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Property & Casualty Insurance


Overview

We provide coverage and claims counseling, litigation, and arbitration services in matters involving all types of property and casualty insurance. In addition, we defend individuals and entities that are insured by our clients under a wide range of policies. We also provide services related to issues such as claims and underwriting practices, regulatory and transactional matters, administrative and regulatory litigation, and reinsurance.

Carlton Fields was recognized by corporate counsel as one of only 21 law firms nationally with the best insurance industry client relationships for the second year in a row, according to BTI Consulting's Power Rankings 2017. The firm has ranked No. 1 for Insurance for 13 consecutive years by Chambers USA Guide to America's Leading Business Lawyers.

  • Coverage and Claims Counseling, Litigation, and Arbitration

    Directors and Officers and Related Coverages – We provide analysis and dispute resolution, and litigate a variety of claims by insureds under directors and officers (D&O) liability policies and related coverages. Our lawyers regularly handle complex coverage issues on behalf of insurers under D&O, errors and omissions (E&O), employment practices liability (EPL), and other professional liability policies.

    Bad Faith Litigation – We have considerable experience handling bad faith litigation. Our lawyers represent leading insurance companies in bad faith litigation (both individual and class action) in state and federal courts throughout the country, and we devise and help implement creative strategies for minimizing or eliminating exposure to extra-contractual liability.

    General Liability – We assist clients with the construction and interpretation of commercial general liability (CGL) policies, counseling them and litigating on their behalf. In this capacity, we address issues related to the duties to defend and indemnify, the scope of occurrence-based coverage, long-tail exposures and allocation, lost policies, and bad faith.

    First-Party Property – Our coverage lawyers have extensive experience with first-party property insurance claims that arise from all types of losses. In complex, first-party commercial property coverage litigation, we consult on coverage issues from early in the claim adjustment process through coverage litigation. This work includes examinations under oath, appraisals, mediations, arbitrations, trials, and appeals. We handle disputes involving catastrophic losses, property damage, business interruption and other economic losses, hurricane-related losses, floods, sinkholes, construction defects, breakdown or malfunction of boilers and other critical equipment, application of sublimits, trigger of coverage, number of occurrences, and bad faith.

    Merger & Acquisition Representation and Warranty Insurance – We have a sophisticated practice representing issuers of insurance for the representations and warranties that accompany merger and acquisition transactions. By combining the coverage experience of our insurance practitioners with the detailed analysis and understanding of the deal developed by our corporate securities and merger and acquisition attorneys, we bring to each claim analysis the level of critical expertise needed to evaluate these complex claims.

    Excess and Umbrella – Our lawyers handle litigation over the duties of excess and umbrella carriers. These cases involve issues including the insolvency of an underlying primary insurer, the interpretation of “other insurance” clauses, the effect of an insured’s settlement without consent, the insured’s reporting obligations, the significance of a self-insured retention, “follow form” provisions, choice-of-law issues, and apportionment issues.

    Environmental – On behalf of insurers and their insureds, we handle claims for environmental spills and contamination under CGL policies and specialty environmental policies. These suits involve the interpretation of both the “sudden and accidental” and “absolute” pollution exclusions, reasonable and necessary costs of cleanup, the duty to defend CERCLA claims and other pre-litigation matters, and the myriad coverage issues that frequently arise in this type of claim.

    We have extensive experience with the major underwriters of policies insuring against environmental contamination. We have represented insurers in complex declaratory judgment actions regarding coverage for environmental claims under both pollution legal liability policies and construction pollution liability policies as well as claims for coverage under policies insuring underground and aboveground storage tank systems.

    Our combined environmental law and litigation experience enables us to handle environmental insurance claims with an full understanding of the issues surrounding complex environmental cleanups. We have extensive experience handling issues such as industrial and domestic wastewater; storage tank regulation; and landfill, used oil, and hazardous waste permitting and regulation. We also negotiate consent orders and remediation plans associated with the cleanup of hazardous waste, petroleum, chlorinated solvents and other contaminants with local, state, and federal environmental agencies. In addition, we have extensive environmental contamination litigation experience that includes handling claims for property damage, personal injuries, and medical monitoring stemming from alleged exposure to on- and off-site contaminants.

    Fidelity, Commercial Crime, and Financial Institution and Broker Bonds – Our lawyers investigate claims, analyze coverage and salvage issues, work with financial and forensic consultants to quantify damages, and represent insurers in litigation under all insuring agreements of financial institution, broker, and other theft and fidelity bonds and crime policies. We have authored multiple chapters in publications about coverage under such policies.

