Liability Insurance Coverage
For more than two decades, Clausen Miller P.C. has actively litigated environmental coverage issues throughout the United States. The firm acts as national and regional counsel to large liability carriers who handle thousands of claims submitted by policyholders. The claims submitted under general liability policies include those seeking coverage for liability arising out of releases of hazardous substances from landfills, the discharge and/or disposal of hazardous materials from manufacturing operations and analyzing claims for contamination of navigable waters, aquifers and groundwater. The firm is also well versed in assisting carriers in analyzing coverage under environmental impairment liability policies, as well as pollution liability policies purchased to cover discrete types of environmental liability exposures and cost cap coverage for specific pollution liabilities. The firm’s services include counseling primary and excess carriers at the earliest stages of a claim to representing the carrier in coverage litigation right through verdict and appeal. Our team of veteran coverage litigators regularly represents carriers in some of the largest and most complex lawsuits pending in the country.
Clausen Miller attorneys stay abreast of the ever changing legal landscape which encompasses a myriad of issues, including policy construction, claim handling issues and developing the best strategy to achieve a fair and just result. We assist carriers in responding to policyholder demands, investigating the facts underlying the claim submitted and in providing a thorough legal analysis. We work with the foremost environmental consultants at all stages of a claim and throughout the course of coverage litigation to ensure that the technical aspects of each case are addressed properly. Our attorneys stand ready to assist with specific cases as well as to provide education and up to date analysis of trends in case law through publications and seminars.
The explosion of toxic and other mass tort claims over the last 20+ years has resulted in a dramatic increase in complex coverage litigation. Clausen Miller has been -- and continues to be -- at the forefront of creatively and vigorously protecting our clients’ interests from initial claim(s) through resolution. We have been called upon to analyze and/or litigate virtually every coverage issue to arise in this area, involving every type of substance, in virtually every state in the country.
Our attorneys are experts in handling all aspects of toxic and mass tort coverage matters. We routinely provide coverage opinions on cutting edge legal issues such as appropriate trigger and allocation methodologies; the number of “occurrences” potentially at issue and past/future damages calculations; as well as the myriad policy-based defense unique to each individual case. Our representation of primary, excess and umbrella carriers often begins well before the filing of a coverage lawsuit in the claims handling process, and extends through trial, settlement or any appeal. As an example, our office drafted the mold exclusion utilized by a major international insurer.
Indeed, our clients include some of the largest insurance companies in the world and we consistently advise and defend them in some of the largest mass-tort coverage cases in the nation. Clausen Miller serves as national and/or regional coverage counsel for a number of our insurance clients. In the toxic tort arena, we currently serve as national coordinating coverage counsel for mold claims as well as its national counsel for municipal cases against gun manufacturers. Other representative toxic or mass tort coverage cases handled by our Liability Coverage Group include the following:
First State Ins. Co. v. Minnesota Mining & Manufacturing, Co. (3M), et al. (Minnesota - Breast Implants)
Truck Insurance Exchange v. Kaiser Cement & Gypsum Corporation, et al. (California - Asbestos)
John Crane, Inc. v. Admiral Ins. Co., et al. (Illinois - Asbestos)
Union Carbide Corporation v. Affiliated FM Ins. Co., et al. (New York - Asbestos)
Air Liquide America, LLP, et al. v. United States Fire Ins. Co. (Texas - Silica)
Missouri Pacific Railroad, et al. v. Admiral Ins. Co., et al. (Illinois - Noise Induced Hearing Loss)
Atlanta International Ins. v. Conwood Co., L.P., et al. (Tennessee - Smokeless Tobacco)
State of Louisiana v. The American Tobacco Co., et al. (Louisiana - Tobacco)
Certain Underwriters at Lloyds, London v. Millennium Holdings, LLC, et al. (New York - Lead Paint)
Arcelor Techalloy - MDL Welding Rod Litigation (N.D. Ohio - Welding Rods)
In addition to providing expert counsel for mass tort claims and litigation, the Liability Coverage Group takes pride in demonstrating our expertise through industry seminars, publications, CLE training sessions and our own CM Report. The following is a representative sample of our recent toxic tort publications:
The Absolute Pollution Exclusion and its Applicability to Mold Claims: Is it the Bermuda Triangle or Paradise Gained? - by Gordon Walton (New York Continuing Legal Education Series - June 11, 2004)
Welding Rod Litigation: The Sparks Are Flying - by Gordon Walton (New York Continuing Legal Education Series - September 15, 2005)
In sum, Clausen Miller’s Liability Coverage Group has the experience, knowledge and resources to keep you ahead of coverage developments in toxic and mass tort liability and to successfully represent your interests through the complex claims and litigation process.
