Newsletters
What Capacity Is Your Capacity In?
Q3 2025 - Coverage Matters
Jim Thurston, Chair of the D&O and E&O Insurance group, is a coverage lawyer who focuses his practice on insurance and bad faith litigation in the professional liability field. Jim’s career has been distinguished by the successful litigation of a large number of complex insurance coverage cases, including those resulting in precedent-setting decisions in bankruptcy and other areas. He takes a pragmatic approach in resolving claims for his clients taking calculated risks when necessary while avoiding unnecessary litigation.
Jim’s clients include primary and excess insurers, as well as reinsurers and retrocessionaires, that issue policies for directors and officers, financial institutions, architects, accountants, insurance company E&O and miscellaneous E&O. He also has represented environmental impairment and general liability insurers. Jim’s practice extends worldwide and has involved insurance policies issued from England, France, Germany, Greece, Norway, Finland, Sweden, Switzerland, the Netherlands, India, Spain, Ireland, Russia, Japan, Italy, South Africa, Australia, Hong Kong, Mexico, Columbia, Argentina, the Island of Saipan, Guam, Puerto Rico and the Philippines.
Jim has been involved in insurance coverage matters arising from some of the largest corporate scandals, including Madoff, Enron, WorldCom, Adelphia, Global Crossing, Satyam, Dynegy and Qwest, as well as the IPO Laddering Lawsuits. In connection with such matters, Jim works on behalf of carriers to revoke coverage for corporate officers and directors found to have engaged in malfeasance and to indemnify and defend those officers not involved in any wrongdoing. He also utilizes his extensive knowledge of insurance coverage case law to counsel carriers on policy drafting and negotiation.
Jim has successfully litigated coverage disputes on behalf of his clients throughout the United States, Puerto Rico, England, South Korea, India, Norway and The Netherlands.
Jim Thurston, Chair of the D&O and E&O Insurance group, is a coverage lawyer who focuses his practice on insurance and bad faith litigation in the professional liability field. Jim’s career has been distinguished by the successful litigation of a large number of complex insurance coverage cases, including those resulting in precedent-setting decisions in bankruptcy and other areas. He takes a pragmatic approach in resolving claims for his clients taking calculated risks when necessary while avoiding unnecessary litigation.
Jim’s clients include primary and excess insurers, as well as reinsurers and retrocessionaires, that issue policies for directors and officers, financial institutions, architects, accountants, insurance company E&O and miscellaneous E&O. He also has represented environmental impairment and general liability insurers. Jim’s practice extends worldwide and has involved insurance policies issued from England, France, Germany, Greece, Norway, Finland, Sweden, Switzerland, the Netherlands, India, Spain, Ireland, Russia, Japan, Italy, South Africa, Australia, Hong Kong, Mexico, Columbia, Argentina, the Island of Saipan, Guam, Puerto Rico and the Philippines.
Jim has been involved in insurance coverage matters arising from some of the largest corporate scandals, including Madoff, Enron, WorldCom, Adelphia, Global Crossing, Satyam, Dynegy and Qwest, as well as the IPO Laddering Lawsuits. In connection with such matters, Jim works on behalf of carriers to revoke coverage for corporate officers and directors found to have engaged in malfeasance and to indemnify and defend those officers not involved in any wrongdoing. He also utilizes his extensive knowledge of insurance coverage case law to counsel carriers on policy drafting and negotiation.
Jim has successfully litigated coverage disputes on behalf of his clients throughout the United States, Puerto Rico, England, South Korea, India, Norway and The Netherlands.
Jim Thurston, Chair of the D&O and E&O Insurance group, is a coverage lawyer who focuses his practice on insurance and bad faith litigation in the professional liability field. Jim’s career has been distinguished by the successful litigation of a large number of complex insurance coverage cases, including those resulting in precedent-setting decisions in bankruptcy and other areas. He takes a pragmatic approach in resolving claims for his clients taking calculated risks when necessary while avoiding unnecessary litigation.
Jim’s clients include primary and excess insurers, as well as reinsurers and retrocessionaires, that issue policies for directors and officers, financial institutions, architects, accountants, insurance company E&O and miscellaneous E&O. He also has represented environmental impairment and general liability insurers. Jim’s practice extends worldwide and has involved insurance policies issued from England, France, Germany, Greece, Norway, Finland, Sweden, Switzerland, the Netherlands, India, Spain, Ireland, Russia, Japan, Italy, South Africa, Australia, Hong Kong, Mexico, Columbia, Argentina, the Island of Saipan, Guam, Puerto Rico and the Philippines.
Jim has been involved in insurance coverage matters arising from some of the largest corporate scandals, including Madoff, Enron, WorldCom, Adelphia, Global Crossing, Satyam, Dynegy and Qwest, as well as the IPO Laddering Lawsuits. In connection with such matters, Jim works on behalf of carriers to revoke coverage for corporate officers and directors found to have engaged in malfeasance and to indemnify and defend those officers not involved in any wrongdoing. He also utilizes his extensive knowledge of insurance coverage case law to counsel carriers on policy drafting and negotiation.