    Construction and Surety – In construction-related matters, we regularly counsel insurers on CGL, builder’s risk, and professional errors and omissions policies. We also represent sureties in various payment and performance bond claims. This work includes helping insurers and sureties draft policy and bond language. We also address regulatory issues regarding various insurance control programs. Our lawyers are experienced in all types of construction claims including those involving termination of contractors, payment claims, delay claim analysis, construction defects, differing site conditions, and design professional liability.

    Data Security and Data Privacy – Our lawyers have extensive experience handling privacy and security issues for clients nationwide. We frequently speak and write on data privacy and security law, and our privacy and security law clients operate in various industries, including insurance. We are well-positioned to provide compliance assistance regarding the privacy and security of individually identifiable data. Our lawyers are knowledgeable regarding federal and state privacy laws (e.g., Gramm-Leach-Bliley, HIPAA, CPNI), and the privacy and security standards used in various industries. We help clients draft and implement policies and procedures that will protect their sensitive data while complying with the requirements of state and federal privacy and security laws. We also help clients respond to data and security breaches. This work includes the required reporting to state and federal agencies, dealing with the implications for customers, vendors, and employees; and handling potential, related litigation.

    Cyber Coverage and Disputes  – Carlton Fields’ coverage team has been at the forefront of counseling and litigating “cyber” coverage disputes for insurers since long before data breaches made news, or standalone “cyber” coverages were developed. Carlton Fields’ coverage lawyers have handled some of the most high-profile and high-dollar cyber coverage disputes. We have counseled insurers regarding coverage for data breaches, malware attacks, political hactivism, social engineering/phishing/spoofing schemes, and misappropriation of intellectual property. We have analyzed “cyber” coverage issues under traditional coverages, including CGL and fidelity policies (and particularly the “computer systems fraud” rider), as well as newer “cyber” specific package policies, that include first-party coverages, such as data restoration and replacement, business interruption, and breach response costs, as well as third-party liability coverages, including security and privacy liability, derivative vendor and contractual liability, and internet media liability. 

  • Defending Insureds

    Corporate Officers and Governance – We regularly defend individuals and entities that are insured by our clients under D&O, E&O, EPL, policy legal liability, fiduciary liability, and miscellaneous professional liability policies. We handle high-risk matters of all types, including class actions, multi-district litigation, adversary proceedings in bankruptcy, and all stages of disputes, from pre-litigation counseling through appeal.

    Our experience includes handling claims involving the Telephone Consumer Protection Act and data privacy. We routinely defend insureds and their employees, directors, and officers against claims for securities fraud, breach of fiduciary and other duties imposed on corporate officers, discrimination, harassment and other violations of state and federal civil rights statutes, whistleblowing and retaliation, interference with business and contractual relations, unfair trade practices, fraud, and defamation. Our cases often arise in the context of disputes over corporate governance, including those between majority and minority shareholders.

    We also defend insureds in ERISA cases. Three of our partners authored the Handbook on ERISA Litigation, published by Aspen Law & Business.

  • Corporate Counseling and Litigation

    Claims Practices – We handle national and state class actions and individual lawsuits arising out of claims practices and procedures. These matters include disputes over the use of electronic systems and databases to help process claims under automobile, homeowners, and workers compensation insurance policies; premium reporting practices as related to residual market obligations; the use of consumer credit information for claims investigations; medical records handling in workers compensation claims; implementing agreements with preferred provider organizations and direct repair programs; enforcing conditions on full replacement cost and “ordinance or law” coverage; calculating general contractors’ overhead and profit; and calculating reimbursements under medical payments coverages. In other cases, we have represented third-party administrators in disputes over claims handling, and counseled them on information technology and data privacy issues.

    Our lawyers also counsel claims organizations on the design and implementation of claims practices and procedures. We have helped manage communications and negotiated contract terms with vendors of claims-processing products. We have represented insurers in disputes with those vendors and in disputes with medical device manufacturers over fraudulent billing and referral practices.

    Underwriting Practices – We represent clients in class action and individual litigation involving the use of consumer credit information for underwriting and marketing purposes, nonrenewal and termination of property and liability policies, actual and alleged misrepresentations by brokers and agents, sale of lender-placed property insurance, reformation of policies, enrollment of residential tenants on surety bonds, underwriting requirements for surplus lines policies, and insurers’ obligations to lienholders and additional insureds. We also provide training to underwriters and staff on complex issues of environmental law, and on regulatory developments that may impact underwriting environmental riders.

    In addition, we help design protocols for compliance with the notice requirements of the Fair Credit Reporting Act.

