On January 1, 2012 Litchfield Cavo opened its twelfth office, in Pittsburgh, PA. New partners Paul Walsh, Pam Collis, Adam Barnes, Trisha Gill, Gina Zumpella and Tom Zumpella join LC from the esteemed Pittsburgh firm Walsh, Collis & Blackmer, along with associates Gretchen Fitzer, John Polena, Amanda Kocur and Kelli Lee, and Of Counsel David Brown. The Pittsburgh office serves western Pennsylvania, West Virginia, and eastern Ohio and the new LC attorneys will continue their practice in the areas of insurance defense, insurance coverage, business litigation, and family law. The Pittsburgh office is located in the Gulf Tower in the heart of downtown Pittsburgh.

On January 1, 2012, LC associates Stacey Papp (Tampa) and Laura Hedge (Houston) were promoted to partnership.

On August 1, 2011, Chicago Partner James Abbott obtained summary judgment on behalf of a dental clinic in an age discrimination matter pending in the Central District of Illinois. The plaintiff claimed that he was fired from his position as a co-managing clinical director of the dental clinic as a result of his age, and sued the clinic pursuant to the Age Discrimination in Employment Act (ADEA). The plaintiff further alleged that he was replaced by a younger dentist, and that the stated reason for his termination, that he exposed the clinic to potential malpractice claims, was a pretext. After completion of discovery, Mr. Abbott argued in summary judgment that the plaintiff could not make out a prima facie ADEA case against the clinic, as he had failed to meet the clinic’s legitimate expectations. Mr. Abbott then presented evidence that the plaintiff’s care and treatment of several of the clinic’s patients was below the standard of care and that the plaintiff was indeed a malpractice risk. Accordingly, the clinic had a legitimate, non-discriminatory reason for terminating him. The Central District agreed, and held that the plaintiff could not establish a prima facie case of age discrimination.

Chicago Partner Jonathan Barrish successfully defended a manufacturer of building products in two cases brought before the Illinois Workers' Compensation Commission by a single Claimant (Petitioner). The Claimant alleged he developed repetitive trauma from the task of stacking concrete boards onto pallets, but he was proven not to be credible. On cross examination by Mr. Barrish, the Claimant admitted to multiple instances of dishonesty, including lying to get unemployment benefits and failing to give an honest medical history to his physicians.

The same Claimant alleged in a separate case that he sustained another injury while using a jackhammer when he was supposed to be working light duty. The testimony presented by Mr. Barrish from the Claimant's supervisor as well as the medical records from the week of the accident demonstrated that the Claimant failed to inform his supervisors of a work-related injury. The Administrative Law Judge (Arbitrator) also noted that the Petitioner’s sworn testimony contradicted prior written statements.

In both these cases, the Administrate Law Judge found after hearing the Claimant's answers on cross examination that his testimony was not credible. Mr. Barrish, with the assistance of associate Adam Cox, also successfully argued that the medical evidence the Claimant provided was based on inconsistent or inaccurate reporting to doctors of the Claimant's medical history.

The Administrative Law Judge found that the Claimant's injuries in both cases were not casually related to his employment with Litchfield Cavo's client and that in the first case the Claimant failed to provide timely notice of his alleged accident.

On June 16, 2011, Litchfield Cavo attorneys successfully won a motion in federal court to transfer a coverage case to the Northern District of Illinois on behalf of an insurance company client. The Plaintiffs, an Illinois corporation, had been named in a suit filed in the Central District of California and been denied coverage under their policy. They had then brought the case against Litchfield Cavo’s client to the Central District of California, arguing that because the insurance company’s national business operations include California, the Central District was an appropriate forum. They also suggested that the state of California had an interest in deciding the case because of the original suit. Chicago Partner Hope G. Nightingale, Chicago associate Kathleen Bianco, and California Partner Paul Donsbach successfully argued that as the policy had been written and issued in Illinois, and neither the Plaintiff nor the Defendant reside in California, the case should properly be heard in the Northern District. The Court held that even though the underlying lawsuit was pending in the Central District, the factors relevant to the coverage issues pointed to the Northern District as the more appropriate venue, including the Court’s familiarity with the specifics of the applicable state law and the location of the relevant evidence.

