Practices  |  Insurance

Insurance Appellate


Insurers often call upon Wiley Rein to represent them on appeal in cases that raise issues of precedential importance to the industry or present high financial exposure to the insurer retaining the firm. Wiley Rein attorneys have represented insurers and industry trade groups in federal and state appellate courts throughout the country, including all of the federal courts of appeals, as well as in state supreme courts and intermediate courts of appeals. The firm’s Insurance Appellate Practice includes many former judicial clerks from federal and state courts, and the Group also calls on the expertise of the firm's former United States Supreme Court clerks.

Wiley Rein has the capability to provide full briefing and oral argument of insurance issues in any appellate setting. The Insurance Appellate Practice often advises insurance clients on coordinated nationwide litigation strategy for the pursuit of desired legal results and minimizing litigation risks, including the selection of cases and issues for appeal. We handle many coverage cases from inception in the trial court through completion of appellate proceedings. Other times, Wiley Rein is retained at the appellate stage to take a fresh look at the issues and potential grounds for appeal, as our appellate attorneys are adept at isolating and developing key legal issues appropriate for appellate review. Wiley Rein also has an extensive amicus practice before appellate courts throughout the nation.

Wiley Rein's insurance appellate work addresses the full range of contractual and excontractual issues arising under general liability and professional liability policies, including the meaning of substantive policy provisions, issues relating to defense (such as reimbursement and reasonableness of defense costs and choice of counsel), issues relating to indemnity claims, procedural issues, such as jurisdiction, forum non conveniens, arbitration, choice of law, and forum selection clauses, and “bad faith” claims. Representative cases include:

