We advise insurance industry clients on coverage, class action defense, claims, and bad faith issues. The firm represents carriers and other regulated parties before insurance regulators, and litigates coverage, claims, regulatory, and business matters. We handle matters involving virtually every type of insurance, and also have extensive experience with insurance sales practices matters in both administrative proceedings and civil trials.
Sales Practice/Class Action Defense
We advise and represent insurance clients regarding improper sales practices claims made by state and federal regulators, and policyholders in the civil litigation context. This includes class action defense in cases asserting improper sales or billing practices. We have represented regional and national life insurers and property and casualty insurers in class suits and in connection with investigations by state regulatory bodies involving allegations of improper sales or billing practices, violations of the Insurance Unfair Trade Practices Act, RICO Acts, and various consumer protection laws.
Coverage issues have made up a significant part of our insurance practice for decades. These include a variety of issues with respect to financial lines policies, environmental, health care, property, and fidelity CGL. In the past five years, we have provided coverage advice or representation in the following lines of business:
- TPA – Policy
- Errors & Omissions
- D&O Public and Private Company
- Fidelity bonds
- Cyber Security
- Counterfeit Securities
- Life and Health
- Sinkhole and earth movement
- Professional liability – including lawyers, accountants, doctors, architects, and engineers
- Title insurance
- Marine insurance
- Commercial general liability
- Liability coverage for computer products, including hardware and software
- Commercial auto
Representative coverage issues
- Whether a conservator may recover under a fidelity bond for an alleged theft that was directed by the obligee’s officers and directors, and whether the bond was intended to benefit anyone, such as viatical investors, other than the insured
- Whether counterfeit securities coverage is provided by a financial institution bond
- The extent of coverage provided to homes damaged by vibrations caused by blasting at a nearby quarry
- Whether an insured is entitled to coverage when it obtained an ill-gotten gain in profit and there was prior related litigation prior to the continuity date
- The extent of hurricane coverage for various residential and commercial properties
- The issue of whether an insured “rendered services to others for compensation” so as to satisfy the insuring clause
- Whether coverage is provided for a settlement with the trustee of creditors for a bankrupt competitor
- Whether an insured computer software provider was entitled to coverage for a lawsuit filed by its customer, who claimed that the insured was required to indemnify the customer for a class action lawsuit filed against the customer for violating federal law by using the insured's software programs
- Whether an insured hotel and spa operator was entitled to coverage for a lawsuit filed by a hotel patron who alleged that she had been sexually assaulted in the hotel's spa
- Whether an insured medical school was entitled to coverage for a lawsuit filed by a medical student who claimed she had been sexually assaulted by one of her professors
- Whether the directors and officers of an insured corporation are entitled to coverage for a class action lawsuit alleging that they managed and controlled the corporation and directed it to issue usurious loans
- Whether an insured financial institution was entitled to coverage for a lawsuit filed by a former employee who alleged that she was fired because she was the victim of gender discrimination
- Whether an insured insurance agent was covered for a claim from the agent's client, who alleged that the agent negligently failed to provide the client with appropriate insurance
- Whether an insured social services agency was entitled to coverage for a lawsuit alleging that the agency violated a family's constitutional rights by falsely charging that the mother of the family was guilty of child abuse and that the father failed to protect the children
- Whether an informal investigation by the SEC is a claim requires insurer to achieve defense.
- Whether an insured made a material misrepresentation or omission in connection with obtaining renewal coverage so as to void the policy or preclude coverage for the claim
- Whether bank activities fall within a Financial Institutions Risk Protector Policy exclusion for disputes regarding “fees”
- Whether insureds violated a professional liability policy’s cooperation clause where they failed to pay their portion of an agreed settlement for the underlying action
Representative coverage matters
- Defended insurer in an action under a commercial property policy; The policyholder asserted damages in excess of $100 million for alleged damage to several coastal commercial properties from three hurricanes in 2004.
- Represented insurer in hurricane coverage class action suit; The class action allegations were dismissed in settlement achieved with individual plaintiff before class certification hearing.
- Defended insurer on $5 million policy limits claim under a professional liability policy for amounts previously paid by HMO insured in settlement of "bad faith breach of contract" claims by former marketing agency; We obtained a summary judgment, finding no duty to indemnify.
- Defended insurer in an action in which the policyholder under a commercial property policy asserted damages in excess of $29 million for alleged losses from Hurricane Frances in 2004
- Obtained summary judgment for the client in a case brought against insurer by an excess insurer. Based on numerous claims, including the alleged failure to stack two underlying policies insurer issued, the excess insurer claimed that our client had failed to exhaust its underlying policies. The district court ruled that the excess carrier could not belatedly add the stacking claim, that our client did not owe any addition amounts under its policies, and further ruled for our client on all claims the excess carrier asserted or tried to assert.
