Cutting Edge

Other firms say they are cutting edge – we can give you a list of our “firsts.”

We didn’t just learn the field of insurance recovery; our lawyers pioneered it.  And we continue to innovate.  We created many of the techniques, strategies, and structures that have become the foundation of insurance recovery.  That’s why we know how to use them so effectively. 

Being cutting edge is not simply a slogan we toss around.  It’s in our DNA to think outside the box.  For example:

  • The Wellington Agreement:  One of our attorneys was the chief architect and policyholder negotiator of one of the largest insurance settlements in history, the Wellington Agreement, which resolved insurance coverage disputes between approximately 35 asbestos-bodily-injury defendant companies and 15 insurer groups, resulting in insurance payments exceeding $15 billion. 
  • London Schemes of Arrangement:  Our attorneys represented policyholder interests in negotiating the terms of schemes of arrangement in the London insurance market in the early 1990s, creating structures still in place today that have been used to process and pay billions of dollars in policyholder claims.  
  • Creation Of Special-Purpose Insurance Policy:  Our attorneys negotiated, drafted, and secured benefits under an excess-of-loss insurance policy that covered several hundred million dollars of asbestos liability above a substantial retention, assuring the financial markets that the client's asbestos liability was contained, which in turn eliminated a risk premium on the client's borrowing costs and resulted in an increase in its stock price.
  • No-Aggregate Coverage:  Our attorneys were instrumental in bringing the first major case seeking coverage not subject to aggregate limits of liability for mass tort claims.  Until that time, most mass tort coverage disputes focused on “products” coverage, which generally is subject to aggregate limits in most liability policies.  In this case, our attorneys focused on “non-products” coverage and argued that the aggregate limits of the policies in question did not apply to claims that arose in the course of an insured’s installation and other handling of asbestos-containing products.  Because our client was an insulation contractor, our attorneys contended that most of the claims against it were “non-products” claims not subject to aggregate limits.  Our attorneys designed and supervised a study of a random sample of claims that ultimately was found by two separate arbitrators to establish that more than 70% of the client’s multi-billion-dollar asbestos-related bodily injury liability arose from “non-products” claims.  Using the theories and approaches developed in this case, we have helped a range of clients recover billions of dollars in insurance coverage for mass tort liabilities.
  • Separate Settlement Counsel:  Recognizing the importance of settlement in achieving our clients’ goals, we pioneered the use of separate settlement and litigation tracks in appropriate cases.  At many other firms, litigators, by default, tend to handle both litigation and settlement responsibilities.  In our view, it often is more effective to create a separate settlement track led by a lawyer who can focus on settlement without the distractions of ongoing litigation and the adversarial mindset it engenders.  A number of our lawyers specialize in settlement through direct negotiation and mediation.  We have helped clients reach settlements totaling billions of dollars using this dual-track approach.
  • Three-Corner Settlements:  We developed and implemented an innovative settlement structure under which our clients sold agreed payment streams from their insurers to third-party investors in return for lump-sum payments to the clients that could be used to fund the clients’ liabilities on a gap-free basis.
  • Mass-Tort Bankruptcies:  In bankruptcy cases involving medical devices, asbestos, mass-tort medical malpractice, and others, we developed many of the insurance-related structures currently used in virtually every mass-tort plan of reorganization.  These cases typically involve numerous insurers, each with its own unique interests in, and objections to, the debtors' efforts to resolve their bankruptcies favorably.  We developed insurance-related plan structures and approaches to creating settlement pressure on differently positioned insurers, including innovative methods for transferring insurance rights to post-bankruptcy trusts, approaches to protecting against insurer arguments that plans of reorganization breach policy requirements, and legal theories that expose recalcitrant insurers to potentially significant liabilities.  Using these and other approaches, we have secured billions of dollars in insurance settlements to fund post-bankruptcy trusts and to pay creditors. 