Eileen P. Kavanagh, a partner in the Massachusetts office, recently obtained summary judgment for her clients, the owners and managers of commercial real estate in a lead paint case brought in Northeast Housing Court in Massachusetts. The minor plaintiff, who allegedly suffered from significant cognitive and learning disabilities, claimed that his exposure to lead paint while a tenant in premises owned and managed by the defendants caused his disabilities. Ms. Kavanagh was able to demonstrate through documentation and deposition testimony that the plaintiff could not prevail, as a matter of law, on his claims of strict liability and negligence under the MA lead paint, consumer fraud and quiet enjoyment statutes.

Massachusetts Partner Bob Ciociola has been named a Super Lawyer in litigation by the inaugural national publication of Super Lawyers Business Edition. Bob has also been recognized as a New England Super Lawyer in business litigation by Boston Magazine for the third consecutive year.

On March 28, 2011, the Massachusetts Appeals Court affirmed the trial court's dismissal of a complaint brought by a commercial tenant against Litchfield Cavo’s client, a real estate investment firm and hospitality management company, for personal injuries and damages arising out of the plaintiff’s purported exposure to mold. Massachusetts Partner Bethany Minich represented the client at the trial court and on appeal. The plaintiff claimed to have been exposed to elevated levels of mold while operating a business at the defendants' property and that as a result of the exposure, she developed new-onset asthma. The trial court held, and appeals court affirmed, that the evidence demonstrated that the underlying basis for the plaintiff’s expert opinions did not meet the reliability requirements established by Daubert/Lanigan.

On March 17, 2011, the United States Court of Appeals for the Second Circuit affirmed a summary judgment victory obtained by Connecticut Partner Melicent Thompson, Connecticut associate Kate Adams, and Massachusetts Partner Bob Ciociola in an advertising injury/personal injury coverage case. The insured was seeking in excess of $13 million for its share of a settlement and assigned defense costs of an underlying action asserting multiple counts oft copyright infringement, trade secret theft, fraud, breach of licensing agreement, and various statutory violation complaints. The insured argued that the complaints and extrinsic evidence in the underlying action could be read to assert misappropriation of the underlying plaintiff's advertising titles, slogans, and materials by the insured, and that the insured's alleged marketing efforts could be construed to constitute disparagement of the underlying plaintiff's products and services.

The District Court agreed with the Litchfield Cavo team's stance that the insured’s argument was fundamentally unsound because the underlying case's complaints and voluminous extrinsic evidence did not state or infer a defined advertising or personal injury offense under the policies in question. The District Court therefore found no need to reach defense arguments based on the policies' exclusions and the doctrine of laches.

On appeal, the Second Circuit agreed, noting that it independently concluded that the allegations in the complaints in the underlying action did not fall "even possibly within the coverage" of the personal or advertising injury provisions, even under the "broad interpretation" standards applicable to construing insurance policies under Connecticut law. The Second Circuit further found that the extrinsic materials referenced by the insured had no bearing on that conclusion. Finally, the Second Circuit affirmed that there was no need to address the specific exclusion provisions or the doctrine of laches, as the insured had not met its burden to establish an initial duty to defend.

New York Partner Vincent Velardo obtained summary judgment on behalf of an insured client who was alleged to have violated Plaintiff’s civil rights under 42 U.S.C. Sec. 1981, 1983, 1985, 1986, abuse of process and malicious prosecution. The case regarded Plaintiff’s arrest after a disturbance broke out at the insured’s diner and the employees of the diner called the police. The police asked all involved patrons to leave the diner, but the Plaintiff refused. The police eventually arrested Plaintiff for trespass, and for resisting arrest due to his conduct after the arrest was made. The Plaintiff was acquitted at his criminal trial.

The Court ruled that Plaintiff’s license to remain in the diner had been revoked and that the diner played no role in the arrest of Plaintiff; therefore the diner employees did not act under color of law and were not liable under sec. 1983. The Court dismissed all claims against the diner and its employees on February 17, 2011. The Plaintiff had sought $14 million in compensatory damages and $4 million in punitive damages. New York associate Richard Petersen assisted in the preparation of the brief.