From coverage opinions addressing whether the installation of Dryvit comes within a policy’s definition of “product,” to litigating whether the “your product” exclusion applies to liability arising from spalling concrete in a parking garage, Clausen Miller attorneys have extensive experience representing the interests of insurers with respect to products and completed operations liability coverage issues and disputes. Our firm’s practice in this area includes applying and interpreting a wide array of standard and manuscript policy terms, provisions and exclusions, contained in numerous and varying types of policy forms and endorsements, both current and historical.
Clausen Miller attorneys know that controversies relating to products and completed operations coverage matters do not exist in a vacuum, and that the issues which may arise during the resolution of these controversies can intersect with other liability coverage disciplines, including but not limited to the environmental, toxic tort and construction defect coverage arenas. Is an underlying chemical exposure claim at issue a product or operations claim? The resolution of this issue can affect whether that claim is subject to a policy’s aggregate limit. Does an insured’s property damage claim relating to the breakdown of a commercial HVAC unit include the costs of replacing the HVAC unit? The answer to this question could trigger the application of a policy’s “your work” or “your product” exclusion. When did the underground storage tank valve break in relation to the repair contractor’s work on that tank? The determination of this issue could affect whether a policy’s “completed operations” provisions or pollution exclusion will apply.
The attorneys on Clausen Miller’s coverage team have the experience and knowledge to recognize the factual and legal issues implicated by products and completed operations claims, and the investigation, litigation and negotiation skills necessary to develop and implement a cost effective strategy for resolving those claims. The success of Clausen Miller’s representation of insurers in products and completed operations matters is reflected in our firm’s appointment as national or regional coverage counsel by a number of insurers. Our accomplishments are also reflected in the successful trial and appellate results we have obtained for our insurer clients over the years on products and completed operations matters. A representative sampling of these successful results is listed below:
Sokol v. Atlantic Mutual Ins. Co., 430 F.2d 417 (7th Cir. 2005)
Ashland, Inc. v. National Union Fire Ins. Co., (N.D. Ill., Oct. 28, 1998)
Clausen Miller has emerged as an international leader in the handling of construction defect claims on behalf of insurance companies. We have vigorously protected the interests of our clients in numerous claims involving the construction of apartment complexes, single family homes, large town homes, exclusive condominium projects and governmental buildings. These claims have been asserted against a variety of insureds, including general contractors, subcontractors, design professionals, suppliers, vendors, and manufacturers. In handling these claims, we have been asked to address numerous coverage issues relating to additional insured status, contractual liability, existence of an occurrence, trigger of coverage, pre-existing damages exclusion, business risk exclusions, and applicability of the pollution exclusion to mold-related claims.
Our expertise in this area has been recognized through our appointment as national coordinating counsel for several insurance companies. Our handling of the claims range from the drafting of coverage position letters and/or coverage opinions to litigating specific coverage issues in declaratory judgment actions. In fact, we have actively participated in one of the few declaratory judgment actions maintained throughout the country involving construction defects as a result of mold (Gary Community Schools Corporation v. American States Insurance Company, et al.).
Clausen Miller’s expertise and strong command of the law in various jurisdictions has placed it at the forefront of the legal community relative to construction defect claims.
As national and regional counsel for large liability carriers across the U.S., Clausen Miller has actively litigated claims under the specialized coverages for personal and advertising injury liability since they first began appearing in CGL policies. We will help you navigate through the nuances of intellectual property law, as well as the substantive law applicable to the enumerated personal injury offenses, while applying those principles to ever-evolving policy wording. The law interpreting these coverage grants and the scope of their application to almost unlimited factual scenarios varies widely from jurisdiction to jurisdiction and is one of the more unique and challenging areas of insurance coverage law.
Clausen Miller coverage attorneys have successfully litigated cutting-edge issues in the field of advertising injury. For instance, in Atlantic Mut. Ins. Co. v. Badger Medical Supply Co., 528 N.W.2d 486 (Wis. App. 1995), we convinced the court that the terms “misappropriation”, "advertising idea", and "style of doing business" were sufficiently defined by case law or common usage so that they were not ambiguous in the advertising injury context. In Cargill v. National Union, we successfully argued that any advertised statements with respect to the ownership of corn seed in a direct advertisement for the sale of a large seed business were not a direct or proximate cause of the buyer's injury and thus did not constitute "advertising injury." Similarly, in Atlantic Mut. Ins. Co. v. Terk Technologies, Corp., 309 A.D.2d 22, 763 N.Y.S.2d 56 (2003), we successfully defended against claims of bad faith and ultimately obtained a finding that our client owed no duty to defend or indemnity its insured for an underlying trademark infringement suit. Despite underlying allegations of "reckless" conduct, the court agreed with our position that the nature of the alleged infringement necessarily fell within the knowledge of falsity exclusion and was not covered.
Clausen Miller’s Liability Insurance Coverage attorneys keep constantly updated on the intricacies and evolution of issues specific to this specialized area of law. We provide you with complete support from the inception of the claim, working closely with you to develop the best strategy for achieving a cost-effective and appropriate result. From the initial investigation and coverage analysis to settlement negotiations and litigation, if necessary, we are ready to assist you at any stage of the claim handling process. Our attorneys also provide continuing education on developments to the personal and advertising injury liability landscape.
