cancellation. In support of their motion for summary judgment, Diana and Michelle submitted a certificate of mailing and the emails, which the Court found sufficient to meet the client’s initial burden of demonstrating that it complied with the cancellation requirements in New York Insurance Law and therefore was entitled to the presumption that notice was received. (The emails bolstered the proof of mailing, but were themselves insufficient to comply with the Insurance Law requirement.) However, the plaintiff’s claim that he did not receive the notice was insufficient to meet his burden to prove that the insurer failed to conform with the strict statutory cancellation requirements. On that basis, the Court dismissed the coverage action against our client.

Meg Twomey (Of Counsel-Atlanta, GA) secured summary judgment for an insurance broker client in a negligent misrepresentation and fraud claim in the State Court of Jackson County. The plaintiffs, a general contractor and its insurance carrier, sought subrogation for workers’ compensation paid to the employee of a subcontractor. Our client, the subcontractor’s broker, merely sent the certificate of insurance to the general contractor. The plaintiffs attempted to argue that the broker induced the general contractor into hiring the subcontractor, despite the broker’s knowledge that employees hired out of state would not be covered under the workers’ compensation policy. The court held that the plaintiffs failed to show a false representation or negligent misrepresentation by omission, and failed to show justifiable reliance on the COI. The plaintiffs elected not to appeal. 

Jane Young (Partner-Denver, CO) defended an insurer client that issued two excess policies to a health care provider, which provided up to $40 million in hospital professional liability coverage in excess of $2 million per medical incident underlying coverage. The insured was sued by hundreds of patients in Denver, Colorado, claiming a breach in the sterilization protocol of surgical instruments. The coverage issue was whether the hundreds of different claims by different patients constituted one medical incident or more than one medical incident under the excess policies. The insured argued all the claims should be grouped as one medical incident. Our client disagreed and, pursuant to the policy language, argued that each patient's claim constituted a separate medical incident. The insurer filed a declaratory judgment action, seeking a declaration that each claim constituted a separate medical incident. The Colorado Federal Court agreed with our client and granted summary judgment. The insured appealed to the Tenth Circuit. After oral argument, the Tenth Circuit affirmed and held that each patient's claim constituted a separate medical incident. Thus, our client does not have an obligation to pay any monies until any one claim exceeds $2 million, and only one claim did.

Edward M. O'Brien (Partner-Louisville, KY) obtained summary judgment in the U.S. District Court for the Southern District of Indiana in favor of Wilson Elser’s client, an insurer. This case stems from a brawl at an insured's bar establishment. The plaintiff, a bar patron, alleges that a bar employee inflicted serious physical injury upon him while attempting to break up an altercation. The patron sued the bar to recover the establishment’s insurance policy general commercial liability limit of $1 million. The firm's insurer client maintained that coverage for injuries caused by an assault and battery is limited to $25,000 per person under the policy. Eddie filed a declaratory judgment action, and despite the patron’s assertion that the policy language was ambiguous and that the general $1 million limit should apply, the court agreed with Eddie’s argument. It granted summary judgment in favor of Wilson Elser’s client, thereby limiting the insurer’s possible exposure to $25,000 instead of the $1 million general limit. 

Doug Kemper (Of Counsel-Louisville, KY) represented a drug rehabilitation center and its insurer in litigation involving a three-vehicle accident that resulted in catastrophic injuries to the 11 passengers in our client’s van, many of whom were ejected from the vehicle during the accident. Although it was clear that the accident was caused by one of the other drivers, all 11 plaintiffs joined liability claims against the rehab center and its driver. After settling the liability claims against the at-fault driver and the Underinsured Motorist carrier, the plaintiffs took aim at our client seeking to open the door to a $2 million liability insurance policy. The plaintiffs claimed there were not enough working seatbelts and that our driver had a duty to make sure everyone was belted before driving the van. After extensive discovery and motion practice, 9 of the 11 plaintiffs voluntarily dismissed their claims against our client and Doug prevailed on summary judgment to dismiss the claims of the 2 remaining plaintiffs, resulting in complete vindication of our client’s position.

Edward M. O'Brien (Partner-Indianapolis, IN) prevailed at the Indiana Court of Appeals in an insurance coverage dispute arising from a serious collision between two tractor-trailers. Eddie defended the firm's insurer client against claims for breach of contract and bad-faith denial of coverage, successfully persuading the trial court that the loss was not covered because the tractor-trailer driver did not meet the insurance policy's driver qualification requirements. In affirming, the Court of Appeals rejected the plaintiff's arguments that the loss was covered by the policy and that the policy terms were ambiguous. The Court of Appeals ordered its opinion published, meaning it is binding appellate precedent in Indiana.