Chicago Partner James Abbott successfully defended a downstate Illinois hospital against charges by CMS’ Division of Survey and Certification that it had violated the Emergency Medical Treatment and Labor Act (EMTALA). The hospital was charged with violating EMTALA’s “anti-dumping” requirement by refusing to accept certain psychiatric patient transfers from a referring hospital when the defendant allegedly had the capacity to accept such transfers. As a result, the hospital was subject to termination of its participation in the Medicare program and to monetary sanctions. Mr. Abbott appealed the charges and requested a hearing with IFMC-Illinois. He argued that the hospital did not in fact have the capability to adequately treat the transfer patients in light of its small bed capacity and limited staff, and that considerations of performance capacity and patient safety fully supported the hospital’s determination that it did not have the capacity to properly treat the transfer patients at the time the requests were made. Additionally, Mr. Abbott pointed out that the defendant hospital was much smaller than the referring hospital as well as more than 100 miles away, and as such there were numerous other hospitals that were geographically closer to the referring hospital. On January 12, 2011, following the hearing, all charges against the hospital were rescinded.

Chicago Partners Alan Becker, Tracy Beggs, Mitch Frazen, Dan Litchfield and Hope Nightingale have been named by Illinois Super Lawyers magazine as among the top attorneys in Illinois for 2011. Only five percent of the lawyers in the state are named by Super Lawyers each year. In addition, Chicago Partner Alan Bernover and Chicago associates Alissa DeConinck-Laufer, Claudia Diaz, Laura Milnichuk and Lauren Penn have all been listed by Illinois Super Lawyers as Rising Stars, a designation earned by only 2.5 percent of attorneys in the state.

Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check.

Thomson Reuters, Legal publishes Super Lawyers magazines across the country. In addition to the magazines, Thomson Reuters, Legal publishes newspaper inserts and magazine special sections devoted to Super Lawyers. In 2011, Super Lawyers will reach more than 15 million readers. Super Lawyers can be found online at superlawyers.com.

Litchfield Cavo LLP is pleased to announce the opening of its tenth office, located in Houston, Texas. As Texas continues to be a growth center in the national economy, Litchfield Cavo’s new Houston office will provide a hub for our business litigation and insurance defense and coverage work throughout Texas and beyond. The new office is located at 3040 Post Oak Blvd., Suite 1750, in Houston’s vibrant Uptown district and adjacent to the Galleria.

The Houston office will be led by Tory F. Taylor. Tory is an experienced trial lawyer, with extensive background in the fields of professional and executive liability, premises and product liability, trucking, and employment law.

Several Chicago Partners and associates were featured in an advertisement for Litchfield Cavo LLP in Leading Lawyers Magazine—Women’s Edition 2010. View the ad here. Partners Hope G. Nightingale and Carrie A. Durkin are included in the issue as members of the Leading Lawyers Network.

Los Angeles Partner Edward Vaisbort and associate Melinda Ebelhar recently prevailed in a matter pending before the California Supreme Court. The case involved a commercial easement dispute over property in Los Angeles once owned by silent film star Gloria Swanson. After winning the case on appeal before the California Court of Appeal in August, the Litchfield Cavo attorneys persuaded the California Supreme Court to reject the Petition for Review filed by the losing party in the lower court. The November 10, 2010 ruling comes after several years of hard-fought litigation at every level of the California courts.

On November 4, 2010, Chicago Partner Brian Reid obtained summary judgment in a declaratory judgment action on behalf of one of the Firm's insurance company clients. The action arose from a water damage claim under a first-party property policy, which provided limited coverage for a water damage claim subject to a specific limit of liability. Despite receiving prompt payment of the full limit relating to water damage, the policyholder then demanded additional coverage under the business interruption, equipment breakdown, and debris removal coverage policies and filed suit seeking a declaration on coverage, damages for breach of contract, and bad faith damages. On summary judgment, the court agreed that the insurer had properly paid all that was owed under the policy and dismissed the policyholder's declaratory judgment and breach of contract causes of action. Following the court's ruling on the lack of additional coverage, policyholder counsel stipulated to the dismissal of the bad faith count.

In the first week of November 2010, Chicago Partner Jeannine Gilleran won a federal trial in which four police officers were sued for excessive force, false arrest, and failure to intervene. The plaintiffs, three brothers ranging in age from 19 to 25, were fighting when officers from a neighboring town pulled up. They called the defendant officers to respond since it was outside their jurisdiction. The eldest brother assaulted one officer and in the course of the ensuing arrest, his brothers attacked the officer, leading to an altercation involving six officers from two different towns. The jury returned a defense verdict for all four defendants on all three counts in less than two hours of deliberation.

