Wiley Rein LLP


Litigation | Insurance | INSURANCE APPELLATE

Wiley Rein frequently represents insurers in appellate courts on novel and high-profile appellate matters.  Many of the attorneys in the Insurance Practice bring their experience as former judicial clerks, and we also draw on the expertise of the firm's former judicial clerks from the Supreme Court of the United States.  The Insurance Appellate Practice has represented both individual insurers and industry trade groups in prominent appellate cases in both federal and state courts throughout the United States, including the Supreme Court of the United States.  Wiley Rein attorneys prepare more than 25 appellate briefs each year and have worked with insurer counsel throughout the nation in key disputes in state and federal appellate courts.

The firm 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.  Our Insurance attorneys isolate and develop key legal issues for appeal, and are often called upon to take a fresh look at a litigation problem at the appellate stage.  At the same time, many of our coverage matters are handled beginning with the filing of the complaint and proceeding through appeal.  Wiley Rein also has an extensive amicus practice before appellate courts throughout the nation.

Wiley Rein's appellate insurance work addresses the full range of insurance coverage 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), issues relating to indemnity claims, and procedural issues, such as jurisdiction, forum non conveniens, arbitration, choice of law, and forum selection clauses.

Representative cases include:

  • Mauro v. State Farm Mutual Automobile Insurance Co., No. 12CA1509 (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.
  • Am. Hotel Int'l Group, Inc. v. OneBeacon Ins. Co., 2010 WL 889261 C.A.2 (N.Y.), 2010 (2d Cir. 2010).  The U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a $400 million claim by a former broker/agent against an insurer, and Wiley Rein secured a judgment against the broker/agent for our client for wrongfully withheld premiums and return commissions.
  • Murphy v. Allied World Assurance Company, No. 08 civ. 4196, 2009 WL 1227485 (S.D.N.Y. Apr. 30, 2009), aff'd, 2010 WL 1049258 (2d Cir. Mar. 23, 2010).  The U.S. Court of Appeals for the Second Circuit affirmed a summary judgment ruling in favor of our client, an excess directors and officers liability (D&O) insurer.  The Second Circuit agreed that a prior knowledge exclusion in the excess policy barred coverage for various underlying lawsuits against Refco, Inc.'s former directors and officers.  The court held that the language of the excess policy exclusion, which was triggered by the knowledge of "any insured," superseded a severability provision in the primary policy.     
  • Leonard v. Executive Risk Indem. Inc. (In re SRC Holding Corp.), No. 07-1327 (8th Cir. 2008).  The U.S. Court of Appeals for the Eighth Circuit reversed judgments by bankruptcy and district courts and ordered entry of summary judgment in favor of Wiley Rein's client, holding 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.  The court further held that numerous underlying proceedings constituted a single "claim" subject in its entirety to the securities exclusion.
  • TH Agric. & Nutrition, LLC v. Ace European Group Ltd., 488 F.3d 1282 (10th Cir. 2007).  Wiley Rein represented 13 European insurers in persuading the U.S. Court of Appeals for the Tenth Circuit to affirm the dismissal for lack of personal jurisdiction of a declaratory judgment action brought by a large international manufacturing company in federal court in Kansas City, Kansas in competition with a comparable insurer-initiated suit pending in Amsterdam and asserting massive alleged insurer asbestos obligations.
  • Gulf Underwriters Ins. Co. v. KSI Services, Inc., 223 Fed.Appx. 239, 2007 WL 1280665 (4th Cir. 2007).  The U.S. Court of Appeals for the Fourth Circuit affirmed a ruling that the dishonesty exclusion in an errors and omissions (E&O) Policy issued by Wiley Rein's client barred coverage for losses a third party suffered when an employee of the insured title company embezzled funds from escrow accounts maintained on behalf of the third party. The Court of Appeals rejected the third party's argument that its negligent supervision claim against the title company was covered as a wrongful act distinct from the embezzlement, finding that the loss arose directly or indirectly out of the employee's dishonest conduct even though the claim sounded in negligence.
  • Waste Corp. of Am. v. Genesis Ins. Co., 382 F. Supp. 2d 1349 (S.D. Fla. 2005), aff'd per curiam, 2006 WL 3505383 (11th Cir. 2006) (mem. op.).  The U.S. Court of Appeals for the Eleventh Circuit affirmed a ruling by the U.S. District Court for the Southern District of Florida that held that our client properly denied coverage under a D&O policy for a claim alleging breach of contract.  The underlying opinion, based on both Florida and Texas law, in turn provided that neither the policy language nor public policy supported the insured's assertion that a D&O insurer should bear responsibility for the insured's breach of contract.
  • Bechtel Petroleum Operations, Inc. v. Con. Ins. Co., 96 Cal. App. 4th 571 (2002), review dismissed, 5 Cal. Rptr. 3d 816, 78 P.3d 691 (2003) (en banc).  Wiley Rein obtained trial court and appellate rulings that numerous claims asserted by underlying plaintiffs alleging bodily injury due to exposure to toxic chemicals at a petroleum and natural gas production and storage facility constituted "traditional and industrial environmental pollution claims" subject to the "absolute" pollution exclusion.
  • Travelers Indem. Co. v. United Food & Commercial Workers Int'l Union, 770 A.2d 978 (D.C. 2001). Wiley Rein obtained a favorable ruling from the District of Columbia Court of Appeals that the insured must establish timely notice as condition precedent to defense and indemnity.