Katherine Tammaro (Partner-Madison, NJ) received a unanimous affirmance for the NJ Supreme Court following oral argument in September. On December 12, the court affirmed Kate’s wins at the Trial and Appellate levels. Essentially, the court held that an employer’s liability insurer will never have a coverage obligation, including any duty to defend, in a suit by an employee against an employer when that insurer is paying workers’ compensation benefits and the policy at issue contains the New Jersey Part Two (Employers Liability Endorsement) exclusion for claims within the New Jersey workers’ compensation exclusivity bar exception or similar language, which the Court found to be clear, unambiguous, and in accordance with the public policy of New Jersey. 

Nicholas D. Freeman (Partner-Orlando, FL) and Dale S. Dobuler (Of Counsel-Orlando, FL) obtained summary judgment in favor of our client insurance company in a declaratory action on the lack of coverage for two severe underlying bodily injury claims and lawsuits brought by two different pedestrians who were injured during a traffic accident involving the client’s insured. While we defended the underlying claims and suits, it was the client’s position that the operative policy did not provide responsive liability coverage for the accident. After filing suit, Nick and Dale quickly moved for summary judgment on the lack of coverage under the policy for the two claims and prevailed in full on that issue. After the successful summary judgment ruling, they sought a final default judgment with respect to certain defendants who had been defaulted in the coverage action. During the subsequent hearing on that issue, Nick and Dale successfully defended against a motion to vacate the default brought by one of the defaulted defendants, and then were successful in obtaining final default judgment on the lack of coverage for our client and the remaining defaulted defendants, bringing the matter to a close and allowing the client to withdraw its defense of the underlying bodily injury suits.

Russell M. Pfeifer (Partner-Miami, FL) and Emma Nunn (Associate- Miami, FL) obtained final summary judgment in favor of our client insurer on a late reported Hurricane Irma claim. The plaintiffs reported the claim nearly three years after the date of loss and filed suit just shy of the expiration of the statute of limitations. The first inspection of the property occurred at that time. Russell and Emma argued that the plaintiffs’ notice was untimely as a matter of law resulting in prejudice to the carrier, and that the plaintiffs’ proffered evidence was insufficient to overcome the legal burden that arises in Florida upon an insurer’s demonstration that notice was untimely. The plaintiffs offered the affidavit of an engineer in opposition to summary judgment, which relied on historical weather data and historical satellite imaging, and argued the engineer’s inspection was sufficient to overcome the presumption of prejudice. The Miami-Dade Circuit Court disagreed, finding the affidavit was conclusory as it was based on an inspection conducted three years after the date of loss, and granted our motion. This is Russell and Emma’s third consecutive summary judgment win on late reported hurricane claims for the same insurer client. 

Nicholas D. Freeman (Partner-Orlando, FL) and Teresa C. Taglianetti (Associate-West Palm Beach, FL) obtained summary judgment in favor of Certain Underwriters at Lloyd’s, London (Underwriters). The lawsuit involved an insurance coverage claim pending in Florida state court that alleged Hurricane Ian caused damages to the plaintiff’s property. In response, Underwriters denied coverage based on the insurance policy’s endorsement, which excluded any coverage for damages to the roof. The insured filed suit to challenge the denial, and Nick and Teresa filed a motion for summary judgment that argued the policy clearly excluded all alleged damages. The court agreed with our arguments and granted summary judgment for Underwriters.  

Kimberly Silas (Of Counsel-New Orleans) and Zachary Fickes (Associate-New Orleans) secured dismissal in the Nineteenth Judicial District Court, East Baton Rouge Parish, Louisiana, on behalf of an insurance company. The case turned on Louisiana’s recently amended Direct Action statute; the bill prohibits a plaintiff from asserting a direct claim against a defendant’s insurer absent certain circumstances. The amended law took effect on August 1, 2024, but it failed to specify whether it applied retroactively. The plaintiffs named our client in a lawsuit filed on July 25, 2024, six days before the amended statute went into effect, providing the plaintiffs an arguable basis to assert that the insurer was properly named. Despite Kimberly and Zack’s arguments for retroactive application, the plaintiffs refused numerous requests to dismiss the insurer. However, upon their filing of an exception of no cause of action based on the amended statute, the plaintiffs promptly agreed to the dismissal, executing a partial motion to dismiss Wilson Elser’s client without prejudice. 