For the last several years, Travelers Property & Casualty Company has retained Litchfield Cavo to serve as its national Helpline provider for certain professional liability matters. Litchfield Cavo was selected based on extensive analysis of various firms' qualifications in the field, as well as issues such as "national" presence. Travelers has recently asked Connecticut Partner Rick Cavo, who directs this program, to expand this service to assist other lines of insured professionals who need help with routine inquiries in their day-to-day practice. Litchfield Cavo attorneys have extensive litigation experience in the fields of Executive Liability, Professional Liability, and Employment law, and the firm is seen as a national fit for Travelers, which recently extended its contract with Litchfield Cavo to service its professional insureds with their Helpline needs.

On October 11, Chicago Partner Scott D. Stephenson obtained summary judgment on behalf of their client, a manufacturer of industrial valves, in a case pending in Wright County, Iowa. The Plaintiff claimed that her husband (decedent), a retired plumbing contractor, was exposed to asbestos gaskets and packing contained in valves manufactured by Litchfield Cavo’s client during the course of his work as a plumbing contractor. Prior to his death, decedent testified that he last performed such work on the client’s valves in the early 1970s.

Based upon this testimony, Scott argued that pursuant to the Iowa Statute of Repose, Plaintiff’s claim against the client was barred. The Iowa Statute of Repose provides that an action arising out of the unsafe or defective condition of an improvement to real property is barred if brought more than 15 years after the date on which occurred the act or omission of the defendant alleged to have been the cause of the injury or death. Scott contended that the valves which decedent refurbished constituted improvements to real property and thus fell under the auspices of the Statute of Repose. Plaintiff countered that since the valves were removed from the property where they were located, and refurbished in decedent’s shop, they lost their status as improvements to the real property.

The court agreed with the argument advanced by Litchfield Cavo, finding that the Statute of Repose was applicable, and operated to bar the Plaintiff’s claim against our client. Consistent with this finding, the court granted the motion for summary judgment. Former Litchfield Cavo associate William J. Perry assisted in the defense.

On October 6, 2010, Chicago Partner Brian Reid obtained summary judgment in a declaratory judgment action on behalf of one of the Firm's insurance company clients. The action arose from an uninsured motorists coverage claim by an employee of the policyholder. Though he had collected benefits and settled his claim under his employer's workers compensation coverage, the employee demanded coverage for alleged additional damages under his employer's uninsured motorists coverage. Because the workers compensation benefits collected were in an amount in excess of the pertinent uninsured motorists limits, the claim was denied on the grounds that the set-off of the benefits received fully consumed the applicable coverage limits. The employee then filed suit seeking reformation of the policy and coverage for his alleged additional damages. He alleged that the uninsured motorists coverage had not been issued in accord with the applicable insurance code provisions and, therefore, the policy should be reformed to provide uninsured motorists coverage with higher coverage limits. On summary judgment, the court held that the firm's insurer client had, in fact, complied with the insurance code. Thus, the court rejected the employee's policy reformation argument. The court also held that applicable case law and statutory language entitled the insurer to the set-off of workers compensation benefits received by the employee. Since the employee had already received benefits in excess of the applicable limits, the employee's right to any additional coverage under the policy was extinguished.

New York Partner Edward Fogarty, Jr. obtained a defense verdict in Supreme Court, Queens County, on September 30, 2010. The action arose out of a two vehicle accident, which resulted in the plaintiff undergoing an arthroscopic shoulder surgery, a lumbar laminectomy, and ultimately a third surgery, which included a lumbar fusion. The plaintiff claimed that the Litchfield Cavo client was completely responsible for this accident, relying in part on a statement our client allegedly made to the responding police officer at the scene. The police officer reiterated this statement at trial, which the Litchfield Cavo client specifically denied. After a trial on the liability issues only, the jury returned a verdict in favor of our client. Despite finding the Litchfield Cavo client negligent, the jury found that the accident happened the way the Litchfield Cavo client claimed, and therefore determined that any negligence was not a proximate cause of the accident. Although not reached at trial, the damages issues were hotly contested by multiple experts on each side and plaintiff turned down a seven figure offer prior to the jury returning its verdict on liability.

Chicago Partner Jeannine Gilleran received a defense verdict in the Circuit Court of Cook County on September 24, 2010. Plaintiff was arrested after leaving her two year-old child unattended in her vehicle while making a donation with her older children to the Salvation Army bell ringer at Wal-Mart. She was charged with child endangerment and obstructing a peace officer. Plaintiff claimed that she was falsely arrested and maliciously prosecuted by the Community Service Officer and the two responding Sergeants. The jury returned a verdict in favor of both officers on both counts. At the close of plaintiff’s case, the court directed a verdict in favor of the Community Service Officer based upon a motion drafted by Partner Patrick Ruberry.

