At the request of our insurer client, we successfully analyzed the allegations of a multi-party construction-related lawsuit and the tender of defense between parties for purposes of determining coverage and defense obligations. The underlying lawsuit involved construction of a natural gas pipeline for the energy industry. The suit presented allegations of breach of contract, negligence, blasting liability, trespass, emotional distress, and fraud.  The insurance issues involved additional insured coverage, property damage coverage, contractual indemnity rights, and anti-indemnity statutes. After presenting our opinion, we assisted the insurer client in obtaining payment from the insurer of another party based upon the indemnity and insurance rights between the parties.

We represented a liability insurer in complex, multi-party coverage litigation relating to a theft by a security guard. The guard stole equipment from a manufacturing facility where he was assigned to work. To recover the theft loss the manufacturer sued its own insurer, seeking coverage for property damage. The property insurer then brought a third party complaint against the security company under a theory of negligent hiring of the employee-guard. The security company then sued our client seeking coverage and a defense in the suit. We defended our client in its position that its policy, with its limited theft endorsement and in the absence of a fidelity bond, did not provide coverage or a defense for employee theft, regardless of the negligent hiring theory. After refusing to order a defense, and denying all dispositive motions, the court granted our motion to bifurcate and delay the claims against our insurer-client, indicating a potential for denying all coverage. Achieving this position of leverage allowed us to obtain an agreed dismissal of our client on confidential, favorable terms.

We assisted a large insurer in evaluating coverage issues, and then related liability and damages issues, pertinent to sexual assault claims against a commercial entity in multiple cases. One case related to a developmentally disabled victim. Another related to a physically handicapped victim. Our work allowed us to provide settlement recommendations in light of our detailed coverage opinions, apportionment of liability amid intentional acts and potentially non-delegable duties, and then compilation of relevant jury verdicts.

In order to provide reasonable cost insurance to local Kentucky school boards, the Kentucky School Board Association (KSBA) created the Kentucky School Board Insurance Trust (KSBIT) and in particular two self-insured funds – one for workers compensation and one for property and liability claims. KSBA directly managed the funds for many years, and in later years utilized an outside entity third party administrator to handle claims. Financial examinations conducted by the Kentucky Department of Insurance from 2005 forward revealed the funds were consistently in a deficit position. Despite calls from DOI examiners, DOI did not order any assessments, and KSBA did not seek any from its members. The Kentucky League of Cities assumed management responsibilities in 2010. Despite new efficiencies and cost savings, the funds continued to be in a deficit position and KLC called for an assessment of members in 2012. Ultimately, the funds went into rehabilitation in 2013, and large assessments totaling approximately $50 million were ordered by the Franklin Circuit Court. The firm represented the Kentucky League of Cities in litigation challenging its management of the two self-insured funds, and in particular the rates charged to members and its change of TPA. The claims against the Kentucky League of Cities were settled in late 2015. The rehabilitator’ claims against KSBA and the KSBIT Board remain pending.

The firm represented a national insurance company in a first party bad faith claim arising from an auto accident. In evaluating his underinsured motorist (UIM) claim, the insurer rejected a spinal outpatient surgery he had done claiming it was controversial and not recommended by the mainstream medical community. A jury ultimately entered a verdict exceeding his UIM limits. The insured claimed the insurer had acted in bad faith in its handling and evaluation of the claim, utilizing protocols intended to maximize company profits at the expense of the insureds and claimants. The claim was settled prior to trial.

The firm represented a national insurance company in a first party bad faith claim by its insured. The case arose from a car accident. A mine employee, who left work, allegedly fell asleep and collided with another vehicle. The occupants of the second vehicle claimed significant injuries. These accident victims filed suit and subsequently added the mine that employed the tortfeasor as a defendant. They claimed their injuries arose from the mine’s negligent supervision of the tortfeasor. The insurer for the mine initially defended the claim but later denied the claim and withdrew a defense, relying upon a total auto exclusion in their CGL policy. After the defense was withdrawn, the mining company failed to assume their own defense and, after failing to answer requests for admission, a judgment totaling $40 million was ultimately entered against it. The insured sued the insurer, claiming there was coverage under the policy, and/or that it waived its right to deny coverage by initially defending without a written reservation of rights. It also claimed the denial was in bad faith. The state trial court ultimately ruled there was coverage under the policy, and thus the insurer was responsible to pay the $40 million judgment entered against the insured. The trial of the bad faith claim was scheduled for a later date. The court’s coverage decision was appealed, and during the appeal a global settlement was reached on all claims.

In this case, the plaintiff’s estate claimed the medical malpractice carrier had acted in bad faith in handling and settling an underlying malpractice claim against the insured doctor. The plaintiff claimed that doctor ran a “pill mill” and improperly prescribed several narcotic medicines to the decedent who eventually overdosed. During this same time period the defendant doctor was cited by the state medical licensing board and thereafter restricted from prescribing medicines. The defendant doctor defended by claiming that he provided the decedent proper warning and that if taken as prescribed no overdose would have occurred. He retained two experts who were prepared to testify that the doctor complied with the standard of care and/or that his conduct did not cause the overdose. The case ultimately settled for less than the policy limits a little more than a year after it was commenced. The bad faith case followed, with the decedent’s estate claiming that the insurer had acted in bad faith by unduly delaying a claim where liability was reasonably clear and making offers less that the true claim value. After initial written discovery was exchanged, the insurer moved for summary judgment on the bad faith claim on several grounds, including that the doctor had not consented to settlement until the day of settlement and because the doctor’s liability for causing the overdose was not beyond dispute and absent such clear liability, an insurer was entitled to make no offer and proceed to trial without exposing itself to bad faith liability. The court ultimately concluded no additional discovery was needed to address these issues and entered summary judgment. The plaintiff filed a motion to vacate the order under Rule 59 and this, too, was denied. The case is currently pending before the Kentucky Court of Appeals.

We represented a large commercial insurer in a liquor liability case where the plaintiff sought the policy limits of $5 million in damages. Our client insured an establishment that served alcohol to a patron, who struck a pedestrian with her car after leaving the establishment. The pedestrian sued the driver, the insured establishment, the nightclub, and our client, seeking in part a declaratory judgment that our client was obligated under an umbrella policy to pay for the insured establishment’s liability. We represented the insurer through the entire case, from pleadings through successful appeal. We won summary judgment at the trial court, and the West Virginia Supreme Court of Appeals affirmed on appeal that the loss was subject to an exclusion under the policy and, thus, was not covered under the insurance policy. The ruling resulted in zero liability for our client.

We successfully defended a challenge by an insured to a new personal lines product and corresponding rate filed with the West Virginia Insurance Commissioner.  We defended the insurer before the proceeding, before the West Virginia Insurance Commissioner, on appeal to the Circuit Court and successfully briefed and argued the insurer's position before the Supreme Court of Appeal of West Virginia.  The product and rate filing had already been in use in West Virginia at the time the insured filed the rate, so a decision to invalidate the product or rate would have been significant.