Seeking Recovery For Post-Chapter 11 GM, Historical Asbestos Liabilities

Representing the Motors Liquidation Company DIP Lenders Trust, formerly General Motors Corporation, which is the company left to settle past liability claims from the GM Chapter 11 reorganization. We are representing the trust against 30 insurance companies in seeking coverage for historical asbestos and environmental liabilities of pre-bankruptcy GM in one of the largest coverage actions on record for long tail claims. The U.S. Treasury Department and Canada are the beneficiaries of the trust.

Recovery Under E&O Policy

Acted as lead counsel in a Bermuda arbitration for one of the 20 largest bank holding companies in the world.  We obtained a full recovery and attorney's fees under an E&O insurance policy for liabilities relating to a Ponzi scheme.

Recovery In D&O Policy Helps Alpha Manage Securities Class Action

Negotiated a full-limit, $75 million settlement for Alpha Natural Resources with seven of its directors and officers (D&O) insurance companies to help fund the settlement of two underlying securities class actions brought by certain employee retirement systems after the tragic coal mine explosion in Montcoal, West Virginia in 2010.  Alpha and its D&O insurers have been engaged in prolonged discussions during the past two years in order to reach an amicable resolution of their coverage dispute.  Alpha and its senior management were pleased with the recovery and the efficient, timely and cost-effective manner in which it was achieved.

Recovery For Losses Related To FCPA

Obtained a substantial recovery for Willbros Group Inc. under a D&O insurance policy for losses arising from securities claims and the Foreign Corrupt Practices Act.

Mutual Fund "Market Timing" And "Late Trading" Claims

Obtained coverage for a major mutual fund complex with respect to insurance coverage issues arising from allegations of "market timing" and "late trading."

Mold In Residential Apartment Complexes

Obtained coverage, through litigation and negotiations, for bodily injury and property damage claims brought against a real estate investment trust for the alleged presence of harmful mold on its properties.  We defeated the insurance company’s motion for summary judgment, successfully refuting allegations that faulty engineering triggered a “professional services” exclusion.

Marine Insurance Policy Victory

Secured a substantial insurance recovery for one of the world’s largest seafood providers, which involved thefts of millions of dollars’ worth of fish by an employee and coverage under both a marine insurance policy and an employee dishonesty policy. Both insurers denied coverage on the ground that the transactions were merely sales for which the company did not receive payment. The marine insurer also asserted that there was no “barratry” because the employee was land-based, and that the company had violated the doctrine of “utmost good faith” by failing to disclose certain legal rulings.

Major Settlement Related To Coal Mine Explosion

Represented Alpha Natural Resources, a large coal-producing company and its subsidiaries in an action for recovery of losses related to 29 wrongful death claims and scores of bodily injury claims.  Our lawyers negotiated and reached a near full-limit settlement during mediation.

Life Insurance Recovery

Triumphed in a jury verdict in favor of our client, who was seeking to recover on a life insurance policy, the insurer attempted to rescind based upon alleged misrepresentations in the application process.  Our client received the full policy amount, plus attorney’s fees and an award, for unreasonable and vexatious delay.

Lead Coverage Counsel To Debtors Of 2012’s Largest Chapter 11

Leading the coverage counsel to the debtors of Residential Capital and now the liquidating trust in connection with all coverage issues under more than 175 directors and officers and errors and omissions (E&O) liability policies with limits in excess of $1 billion dollars. The underlying actions stemmed from the packaging and sale of mortgage-backed securities.

Kidnap, Ransom And Extortion*

Prevailed in our representation of a Texas-based packaged tea distributor in enforcing rights to coverage under a kidnap, ransom and extortion insurance policy, which involved extortion arising out of events in Uzbekistan.

Jury Verdict Win In Complex Asbestos Case

Obtained a successful jury verdict for a company that produced asbestos-insulated pipe prior to 1962.  The case involved allegations of fraud, rescission, bad faith and existence of coverage under lost insurance policies, took three months to try and ended favorably when the jury answered all 11 special interrogatories in favor of our client.