Several Chicago Partners were featured in an advertisement for Litchfield Cavo LLP in Leading Lawyers Magazine—Business Edition for 2010. View the ad here.

Chicago Partner Mitchell Frazen was included in the September/October Corporate Counsel Edition issue of Super Lawyers magazine's national listing of "outstanding lawyers from small and midsize firms." Mitch was recognized in his primary area of practice in Civil Litigation Defense in Illinois. This marks the fifth year that Mitch has been rated by this publication as an "Illinois Super Lawyer" in that practice area, as well as Personal Injury Defense and Insurance Coverage. Annual evaluations are based on twelve indicators of peer recognition and professional achievement, including verdicts; settlements; representative clients; experience; honors and awards; position within law firm, bar and other professional activity; pro bono and community service; scholarly lectures and writings; education and employment background. A detailed description of the selection process can be found at superlawyers.com.

On September 21, 2010, Ft. Lauderdale Partner John Catizone obtained summary judgment in a declaratory action on behalf of one of our insurance company clients. The declaratory action arose from an underlying action in which numerous residents and construction workers sued the insured landowner because of injury and damage from pollutants existing on and escaping from the insured’s property (a former landfill) during construction operations. The Insurer disclaimed any duty to defend the underlying action, primarily because of its policy’s pollution exclusion. The plaintiffs entered into an agreement and multi-million dollar consent judgment with the insured landowner and sought to enforce that judgment upon our client. Among other arguments the plaintiffs claimed that allegations of sewage odors, nuisance, and trespass fell outside the pollution exclusion and created a duty to defend. The Insurer filed a federal declaratory action and the underlying plaintiffs brought counterclaims for breach of contract and bad faith.

On summary judgment, the federal court agreed with our client that all alleged injury and damage arose from pollutants. The court granted summary judgment in favor of the Insurer and dismissed the underlying plaintiffs’ counterclaims.

On September 9, 2010, Connecticut Partner Mike Dugan and associate Kate Adams obtained summary judgment on an employment lawsuit on behalf of a Travelers Bond insured. The Plaintiff alleged that he had a verbal contract of employment that ensured that he could not be terminated except for just cause. The Plaintiff claimed lost wages and loss of fringe benefits as a result of his termination, making a last settlement demand for $500,000. The defense alleged that the Plaintiff could not establish the existence of an enforceable contract and that the Plaintiff was an at-will employee. Alternatively, the defense alleged that even if the Defendant was required to establish just cause, there was ample basis for terminating the Plaintiff for just cause. Finally, the defense argued that the Plaintiff’s negligent misrepresentation claim was barred by the statute of limitations. The Connecticut Superior Court agreed with the defense and granted the Defendant’s Motion for Summary Judgment, dismissing the Plaintiff’s Complaint.

Chicago Partner Scott D. Stephenson and associate William J. Perry obtained summary judgment on behalf of their client, a manufacturer of industrial valves, in a case pending in Cuyahoga County, Ohio, on August 11, 2010. The Plaintiff claimed that her husband (decedent), a retired physician, had worked in the client’s valve manufacturing plant in 1943-1944 as a medic in the first aid clinic while he attended medical school. Decedent claimed exposure to asbestos insulation on the heating pipes in the plant and to asbestos-containing gaskets and packing materials, which were used as component parts of the valves manufactured at the plant, resulting in development of mesothelioma in 2008, approximately 65 years after his alleged exposure. Scott and Bill argued that pursuant to the Ohio Premises Liability Statute, their client was afforded a presumption that any asbestos utilized at the plant was less than the threshold limit value set forth in the statute. They further argued that even though the statute affording this protection to premises owners was not enacted until 1946, their client should still be afforded the presumption provided for in the statute since the language of the statute did not limit its application to only those exposures occurring in 1946 and thereafter. Plaintiff argued that the statute was not applicable because it was not enacted until 1946, more than two years after decedent’s alleged exposure. Plaintiff further argued that without the presumption [of safe levels of asbestos below the threshold limit value] there was no safe level of asbestos and therefore, any asbestos use constituted an unreasonable danger. Alternatively, Plaintiff argued that if the presumption was applicable, there was sufficient evidence presented by Plaintiff to rebut the presumption that asbestos present at the plant was below the threshold limit value set by the statute.

