Appellate

Practice Contacts

David C. Capell
Partner

Jacob C. Cohn
Partner

Gordon & Rees attorneys have a distinguished record of representing the insurance industry in appellate courts throughout the country, including the United States Supreme Court. Our appellate advocates have represented insurance companies in a wide variety of insurance coverage issues, including:

  • General and professional liability
  • First-party property
  • Life, health and disability
  • Fidelity and surety
  • Class action lawsuits
  • Bad faith actions
  • Insurer rights in bankruptcy 

We frequently represent insurers in cases involving cutting-edge areas where the case law is still developing, and the result is likely to have portfolio-level implications for our clients. We also work on matters that have yet to go to trial in the lower courts. In these cases, we assist trial counsel by drafting motions designed to preserve important issues for appeal.  Our in-depth knowledge of the insurance industry, gained from decades of experience, provides us with the unique ability to understand and meet our client’s needs and goals. In addition to direct representation of parties to an appeal, we have filed amicus briefs on behalf of insurance industry organizations regarding issues of special importance to the industry.

Representative Insurance Coverage Appellate Matters include:

  • Won affirmance in the Massachusetts Appeals Court of summary judgment that language of the “deemer” clause in one coverage part of a liability policy unambiguously applied to the entire policy such that coverage was completely barred where alleged acts of sexual abuse and molestation allegedly began prior to the insurers’ policy period.  Granite State Insurance Company v. James Conner, 12-P-1370, (Mass. App. Ct. May 29, 2013).
     
  • Won affirmance in the Ninth Circuit of a ruling involving first impression under Washington law that no coverage is available under a D&O policy for the failure of a director or officer to honor a personal guarantee on behalf of a corporation.  McRory. v. Catlin Specialty Ins. Co., No. 11-36084, 2013 U.S. App. LEXIS 5005 (9th Cir. March 13, 2013).
     
  • Won affirmance of a trial court’s ruling that insurers had no duty to defend or indemnify an insured in connection with a $30 million copyright infringement lawsuit and judgment under the “advertising injury” coverage of CGL policies because individualized marketing and business solicitations do not constitute “advertising”.  One Beacon Ins. Co. v. William A. Graham Co., 33 EDA 2012 (Pa. Super. Ct. Aug. 31, 2012).
     
  • Won affirmance in the California First District Court of Appeal of a motion for summary judgment in favor of our client insurers. The court agreed the insurers had effectively modified an umbrella policy prior to a catastrophic injury loss based on an oral agreement between the insured and agent and the subsequent issuance of confirming endorsements.  Grimsley v. Mid-Century Insurance Company 2011 Cal. App. Unpub. Lexis 875 (2011).
     
  • Argued before the United States Supreme Court in Travelers Indemnity Company v. Bailey, 557 U. S. 137 (2009), a widely followed case involving issues of bankruptcy jurisdiction and the finality of the original 1986 Johns Manville asbestos insurance channeling injunction.  On remand to the Second Circuit, won a ruling that the client was never properly made a party to the original proceedings in a manner consistent with constitutional due process and therefore was not bound by the 1986 injunction.  Travelers Cas. and Sur. Co. v. Chubb Indem. Ins. Co. (In re Johns-Manville Corp.), 600 F.3d 135 (2d Cir. 2010).
     
  • Won affirmance in the Third Circuit of the summary dismissal of a class action by medical providers challenging an automobile insurer's use of computerized fee review software to adjust claims for medical reimbursement in St. Louis Park Chiropractic v. Federal Insurance Co., No. 08- 3808, 2009 WL 2171221 (3d Cir. July 22, 2009).
     
  • Won reversal of a trial court's holding in a class action suit, brought by radiologists, that New York's no-fault automobile insurers could not deny reimbursement for MRI scans on grounds of lack of "medical necessity." Long Island Radiology v. Allstate Ins. Co., 830 N.Y.S.2d 192 (2d Dept. 2007).
     
  • Won summary judgment and prevailed on appeal before the Pennsylvania Superior Court rejecting a homebuilder's argument that CGL policies afford coverage for water damage caused by construction defects. This decision has been repeatedly cited by the Third Circuit and other state and federal courts as a leading precedent in this area of the law. Millers Capital Insurance Co. v. Gambone Brothers Development Co., 941 A.2d 706 (Pa. Super. 2007).
     
  • Filed amicus brief on behalf of the Association of California Insurance Companies, leading to a published decision by a California Court of Appeal interpreting a "Products-Completed Operations" exclusion in favor of the insurer, reversing a $12 million judgment.  This case of first impression required the court of appeal to depart from 40 year old California Supreme Court precedent.
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