- Under D&O coverage issued by a national insurer, we represented certain officers and directors of our client, a publicly-traded real estate investment trust that went into bankruptcy, in a putative class action under the federal securities laws. The complaint asserted claims under Sections 11, 12, and 15 of the Securities Act of 1933 and alleged that the registration statement and prospectus for a May 2007 public offering contained misstatements and omissions regarding our client's business. The complaint asserts entitlement to money damages on behalf of a putative class of purchasers in our client's May 2007 offering.
- Obtained an order upholding the insured v. insured exclusion in a D&O insurance policy.
- Represented insurer in a coverage action claiming coverage for a $20 million settlement it entered with the trustee of creditors for a bankrupt competitor. The trustee asserted plaintiff looted the business assets of the debtor, by taking key contacts for food brokerage, raiding employees, assuming agreements under the guise that it was the debtor, and various other schemes to misappropriate the debtor's business assets. The D&O and corporate coverage policy excluded attempts to gain an improper profit and dishonest acts, which our client asserted as a defense to coverage for the settlement.
- Claim by court-appointed conservator for a viatical company for more than $8.5 million allegedly due under a $10 million Fidelity Bond issued by our client, insuring a now-defunct viatical company against acts of theft by the trustee of its viatical trust. This case involved important and potentially precedent-setting issues of whether the conservator had greater rights under the bond than the original insured obligee, whether the conservator could recover under a fidelity bond for the alleged theft which, occurred only as directed by the obligee's officers and directors, and whether the bond was intended to benefit anyone, such as viatical investors, other than the insured obligee.
- Pursuant to the plaintiff’s D&O liability policy, we defended the president, senior vice president of lending, and a commercial loan officer against claims of fraud and breach of fiduciary duty by a bank customer. We had these claims dismissed multiple times, at which point the case settled. In granting our motions, the court agreed that the customer had failed to allege fraud with sufficient particularity and, more importantly, that these officers owed no independent duties to the bank's customer, and therefore could not be liable in tort to the customer.
- Obtained summary judgment in an insurance coverage dispute in federal court where the trustee of a bankrupt investment management company sought coverage for actions that turned out to be part of a massive Ponzi scheme. The court ruled that the policy was subject to rescission because the company concealed fact that it was a Ponzi scheme, even though there was no specific question on the original application and even though the renewal was obtained with only a short email from the broker.
- Obtained summary judgment in favor of a group of insurers in a payment dispute with its insured regarding a loss-sensitive workers compensation and general liability insurance program from 1990. Obtained a ruling that the insurer was permitted to draw on collateral for certain time-barred amounts due under the program.
Bad Faith and Extra-Contractual Liability
We defend insurers in actions alleging statutory and common law bad faith, and advise insurers regarding pre-suit claims handling to avoid bad faith claims. We also represent insurers involved in litigation arising from non-contract claims such as defamation, fraud, intentional infliction of emotional distress, and complex commercial disputes.
As a result of our significant experience handling bad faith claims, we have developed a process that takes cases from inception through trial and appeal. This process involves early investigation and evaluation, followed by a recommendation concerning potential settlement. If the case cannot be settled on reasonable terms or is otherwise inappropriate for settlement, our experienced team prepares the case for trial, addressing paper discovery, depositions and deposition defense, motion practice, trial and appeal. Our team includes lawyers who are board certified in civil trial and appellate practice, enhancing the potential for a favorable verdict and creating the best possibility for reversal of an adverse verdict.
We are always seeking ways to shape the development of the common law on issues of significance to the insurance industry. For example, we recently submitted an amicus curiae brief to the Florida Supreme Court on the issue of discovery of attorney-client communications in bad faith litigation. In addition, our attorneys frequently present to clients, lecture to insurance professionals, and write on topics related to bad faith litigation. One of our lawyers is co-chair of the ABA Insurance Coverage Litigation Bad Faith Subcommittee.
We regularly represent life, health, and disability insurers in ERISA and non-ERISA claims in first party and third party bad faith cases, suitability cases, and matters such as coverage declaratory judgment actions and interpleader proceedings. We regularly represent property and casualty insurers in complex, high value claims litigation in Florida, the Southeastern United States, and beyond.
