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:

  • 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., 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.
  • 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.
  • Mauro v. State Farm Mutual Automobile Insurance Co., No. 12CA1509, 2013 WL 3707547 (Colo. App. June 27, 2013). Represented insurer in successful appeal of trial court’s denial of intervention with respect to entry of protective order directly affecting insurer's access to, use, and retention of medical information.
  • 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.   
  • Britt v. General Star Indemnity Co., 494 F. App’x 151 (2d Cir. 2012). Obtained reversal of an adverse district court judgment creating coverage by estoppel for a non-insured on appeal in the Second Circuit, which held that the permissive use provision in a general commercial umbrella policy issued to an employer was a fundamental grant of policy coverage rather than an exclusion, so the insurer was not required to notify the injured party that it was disclaiming coverage on that basis.
  • Goodyear Tire and Rubber Company v. National Union Fire Insurance Company, 694 F.3d 781 (6th Cir. 2012) and No. 5:08CV1789, 2011 WL 5024823 (Sept. 19, 2011). Represented insurer at trial and on appeal in the Sixth Circuit, which held that there was no coverage under an excess insurance policy requiring exhaustion of underlying policy limits when insured had settled with underlying insurance carrier for less than the full limits.
  • 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.
  • U.S. Bank National Association v. Federal Insurance Company, 664 F.3d 693 (8th Cir. 2011) and No. 10-CV-0266-W-HFS, 2010 WL 3928123 (W.D. Mo. Oct 4, 2010). Represented insurer at trial and on appeal to the Eighth Circuit, which affirmed a favorable trial court judgment absolving insurers from liability for a $56 million stipulated judgment against a former officer of an insured corporation because the judgment was not loss covered under the policy.
  • Am. Hotel Int'l Group, Inc. v. OneBeacon Ins. Co., 2010 WL 889261 (2d Cir. Mar. 12, 2010) and 611 F. Supp. 2d (S.D.N.Y. 2009). Represented an insurer in the trial court and on appeal to the Second Circuit, which affirmed the district court’s dismissal of a $400 million claim by a former broker/agent and granted our client a judgment against the broker/agent for wrongfully withheld premiums and return commissions.
  • Murphy v. Allied World Assurance Company, 2010 WL 1049258 (2d Cir. Mar. 23, 2010) and No. 08 civ. 4196, 2009 WL 1227485 (S.D.N.Y. Apr. 30, 2009). Represented an excess directors and officers liability (D&O) insurer in the trial court and on appeal to the Second Circuit, which affirmed a summary judgment ruling in favor of our client finding that the policies’ prior knowledge exclusions precluded coverage for claims arising from facts that were known to at least one insured at the time the policies were entered into.
  • MDL Capital Management, Inc. v. Federal Insurance Company, 274 F. App’x 169 (3rd Cir. 2008). Represented insurer in the district court and on appeal in the Third Circuit, which held that claims arising out of an SEC investigation and related litigation were excluded from coverage under a D&O policy’s professional services exclusion and that directors of the insured corporation were not entitled to coverage based on the policy’s “outside director” provision.
  • Leonard v. Executive Risk Indem. Inc. (In re SRC Holding Corp.), 545 F.3d 661 (8th Cir. 2008). Obtained reversal of bankruptcy and district court decisions on appeal in the Eighth Circuit, which held that a broadly worded securities exclusion in a D&O policy barred coverage for claims against a securities broker-dealer arising out of its underwriting of certain bonds marketed to the insured's customers.

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:

  • 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.
  • Harleysville Mutual Ins. Co. v. South Carolina, 736 S.E. 2d 651 (S.C. 2012). Represented AIA and CICLA as amici curiae in a constitutional challenge to retroactive and extraterritorial reach of South Carolina law compelling insurance contracts to afford certain coverage for construction claims.
  • The AES Corporation v. Steadfast Insurance Co., 725 S.E.2d 532 (Va. 2012). Represented AIA and CICLA as amici curiae in this appeal in which the Virginia Supreme Court held that a lawsuit alleging property damage caused by emission of greenhouse gases did not allege an “occurrence” within the meaning of general liability coverage.

Contact Us

Laura A. Foggan
202.719.3382 | 

Richard A. Simpson
202.719.7314 |

Daniel J. Standish
202.719.7130 |

Our People

News & Insights

News & Insights