  • Christensen, et al. v. Darwin National, No. 14-15914 (9th Cir.). Currently representing an insurer on appeal after prevailing on summary judgment in litigation alleging bad faith and seeking extra-contractual damages.
  • Edwards v. Continental Cas. Co., No. 15-30827 (5th Cir.). Currently representing an insurer in an appeal arguing that a lawsuit seeking only the return of legal fees paid to insured attorney as contingency fee from settlement does not seek covered “damages” and does not allege an act or omission in the performance of legal services.
  • The PNC Financial Services Group, Inc., et al. v. Houston Cas. Company, et al., Nos. 15-1656, 15-1717 (3d Cir.). Currently representing insurer in connection with defense of appeal of trial court ruling determining that insured’s settlement in excess of $100 million of claims from bank  customers arising from allegedly excessive overdraft protection fees did not constitute insurable loss under subject policies. 
  • W.C. and A.N. Miller Development Co. v. Cont’l Cas. Co., --Fed. App’x--, 2015 WL 9487938 (4th Cir. Dec. 30, 2015). Successfully briefed and argued case in which the Fourth Circuit affirmed the district court’s ruling that the insurer properly denied coverage based upon policy’s related-claims provision.
  • VierraMoore, Inc. v. Continental Casualty Co., 607 Fed. App’x 749 (9th Cir. 2015). Represented insurer in appeal to the Ninth Circuit, which affirmed the ruling that it had no duty to defend or indemnify an insured under an errors and omissions liability policy and that the insurer was entitled to recoupment for funds paid to settle the underlying claim.
  • Financial Strategy Grp., PLC v. Cont'l Cas. Co., No. 14-6296 (6th Cir. Aug. 4, 2015) and 2014 WL 5449577 (W.D. Tenn. Sept. 23, 2014). Prevailed in the trial court on motion to dismiss complaint seeking coverage under accountants professional liability policy. On appeal, obtained affirmance on grounds that an exclusion any potential coverage for the claims and that the concurrent causation doctrine did not apply because all of the insured's actions entailed the recommendation of illegal tax shelters.
  • XL Specialty Insurance Co. v. John R. Lakian, No. 15-495 (2d Cir. 2015). Represented insurer in district court and on appeal in a coverage interpleader action. 
  • Protection Strategies, Inc. v. Starr Indemnity & Liability Co., 611 F. App’x. 775 (4th Cir. 2015) and No. 13-763, 2014 WL 1655370 (E.D. Va. Apr. 23, 2014). Represented insurer at trial and on appeal to the Fourth Circuit, which affirmed the trial court decision granting summary judgment to our client based on the prior knowledge, fraud and personal profit exclusions, holding that the insurer was entitled to recoup defense costs it had paid, and awarding a monetary judgment to our client.
  • Piedmont Office Realty Trust, Inc. v. XL Specialty Ins. Co., 790 F.3d 1252 (11th Cir. 2015). Successfully represented an insurer in federal district court and on appeal of a lawsuit alleging breach of contract and bad faith involving consent-to-settle and no-action clauses. The Eleventh Circuit affirmed the District Court’s dismissal of the lawsuit with prejudice. 
  • Piedmont Office Realty Trust, Inc. v. XL Specialty Ins. Co., 771 S.E.2d 884 (Ga. 2015). Successfully briefed and argued a coverage action before the Georgia Supreme Court and obtained a unanimous ruling in favor of insurer on consent-to-settle and no-action clause issues.
  • XL Specialty Ins. Co. v. WMI Liquidating Trust, 93 A.3d 1208 (Del. 2014). Presented oral argument and obtained a unanimous ruling from the Delaware Supreme Court holding that a coverage action by a litigation trust against several insurance carriers was not ripe because the trust had not obtained a settlement or judgment, and the insureds’ defense costs had been covered by other insurance.
  • Helen Singletary, Family Assistance Management v. Beazley Insurance Company, Inc., No. 14-1058 (4th Cir. Nov. 12, 2014). After obtaining summary judgment in the district court, prevailed on appeal of coverage action alleging bad faith. 
  • XL Specialty Ins. Co. v. Perry, et al., Nos. 12-56275, 12-56296, 12-56311, 12-56337, 12-56347, 12-56350 (9th Cir. 2014). Represented insurers in appeal of a ruling establishing that a variety of civil claims and investigations arising out of the collapse of IndyMac Bancorp related back to prior claims made before the inception of the policy period. 
  • Kilcher v. Cont'l Cas. Co., 747 F.3d 983 (8th Cir. 2014). As appellate counsel, obtained an Eighth Circuit decision reversing the trial court and holding claims by four siblings against an investment advisor alleged “Interrelated Wrongful Acts” and therefore constituted a single claim because each sibling alleged that the adviser provided unsuitable investment advice and breached her fiduciary duties to each sibling in the same manner.
  • Cont'l Cas. Co. v. Law Offices of Melbourne Mills, Jr., PLLC, 676 F.3d 534 (6th Cir. 2012) and No. 5:06-272-JMH, 2010 WL 996472 (E.D. Ky. Mar. 16, 2010). Represented insurance carrier in the trial court and on appeal, obtaining a Sixth Circuit decision affirming the trial court’s judgment and holding that an insured attorney’s failure to disclose circumstances that could result in a claim and pending disciplinary proceedings constituted material misrepresentations justifying rescission of the policy.
  • Bryan Brothers, Inc. v. Cont'l Cas. Co., 660 F.3d 827 (4th Cir. 2011) and 704 F. Supp. 2d 537 (E.D. Va. 2010). Successfully represented insurer at trial and on appeal in the Fourth Circuit, which held that there was no coverage under a professional liability policy for a claim where a single insured had knowledge of circumstances that could reasonably be expected to result in a claim before the inception date of the policy.