We handle a wide range of matters for title insurers and their insureds. We have served as lead counsel in complex title matters in 17 states, and have handled claims for every major title insurer in Florida and Georgia. Our lawyers analyze, negotiate, and litigate complex coverage issues. We have represented underwriters in cutting-edge impact litigation, including Florida’s Butler premium rebate litigation more than a decade ago, and today’s reissue rate premium class actions in Florida, Pennsylvania, Ohio, New York, and Michigan. Our representation includes underwriters in major regulatory matters and market conduct examinations, in connection with title agent defalcations, and in closing protection letter claims and litigation.
Key Title Insurance Matters
Class Action Defense
- Obtained denial of class certification in consumer class action alleging title insurance underwriter overcharged for title insurance premiums in mortgage refinance transactions
- Obtained denial of motion for class certification in putative multistate class action alleging overcharging for title insurance
- Obtained dismissal of putative multistate class action alleging violations of RESPA, unfair trade practices, and unjust enrichment based on alleged overcharging for title insurance
- Obtained reversal of class action discovery order requiring production of more than 300,000 title agent closing files
- Obtained dismissal of putative class action alleging that the unearned split of premiums with agents constituted a RESPA violation
- Represented national title insurance underwriter in defense of putative class action alleging improper fee splitting with national builder in violation of RESPA; Settled
- Represented numerous national title insurance underwriters and agents in defense of approximately 15 separate putative class actions around the country alleging failure to comply with reissue rate regulations; Five were dismissed, two settled, balance pending
- Collaborated with lead counsel in federal class action in Ohio in which court decertified a statewide class alleging overcharges for title insurance premiums
- Represented national title insurance underwriter in defense of claim involving restrictive covenants at shopping center where title policy did not contain exception for restrictions; Obtained settlement that limited loss to less than 10 percent of damages sought
- Represented national title insurance underwriter in defense of claim involving a lis pendens not excepted from title policy; Defeated coverage based on the "assumed and agreed to" policy exclusion
- Represented national title insurance underwriter in defense of claim involving allegations of adverse possession and an unrecorded agreement; Defeated coverage based on the "parties in possession" and "accurate survey” policy exceptions
- Represented national title insurance underwriter in defense of claim involving allegations that insured leases were disguised financing arrangements; Defeated coverage based on the "assumed and agreed to" policy exclusion
- Represented national title insurance underwriter in defense of claim involving absence of title to submerged lands where title policy had no "sovereignty lands" exception; Obtained settlement substantially limiting loss and pursued subrogation claim against seller on behalf of insurer
- Represented national title insurance underwriter in defense of claim involving allegations of overburdening of easements and rights of way ownership; Defeated coverage based on the "assumed or agreed to" and "created subsequent to date of policy" policy exclusions
- Represented major title insurance underwriter in coordinating claims resolutions stemming from multi-million dollar title agent defalcation; Obtained $1.89 million restitution order and coordinated with criminal authorities who obtained a five-year jail term for title agent’s principal
- Represented national title insurance underwriter regarding agent defalcation of more than $8.5 million; Recouped more than $6.5 million
- Represented national title insurance underwriter regarding agent defalcation of more than $4 million; Obtained contribution from bank, fidelity insurer, and third parties significantly reducing loss
- Represented national title insurance underwriter regarding third party misappropriation of approximately $4 million; Obtained prejudgment writs of attachment against approximately 50 properties and prejudgment writs of garnishment against multiple bank accounts leading to recoupment of entire loss
Closing Protection Letter Disputes
- Represented national title insurance underwriter in defense of claim by national lender for $8.6 million alleging series of inflated appraisals and failures to follow closing instructions; Obtained dismissal of all tort claims and settled remaining contract claim
- Represented national title insurance underwriter in defense of lender’s claims of $100,000 in losses, and that underwriter’s agent was part of fraud scheme to inflate the property’s value and divert loan proceeds to the borrower; Claim denied after factual investigation resulting in no liability to underwriter
Market Conduct and Unfair Trade Practice Dispute
- Represented national title insurance underwriter in defense of RESPA investigation by U.S. Department of Housing and Urban Development that involved alleged kickbacks to realtors; Consent agreement negotiated with no liability finding
- Represented two title insurance underwriters regarding market conduct examinations by the Florida Office of Insurance Regulation
- Represented national title insurance agency regarding market conduct examination by Florida Department of Financial Services; Consent agreement negotiated with no liability finding
Title and Closing Agent Disputes
- Represented lender in challenge to validity of its mortgage on grounds it was unauthorized under a partnership agreement; Obtained summary judgment based on finding of ratification; affirmed on appeal
- Represented lender in challenge to the priority of its mortgage; Obtained summary judgment based on doctrine of equitable subrogation; affirmed on appeal