    Regulatory & Transactional Counseling – Our lawyers have significant experience representing property and casualty insurance and reinsurance clients in regulatory matters before departments of insurance in the U.S. and several non-U.S. jurisdictions (e.g., Bermuda and United Kingdom). Our services encompass the full range of regulatory issues faced by insurers, reinsurers, and other regulated entities within the insurance and reinsurance industry.

    We handle matters involving insurer and reinsurer financial condition and solvency; ratemaking; company licensing; registration and approval of new products; approval of formation, acquisition or merger of insurers and reinsurers; insurer examinations, including market conduct examinations; surplus lines issues; reinsurance issues; receivership matters; insurance tax issues; and producer licensing and regulation.

    We also have significant experience in administrative and other regulatory litigation, including agency rule challenges, regulatory investigations under state and federal false claims acts and unfair trade practice statutes, and defending clients in related individual and class action civil suits. In addition, we counsel and defend insurer clients regarding protection of trade secrets in connection with regulatory filings and disclosure under state public records laws.

    We represent property and casualty insurance and reinsurance clients in the formation, acquisition, and disposition of insurance companies, reinsurance companies, captives, and related entities, and handle all regulatory aspects of reporting or seeking approval of such transactions with state insurance regulators. Additionally, we provide advice and counsel concerning producer and third-party contracts.

    Reinsurance – We provide a broad range of services to property and casualty insurers and reinsurers. These services include representing cedents and reinsurers in litigation or arbitration arising from claims, underwriting, or other issues; providing coverage advice to cedents or reinsurers; representing ceding insurers in catastrophe bonds; negotiating and documenting reinsurance transactions; reviewing reinsurance contracts; advice and counsel on fronting arrangements; captive insurers; reinsurance claims monitoring; and representing reinsurers in insurer insolvency proceedings.

Featured Insights

Experience

General Property and Casualty
 
  • Harbour House (Bal Harbour) Condominium Association, Inc., as assignee of TRG-Harbour House, LTD v. American International Specialty Lines Insurance Co., et al., No. 15-28921 (Circuit Ct., 11th Judicial District, Miami-Dade Cty, 2016) (obtaining pre-answer dismissal of coverage action involving alleged property damage claims).
  • Carfax Inc. v. Illinois National Insurance Co., case number 655198/2016, in the Supreme Court of the State of New York, Appellate Division, First Judicial Department. On March 1, a New York appeals court ruled that Carlton Fields client American International Group, Inc. (AIG) need not defend Carfax, Inc. against a $50 million suit alleging the company monopolized the vehicle history report market. The decision affirmed the lower court’s determination that the matter did not fall within the insuring agreement and that, even if it did, it would be precluded from coverage based on the application of the policy’s antitrust exclusion.
  • Langdale Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 110 F. Supp. 3d 1285 (N.D. Ga. 2014), aff’d 609 Fed. Appx. 578 (11th Cir. 2015) (trial and appellate counsel for directors and officers liability insurer in suit for coverage by closely held entity seeking $10 million in defense costs as well as penalties for bad faith for suit by minority shareholders for fraud in the sale of securities; obtained summary judgment that was upheld on appeal).
  • Weitz Co., LLC v. Lexington Ins. Co., et al., 982 F. Supp. 2d 975 (S.D. Iowa 2013), aff’d, Case No. 13-3744, --- F.3d ----, 2015 WL 2217552 (8th Cir. May 12, 2015). As the lead defense firm in the Southern District of Iowa, obtained a defense summary judgment where the plaintiff general contractor improperly attempted to obtain a $50-plus million double recovery in equity against a project owner’s post-construction property insurers. The general contractor was previously sued for its materially deficient construction of the project in the Southern District of Florida. It settled with the project owner after recovering several million dollars more from its liability insurers, subcontractors, and their liability insurers. As part of the appellate team in the Eighth Circuit Court of Appeals, we defended entry of this summary judgment on appeal and obtained affirmance.
  • Office Depot, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, 734 F. Supp. 2d 1304 (S.D. Fla. 2010), aff’d 2011 WL 4840951 (11th Cir. Oct. 13, 2011). Summary judgment in favor of insurer on insured’s claims of over $24 million in investigation costs.
  • Am. Safety Indem. Co. v. Sto Corp., 802 S.E.2d 448 (Ga. Ct. App. 2017) (appellate counsel to insurance company in action alleging coverage by estoppel due to alleged failure to provide adequate notice of reservation of rights in defense of underlying action and statutory bad faith).