In addition, the firm has submitted amicus curiae briefs in federal and state courts around the country, including the highest courts in thirty-seven states. Wiley Rein has, by invitation, frequently participated as amicus in oral argument in particularly significant cases. Courts have adopted or favorably cited Wiley Rein's amicus curiae briefs on numerous occasions. Examples of key cases where we have represented insurance trade groups, including the American Insurance Association (AIA), the Complex Insurance Claims Litigation Association (CICLA), the National Association of Mutual Insurance Companies (NAMIC), and the Property Casualty Insurers Association of America (PCI), as amici include:

  • ACE Fire Underwriters Ins. Co., et al. v. U.S. Silica Co., No. 14-0343 (W. Va. 2015). Successfully represented two insurer trade associations as amici curiae in appeal to the Supreme Court of Appeals of West Virginia. The court held that a policyholder’s claims were barred based on its failure to comply with a notice condition in a policy regardless of whether and to what extent the insurer was prejudiced by the late notice. The court also adopted the position urged by amici with respect to when the policyholder’s notice obligation was triggered, which was more aggressive than the positions advanced by the parties.
  • Recall Total Information Management, Inc. v. Federal Insurance Co., 115 A.3d 458 (Conn. 2015). Successfully represented AIA, PCI, and CICLA as amici curiae in urging the Connecticut Supreme Court to uphold a lower court ruling that denied commercial general liability coverage for claims arising from a “data breach.”
  • Craft v. Philadelphia Indemnity Insurance Co., 343 P.3d 951 (Colo. 2015). Represented AIA, CICLA and PCI as amici curiae in this appeal in which the Colorado Supreme Court refused to require an insurer to prove prejudice in order to deny coverage based on insured’s failure to comply with a provision requiring notice of a claim “not later than 60 days” after expiration of the operative policy.
  • Wilson Mutual Insurance Co. v. Falk, 857 N.W.2d 156 (Wis. 2014). Represented CICLA as amicus curiae in this appeal to the Wisconsin Supreme Court, which held that claims arising from agricultural runoff were barred by pollution exclusions in the operative policies.
  • Hartford Casualty Insurance v. Swift Distribution, 326 P.3d 253 (Cal. 2014). Represented CICLA as amicus curiae in the California Supreme Court, which clarified and limited the scope of the duty to defend against a possible claim of disparagement under a commercial general liability policy.
  • KeySpan Gas East Corp. v. Munich Reinsurance America, Inc., et al., 15 N.E.3d 1194 (N.Y. Ct. App. 2014). Represented CICLA as amicus curiae in this appeal in which the New York Court of Appeals held that an insurer is not required to disclaim coverage for environmental contamination claims on late notice grounds “as soon as reasonably possible.”
  • K2 Investment Group, LLC, et al. v. American Guarantee & Liability Insurance Co., 22 N.Y.3d 578 (N.Y. Ct. App 2014). Represented AIA and CICLA as amici curiae at the rehearing stage of this appeal, in which the New York high court reversed its initial ruling and held that an insurer's breach of its duty to defend does not bar it from later relying on policy exclusions.
  • Midwest Family Mutual Insurance Co., et al. v. Wolters, et al., 831 N.W.2d 628 (Minn. 2013). Represented CICLA as amicus curiae in this appeal in which the Minnesota Supreme Court held that a claim arising out of carbon monoxide release was subject to the absolute pollution exclusion. Further, the reasonable expectations doctrine did not apply.
  • Mountain States Mutual Casualty Co. v. Roinestad, 296 P.3d 571 (Colo. 2013). Represented CICLA as amicus curiae in this appeal in which the Colorado Supreme Court, concluding that cooking grease is a “pollutant,” found that the pollution exclusion barred coverage for a restaurant which routinely poured grease and cooking oil into the sewer on its property.
  • Pennsylvania National Mutual Casualty Insurance Co. v. Roberts, et al., 668 F.3d 106 (4th Cir. 2012). Represented CICLA as amicus curiae in this appeal in which the Fourth Circuit adopted a pro rata time on the risk allocation method, holding that an insurer could be held liable only for periods of risk that it had contracted to cover, even if its policyholder was jointly and severally liable for harm sustained over a longer period.

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