- Represented title company regarding “flip” transaction where plaintiff alleged failure to disclose the recent purchase, and environmental problems with the property; Obtained dismissal with prejudice; affirmed on appeal
- Represented prior owner of property in action to establish title under constructive trust; Obtained judgment re-establishing title after bench trial; affirmed on appeal
Insurance Regulation, Transactions, and Legislative
- We regularly advise and represent life and health insurers, property and casualty insurers, reinsurers, specialty insurers, agents, managing general agents, third party administrators, and other regulated entities in connection with matters including:
- Approval of form and rate filings, and regulatory litigation to contest denials of form and rate submissions
- Applications for issuance of certificates of authority and other insurance licenses, and litigation to contest denials of licensure
- Applications for regulatory approval for acquisitions and changes of control
- Approvals for exemptions from Form A requirements or disclaimers of control in Alabama, Arkansas, Florida, Georgia, Illinois, Kentucky, Louisiana, North Carolina, New York, Ohio, South Carolina, Tennessee, Texas, Utah, Vermont, Wisconsin, and Puerto Rico
- Approval of bulk reinsurance transactions and accredited reinsurer status
- Market conduct investigations and examinations, financial examinations, and regulatory litigation arising from them; investigations under the federal False Claims Act and its state law counterparts; and investigations under state and federal unfair trade practice laws and similar consumer protection laws
- Investigations and audits regarding Florida premium tax, retaliatory tax, corporate income tax, and sales or use tax
- License disciplinary proceedings
- Disputes concerning the validity or amount of residual market assessments against insurers, and premium and retaliatory tax assessments
- Disputes regarding the validity and constitutionality of legislation and agency rules adversely affecting entities regulated under insurance codes
- Trade secret and proprietary information protection in connection with insurance regulatory reporting requirements and in the course of rehabilitation or liquidation proceedings against impaired or insolvent direct insurers
The following more fully describes our qualifications regarding regulatory matters for insurers:
Relationships with Regulators
Over the years, we have developed excellent relationships with regulators in many states. Our team includes lawyers who have previously worked as regulators and served on NAIC committees and working groups with regulators across the country. Many have established and maintained particularly strong relationships with current Florida regulators.
Because of its stringent regulatory climate, Florida is often viewed by other states as a leader in regulation. Our vast experience navigating Florida’s rigorous regulatory environment helps us easily adapt to dealing with regulators in states where regulation is often less stringent.
We maintain a strong presence at all NAIC meetings, taking advantage of the opportunity to meet with regulators from other states. We have also represented clients on matters pending before NAIC committees, task forces, and working groups. We frequently monitor issues pending before the NAIC and periodically report to our clients on them.
We have extensive experience with solvency matters. Two of our team members held positions within the Florida insurance department concerning solvency matters, including oversight of solvency regulation for property and casualty, life and health, and specialty insurers. Members of our team were involved in Florida’s adoption of the NAIC “Codification” and Risk Based Capital requirements in Florida. Our team has an in depth understanding of solvency regulation, statutory accounting principles, risk-based capital, dividend restrictions, and many other solvency tools used by regulators. We have represented many clients before regulators on solvency matters such as financial examination reports, and administrative supervision proceedings. Moreover, our members have experience litigating solvency issues before the Florida Department of Administrative Hearings as a result of formal administrative action initiated by the Florida insurance regulator concerning solvency matters.
Our team has extensive experience with insurance agent and agency matters, from both the regulator and private sector perspectives. As a former regulator, one of our team members investigated and prosecuted insurance agents and brokers for unfair trade practices violations, aiding and abetting unlicensed insurers, engaging in the transaction of insurance without a license, and other violations of the Florida Insurance Code. In the private sector, we help clients obtain various types of agent and agency licenses in Florida and other states. We have also represented clients before regulators in agency licensure, disciplinary, and investigatory matters. We are very knowledgeable of the model laws that exist in most states relating to producer licensing.
Our team’s extensive experience includes representing both insurance entities and the Florida regulator in administrative litigation proceedings. We are very experienced in administrative hearing procedures, requests for rule waivers and variances, petitions for declaratory statements, and implementation of legislative mandates. Our experience also includes handling judicial appeals from administrative proceedings.
Representative matters include: challenges to agency rules; challenges to agency denials of property and casualty insurer rate increases; challenges to agency denials of property and casualty insurer policy form approvals; challenges to agency denial of insurer, agent, and agency licenses; and defending insurers, agents, and agencies in disciplinary matters involving market conduct, solvency, and unfair trade practices violations, including administrative complaints, immediate final orders, and cease and desist orders.