  • Significant Insurance Precedents:  Our lawyers have secured many ground-breaking and significant precedents, that have been important in the development of insurance and related areas of law, including:
    • Illinois Precedent Requiring Insurer to Pay “All Sums”:  We were retained to represent a policyholder in an Illinois coverage case that had been pending for more than five years and persuaded the trial court to reverse its previous, adverse coverage determinations and hold that an insurer was obligated to pay “all sums” for claims triggering its policy in asbestos cases whether the policy was issued at the excess or the primary level.
    • Delaware Supreme Court Rulings Rejecting Insurer Defenses and Requiring Insurer to Pay Defense Costs, Leading to $40 Million Jury Verdict for Client:  We secured a pair of favorable rulings in the Delaware Supreme Court in a landmark food-contamination coverage case involving mass-tort bodily injury claims arising from  allegedly tainted peanut butter - one rejecting insurers' rote reliance on certain policy language to avoid coverage for product liability claims; and the other requiring the insurers to pay all of our client’s defense costs.  We then worked with co-counsel to obtain a jury verdict worth more than $40 million, and we ultimately negotiated a favorable settlement for the client.
    • Insured Client Entitled to Pierce Through a Captive Insurance Policy and Pursue its Coverage Claim Directly Against the Captive’s Reinsurers:  Representing a client with a $100-million-plus claim under an insurance policy issued by a “captive” insurer whose reinsurers were denying coverage, we secured rulings that (1) because the reinsurers dealt with our client directly in handling its claim for coverage, our client could bypass the captive and seek coverage directly from the reinsurers as if they were direct insurers; and (2) the reinsurers could not rely on an unfavorable arbitration clause in the insurance policy issued by the captive, and our client was free to pursue its claim for coverage in court rather than in an insurer-slanted arbitration proceeding.
    • NY Court of Appeals Ruling Precluding Automatic Application of Adverse NY Law to Out-of State-Insureds:  Representing a group of insureds and working with other policyholder counsel and their clients, we helped secure a ruling in the New York Court of Appeals that an insolvent insurer could not apply its adverse home-state law to all policyholders without regard to ordinary choice of law principles that mandated more favorable law for our clients.
    • Insolvent Insurer Must Estimate and Pay Future Claims:  We secured a ruling on behalf of a post-bankruptcy asbestos trust that an insolvent insurer was obligated under an insurer insolvency statute adopted in many states to estimate and pay “IBNR” (future) asbestos claims against the trust, dramatically enhancing the value of our client’s claim.
    • Leading Precedent Limiting Insurer Standing in Mass Tort Bankruptcy Case:  We obtained a ruling that stands as the leading precedent limiting insurer standing to raise objections to confirmation of plans of reorganization in asbestos-related bankruptcy cases.
    • D&O Insurer Must Turn Over Its Law Firm’s Files:  We secured a ruling in federal court litigation requiring a D&O (directors and officers) insurer to produce all of its law firm’s work product – which the insurer had argued was privileged – on the basis that the law firm was acting primarily as a claims handler rather than as legal counsel.
    • Sixth Circuit Ruling Rejecting Insurer Bid to Limit Coverage Obligations to One “Occurrence” Limit:  We obtained a favorable ruling from the United States Court of Appeals for the Sixth Circuit, in a ruling from the bench directly after oral argument, on behalf of a client in the automotive parts industry whose manufactured products were alleged to contain asbestos material, that the multiple claims of exposure to asbestos constituted multiple occurrences under the language of the insurance policies, resulting in millions of dollars in additional coverage for our client.
    • Federal Bankruptcy Code Preempts Insurer’s Policy-Based Defenses to Coverage:  In the first ruling of its kind, a federal bankruptcy judge accepted our argument that the federal bankruptcy code preempted “anti-assignment” and “cooperation” provisions of insurance policies and therefore negated insurer arguments that a plan of reorganization that transferred rights to insurance proceeds to an asbestos trust breached their policies.
    • Federal Appellate Court Decision Overturning Client’s Adverse Arbitration Ruling Denying Coverage:  Overcoming the strong judicial preference for and federal policy in favor of upholding arbitration decisions, we secured a ruling overturning an adverse coverage ruling against our client on the basis that the arbitrators had exceeded their authority and the arbitration decision was not binding.