Different professions present different risks and have specialized insurance needs that necessitate different policy forms and generate different coverage issues. We understand the challenges of professional liability insurance, from the drafting of policy forms, to claims handling advice and coverage litigation.
We have experience with the unique coverage issues associated with policies written for a variety of professions, including policies issued to doctors and nurses, health care facilities, mental health professionals, dentists, veterinarians, lawyers, accountants, architects and engineers, insurance agents and brokers, real estate agents, banks and mortgage companies, travel agents, school board and numerous miscellaneous professions.
Our involvement starts with policy drafting. We have been instrumental in drafting forms and endorsements to keep pace with the changing professional liability market. For example, we worked with one professional association and its insurer to develop a policy form tailored to the particular needs of that association’s members.
Understanding the needs of both the professional and the insurance industry allows us to effectively counsel insurers to guarantee good faith claims handling. We help our insurance clients navigate problems with such things as consent to settle provisions, sexual misconduct exclusions, eroding limits, and claims-made requirements. With a pledge of prompt and thorough advice, we look for creative and cost-effective solutions to complex coverage issues.
Sometimes litigation cannot be avoided. Our group of talented attorneys regularly obtains successful results in coverage litigation. For instance, in National Union Fire Ins. Co. v. Baker & McKenzie, we obtained a favorable ruling in the Seventh Circuit Court of Appeals, establishing that a claim made in one policy period but first reported in the second policy period does not trigger coverage under either claims-made and reported policy.
From toxic torts and environmental issues to reinsurance and products liability, the Clausen Miller Liability Coverage Group provides a full spectrum of services which range from skilled analysis and legal opinions to full scale defense coverage litigation. While delivering these services to our clients, we focus on delivering and meeting their goals in the most innovative and cost-efficient manner possible.
Our Liability Insurance Group is structured to provide seamless representation to clients in all facets of insurance coverage. Beginning with an analysis of the complexity of a coverage dispute, we apply a keen understanding of the judicial climate and a thorough assessment of the issues our clients face. Even in emerging areas where the law is unsettled, our experience enables us to decipher the national trends of emerging coverage issues.
Clausen Miller’s depth and breadth of experience offers clients litigation expertise. We defend complex, multi-party cases in courtrooms throughout the country. Because our coverage attorneys are also trial attorneys, we represent clients aggressively in actions for declaratory judgment, breach of contract and bad faith throughout the U. S. and internationally, if a dispute cannot otherwise be resolved.
Our full spectrum of service also includes assistance in drafting policies, claims management and risk reduction. We also provide in house seminars and CLE on a variety of substantive insurance coverage issues, as well as extra-contractual issues. The degree of formality of these presentations depends upon the needs of our clients.
Bad faith claims are some of the most serious types of accusations that can be brought against an insurance company. Not only do such claims question an insurance company’s claims handling process, but they can result in thousands, if not millions of dollars in extracontractual exposure for the company. That is why Clausen Miller P.C. takes every possible step to minimize the possibility of bad faith claims being brought against our clients and vigorously defends such claims if and when they are alleged.
The two largest sources of bad faith liability claims are an insurer’s erroneous denial of coverage and an insurer’s failure to settle a claim within policy limits. Through detailed claims analyses and consultation, we help our clients avoid bad faith claims. We carefully examine all the facts surrounding a claim and assist the clients in drafting positional letters. Our coverage expertise helps us to inform clients as to whether they should become involved in settlement negotiations of underlying claims. If a bad faith claim is asserted against our clients, we take an aggressive and pro-active approach to defending such claims.
Our attorneys are thoroughly versed in each of the fifty states’ treatment of bad faith claims and have performed numerous seminars regarding Illinois bad faith law. See, Meeting the Challenges of Illinois Bad Faith Law.
With a strong presence both domestically and internationally, Clausen Miller P.C. attorneys are on the forefront of litigation of significant reinsurance claims involving reinsurers, ceding companies, brokers, intermediaries and reinsurance pool managers. Our mediation, arbitration and practice extends across reinsurance agreements, both facultative and treaty, and includes representation of interests both for and against various managing general agents, reinsurance brokers and intermediaries, both national and international in scope.
We have successfully represented foreign and off-shore reinsurance interests and foreign and domestic reinsureds in coverage matters with amounts in controversy in the tens of millions of dollars. Runoffs, receiverships, follow the fortunes disputes, underwriting disputes, contractual reformation and rescission, and underlying adjustment questions also comprise our reinsurance work.
Working through Clausen Miller International, our attorneys have the ability to represent directly the interests pertaining to reinsurance agreements throughout Europe. This international practice has also involved claims in Asia and South America. We dispatch counsel abroad to investigate, opine, aid in the adjustment, arbitrate, and, when necessary, litigate substantial reinsurance claims.