For more than 25 years, Crowell & Moring attorneys have been involved in some of the largest and most complex coverage cases in the country. Our attorneys have litigated hundreds of coverage disputes on behalf of insurance company clients in more than 35 states, Bermuda, and the United Kingdom. Our experience spans all of the major industries whose coverages have spawned major litigation: pharmaceuticals, railroads, aerospace, petrochemicals, asbestos (manufacturers and installers), automotive, construction, municipalities, colleges and universities, and health insurance and managed health care. We have handled cases arising out of climate change, environmental contamination, natural disasters (e.g., Hurricane Katrina and the San Diego wildfires), and a variety of mass torts including claims relating to asbestos, silica, plastic plumbing, home heating furnaces, over-the-counter cold remedies, benzene, and alleged repetitive stress "injuries." We have represented our insurance company clients in coverage litigation involving employment discrimination, construction defects and construction accidents, sick building syndrome, antitrust, and denial of health benefits.
In the course of this work, we have litigated all of the major policy interpretive questions that have arisen over the past quarter century for property-casualty insurers. We have successfully litigated the pollution exclusion, trigger and multipolicy allocation, vertical exhaustion protocols and the reallocation methodologies associated with the so-called "all sums" approach to trigger and allocation, the owned property exclusion, the products liability definition, corporate and insurance policy succession issues, expectation and intent and the occurrence definition, "other insurance" clauses, notice timing questions, and number of occurrences. A number of these cases have involved potentially unaggregated coverages in which the compounding of per-occurrence limits threatened allegedly unlimited exposure.
Our practice has extended, of course, to standard-form comprehensive general liability coverages, but also to manuscript policies, environmental impairment coverages, and the Bermuda form. Our litigations have been venued all over the United States, as well as Bermuda and the United Kingdom, and include civil court actions, arbitrations, and bankruptcy proceedings. We regularly counsel insurers dealing with major exposures resident in bankruptcy courts, and we have led or participated in many of the most complex and financially significant bankruptcy proceedings.
We have also litigated potential liabilities arising out of claims-handling practices and alleged bad faith, agency questions arising out of the conduct of brokers and other intermediaries, and many other policyholder attempts to bootstrap coverage from the manner in which claims were managed. Our lawyers have litigated or successfully managed a great many complex interactive difficulties associated with Directors and Officers (D&O) coverages, where the insurance issues always come coupled with jostling over the management of the underlying claims, and Errors and Omissions (E&O) coverages of various sorts.
Although legal-interpretive advocacy was at the center of many of these disputes, especially as the insurance law applicable to major tort exposures and long-tail exposure-based injuries was being painstaking developed, those questions must, in turn, center on the facts of each case and each liability exposure. Determining facts requires carefully crafted and efficient discovery. And it often means trials. Our lawyers have conducted more than a dozen trials over the years, and we regularly take arbitrations to the award stage. We believe that trial readiness is a key to successful resolution of large claims, whether the trial actually happens or not. We also commit ourselves to efficiency in our fact finding and discovery efforts, working with our clients to tailor discovery to the actual needs of the case and not trying to boil the ocean in search of some kind of abstract (and expensive) sense of perfection.
We also understand the sensitivities associated with coverage disputes and the general disposition of insurers and policyholders to try to reach some sort of accommodation. We believe that no other law firm has had a leading role in favorably settling as many large, complex exposures over as many years as Crowell & Moring. Our lawyers have led mediated, multilateral, mass tort settlements that have taken years to accomplish, and our insurance and bankruptcy teams are regular players in mass tort workouts. We believe that the complexity of insurance law, combined with its intersections with modern mass tort law, requires creative approaches to accommodation and settlement, especially when there are 30 parties in the room. This can only be accomplished, we believe, through a true collaboration between law firm and client and an acute sensitivity to risk, reward, and (in general) the spectrum on which they can be charted for each individual client at any particular point in time.
We believe that it is fair to say that our experience in and knowledge of insurance disputes are unsurpassed for breadth, depth, and financial significance.