Japanese Tsunami Insurance Coverage Advice

Represented the Delphi Corporation successfully regarding contingent business interruption insurance claims in excess of $40 million against 14 insurers arising out of the March 2011 Great East Japanese earthquake and subsequent tsunami.  In less than one year, the matter was resolved through an agreed-upon alternative dispute resolution procedure.

Hurricane Damage And Business Interruption Claims

Obtained coverage for property damage and business interruption losses suffered by Tulane University in connection with a hurricane.  We also recovered property damage and business interruption losses that an operator of a nationwide network of automated teller machines suffered due to the flooding of its data center in the same hurricane.

Mason Bruce & Girard Inc. V. Admiral Ins. Company

U.S. District Court
Represented forest products consulting firm in suit against liability insurer to obtain coverage for multi-million-dollar claims of professional negligence.

Madoff Scandal

Representing major mutual fund in seeking recovery of more than $300 million in blanket bond and Directors & Officers liability insurance proceeds for liability arising out of the "Madoff Scandal."

Contingent Business Interruption Arising From Damage To Coal Mine

Successfully obtained coverage for a synthetic fuel manufacturer, when an explosion and fire in a nearby coal mine cut off the supply of coal necessary to produce the fuel.

Spanish Proceeding Alleging "Criminal Insolvency"

Presently representing major telecommunications contractor that is seeking coverage under Directors & Officers liability insurance policies for a proceeding in Spain alleging that certain of the company's directors and officers are guilty of "criminal insolvency" with respect to the bankruptcy of a Spanish subsidiary.

Property Damage To Automobiles While Being Shipped From Japan

Successfully obtained coverage under a marine cargo policy for major Japanese automobile manufacturer for the loss of approximately $40 million worth of new cars, when the ship's hull ruptured, partially submerging the vessel.

Title Insurance Action

Obtained a favorable settlement for our client on the eve of trial in a case involving a condemnation action.  We successfully arbitrated a claim for failure to provide title insurance coverage, resulting in recovery of 80 percent of the claim.

Coverage For Product Disparagement Claims

Represented a policyholder in a suit against an insurer to obtain insurance coverage for advertising claims made against the client under the Lanham Act.  We won reversal of the ruling that the insurer's "advertising injury" policy did not cover product disparagement claims.  We then prevailed on summary judgment after remand, resulting in a complete victory.  See decision reported at: 83 Fed. App'x. 963 (9th Cir. 2003).

Coverage For Bodily Injury Claims Allegedly Related To Pollution

Obtained a significant ruling of first impression for Massey Energy in West Virginia that "absolute" pollution exclusion was not applicable to bodily injury claims allegedly arising from the policyholder's coal mining extraction and washing operations.  Following this ruling, a favorable settlement was reached on behalf of the client.

Contingent Business Interruption Claims

Advised on business interruption coverage for a synthetic fuel manufacturer related to an explosion and fire in a nearby coal mine that cut off the supply of coal necessary to produce the fuel. 

Bodily Injury Claims

Represented a manufacturing subsidiary of Level 3 Communications in litigation with several liability insurers over hearing loss-related bodily injury claims.  The litigation involved federal district court and an appeal to the U.S. Court of Appeals for the Fifth Circuit.  This litigation resulted in millions of dollars in defense coverage and a favorable settlement on indemnity.

Bermuda Form Arbitration Recovery Of $267 Million

Representing the Tennessee Valley Authority (TVA), the nation's largest public utility, in securing insurance coverage for the clean-up costs associated with the largest coal ash spill in U.S. history.  In the last three years, the firm has recovered $267 million from property and liability insurers through settlements and two London arbitrations, including a month-long arbitration where Perkins Coie won full limits, attorney’s fees and interest in excess of $170 million.  This win is reported to be the largest judgment ever secured against a Bermuda insurer at trial.  Judgment in the second arbitration is still outstanding.  The arbitrations raised numerous novel issues of New York insurance law.

Bankruptcy Insurance Claims For A Compounding Pharmacy

Leading  coverage counsel to the Unsecured Creditors Committee in the bankruptcy of New England Compounding Center (NECC) and advised the committee with regard to the debtors’ available insurance coverage to compensate victims asserting claims related to the deadly outbreak of fungal meningitis that allegedly killed 65 individuals and injured thousands in 23 states and was traced by the Centers for Disease Control and Prevention to epidural steroid injections that had been packaged, marketed and sold by NECC.

