Michael T. Sharkey Partner

Michael also provides guidance to clients on the insurance issues that arise in connection with corporate transactions. These include the effect of the transaction on the parties’ existing and historic insurance coverage arrangements, as well as insurance (such as representations and warranty coverage) that may be purchased in connection with the deal itself.

Additionally, he counsels clients on the drafting and interplay of insurance and indemnification provisions in contracts, including construction contracts, supplier and service agreements, and corporate transactions, with the goal of aligning the provisions with the parties’ intent during the drafting process–before a dispute arises.

Recent representative experience include:

• Lead counsel for Under Armour in litigation brought by 10 insurance companies that had denied coverage under directors and officers liability insurance policies. The court recently addressed cross-motions for judgment on the pleadings, dismissing the insurance companies’ declaratory judgment claims with prejudice and entering judgment in favor of Under Armour’s claim for coverage. Endurance Am. Ins. Co. v. Under Armour, Inc., C.A. No. RDB-22-2481, 2024 WL 1640565 (D. Md. Apr. 15, 2024).
• Lead counsel for Kinross Gold, USA, Inc. in an action addressing general liability insurance coverage for the settlement of an underlying multidistrict litigation arising out of a major release of water with a high metal content from a mine in the same mountain as a former gold mine owned by a Kinross subsidiary, Sunnyside Gold. The coverage litigation settled after the court granted summary judgment in favor of Kinross on several key issues. Certain Underwriters at Lloyd’s, London Subscribing to Policy N. B0509DR636715 v. Kinross Gold, USA, Inc., Case No. 2021CV31126, Order Re: Cross-Motions for Summary Judgment (Colo. Dist. Jan. 23, 2024); Certain Underwriters at Lloyd’s, London Subscribing to Policy N. B0509DR636715 v. Kinross Gold, USA, Inc., Case No. 2021CV31126, Order (Colo. Dist. Mar. 3, 2024).
• Represented a software company seeking coverage under an errors and omissions insurance policy for the settlement of an underlying dispute. The coverage litigation settled after the court denied the insurance company’s motion for summary judgment on the continuous cover clause and an exclusion for liquidated damages. This was the first decision by a U.S. court interpreting a continuous cover clause, which excuses late notice under a claims-made policy under certain circumstances. Ventech Solutions, Inc. v. Certain Underwriters at Lloyd’s of London, C.A. No. N20C-06-014 MMJ CCLD, 2023 WL 315331 (Del. Super. Jan. 4, 2023).
• Lead counsel for a guitar manufacturer in an insurance coverage action seeking coverage for an underlying trademark infringement litigation. The coverage litigation settled after the court ruled that the underlying action triggered a full duty to defend under the policies at issue and denied the insurance company’s motion for summary judgment on the duty to indemnify and bad faith. Allied Property and Cas. Ins. Co. v. Armadillo Distribution Enterprises, Inc., No. 4:21-CV-00617-ALM, 2022 WL 3568482 (E.D. Tex. August 18, 2022).
• Negotiated several multimillion-dollar recoveries under representation and warranty insurance policies in recent years for coverage of claims arising out of breaches of representations in mergers and acquisitions transactions.

Throughout his career, Michael has obtained numerous significant or precedent-setting rulings on key insurance coverage issues on behalf of policyholder clients. These include:

• Successfully briefed or argued precedent-setting decisions favorable to policyholders on the key issue of allocation of long-term losses in several jurisdictions. See, e.g., Westport Ins. Corp. v. Appleton Paper Inc., 787 N.W.2d 894 (Wis. Ct. App. 2010); Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481 (Del. 2001); National Indemnity Co. v. State, 499 P.3d 516 (Mont. 2021); NorthWestern Energy v. AEGIS Ltd., Civ. 07-1174 (S.D. Cir. Ct. July 29, 2010); see also Plastics Eng’g Co. v. Liberty Mut. Ins. Co., 759 N.W.2d 613 (Wis. 2008) (amicus brief).
• Obtained favorable results for many clients facing insurance company attempts to void coverage based on alleged misrepresentations in the application. Among other favorable rulings is the decision in National Railroad Passenger Corp. v. ERC Frankona Ruckversicherungs-AG, No. 03-2420 (JGP), 2005 WL 4708212 (D.D.C. 2005), which held that the insurance company must honor its obligations on the duty to indemnify while its action to void the policy is pending. While previous decisions had applied this rule to the duty to defend, this is believed to be the first decision extending the rule to an insurance company’s duty to indemnify. Michael also has written and spoken extensively on this topic.
• Successfully defeated efforts by insurance companies to shield their claims files and activities under the guise of attorney-client privilege or work product protection. See, e.g., NorthWestern Energy v. AEGIS Ltd., Civ. 07-1174 (S.D. Cir. Ct. June 15, 2011); Cont’l Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d 761 (D. Md. 2008) see also St. Paul Fire & Marine Ins. Co. v. Under Armour, Inc., Civil No. 22-1175-BAH (D. Md. Nov. 20, 2023) (defeated insurance company efforts to compel discovery of the policyholder’s privileged communications from the underlying action).