The court agreed with the argument advanced by Scott and Bill, finding that the presumption applied, and that Plaintiff had failed to present sufficient evidence to rebut the presumption that asbestos present at the premises was below the threshold limit value set forth in the statute. Accordingly, the court entered summary judgment in favor of the client.

Chicago Partner Jeannine Gilleran recently obtained defense verdicts in two trials involving allegations of excessive force against police officers. In July 2010, Jeannine successfully defended two officers who were accused of battery and excessive force. The officers were investigating a motor vehicle accident when plaintiff battered one officer on scene and was subsequently injured being pulled off the hood of a squad car in an attempt to defeat the arrest. Plaintiff then spit on the second officer, whom plaintiff accused of throwing him into a wall and fracturing his nose and lacerating his chin. The jury deliberated less than two hours before finding in favor of both defendants on the excessive force and battery claims.

Jeannine also won a case in March 2010 in which the plaintiff claimed he was beaten by an off-duty police officer working private security at a car dealership. Plaintiff sustained a broken wrist after fleeing from the officer, but claimed he was beaten while handcuffed and thrown into a tree subsequent to his arrest.

Chicago Partner Carrie A. Durkin and Associate Bradford A. LeHew prevailed on a motion for summary judgment in the Circuit Court of Cook County. At issue was what event triggered the running of the two-year statute of limitations for actions against insurance brokers and producers. Deciding an issue of first impression in Illinois, the Court found in favor of Litchfield Cavo's client, a wholesale broker, in a third-party action brought by a retail broker for negligent procurement of insurance stemming from a gap in coverage in 2003. The Court found that the date of the retail broker's review of the policy with the alleged coverage gap, not the denial by the carrier or the filing of suit against the retail broker, triggered the statute. Because the third-party complaint was not filed until 2007, it was untimely.

In a dispute over legal fees which arose in the context of an insured’s "personal counsel" defending an insured under a reservation of rights, a Norfolk County jury determined that the insurer had not breached its duty to defend under a Directors and Officers liability policy by unreasonably declining to pay the usual and customary rates charged by the insured’s "personal counsel." The insurer, represented by Massachusetts Partner Peter Kober, argued that the rates charged by the insured’s "personal counsel" – which were in excess of twice the rates paid by the insurer to its panel counsel – were not "reasonable," notwithstanding the claims by the insured’s "personal counsel" that the issues involved in the underlying litigation involved "complicated" real estate and condominium law questions that were within the particular area of expertise of "personal counsel" and beyond the capabilities of general litigators, i.e., the insurer’s panel counsel. On April 14, 2010, the jury deliberated less than one and one-half hours before deciding that the insurer had neither breached its contract with the insured nor breached an implied covenant of good faith and fair dealing. Board of Trustees of the Chestnut Ridge Condominium Trust II v. Northern Security Ins. Co., et al., No. 06-02275.

Massachusetts Partner, Bethany Minich, recently obtained summary judgment on behalf of a real estate investment firm and hospitality management company in a “toxic tort” case involving claims for personal injuries and damages arising out of the plaintiff’s purported exposure to mold. The plaintiff, a commercial tenant, claimed to have been exposed to elevated levels of mold while operating a business at the defendants' property. As a result, the plaintiff claimed to suffer from a host of respiratory ailments, including chronic, rhinosinusitis, and nasale polyposis. Her medical specials exceeded $167,000 and her lowest demand was $835,000. The motion for summary judgment was allowed after Attorney Minich successfully precluded the plaintiff from offering any causation evidence at the trial of the matter. Following a two day Daubert hearing, challenging the methodology and conclusions of the plaintiff's liability and medical experts, the Trial Court concluded that the underlying basis for the medical expert's opinion did not meet the reliability requirements established by Daubert/Lanigan. Further, the Court precluded the plaintiff's liability expert from offering testimony that the numerical values found in the plaintiff’s office demonstrated "abnormal" or "elevated" mold levels.

In Vermont Mut. Ins. Co. v. Robert Eldridge, et al., No. 09-P-1087, Massachusetts partners Mike Byrne and Peter Kober successfully appealed from a summary judgment order which had required a homeowner’s insurer to defend the homeowner in a personal injury action arising out of the homeowner’s dogs attacking a neighbor and her dog. On April 6, 2010, the Massachusetts Appeals Court vacated the order of the Superior Court, which had ruled, sua sponte, that a question in the insurer’s application for coverage – "Are there any animals or exotic pets kept on the premises?" – was ambiguous, and held that the insurer had no duty to defend the homeowner because he had materially misrepresented the risk to be insured by not disclosing his ownership of the dogs.