David Frank (Partner-Milwaukee, WI) secured a dismissal for an aircraft owner and its insurance company before the United States District Court for the Eastern District of Michigan. The case arose from a plane crash caused by pilot error. Shortly after the crash, the lone passenger’s estate made a demand against the aircraft owner, which was quickly settled. Several months later, the pilot’s estate made a first-party claim for the third-party liability limits without claiming the aircraft owner was liable for any conduct that would give rise to coverage. The insurance company invited the pilot’s estate to provide a theory of liability for which there would be coverage, which it failed to do. Rather, the pilot’s estate then brought suit in Michigan state court against the aircraft owner and insurance company alleging, among other things, breach of contract claims for wrongful denial of its claim. The case was removed to the Eastern District of Michigan and since the plaintiff had pled no colorable action against the aircraft owner for allegedly denying the policy benefits, the court dismissed the insured at the outset of the case. The plaintiff amended its complaint and the insurance company, now the sole defendant, moved to dismiss for failure to state a claim. In response, the plaintiff argued that the liability provisions did not require a determination of liability, rather it was entitled to the liability coverage simply because an accident had occurred regardless of fault. In granting the motion to dismiss, the court held that the plaintiff failed to put forth a plausible theory as to how it was entitled to the liability coverage whether as an insured or to the extent the estate was claiming that it was a third-party beneficiary under the policy.

Danielle T. Gauer (Of Counsel-Miami, FL), Maria Papasakelariou (Associate-Miami, FL) and Brian Del Gatto (Partner-Phoenix, AZ) secured a voluntary dismissal on behalf of a Canadian insurance carrier doing business out of Nova Scotia, Canada. The plaintiff, a resident of Nova Scotia and the insured, sought uninsured and underinsured motorist coverage related to an accident that occurred in Florida against a policy with $1+ million in potential benefits. The team filed a motion to quash service of process and a motion to dismiss for lack of personal jurisdiction and forum non conveniens, arguing that the plaintiff inappropriately served the insurance company by attempting to serve a completely unrelated U.S. entity. The application of the law of Nova Scotia by a court located in the province, coupled with the fact that all potential witnesses are Canadian and the evidence is located in the province, makes Nova Scotia the more appropriate forum for this dispute. The team proved that the Canadian company was in fact completely separate from the U.S. insurer of a similar name. The plaintiff’s response to our motion tried to make the argument that the affidavit of the insurance adjuster was not legally sufficient under the law as the adjuster did not have personal knowledge of the matter. Furthermore, the plaintiff argued that Canada is not an adequate alternative forum because the insurance carrier should step into the shoes of the owner of the uninsured or underinsured vehicle. However, the cases cited by the plaintiff failed to involve a non-U.S. or foreign insurance carrier. Finally, on the eve before the hearing, the plaintiff’s counsel filed a notice dismissing our client. This continues our string of success in protecting our Canadian clients from being hauled into courts like Florida without proper grounds. 

Edward O’Brien (Partner-Louisville) successfully obtained a rare reversal of a remand to state court in the United States District Court for the Eastern District of Kentucky for Wilson Elser’s client, an insurance company. The plaintiff sued our insurer client in state court following the insurer's denial of his claim for long-term disability benefits but failed to effectuate service for more than ten months. After the plaintiff properly served the insurance company at the correct address, the client removed the case to federal court. In response, the plaintiff filed a motion to remand the case to state court, arguing that the removal was untimely and that the client was properly served at the outset of the litigation. Initially, the district court sided with the plaintiff and granted the motion to remand. Eddie moved for reconsideration, and the court granted Wilson Elser’s request, reversing its prior decision and acknowledging that the previous ruling "rested on a material factual error." As a result, the case remained in federal court. Reversals of orders remanding cases to state court are exceedingly uncommon.

Shannon Santos (Partner-Los Angeles) obtained summary judgment in Los Angeles Superior Court on behalf of Wilson Elser’s clients, an insurance company and an adjusting firm. The plaintiff insureds brought a coverage action, including claims for breach of contract, bad faith and elder abuse, alleging their first-party claim for water damage in their home was not fully paid. The plaintiffs argued that our insurer client was required to pay for the replacement of all flooring in the house, even though the damage was limited to the first floor.

While initially precluded at the pleading stage, Wilson Elser succeeded on summary judgment and removed the adjusting company from the lawsuit after establishing that it had no contractual relationship with the insureds. In successfully defending the client insurer, Shannon prevailed on two separate theories. First, as a matter of procedure, the "Suit Against Us" provision in the policy precludes the suit as the plaintiffs failed to commence the action within one year of the date of loss after the application of tolling authority. While a challenging argument, as the letters to the insureds were not “unequivocal denials” given the claim was partially paid, Shannon convinced the court that the letters showed which portions of the claim were paid and denied all other portions, sufficient to end the tolling period. Second, the Court agreed that, substantively, there was no coverage under the policy for the benefits sought as the replacement for flooring in areas directly damaged was paid in full.
 

