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The Insurance Litigation practice group at Dickinson Wright represents insurers in a wide variety of litigation in federal and state courts across the United States. We offer carriers the benefits of both first-chair trial lawyers and seasoned appellate advocates in coverage cases, bad faith and related suits, actions involving punitive damages and statutory damages caps, and other kinds of litigation. Attorneys in the Insurance Litigation practice group are based in many of our offices from coast to coast and in-between, working together to provide national coverage for clients.
Our attorneys are often chosen to serve as lead defense counsel in complex, multi-defendant cases and as national class action counsel on behalf of insurers. When the insurance carrier is preparing for or on appeal, Dickinson Wright brings in experienced appellate lawyers who combine skills in legal analysis and written and oral advocacy with specific proficiency in insurance matters.
Our insurance clients run the gamut of lines of insurance: property and casualty insurers, including automobile, no-fault and PIP, homeowners, commercial general liability, builders-risk, and cyber-risk coverages; commercial property, business-interruption, and communicable-disease coverages; workers' compensation; legal malpractice, medical malpractice, director & officer liability, and other professional liability insurers; specialty line insurers; health insurers; life insurers; and title insurers. Our lawyers have also represented insurance trade associations, frequently as amici curiae on issues of general concern to the industry.
Dickinson Wright attorneys have represented carriers on a broad range of coverage issues, both in trial courts and on appeal. The issues have ranged from coverage under automobile and homeowners policies for “road rage” injuries to D&O coverage for the cost of litigating or settling complex shareholder litigation. Representative matters include:
• Serving as national counsel to a major insurer in business-interruption coverage litigation arising from coronavirus pandemic losses in lawsuits in numerous states from California and Washington to New Hampshire, New York, and Florida.
• On a certified question from the Ninth Circuit, convinced the Arizona Supreme Court in Apollo Education Group v. National Union (2021) to adopt, in construing a D&O policy’s consent-to-settlement clause, the insurer’s perspective of the reasonableness of withholding consent.
• Secured a favorable dispositive ruling for a builders-risk insurer in an action seeking nine-figure damages at an iron ore processing plant, including alleged business-interruption damages, physical damages, and punitive damages for bad faith.
• Persuaded a federal district court to dismiss, and the federal circuit court to affirm the dismissal of, a coverage action against a D&O insurer for $9 million for the costs of five shareholder class actions.
• Represented a multi-line insurer in a putative class action challenging the client’s ability to reduce underinsured-motorist payments by the amount of workers’-compensation benefits received.
Bad Faith and Related Litigation
Dickinson Wright attorneys have deep experience in defending high-exposure claims against insurers and reinsurers for bad faith and other extra-contractual liability, including claims under first-party and third-party coverages, as well as workers’-compensation bad faith. Such claims may take many forms, including bad faith and fiduciary-duty claims by insureds or their assignees; tort claimants’ suits for abuse of process or intentional infliction of emotional distress; and claims for violation of statutes proscribing unfair trade practices or unfair claim settlement practices.
Our attorneys have particular experience in defending against claims of “institutional” bad faith based on general company practices and procedures. These include institutional claims based on compensation and bonus practices, profitability targets, claim severity goals, claim-handling processes and reforms, and use of computerized claim-adjustment tools. For example:
• Obtained dismissal of a putative statewide class action attacking an automobile insurer’s claim-settlement practices for “minor impact soft tissue” injuries.
• Secured summary judgment on homeowner’s claim that the insurer acted in bad faith in determining that hurricane loss was caused by a non-covered flood rather than wind.
• Obtained several favorable dispositions of cases brought by workers’-compensation policyholders and claimants alleging unreasonable claim handling and institutional bad faith.
• Represented a multi-line insurer in multiple bad faith class actions filed in state and federal courts after the state supreme court interpreted policy language to permit insureds to “stack” uninsured or underinsured motorist coverage under multiple policies.
Title Insurance Litigation
Our insurance attorneys have extensive experience helping national and regional title insurance companies and their insureds protect their investments and resolve a wide variety of disputes involving lien priority and validity, title ownership, equitable and conventional subrogation, easements, property boundaries, mechanic’s lien claims, policy coverage, mortgage fraud, and more. We have helped our title insurance clients analyze policy coverage and defended them against claims of policy breach. We also have addressed claims against title agents and their E&O carriers, and recovered significant funds on unsecured claims in bankruptcy and policy payment recoveries. Our experience includes:
• Obtaining dismissal of a complaint for prelitigation fees and litigation expenses incurred in $6-million title dispute, despite claim that insurer breached its duty to defend and unreasonably delayed in assigning counsel. Obtaining payment of a $790,000 unsecured claim on behalf of a national title insurance company in the bankruptcy of Residential Capital by negotiating with liquidating trustee to overcome its initial attempt to disallow claims in bankruptcy.
• Defeating sellers’ claim that the alleged forgery of their signatures on a deed entitled them to retain property free and clear of the purchaser’s mortgage, the proceeds of which paid off the sellers’ prior mortgages against the property.
• Confirming that a mortgage against tenancy by the entirety property that was signed by the borrower’s wife could be enforced, even though the wife was not personally liable on her husband’s loan.
• As counsel for amicus curiae Illinois Land Title Association, establishing that construction escrowees have a fiduciary duty only to act in accordance with the escrow agreement, limiting insurance defense obligations to claims related to title defects, and confirming the requirements for constructive notice of mortgages under the Illinois Conveyances Act.
Punitive Damages & Statutory Damage Caps
Our insurance litigators have extensive experience in attacking jury verdicts for punitive damages under both state law and federal due process principles, and have achieved extraordinary reductions of such awards. They have also successfully defended the constitutionality of federal and state statutory damages caps against challenges based on the right to a jury trial, separation of powers, access to courts, equal protection, and due process.
• Represented the four largest P&C insurance trade associations as to punitive damages in State Farm v. Campbell (U.S. 2003). The American Prospect complained that the High Court’s “decision … took language right from the American Insurance Association’s amicus curiae (‘friend of the court’) brief.”
• Successfully reduced a $55-million punitive-damages verdict against an insurer to $620,000, and then persuaded the appellate court to reduce it further to $155,000.
• Persuaded an appellate court to vacate or reduce punitive-damages verdicts of $740,000 against another insurer to $40,000.
• Persuaded the New Mexico Supreme Court to reverse the trial court and uphold against a jury-right challenge the constitutionality of the state’s statutory cap on medical malpractice damages in Siebert v. Okun (2021).
Other Insurer Litigation
• Represented a personal-lines property and casualty insurer in multi-district antitrust litigation brought by auto body shops.
• Obtained vacation by the state court of appeals of the trial court’s award of $2.4 million in discovery sanctions against an insurer.
• Argued before the Pennsylvania Supreme Court on behalf of an amicus curiae insurer in place of the actual party in an insurance-liquidation dispute, receiving the court’s commendation for “exceptionally well-crafted, well-researched, and persuasive briefs and arguments.”
• Represented a health insurer and wholly-owned HMOs in a putative class action and individual suits alleging violations of quality assurance statutes following a hepatitis C outbreak at a network endoscopy clinic.
Covered Defense of Insureds
Insurance carriers also look to Dickinson Wright attorneys for the defense of insureds in litigation covered under their policies, particularly when the litigation entails high risk, high exposure, or important legal issues. Insurers have retained our lawyers to assist or replace existing counsel, whether in the trial courts or on appeal. Their experience includes a wide variety of contract, tort, and other matters, including premises liability; medical, accounting, and legal malpractice; D&O liability; environmental litigation; and defense of railroads in FELA, grade-crossing, and other personal-injury litigation.