On March 10, 2010, Wisconsin partners Mark W. Rattan and Stephanie L. Dykeman successfully prosecuted an appeal in the Seventh Circuit Court of Appeals. The insured sought reformation of an insurance policy to include a contaminated parcel of land that had been omitted from the schedule of insured properties. On behalf of the insurer, Attorneys Rattan and Dykeman convinced the Seventh Circuit that the district court committed clear error when it reformed the policy to include the contaminated parcel as an insured property. The Court of Appeals held the insured could not have reasonably expected coverage for the subject parcel of land because the insured had not satisfied the insurer’s prerequisites to consider the parcel for coverage, i.e., that the insured own or control the parcel and that the insured provide a sufficient description of the parcel. The Seventh Circuit concluded the insured could not reasonably claim to have proceeded under a mistake that the policy would cover the parcel before satisfying these requirements. Hence, reformation was not a remedy available to the insured under Wisconsin law.

Chicago partner Omar Odland obtained summary judgment in a federal declaratory judgment action. The claimant was seeking to enforce a $2.2 million judgment against the firm's client under a package policy of professional dental liability and business liability coverage. On February 23, 2010, the Court agreed that the firm's client had no duty to defend or indemnify the underlying claims.

Chicago partner Daniel G. Litchfield recently spoke to Chicago Lawyer magazine regarding changes in insurance defense and coverage practice during the economic recession. He emphasized the importance of precision in early case assessments and specific, clear communication on expenses in response to clients seeking to keep their costs low. “It’s now up to attorneys and law firms to adapt to the many changes that are or will soon be hitting the insurance defense industry. Those who do will find that this industry can be as rewarding as it ever has been,” he said.

Chicago Partner Jonathan Barrish successfully defended SkyWest Airlines in two cases before the Illinois Workers' Compensation Commission that were filed against it by the same Claimant (Petitioner). In both cases, the Claimant (Petitioner) was asserting she suffered cervical and lumbar injuries affecting all four of her extremities and her entire spine. In the first case the Claimant (Petitioner) testified that she injured herself when she hit her head on a jet's engine. In a recently issued decision, the Administrative Law Judge (Arbitrator) found the Claimant (Petitioner) injured herself as she alleged but did not suffer any injuries entitling her to Permanent Partial Disability Benefits. In the second case, the Claimant (Petitioner) testified that both of her hands went numb while she was loading luggage on a jet bridge. The Administrative Law Judge (Arbitrator) adopted the position put forth by Mr. Barrish that based upon the Claimant's testimony as well as the medical evidence, the Claimant's (Petitioner's) current condition of ill-being was not related to her alleged accident at SkyWest Airlines. Enaz Wanzer v. SkyWest Airlines, 08 WC 47811, Enaz Wanzer v. SkyWest Airlines, 08 WC 47812.

In January 2010, Massachusetts Partner, Bethany Minich, and Associate, Shanna Boughton, successfully defended a negligence/breach of contract/indemnification suit in the Greenfield Superior Court. The matter arose out of the transportation of low level radioactive waste from a local nuclear power plant that was being decommissioned to a local rail yard. While en route to the rail yard, an intermodal container fell off a flatbed trailer when the chain used to secure the load broke. As a result of the accident, low level radioactive debris spilled into a ravine alongside the road. The general contractor sought damages in excess of a million dollars that had been awarded to it in an arbitration case against its sub-contractor, who was the plaintiff in the case. The plaintiff filed suit against the transportation contractors, claiming that they were solely responsible for securing the load and failed in this respect. Following a trial on the negligence claim, the jury returned a verdict in favor of the defendant transportation contractors. The Court removed the breach of contract claim from the jury’s consideration, allowing the transportation contractor’s motion for a required finding. Subsequently, the Court dismissed the indemnification claims as a matter of law.

