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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 U.S. Supreme Court. 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 United States Supreme Court. 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:

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.
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.
Leonard v. Executive Risk Indem. Inc. ( In re SRC Holding Corp. ), No. 07-1327 (8th Cir. 2008). The United States 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 United States 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 United States 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 United States 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 LLP'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:

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 United States 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.
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 which 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 which outlined constitutional due process issues that must be considered in the proper enforcement of contract terms.
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.
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."
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.