In addition, the firm has submitted amicus curiae briefs in almost every state and has, by invitation, frequently participated in oral argument of 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:

  • Hartford Casualty Insurance v. Swift Distribution, No. S207172 (Cal. June 12, 2014).  Wiley Rein represented CICLA as amici curiae in the California Supreme Court in this appeal establishing that without a statement that expressly, or by clear implication, refers specifically to a claimant’s product or business and clearly derogates that product or business, there is no disparagement and the personal and advertising injury coverage under a CGL policy will not be triggered. In so ruling, the court disagreed with the theory of disparagement accepted in Travelers Property Casualty Co. of America v. Charlotte Russe Holding, Inc., 207 Cal. App. 4th 969 (Cal. Ct. App. 2012).
  • KeySpan Gas East Corp. v. Munich Reinsurance America, Inc., et al., No. 110 (N.Y. June 10, 2014). Wiley Rein represented CICLA as amici 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,” a standard drawn from a statute only applicable to death and bodily injury claims arising out of New York accidents and brought under New York liability policies.
  • K2 Investment Group, LLC, et al. v. American Guarantee & Liability Insurance Co., No. 6 (N.Y. Feb. 18, 2014).  Wiley Rein 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., No. A11-0181 (Minn. May 31, 2013). Wiley Rein represented the CICLA as an amicus curiae in this appeal, where the Minnesota high court held that a claim arising out of carbon monoxide release was subject to the absolute pollution exclusion, which plainly applied to the indoor release of carbon monoxide; further, the reasonable expectations doctrine did not apply.
  • Mountain States Mutual Casualty Co. v. Roinestad, No. 09CA2179 (Colo. Feb. 25, 2013). Wiley Rein represented the CICLA as an amicus curiae in this appeal. Concluding that cooking grease is a “pollutant,” the Colorado high court found that the pollution exclusion barred coverage for a restaurant which routinely poured grease and cooking oil into the sewer on its property, prompting a sewer clean-up project in which the plaintiffs were injured as a result of hydrogen sulfide fumes emanating from the sewer.
  • Pennsylvania National Mutual Casualty Insurance Co. v. Roberts, et al., Nos. 10-1987, 10-1988, 2012 WL 336150 (4th Cir. Feb. 3, 2012). Wiley Rein represented the CICLA as an amicus curiae in this appeal. The U.S. Court of Appeals for the Fourth Circuit issued an opinion forcefully adopting 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). Wiley Rein represented the 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., No. 100764 (Va. Sept. 16, 2011). Wiley Rein represented the AIA and CICLA as amici curiae in this appeal. The Virginia Supreme Court found that a lawsuit alleging property damage caused by emission of greenhouse gases did not allege an “occurrence” within the meaning of general liability coverage.
  • Boston Gas Co. v. Century Indem. Co., 454 Mass 337, 910 N.E.2d 290 (2009). Supporting the insurers in a favorable ruling on allocation from the Massachusetts Supreme Judicial Court, Wiley Rein's amici curiae brief addressed allocation under general liability policies where loss is found to have taken place over multiple years, including uninsured periods.
  • St. Paul Fire and Marine Ins. Co. v. Onvia, Inc., 165 Wash. 2d 122, 196 P.3d 664 (Wash. 2008) (en banc). In an important case for insurers, Wiley Rein's amici curiae brief addressed both whether a policyholder may pursue common law bad faith and Consumer Protection Act claims in absence of coverage and, if so, how such claims must be proven.  