Insurance Coverage, Monitoring and Bad Faith
 
  • County of Suffolk v. Lexington Ins. Co., et al., No. 604661/2017 (N.Y. Sup. Ct., Suffolk Cty 2018) (obtaining summary judgment for second layer excess insurer in dispute involving E&O coverage provided by an excess liability policy, on grounds that the underlying claim did not involve a “Wrongful Act” implicating the policy’s insuring agreement, lacked the requisite fortuity required by New York law, and was barred by the policy’s breach of contract exclusion). 
  • The Unimax Corporation v. The Continental Ins. Co., et al., No. 2016-cv-279282 (Ga. Sup. Ct. 2017) (granting motion to dismiss environmental insurance coverage action), aff’d (Ga. Ct. App. 2018). 
  • National Union Fire Ins. Co. of Pittsburgh, PA, et al. v. The Roman Catholic Diocese of Brooklyn, et al., No. 653575/2014 (N.Y. Sup. Ct., N.Y. Cty 2017) (insurance coverage dispute involving underlying claims of sexual/physical abuse, granting motion for partial summary regarding pro rata allocation of defense and indemnity costs, number of occurrences, and exhaustion of multiple self-insured retentions).
  • Roman Catholic Diocese of Brooklyn, et al. v. National Union Fire Ins. Co., et al., 87 A.D.3d 1057 (2d Dep't. 2011), aff’d, 2013 WL 1875302 (N.Y. 2013) (summary judgment for insurers in a dispute concerning the number of occurrences for underlying claims of sexual abuse, exhaustion of multiple SIRs, pro rata allocation, and waiver under New York law).

All Insights

Guiding FEMA Through Groundbreaking CAT Bond Reinsurance Transaction

Guiding FEMA Through Groundbreaking CAT Bond Reinsurance Transaction

August 15, 2018

The bond is a first-of-its-kind for the federal government; it is the first flood-only CAT bond and the only CAT bond issued on behalf of the NFIP.

Professional Services Exclusion Precludes Coverage for False Claims Act Suit

Professional Services Exclusion Precludes Coverage for False Claims Act Suit

August 3, 2018

It is not unusual for a directors and officers liability policy to have an exclusion for professional services. A such, a question often arises regarding whether the claimed wrongful conduct involved the rendering or failure to render professional services in a particular context.

An Absolute Pollution Exclusion: Reading the ‘Fine’ Print

An Absolute Pollution Exclusion: Reading the ‘Fine’ Print

July 27, 2018

A federal judge recently relied on a pollution exclusion to find that Great American Insurance Company was not obligated to cover losses associated with the unintended distribution of rock fines into New Jersey’s Spruce Run reservoir.

New Opinions From Second and Sixth Circuit Courts Rock Phishing Loss Coverage Landscape

New Opinions From Second and Sixth Circuit Courts Rock Phishing Loss Coverage Landscape

July 16, 2018

On July 6, the Second Circuit Court of Appeals set off some fireworks in the insurance coverage litigation field when it found coverage for a “social engineering”/phishing scheme loss, bucking the trend among its sister courts.

New York Trial Court Finds Lexington Has No Duty to Provide Coverage for Damages Stemming from an Insured’s Knowing and Intentional Conduct

New York Trial Court Finds Lexington Has No Duty to Provide Coverage for Damages Stemming from an Insured’s Knowing and Intentional Conduct

April 13, 2018

The Supreme Court of the State of New York, Suffolk County, recently granted summary judgment to Carlton Fields’ client, Lexington Insurance Company, in a suit brought by its insured seeking coverage for damages stemming from the insured’s breach of a lease agreement with a third-party.

AIG Won’t Have to Defend Carfax in $50 Million Antitrust Suit

AIG Won’t Have to Defend Carfax in $50 Million Antitrust Suit

March 5, 2018

On March 1, a New York appeals court ruled that American International Group, Inc. (AIG) need not defend Carfax, Inc. against a $50 million suit alleging the company monopolized the vehicle history report market.

Limit of Liability Provisions in Facultative Reinsurance Certificates Are Interpreted under New York Law Using the Standard Rules of Contract Interpretation

Limit of Liability Provisions in Facultative Reinsurance Certificates Are Interpreted under New York Law Using the Standard Rules of Contract Interpretation

February 2, 2018

The question sometimes arises as to whether the limit of a reinsurance contract limits the payment by the reinsurer of both indemnity and expenses, or just indemnity payments, with payment for expenses being outside and in addition to the stated limit of the reinsurance contract.