Appellate Win In Defective Design Claims

Argued an appeal to the Illinois Appellate Court, which affirmed the trial court's grant of summary judgment in favor of our client.  The case involved coverage for tens of millions of dollars in repair costs resulting from defective design of heating, ventilation and air conditioning systems for a property in Illinois. 

Antitrust Class Actions Indemnity Defense

Acted as lead counsel to Astellas in an insurance coverage litigation for defense and indemnity for underlying antitrust class actions and other matters.  A successful resolution was reached approximately six months after the client filed suit.

Action Against Insurer And Broker

Obtained recovery for D.B. Hess, a commercial printing company, from an insurance broker and insurer for losses resulting from a fire.  We also avoided imposition by the insurer of a co-insurance penalty, which was only part of the insurance contract due to the broker’s negligence.

$100 M Recovery Related To Securities And Erisa Claims

Acted as lead insurance coverage counsel on behalf of Delphi Corporation, assisting our client in settling complex litigation and obtaining more than $100 million in insurance proceeds in a matter involving securities, derivative and ERISA claims.

Client: 

Alpha Natural Resources, Inc.

Issue:

The so-called “Upper Big Branch mine explosion” in 2010, which was the subject of numerous negative media reports, resulted in 29 wrongful death claims and scores of other bodily injury claims, but insurers were not quick to accept responsibility for payment.

Challenge:

The insurance policies involved both domestic and Bermuda-based forms and a variety of potential coverage exclusions or limitations.

 Solution:

Perkins Coie conducted a series of marathon tripartite mediation sessions that included Alpha Natural Resources Inc. (Alpha), the underlying plaintiffs and Alpha’s insurers.  Our lawyers negotiated and reached a near full-limit settlement during the mediation, resolving the dispute valued at more than $200 million. The client also retained the right to continue its pursuit of third-party contractors’ insurers for additional coverage payments.

Client:

NorthWestern Energy

Issue:

Facing allegations of improper termination of a former employee’s benefits, NorthWestern Energy (NorthWestern) turned to Perkins Coie to recover from its insurance company for coverage under its policy and to bring claims for bad faith.

Challenge:

The insurer moved to bifurcate NorthWestern’s bad faith claim, a critical aspect of the case, from NorthWestern’s claim for breach of contract.  The insurer alleged that NorthWestern must establish its claim for coverage before it could proceed with a bad faith claim.

Solution:

Perkins Coie successfully argued against the insurance company’s motion to bifurcate coverage and bad faith claims into two separate proceedings.  We highlighted that NorthWestern’s claims for bad faith were factually interrelated with its claim for breach of contract, and refuted the insurance company’s argument that NorthWestern had to establish coverage before bad faith.

Denying the insurer’s motion, the trial court held that judicial economy would not be served by bifurcating the bad faith claims from the coverage claims and that the insurance company had not identified any prejudice to it that would justify bifurcation in the case.  In reaching the decision, the court agreed with our argument that bad faith claims can proceed simultaneously with coverage claims and that South Dakota law does not require coverage to be found before bad faith claims can be pursued.
 

Client:

Alpha Natural Resources, Inc.

Issue:

Alpha Natural Resources, Inc. (Alpha) suffered more than $100 million in losses related to 400 bodily injury and property damage actions arising from its coal mining operations in West Virginia and its insurers were denying coverage.

Challenge:  

The insurers brought a motion for summary judgment based on an absolute pollution exclusion clause, arguing that the losses resulted from non-covered pollution events.

Solution:

Perkins Coie persuaded the court to reject the London insurer’s motion for summary judgment on the absolute pollution exclusion.  Our lawyers demonstrated that West Virginia law required that policy exclusions be carefully analyzed within the context of the entire policy, the operations that the policy was purchased to insure, and the claim at issue.  The operations and the claims at issue involved coal mining, therefore the court found that necessary activities related to the extraction and washing of coal were not “seepage pollution or contamination” under the policy in question.

