Nicholas Peter Gellert

State Route 99 Bored Tunnel Dispute

Superior Court of Washington, Thurston County
Representing a major equipment manufacturer in contract and insurance coverage litigation arising out of damage to “Bertha,” the 57-foot diameter tunnel boring machine used to bore a 9,270-foot highway tunnel beneath downtown in the City of Seattle. The disputes arising out of this multibillion-dollar project, which was recognized by Engineering News-Record as the Pacific Northwest “Project of the Year,” have exceeded $700 million in claims and counterclaims.

General Liability Coverage

Represent policyholder clients in navigating a variety of issues and disputes with liability insurers on underlying accident and other tort claims; pursue insurers, when necessary, for bad faith claim handling and violations of statutes designed to protect policyholders, including Washington’s Insurance Fair Conduct Act that provides for treble damages.

Advertising Injury Claims

Represent policyholders seeking insurance coverage under “advertising injury” provisions in commercial liability policies. In one case, our client won the reversal of a ruling that an insurer's policy did not cover product disparagement claims, Philips Oral Health Care Inc. v. Federal Insurance Company, 83 Fed. App'x. 963 (9th Cir. 2003), and then prevailed on summary judgment after remand, resulting in a complete victory after seven years of litigation.

Construction Defect Claims

Assist developers, owners and product manufacturers obtain coverage for construction defect claims. These representations have included coverage disputes for underlying class action suits relating to roofing and siding products.

Privacy Claims

Represent clients seeking coverage for allegations that they violated statutory privacy protections of their customers or users of their services.

First Party Property / Builder's Risk

Handle policyholder claims arising from damage to properties from various causes, including fires and earthquake. Nick has litigated such matters as Commonwealth Ins. Co. v. Aberdeen School Dist. (fire) and Highline School Dist. v. St. Paul Fire & Marine Ins. Co. (fire).

Environmental Liability Claims

Represent policyholders in complex multiyear, multilayer coverage claims arising from environmental liabilities. Early in his career, Nick played a central role in a landmark case, Boeing v. Aetna Cas. & Sur. Co., which was tried to a federal jury in the Western District of Washington, and, more recently, he represented a fish processor in litigation for coverage for environmental liabilities relating to years of operations at a facility in Togiak, AK.

Title Insurance Issues

Represent property owners and mortgagees pursuing title insurance claims.

Directors & Officers Insurance

Assist corporations and their directors and officers protect their rights under D&O policies.

Madoff Ponzi Scheme Losses

Represent a large, well-known financial services corporation in litigation with its insurers and fidelity bond issuers for defense costs and liabilities stemming from the Bernard Madoff Ponzi scheme.

Lease Disputes

Handle a variety of disputes arising from lease arrangements, including unlawful detainment, mitigation upon breach of tenancy and determination of appropriate renewal rent rates.

Boundary / Trespass Issues

Represent property owners in numerous boundary-related disputes, including surveying issues, tree or other trespass, easement rights and adverse possession claims.

Purchase & Sale Agreement Disputes

Defended and prosecuted claims for breach of purchase and sale agreements, including claims for specific performance, as well as related claims for failure to disclose material defects in property being sold.

RCI-Herzog v. Sound Transit

Private Arbitration of Washington
Defended claims for additional costs and delays exceeding $100 million, arising out of a $128 million, light rail project, through an eight-week arbitration.

Restaurant Development Inc. v. Cananwill Inc.

State Court of Appeals of Washington
State Supreme Court of Washington
Obtained an affirmance of summary judgment dismissing a prospective class action asserting violations of insurance premium financing statute. 80 P.3d 598 (Wash. 2003).

Environmental Contribution / Cost Recovery

Represented clients in CERCLA and MTCA cost recovery and contribution litigation, including at large sites (e.g., Western Processing and Queen City Farms) and corner gas stations.

Chance, et al v. Avenue A Inc.

U.S. District Court for the Western District of Washington
Defended a nationwide class action challenging Internet privacy practices, which settled after a successful summary judgment motion.

Alderwood & Keaton's Landing v. Weyerhaeuser Company

King County Superior Court (Washington)
Represented Weyerhaeuser in defense of claims in multiparty homeowners' association actions concerning claims on allegedly defective hardboard siding.