In California, Proposed Legislation to Increase Insureds’ Recoveries from Their Insurance Policies

In California, Proposed Legislation to Increase Insureds’ Recoveries from Their Insurance Policies

January 18, 2018

After devastating wildfires, California legislators proposed greater wildfire insurance protection, drafting a set of bills.

Recent Developments in Property Insurance Coverage Litigation

Recent Developments in Property Insurance Coverage Litigation

January 1, 2018

Issues addressed in this white paper is relevant to hurricane claims and litigation, including causation, anti-concurrent causation language in exclusions, mold coverage, time element coverages, and the scope of appraisal.

Adjusting Claims in Florida Following Hurricane Irma

Adjusting Claims in Florida Following Hurricane Irma

September 25, 2017

As the waters recede from Hurricane Irma, property insurers have many issues to consider as they adjust claims in Florida. This alert discusses a few of those issues.

Assignment of Benefits Legislation in Florida

Assignment of Benefits Legislation in Florida

September 15, 2017

The practice known as the Assignment of Benefits (AOB) is a big problem for Florida property insurers. AOBs have been driving up the cost of property insurance claims in the state for several years.

Business Continuity and Disaster Recovery Checklist

Business Continuity and Disaster Recovery Checklist

September 7, 2017

Conducting a risk assessment and putting a business continuity plan in place now might mean the difference between hours out of operation and days out of operation.

Hurricane Harvey: Insurance Statutes and Regulations

Hurricane Harvey: Insurance Statutes and Regulations

August 25, 2017

Hurricane Harvey: Links to relevant statutes, regulations, and claims adjusting standards in Louisiana and Texas.

Big Data: Insurance Innovation Regulation

Big Data: Insurance Innovation Regulation

August 17, 2017

The use of big data and analytics, and other innovative technologies, is transforming the way the insurance business is being conducted. This article describes some of the changes that are occurring and how regulators are attempting to keep pace with them.

NAIC Cybersecurity Working Group Votes to Approve Insurance Data Security Model Law

NAIC Cybersecurity Working Group Votes to Approve Insurance Data Security Model Law

August 14, 2017

Version 6 of the Model incorporates significant changes from the first version released on March 2, 2016, including the narrowed purpose of establishing "standards for data security and standards for the investigation of and notification to the Commissioner of a Cybersecurity Event applicable to Licensees…"

New York DFS Requests Information on Use of External Consumer Data and Information Sources in Life Insurance Underwriting

New York DFS Requests Information on Use of External Consumer Data and Information Sources in Life Insurance Underwriting

July 5, 2017

The New York DFS initiated an investigation into the use of external consumer data or information sources in connection with underwriting by issuing a Section 308 information request to all New York authorized life issuers.

Georgia Federal Court Finds Policy’s Broad Firearms Exclusion Bars Coverage

Georgia Federal Court Finds Policy’s Broad Firearms Exclusion Bars Coverage

June 15, 2017

The U.S. District Court for the Northern District of Georgia granted summary judgment in favor of AIG Specialty Insurance Co. in a case involving the application of the firearms exclusion in Powe v. Chartis Specialty Insurance Co., No. 1:16-CV-01336.

I-85 Bridge Collapse: Business Interruption Coverage Issues

I-85 Bridge Collapse: Business Interruption Coverage Issues

April 3, 2017

n the wake of the March 30 collapse of the I-85 bridge in Atlanta, Georgia Governor Nathan Deal declared a state of emergency calling for closure of both the northbound and southbound lanes of I-85 in Fulton County. Many businesses may be affected by the closure of I-85, a major thoroughfare in Atlanta.

Federal Court Holds California Insurance Code Bars Duty to Defend Against False Claims Act Violations

Federal Court Holds California Insurance Code Bars Duty to Defend Against False Claims Act Violations

January 24, 2017

On January 4, the U.S. District Court for the Central District of California held that California’s Insurance Code precluded AIG Specialty Insurance Company from reimbursing $15 million in defense expenses incurred by Office Depot in defending a False Claims Act suit.

Minnesota Discovers Limits To Its Regulator’s Power Over Insurers

Minnesota Discovers Limits To Its Regulator’s Power Over Insurers

January 13, 2017

In Minnesota, the Commissioner of the Department of Commerce regulates the insurance industry, and he has a statutory right to conduct investigations “related to the duties and responsibilities entrusted to” him.

Recent Developments in Property Insurance Law

Recent Developments in Property Insurance Law

January 1, 2017

Tort Trial & Insurance Practice Law

Key Contacts

Other Team Members

Beth A. Vecchioli

Beth A. Vecchioli

Senior Director Government Consulting

Featured Insights

Disclaimer

The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.