- Asbestos, Silica, and Asbestos Bankruptcies. Our lawyers have been continuously engaged in asbestos litigation on behalf of insurers since the early 1980s and have taken part in at least 200 such matters, including virtually all of the most important ones. We have taken lead roles on behalf of some of the largest or most-exposed insurers in many of the most significant proceedings arising out of the several waves of asbestos bankruptcies and, more recently, state court receiverships as well. And we have regularly defended insurers in pressing coverage issues against still-solvent policyholders, whether these claims were brought by the policyholders themselves, other insurers, or, as in the so-called "direct actions," the asbestos plaintiffs themselves. As examples, our lawyers litigated asbestos exposures involving Foster-Wheeler, Met Life, Exxon, US Gypsum, Combustion Engineering, HK Porter, Pneumo-Abex, PPG-Pittsburgh Corning, and Halliburton, among many others. We also played leading roles in defense of asbestos direct actions in West Virginia and elsewhere, both by defending the cases directly and channeling them through the Manville bankruptcy proceeding.
- Environmental. Likewise, we have been continuously litigating or arbitrating coverage issues arising out of environmental liabilities for several decades, including some of the largest multisite exposures. Examples include Conrail, Amtrak, Exxon, Ford, Stauffer Chemical Co., and Allied-Signal. Our lawyers have argued some of the most important appeals in this area, including state supreme court arguments in Delaware and California. Current engagements include two toxic tort cases arising out of industrial emissions in West Virginia; PFC claims; asbestos, environmental, and other tort claims against Amtrak; coal ash pollution claims against the Tennessee Valley Authority (Bermuda form arbitration); coverage claims by AES Corporation arising out of climate change allegations; and several ongoing lawsuits arising out of environmental contamination in New Jersey and California.
- Product Liability. We have represented insurers in a variety of high-profile product liability matters (separate and apart from asbestos, environmental, or pharmaceutical cases), including a plastic plumbing coverage litigation argued before the Illinois Supreme Court.
- Pharmaceuticals. Our insurance lawyers have dealt for many years with coverage issues arising out of alleged defects in pharmaceutical products, including litigation about product aggregates attached to those exposures. The list of products we have dealt with is long, and our experience extends to judicial actions and arbitrations, on shore and off shore. Examples include: knee implants, Avandia, breast implants, DES, Poligrip, AIDS-contaminated blood, and, in a related area, unnecessary surgeries.
- Natural Catastrophe Coverage. We represented an insurance company in an international arbitration with regard to property damage and bodily injury claims—both a class action and hundreds of additional individual suits—arising out of an oil spill in New Orleans in connection with Hurricane Katrina. We have also represented insurers in litigation arising out of the major oil spill litigation in the Gulf of Mexico.
- Abuse Cases. We have represented several insurers defending coverage claims arising out of sexual abuse and police misconduct and have acted as trial, coordinating, and/or strategic counsel on such claims. For example, we handled a 2015 jury trial involving late notice of judgment concerning county sheriffs who killed an arrestee. We also represented a risk retention group for claims arising out of the abuse allegations made against the Duke lacrosse team.
- Errors and Omissions (E&O) and Directors and Officers (D&O) Coverages. We regularly represent insurers in connection with a wide variety of E&O and D&O claims, both with regard to coverage issues or disputes and management/settlement of underlying actions.
- "Emerging" Torts and Liabilities. As exposures move from the theoretical to the practical, we represent insurers in both the evaluation of the exposures and in coverage disputes where the "emerging" tort graduates into actuality. Current examples include climate change litigation, concussion litigation, and a variety of engagements pertaining to privacy and cyber tort issues.
- Bad Faith. We have defended a wide array of bad faith claims involving significant exposure to our clients. These range from defense of garden-variety bad faith claims routinely attached to large coverage claims to bad faith allegations on frequency coverage lines that seek to explode policy limits due to claims-handling difficulties.
- Corporate Succession. In many cases, terms of coverage may be affected by the movement of insurance rights through merger and acquisition transactions, as is discovery through evaluation of due diligence materials pertaining to the transactions. Occasionally, such transactions lead to competing claims for coverage. Our lawyers have been litigating such issues since the early 1990s, when the Stauffer Chemical Company, which no longer existed, purported to bring a major environmental coverage suit. Today, the corporate and insurance succession issues persist, and we continue to represent insurers in litigation involving complex corporate/insurance succession issues.