Genie Industries Inc. v. Federal Insurance Company

U.S. District Court for the Western District of Washington
U.S. Court of Appeals for the Ninth Circuit
Represented an industrial equipment manufacturer in complex indemnity and insurance coverage claims relating to an underlying product liability dispute; obtained an appellate victory upholding the right to attorneys' fees from the insurer.

Bentcover v. Safeco

King County Superior Court (Washington)
Achieved a successful settlement of a class action by auto insurance customers.

Tort Defense

Defended Puget Sound Power & Light Co. (now Puget Sound Energy), for several years, in numerous and varied tort lawsuits asserting wrongful death, major (including quadriplegic paralysis) and minor personal injuries, and a variety of property damages, including trespass to timber.

Wagafe, et al. v. Trump et al.

U.S. District Court for the Western District of Washington
Represent plaintiffs in putative class action challenging the legality of executive orders issued by the President of the United States concerning immigration, and a secretive government program targeting Muslims applying for immigration benefits.

Brown v. Legal Foundation of Washington

U.S. District Court for the Western District of Washington
U.S. Court of Appeals for the Ninth Circuit
U.S. Supreme Court
Defeated a constitutional challenge to the Interest on Lawyer Trust Account (IOLTA) program that provides substantial funding for legal aid programs nationwide. The U.S. Supreme Court affirmed that such programs are not unconstitutional. 538 U.S. 216 (2003), aff'd 271 F.3d 835 (9th Cir. 2001) (en banc).

Ali v. Gonzales

U.S. District Court for the Western District of Washington
U.S. Court of Appeals for the Ninth Circuit
Obtained a district court injunction on behalf of a nationwide class, preventing the government from removing over 3,000 individuals to Somalia. The U.S. Court of Appeals for the Ninth Circuit affirmed, rejecting the contrary view of the U.S. Court of Appeals for the Eighth Circuit. Nick filed an amicus on behalf of the client in the Supreme Court's consideration of the circuit split in Jama v. ICE, 543 U.S. 335 (2005). After the Supreme Court upheld the Eighth Circuit's decision by a 5-4 vote, the Ninth Circuit vacated the injunction in this case. 213 F.R.D. 390 (W.D. Wash.), aff'd, 346 F.3d 873 (9th Cir. 2003), vacated and remanded, 421 F.3d 795 (9th Cir. 2005).

Death Penalty Litigation

Represented successfully Idaho death row inmate Donald Fetterly in federal habeas corpus proceedings—Fetterly v. Paskett, 997 F. 2d 1295 (9th Cir. 1993). Nick also participated in final appeals on behalf of Arizona death row inmate William Lyle Woratzek, with a focus on clemency procedural issues—Woratzek v. Stewart, 117 F.2d 400 (9th Cir. 1997). He also provided assistance on the case of Idaho death row inmate Charles Fain, who was eventually exonerated. In addition, Nick filed an amicus brief to the United States Supreme Court in the case of Texas death row inmate Charles Raby, Jr. Nick has been representing Alabama death row inmate Jeffery Lee since 2004—see, e.g., Lee v. State, 44 So.3d 1145 (Ala. Ct. Crim. App. 2009), and Lee v. Commissioner, Alabama Dept. of Corrections, 726 F.3d 1172 (11th Circuit 2013).

King v. King

State Supreme Court of Washington
Sought so-called "civil Gideon" right, arguing that an indigent woman who could not afford counsel in a child custody proceeding in which she faced the loss of her fundamental parenting rights and whose opponent (her then-husband) was represented by counsel had right to have state provide her legal counsel. 174 P.3d 659 (Wash. 2007).

Doe #1 v. Reed

U.S. Supreme Court
Represented respondent Washington Families Standing Together in opposing First Amendment challenge to disclosure, under state's Public Records Act, of petitions for initiatives and referenda filed with the state as part of direct democratic processes. In an 8-1 decision, the Supreme Court agreed with Washington Families Standing Together that the disclosure of referendum petitions does not facially violate the First Amendment. 130 U.S. 2811 (2010). He also represented Washington Families Standing Together in its effort to support Washington's domestic partnership law in earlier stages of this litigation and related lawsuits.

Turner v. Rogers

U.S. Supreme Court
Prepared an amicus curiae brief to the U.S. Supreme Court for the American Bar Association advocating for the appointment of legal counsel for indigent defendants in civil contempt proceedings where a defendant faces threatened jailing.