We also persuaded the court that prior insurance industry representations to state regulators were inconsistent with insurance company arguments for exclusions of bodily injury and property damage claims from policies covering coal mining operations.  As a result, the parties engaged in settlement discussions and reached a global settlement that netted 80 percent of the client’s claimed losses.

Client:

Tennessee Valley Authority

Issue:  

In December 2008, Tennessee Valley Authority (TVA) suffered losses in excess of $1 billion from the largest fly ash spill in U.S. history. In the course of one hour, an 84-acre ash impoundment collapsed and released 5.4 million cubic yards of fly ash into the Emory River, wiping out entire ecosystems, destroying a local neighborhood, and clogging large portions of the river. Fly ash is a waste product from burning coal in a boiler to produce electricity.

The calamitous accident was the subject of congressional hearings, federal and state investigations, and media reports in “60 Minutes,” Rolling Stone, The New York Times and USA Today. State and federal environmental agencies issued sweeping enforcement orders and within months TVA faced lawsuits from hundreds of nearby residents and businesses.

Challenge:  

We needed to secure both first-party and third-party coverage from 14 different insurers, all of whom denied coverage. Hired soon after the spill, the Perkins Coie team was deeply involved in the spill response. We prepared TVA’s claims, presented them to its insurers, and worked with TVA’s broker and in-house counsel to negotiate settlements with 11 of the insurers. We also consulted on the defense of the underlying lawsuits and served as a focal point of coordination between the remediation team, the litigators, and TVA’s insurers.

Ultimately, three excess liability Bermuda insurers denied coverage; two of the three rescinded their policies based upon alleged misrepresentations. On TVA’s behalf, Perkins Coie initiated three simultaneous arbitrations against these recalcitrant insurers. Two of these actions went to trial in London, England.

Solution:   

First, TVA reached a highly favorable (near limits) settlement with Arch Bermuda, one of the three Bermuda excess liability insurers. Next, after a month-long arbitration, Perkins Coie won full limits, attorney’s fees and interest in excess of $170 million from another Bermuda excess liability insurer. This win is reported to be the largest judgment ever secured against a Bermuda insurer at trial. In December 2014, TVA obtained an award of $50 million—full policy limits—after a four-week trial - against the last remaining insurer. We overcame the insurer’s 17 defenses, which included challenges to the legitimacy and scope of federal and state clean-up orders and representations made in TVA’s insurance application. In December 2015, Perkins Coie completed the matter by winning nearly $20 million in interest and costs from this last insurer. In total, we secured over $335 million in coverage for TVA from 14 insurers, all of which had denied coverage.

Client:

Motors Liquidation Company and Motors Liquidation Company DIP Lenders

Issue:

As part of the General Motors (GM) bankruptcy, an entity called the Motors Liquidation DIP Lenders Trust (Trust) was assigned coverage rights under certain excess policies as part of GM’s decades-long liabilities coverage program.  With Perkins Coie as counsel, the Trust brought suit—one of the largest coverage actions on record for long-tail claims—against 30 insurance companies and sought coverage for the historical asbestos and environmental liabilities of pre-bankruptcy GM.  The beneficiary of the Trust and any recoveries is the U.S. Treasury Department.

Challenge:

The case involves years of policies sold by 30 different insurers and requires intricate analysis of slight variations in policy language and the effect of provisions whereby excess policies “follow form” to the coverage terms and conditions of underlying policies.  Faced with so many insurers on the other side, the Trust has also sought to avoid potentially massive, unnecessary and costly discovery by seeking early court resolution of threshold coverage issues.

Solution:

Perkins Coie has won two forum battles for the Trust, resulting in the litigation going forward in the Trust’s chosen forum of Delaware rather than the insurers’ favored forum of New York.

Our team has also successfully obtained a ruling from the court that the language of the policies and the applicable law clearly support a finding that GM’s asbestos product liability losses arise from a single “occurrence,” although the court is allowing discovery on purported extrinsic evidence before granting partial summary judgment on the issue.  Over the life of the case, Perkins Coie has negotiated successful settlements with multiple insurers.