Christina Huston (Of Counsel-Houston) and Carol Kennedy (Of Counsel-Houston) obtained summary judgment in the Harris County Court at Law No. 1 for Wilson Elser’s client, an insurance agent and broker.  The plaintiff brought a suit against its insurer and the local broker/agent, alleging a failure to procure sufficient insurance coverage before the historic winter storm, Uri. The trial court granted Christina and Carol’s traditional motion for summary judgment and their no evidence motion for summary judgment, concurring that the plaintiff failed to produce evidence to support one or more elements of the claim and could not recover on the claim as a matter of law, dismissing the case.

New York, New York, partners Kristen Carroll, Nolan Comfort and Ellen Greiper obtained unanimous affirmance of an order from Bronx County that granted our motion for summary judgment dismissing the complaint on the grounds that the plaintiff did not sustain a “serious injury” under any category of Insurance Law § 5102(d), in a case where summary judgment was already granted to the plaintiff on liability in a rear-end accident. The court held that Kristen, Nolan and Ellen met their prima facie burden through the submission of an expert report from an orthopedic surgeon who found normal ranges of motion with no evidence of acute injury, and that any injuries were degenerative in nature and not causally related to the accident; and a biomechanical engineering expert who opined that the low impact could not have caused the plaintiff’s claimed injuries. The plaintiff’s deposition also was submitted, wherein he admitted he ceased treatment within eight months of the accident. The court held that plaintiff’s failure to explain his cessation of treatment interrupted the chain of causation and rendered his physician’s finding of permanency speculative. Finally, the court held that the team met our burden with respect to the 90/180 category, as the plaintiff testified that he was only out of work for six weeks after the accident and continued to work at least 40 hours a week in his same capacity as a signal maintainer with the MTA within a few months of the accident.

Tommy Spitaletto (Partner-Dallas, TX) argued a motion for summary judgment in the Southern District of Florida and a subsequent Eleventh Circuit appeal, securing dismissal of a coverage action by an insured under a $10 million D&O policy in a federal court case based on the “Insured versus Insured” exclusion. The insured argued that the exclusion did not apply to the causes of action asserted by the uninsured plaintiff, and that coverage should exist for at least those causes of action. The court, however, held that the exclusion defeated coverage for the entire underlying lawsuit, as Tommy argued, despite the presence of both insured and uninsured plaintiffs. The court distinguished and did not follow a Seventh Circuit opinion by Judge Posner, but followed the only other published opinion in the country at the time addressing this novel issue, turning the weight of authority nationwide back in favor of insurers. 

Maryan Alexander (Partner-Baltimore, MD) and Michael Silvestri (Of Counsel-Baltimore, MD) obtained summary judgment in the Circuit Court for Baltimore City on behalf of a title insurance producer sued for allegedly failing to notify the plaintiffs/buyers of an open Building Code violation prior to closing in a real estate transaction. More than a year after the plaintiffs/buyers purchased the property, Baltimore City filed a receivership action, resulting in plaintiffs/buyers incurring significant expense in repairs to abate the Building Code violation. The plaintiffs/buyers sued the title insurance producer on counts for breach of contract, negligence, violation of the Maryland Consumer Protection Act and fraud. The court granted summary judgment in favor of the title insurance producer on the basis that it had no duty, in contract or in tort, to search for or disclose the Building Code violations, which are not a cloud on title. The court also dismissed the violation of the Maryland Consumer Protection Act claim, agreeing that the Act expressly excludes title insurance producers from the statutory scheme, and the fraud claim for not being pled with the requisite specificity. The action is continuing as to other defendants.

Brian Breen (Partner-Philadelphia, PA) and Jesse M. Endler (Of Counsel-Philadelphia, PA) were granted their motion for summary judgment in the Court of Common Pleas, Philadelphia County in a case in which the plaintiff-insured made a claim against our insurer-client for property damage after a rainstorm. The plaintiff sought damages for the complete replacement of the roof and roof framing on two warehouses, as well as bad faith. The claim was originally denied by the insurer based on its position the damage was the result of wear-and-tear / lack of maintenance and the damage preexisted the date of loss. During discovery, it was discovered the actual date of loss was not the date represented in the complaint, but a day earlier.  The policy contains a suit limitation provision that requires any complaint be filed within two years of the date of loss. We filed a motion for summary judgment asserting the complaint was filed a day after the two-year suit limitation period. The plaintiff attempted to oppose the motion with an affidavit contradicting his prior testimony regarding the date of loss. The court evidently agreed with us that the affidavit did not create an issue of material fact and granted summary judgment.