  • ACMAT Corp. v. Greater New York Mut. Ins. Co., 282 Conn. 576 , 593 n.14, 923 A.2d 697, 708 n.14 (2007). The Connecticut Supreme Court refused to depart from the American Rule governing payment of attorneys fees and found "more persuasive the arguments of the amicus curiae [in a brief prepared by Wiley Rein] that…'as with contracts generally, there are insurance policies written between large insurers and relatively small scale policyholders, but there are also many insurance policies written between [midsized] or large insurers and major corporate or business entities...'" 
  • Federated Mut. Ins. Co. v. Abston Petroleum, Inc., 967 So.2d 705 (Ala. 2007). The Alabama Supreme Court relied extensively on Wiley Rein's amicus curiae brief and its "well-reasoned approach" in enforcing the pollution exclusion in a general liability policy.
  • St. Paul Fire & Marine Ins. Co. v. A.P.I., Inc., 738 N.W.2d 401, 411 (Minn. Ct. App. 2007). Endorsing Wiley Rein's arguments related to allocation, and recognizing that the amicus curiae brief submitted for our trade association client "sheds additional light on the important issues and considerations of the insurance industry, which pervasively affects the public;" and "provides citations to relevant precedent, arguments, and policy considerations not included in the primary briefs."  
  • Johnson Controls, Inc. v. Employers Ins. Co. of Wausau, No. 03-A486 (U.S. 2004).  In support of the insurer parties, Wiley Rein submitted an amicus curiae brief that argued that a sua sponte decision of the Wisconsin Supreme Court violated the due process requirements of notice and opportunity to be heard on the interpretation of the key term "suit" in general liability insurance contracts.
  • Spaulding Composites Co. v. Liberty Mut. Ins. Co., No. 03-638 (U.S. 2003). Supporting a challenge to a New Jersey Supreme Court ruling, Wiley Rein prepared an amicus curiae brief that outlined constitutional due process issues that must be considered in the proper enforcement of contract terms.
  • Travelers Ins. Co. v. Eljer Mfg Co., 197 Ill. 2d 278, 757 N.E.2d 481 (2001). In a key victory for insurers, the Illinois court quoted with approval the arguments in Wiley Rein's amicus curiae brief related to allocation and the importance of the policy period limitation.
  • Foster-Gardner Inc. v. Nat'l Union Fire Ins. Co., 18 Cal. 4th 857, 959 P.2d 265, 77 Cal. Rptr. 2d 107 (1998). The California court quoted with approval the arguments made by Wiley Rein for its insurance trade association client limiting an insurer's duty to defend to lawsuits filed in court.
  • Reliance Ins. Co. v. Moessner, 121 F.3d 895 (3d Cir. 1997).  The U.S. Court of Appeals for the Third Circuit adopted the arguments made in the insurance trade association's amicus curiae brief prepared by Wiley Rein concerning enforcement of an "absolute" pollution exclusion.
  • American Motorists Ins. Co. v. ARTRA Group Inc., 338 Md. 560, 659 A.2d 1295 (1995).  The Maryland court agreed with the arguments made in support of the insurer in Wiley Rein's amicus curiae brief related to a 1970 pollution exclusion.
  • Seven Falls Co. v. Wilton, No. CA-H-93-0531 (U.S. 1995). An amicus curiae brief prepared by Wiley Rein explained the need for the exercise of federal court jurisdiction to protect out-of-state insurers from the risk of local bias in state courts.
  • Morton Int'l, Inc. v. Gen. Accident Ins. Co. (petition for cert. filed ) (U.S. 1994). Wiley Rein's amicus curiae brief articulated a due process challenge to the New Jersey Supreme Court's disregard of the contractual limitation of the widely used "sudden and accidental" pollution exclusion in general liability insurance policies.

Contact Us
Laura A. Foggan
202.719.3382 | lfoggan@wileyrein.com 

Richard A. Simpson
202.719.7314 | rsimpson@wileyrein.com

Daniel J. Standish
202.719.7130 | dstandish@wileyrein.com




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