Jim has successfully litigated coverage disputes on behalf of his clients throughout the United States, Puerto Rico, England, South Korea, India, Norway and The Netherlands.
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.
James K. Thurston, Daniel E. Tranen and Robert Curtis
Melissa Murphy-Petros (Of Counsel-Chicago, IL) and James Thurston (Partner-Chicago, IL) obtained affirmance in Paraco Gas Corp. v. Ironshore Indemnity, Inc., No. 23-1069-cv. U.S. App., Second Circuit (June 17, 2024) for the firm’s specialty insurance client, Ironshore. The plaintiff, a closely held family corporation that distributes propane fuel and equipment, sought coverage under its D&O policy for a shareholder dispute involving share transfers. The Second Circuit affirmed the dismissal of the plaintiff's complaint on the ground that its declaratory judgment action seeking enforcement of the shareholder agreement's stock transfer provisions is excluded from coverage under the policy's contract exclusion as an action arising out of the insured's contractual obligations under the shareholder agreement. This litigation was covered by Law360 extensively and reported on five times, most recently after the Second Circuit's decision was handed down.
Melissa A. Murphy-Petros and James K. Thurston
Jim Thurston (Partner-Chicago, IL), Melissa Murphy-Petros (Partner-Chicago, IL) and Jonathan Meer (Partner-New York, NY) prevailed on behalf of the firm’s insurance client in a case involving an insured closely held family corporation that sought coverage under its D&O policy for a declaratory judgment action seeking enforcement of the stock transfer provisions in its shareholders’ agreements. The Second Circuit affirmed dismissal of the plaintiff’s complaint on the ground that the policy’s contract exclusion precluded coverage because the declaratory judgment action – although not an action for breach of contract – arose out of the insured’s contractual obligations under the shareholder agreements. Jim and Jonathan secured the dismissal in the U.S. District Court for the Southern District of New York; Jim and Melissa handled the Second Circuit briefing, and Melissa presented oral argument. Jim and Melissa are now 8-1 before the U.S. Court of Appeals, where they have handled matters in the First, Second, and Ninth Circuits.
The appeal was covered by Law360 in their June 22, 2023, December 5, 2023, March 22, 2024, March 27, 2024, June 17, 2024 articles.
James K. Thurston, Melissa A. Murphy-Petros and Jonathan E. Meer
Melissa Murphy-Petros (Of Counsel-Chicago, IL) Jim Thurston (Partner-Chicago, IL), Daniel Tranen (Partner-St. Louis, MO), and Chad Butterfield (Partner-Las Vegas, NV) convinced the Nevada District Court that coverage was not available under a $5 million D&O policy for the putative claims by a bankruptcy litigation trustee against a former officer (Kay). Kay allegedly breached his fiduciary duties to an insured entity when he failed to uncover the criminal fraud of its former CEO (Rogas). The Court followed Wilson Elser’s arguments that Kay’s breaches were “arising from” Rogas’s prior fraud and, therefore, fell within the purview of the exclusionary language of a warranty letter executed by Rogas, wherein he represented that “no insured” (including Rogas) had knowledge or information of any act or error that might give rise to a claim. Following briefing and oral argument by Melissa, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that despite two non-imputation clauses in the policy and allegations of wrongdoing by Rogas after the warranty letter, “the broad language excluding any claim ‘arising from’ pre-execution knowledge” was sufficient to bar any coverage to Kay under the policy. This three-office victory evidences the successful collaboration between Wilson Elser’s coverage, litigation and appellate attorneys on an economical basis without having to use additional local counsel.
Melissa A. Murphy-Petros, James K. Thurston, Daniel E. Tranen and Chad C. Butterfield
Melissa Murphy-Petros (Of Counsel-Chicago), Jim Thurston (Partner-Chicago) and Paul White (Partner-Los Angeles) prevailed in a coverage action before the Ninth Circuit. The underlying action involved the insured’s sale of a scientific manufacturing facility in Mexico without telling the buyer that the facility had been taken over by the El Chapo drug cartel. The Ninth Circuit affirmed the district court’s grant of our Rule 12(b)(6) motion to dismiss on the basis of the policy’s contract exclusion, finding that the underlying action – which stated claims for fraud – was an action “based on, arising from, or in any way related to an actual or alleged breach of contract.” This decision is important because the underlying action sought damages only for tort claims, and there were no breach of contract claims. Further, certain of the alleged wrongful acts occurred prior to the formation of any contract, yet both courts held the exclusion still had application. Although there was no claim for indemnity, the insured sought $5 million in defense costs.
This appeal has been reported on four times by Law360:
9th Circ. Won't Revive PE Firm's 'El Chapo' Insurance Dispute
Firm Faces Skeptical 9th Circ. In 'El Chapo' Insurance Dispute
Insurer Urges 9th Circ. To Toss Appeal In 'El Chapo' Dispute
Melissa A. Murphy-Petros and James K. Thurston