Insurance Premium Tax
Our team has extensive experience regarding state insurance premium tax matters in both the public and private sectors. In the public sector, a member of our team represented the State of Florida regarding the constitutionality of Florida’s premium tax and retaliatory tax structure on foreign insurers. Another member of our team, as counsel to a residual market, handled delinquent premium tax matters and reporting issues before the Florida Department of Revenue. In the private sector, we advised and counseled a client regarding insurance premium tax matters, including retaliatory tax and reporting issues. Our experience in this area also includes reporting and remittance surplus lines premium taxes, and independently procured coverage taxes.
Our team understands surplus lines issues. We work closely with the Florida Surplus Lines Service Office and the Florida regulator on matters of great importance to surplus lines agents and insurers. We are very knowledgeable of the Florida Supreme Court’s Essex v. Zota ruling, and were involved in the passage of legislation reversing that decision. We also represent clients in obtaining surplus lines eligibility in Florida and other states. Moreover, we provide legal counsel to surplus lines insurers regarding their obligations in connection with coverage matters, including sinkholes and windstorm events.
Form and Rate Regulation
We have helped many clients obtain approval of policy forms and rates in Florida for various lines of business, including automobile and homeowners insurance. We also help clients develop policy forms for use in other states, and represent them in administrative litigation.
We represent clients before regulators in many states on licensing matters, and have extensive experience preparing applications for certificates of authority, mergers, acquisitions, corporate amendments and redomestications. We are intimately familiar with the NAIC’s Uniform Certificate of Authority Application and its requirements, and have obtained licensure for our clients pursuant to these requirements. We also help clients prepare corporate documents and filings for the formation and acquisition of insurance companies and other types of insurance entities.
We frequently attend rule workshops, hearings, and other proceedings on behalf of clients, and review, analyze and report to them on the impact proposed rules may have on their business operations. We represent numerous clients in administrative litigation relating to rule challenges. We have been actively involved in representing insurers regarding the use of credit scoring for rating and underwriting purposes, particularly as it relates to personal lines insurance. This topic has been widely debated in the U.S. Congress and has been the subject of many rule hearings and other proceedings in Florida.
Financial and Market Conduct Examinations
We routinely assist clients with matters related to financial and market conduct examinations. The former insurance regulators on our team have overseen financial examinations of property and casualty, life and health, and special insurers, and have served as legal counsel to the Florida insurance department regarding administrative actions stemming from financial and market conduct examinations.
Additionally, we represent many insurers before regulators on matters relating to financial and market conduct examinations. These services include representing insurers at hearings pertaining to examination reports, drafting responses to examination reports and findings, helping clients prepare for examinations, and negotiating resolutions to examinations with the regulators. When insurers challenge the contents and/or results of final financial examination reports, our team litigates these matters before the Florida Division of Administrative Hearings.
We represent reinsurers in matters involving receiverships, obtaining accredited reinsurer status, and insurer acquisitions. We also closely monitor the efforts of the NAIC and numerous states to reduce or eliminate collateral requirements for alien and foreign reinsurers. We represent clients in matters involving examinations of their reinsurance programs and help them respond to data calls pertaining to reinsurance. We also analyze reinsurance programs for clients to determine whether they satisfy regulatory requirements.
We represent clients in litigation involving receivership, including orders to show cause, assessment orders, proof of claims, demands records and property, and third party suits. We also represent them in matters pertaining to acquisitions of companies in receiverships, including assistance in preparing business plans to rehabilitate companies in receivership. We also represent reinsurers in matters pertaining to their collection efforts on reinsurance recoverables.
Residual Markets and Guaranty Associations
We represent clients in matters pertaining to residual market and guaranty fund assessments and residual market depopulation plans. We also represent clients in matters pertaining to rate filings related to the recoupment of residual market and guaranty fund assessments.
We routinely assist insurance clients with corporate transactions, including the formation or acquisition of insurers, corporate restructuring, portfolio transfers, sales or transfers due to insolvency proceedings, and sales of insurance agencies and brokerage firms. We also advise insurance clients on regulatory financial matters concerning surplus notes, administration of deposits, and the status of insurer assets, liabilities, and investments under state insurance statutory accounting statutes.
We routinely help clients understand the political landscape before pursuing a strategy or policy position. We identify, track, monitor, analyze, and summarize legislative proposals and political and policy considerations, and can assess their impact on operations. We testify, draft legislation and amendments to legislation, pass or defeat legislative proposals, and use our extensive political relationships to advocate client positions.