Ford Marrin has extensive insurance coverage experience. We represent a number of insurance and reinsurance companies, both domestic and foreign, in disputes and litigation with policyholders and other insurance companies. In this regard, the Firm not only represents its clients in litigation, but also provides pre-litigation advice and, where in the client’s interest, negotiates the resolution of coverage disputes before they result in litigation.

The Firm represents both cedents and reinsurers in complex matters, including both litigation and transactional work involving treaties, facultative certificates, retrocessions, commutations and loss portfolio transfers.  Our attorneys have litigated many of the leading issues in this evolving area of the law, including issues involving follow the fortunes/settlements provisions and exhaustion/allocation.  The Firm has represented a major reinsurer in connection with multiple arbitrations arising out of the 2008 world-wide financial collapse, including disputes centered on the residential mortgage and sub-prime lending crises with risk in the nine-figure range.  More recently, the Firm has been involved in litigating matters of first impression relating to loss portfolio transfer agreements, third-party financed settlement   agreements, and bad faith/late notice of claims. These cases have been watched closely by the reinsurance industry as they would transform how reinsurance is written.

The matters handled by Ford Marrin commonly involve cutting edge insurance coverage issues, with the amounts at stake in such disputes reaching nine figures. Our experience with insurance coverage includes:

  • Asbestos

    We have represented insurance companies in some of the largest asbestos coverage cases, including cases involving policyholders who either manufactured, sold or used asbestos-containing materials in their operations.  To that end, he have litigated every key coverage issue in the asbestos context, including trigger of coverage, number of occurrences, allocation, aggregate limits, successor liability and exhaustion.  Our experience is demonstrated by the favorable results obtained for our clients in the landmark decisions such as Continental Cas. Co. v. Employers Ins. Co. of Wausau, 923 N.Y.S.2d 538 (1st Dep’t 2011) (“Keasbey”); Stonewall Ins. Co. v. Asbestos Claims Management Operations, 85 F.3d 49 (2d Cir 1996); Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640 (1993); and Appalachian Ins. Co. v. General Electric, 8 N.Y.2d 954 (2007).  Today, we continue to represent our insurer clients as claimants and policy holders seek new ways to obtain coverage for these claims.

  • Non-Asbestos Mass Tort

    In addition to asbestos claims, we defend our insurer clients against many types of mass tort claims, including claims relating to: food, medical supplies and other recalls, the World Trade Center cleanup after the terrorist attacks of September 9, 2011, and exposure to lead paint, mold, silica and diacetyl.  We have also successfully represented our clients against novel class action claims, e.g., those seeking coverage for laying of fiber-optic cable along railroad lines and other rights-of-way, as well as class action claims for the unlawful sale of alcohol to minors.

  • Environmental

    Since the inception of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) and other environmental legislation, we have defended insurance companies in sophisticated environmental pollution coverage cases brought by insureds covering a number of different industries. From groundwater and soil contamination to oil spills and mining claims brought by some of the world’s largest policyholders, including General Electric, Consolidated Edison of New York, W.R. Grace, Olin, Exxon-Mobil, Ciba-Geigy, Viacom, Long Island Lighting Company and Bunge.  We have successfully litigated the key legal issues presented by these types of cases, including the applicability of various versions of the pollution exclusion, expected or intended exclusion, and other exclusions, late notice, successor liability, trigger of coverage and allocation.  In successfully litigating these cases, we have saved our clients hundreds of millions of dollars in policy limits.

  • Advertising Injury

    We routinely represent insurance companies against policy holder claims arising under alleged advertising injury (or Coverage B).  Our representation includes both providing legal counseling and appearing in coverage litigation in both state and federal courts nationwide.  Effective representation of insurance companies in these types of cases requires not only a thorough analysis of all coverage issues, but also an understanding of the policyholder’s businesses and the claims and liability associated therewith.  Our commercial litigation practice supports our insurance practice by providing insight into the analysis of coverage defenses because we routinely defend against claims of trademark, trade dress, counterfeiting, copyright and patent infringement as well as claims for alleged defamation.  Our expertise in defending such actions provides us with the ability to craft coverage defenses on the insurance side.

  • Bad Faith

    We represent our clients against policyholder claims seeking “bad faith” and extra contractual damages.  We have developed a proven strategy of seeking expedited dismissal of these claims in order to limit the recoverable damages.  By eliminating the threat of these “bad faith” claims, we minimize our client’s exposure which leads to efficient resolution.  This strategy has helped us obtain very favorable results for our insurer clients in actions for business income interruption, lost profits and property damage arising from Super Storm Sandy.

  • Construction Defect

    As part of our insurance coverage practice, we represent insurance companies in coverage disputes for property damage involving construction of commercial and residential properties.  We have substantial experience in litigating coverage disputes involving wrap-up policies, including OCIPs and CCIPs.  In addition to providing our clients with coverage advice and representation in coverage litigation, we routinely advise our clients on emerging issues in construction defect litigation and legislation impacting coverage for construction defects.