On January 5, 2009 Paul G. Roche and Aileen Reilly Wilson obtained dismissal of a $375,000.00 claim for coverage brought in the United States District Court for the District of Connecticut. Plaintiffs argued that the all-risks homeowners’ policy issued to them by Great Northern was ambiguous. The District Court agreed with defendant that the policy was unambiguous. The plaintiffs appealed the ruling to the Second Circuit Court of Appeals. On November 18, 2009, the Second Circuit Court of Appeals affirmed the District Court’s dismissal and judgment. Aileen Reilly Wilson argued the appeal.

Chicago Partner Mitchell H. Frazen was a panelist on a Chicago Bar Association seminar on "Mastering Section 2-615 Motions to Dismiss, along with Judge Kathy M. Flanagan of the Circuit Court of Cook County's Law Division Motions Section, where he spoke and prepared written seminar materials on the topic, "Strategic and Tactical Use of Section 2-615 Motions to Strike." The October 20, 2009 seminar, which was webcast over the CBA and West LegalEdcenter websites, is also available in DVD format from the Chicago Bar Association.

Los Angeles partner Edward D. Vaisbort and associate Melinda W. Ebelhar obtained summary judgment on behalf of a major insurance company on breach of contract and “bad faith” claims in Federal District Court in California on June 29, 2009. Plaintiff, a homeowner’s association, contended that the insurer should have defended it in connection with an underlying assault claim pursuant to the employment practices coverage portion of a Directors and Officers liability insurance policy. On behalf of the insurance company we were able to persuade the court to set an early hearing on summary judgment, thus significantly reducing defense costs, and then were successful in establishing that as a matter of law the policy’s defense obligation was not triggered. Plaintiff’s “bad faith” claims that the insurer did not conduct an adequate investigation were also dismissed as part of the summary judgment motion.

New York Partner Daniel T. Hughes obtained dismissal of a federal suit alleging libel, tortious interference, trade libel and interference with economic advantages and opportunities. The firm’s client had been sued as the result of an article it published and distributed to its membership. The article was picked up and distributed by the co-defendant, a competitor of the plaintiff. The decision dated March 27, 2009 can be found at Sandler v. Simoes, 2009 WL 902405 (E.D.N.Y.)

On March 16, 2009, the Illinois Appellate Court affirmed the trial court's dismissal of a complaint brought by a condominium association against the City of Chicago, a developer and the garage association related to proposed new construction on the condominium association's property. Chicago Partner Carrie Durkin and Associate Bradford LeHew represented the garage association at the trial court and on appeal. In an issue of first impression in Illinois, Carrie and Bradford successfully argued that the condominium association lacked standing to bring the lawsuit where its bylaws required two-thirds of its members to approve the lawsuit prior to filing.

On March 15, 2009, the Illinois Appellate Court affirmed the trial court's dismissal of a complaint brought against a workers' compensation third-party administrator alleging intentional infliction of emotional distress and bodily injuries all stemming from a claim handler's decision to discontinue payment for an at-home nurse care. The claim handler determined that the at-home care was no longer needed after a work-related foot surgery. Instead, the at-home care was desired for the injured worker's many other unrelated systemic conditions. Several weeks after payment for the at-home care was stopped, the worker fell in her home and injured her knee. The worker tried to sue in State Court claiming intentional conduct unrelated to her job activities. The trial court held, and appellate court affirmed, that the civil suit was barred by the exclusive remedies available in the workers' compensation system. This was an important win for the industry. Had this claim been allowed to go forward, it could have opened the courthouse doors to claimants when they do not like a benefits decision. Chicago Partners, Daniel Litchfield and Dawn Gonzalez handled the matter. Calloway v. Specialty Risk Services, IL App. Ct., 1st Dist., 3rd Div. No. 1-08-2989 (July 15, 2009, opinion not published).

On January 7, 2009 Chicago partner Scott D. Stephenson and associate William J. Perry, obtained summary judgment on behalf of their client, a manufacturer of industrial valves, in an asbestos-related wrongful death case pending in the Cuyahoga County (Ohio) Court of Common Pleas. Plaintiff presented evidence, through the testimony of decedent's co-worker, that one of decedent's duties as a security guard at an automobile manufacturing plant, was to stand fire watch during the removal and replacement of asbestos gaskets and packing from their client's valves. Plaintiff argued that decedent's close proximity to this work exposed him to asbestos fibers from the packing and gaskets contained in the valves. However, Mr. Stephenson and Mr. Perry successfully argued that although their client's product was identified, the testimony was insufficient to establish that the alleged exposure to the asbestos containing components was a "substantial factor" in causing decedent's mesothelioma as required by Ohio law.