  • Directors and Officers Liability

    We have substantial experience in representing professional liability insurers in connection with claims for directors and officers (“D&O”) coverage.  That experience includes successfully representing an insurer in a suit seeking breach of an indemnification obligation on a $20 million D&O policy in which we obtained a landmark ruling that an insured could not obtain indemnification under such a policy for restitution of “greenmail” profits.  Having a strong understanding of the underlying issues involved in securities fraud, shareholder derivative, and breach of fiduciary duty claims from our commercial litigation practice also provides us with an edge in counseling insurance companies in D&O liability coverage suits.

  • Product Recalls

    Our vast insurance coverage practice encompasses the representation of insurance companies against claims for coverage from product recalls.  Our substantial experience in litigating products liability actions nationwide has helped us obtain exceptional results for insurance companies in product recall coverage cases, including recently obtaining summary judgment for a primary insurer against excess insurers on a “number of occurrences” issue in the Complex Commercial Division of the Delaware Superior Court involving coverage for a multimillion dollar liability resulting from recall of chenille cotton robes.

  • Follow the Fortunes/Settlements

    As part of our reinsurance practice, we counsel reinsurers and cedents, as well as represent them in arbitration and litigation, on issues concerning the follow the fortunes/settlements doctrine.  Recently, we obtained a favorable ruling in the NY Supreme Court, Commercial Division in favor of a reinsurer who disputed reinsurance on the ground that its cedant improperly transferred loss to a third party via a loss portfolio transfer.

  • Contract drafting and negotiation

    Our reinsurance practice encompasses drafting and negotiating settlement agreements in order to avoid disputes among reinsurers, cedents and retrocessionaires as well as resolving pending litigations and arbitrations.  Our expertise gained in structuring complex business transactions provides us with the skill set and ability to achieve the most favorable results for our clients in the context of settling reinsurance disputes.

  • Claims handling

    Our extensive knowledge of the handling of underlying insurance coverage issues provides us with the expertise to advise our clients when questions arise in the day-to-day handling of reinsurance claims.

  • Property, casualty, environmental and asbestos losses

    The Firm’s decades of experience in handling insurance coverage disputes concerning property damage and bodily injury resulting from environmental, asbestos and other mass tort loss provides us with a unique insight that allows us to counsel cedents, reinsurers and retrocessionaires regarding the collection of losses of this type through reinsurance.

  • Waiver/Estoppel

    In connection with advising and counseling clients with regard to reinsurance disputes, we understand the intricacies of waiver/estoppel issues.  This allows us to advise our clients as to their rights and obligations under treaties and facultative certificates so that they are not precluded from asserting their rights.

  • Fraud and Misrepresentation

    We understand that it is imperative to be able to recognize and determine whether a reinsurer has been subject of fraud and misrepresentation on behalf of a cedent or retrocessionaire.  Such conduct essentially provides a reinsurer with a defense to the well-established follow the fortunes/settlements doctrine.  Although the relationship between a reinsurer and its cedent is typically one of trust, as an attorney advising clients in such disputes, it is imperative to recognize fraud and misrepresentation in order to protect our clients.

  • Late Notice

    Our representation of clients in the reinsurance industry requires us to keep current on the law regarding late notice of claims in order to protect their rights.  Likewise, we counsel our clients regarding the proper and timely response to demands for reinsurance.  This includes advising on institution and maintenance of proper procedures and protocols in the claims handling process.  We understand that not practicing proper claims handling procedures can result in a waiver of the rights of reinsurers vis-a-vis their cedents.

  • Commutation

    We understand that the negotiation of a commutation requires a detailed analysis of the business being commuted, type of the policies at issue, the value of reserves as well as the value of the losses anticipated to arise in the future.  We understand that it is imperative to protect our clients by carefully drafting commutation agreements in order to avoid future disputes.

  • Financed Settlements

    In a case being closely monitored by the reinsurance industry, we filed a lawsuit seeking a declaration that a cedant’s financing charges associated with an underlying settlement is not a ceded loss subject to recovery via reinsurance.   We protect the rights of our clients by effectively determining whether  the settlement to be passed on to a reinsurer or retrocessionaire includes the costs of financing those settlements.   Our proven ability to marshal facts assists us in disputing and proving whether this practice is part of the reinsurance claim.

  • Allocation/Exhaustion

    We have extensive experience in calculating the proper allocation of loss to underlying insurance policies and exhaustion thereunder in order to verify a proper claim for reinsurance being made under those policies.  Our experience in performing allocation calculations in connection with our insurance practice as well as our understanding of applicable allocation methodology in every jurisdiction allows us to provide sound advice to our clients in the reinsurance industry.