Representative Matters

Insurance Litigation

• Successfully moved to dismiss a complaint filed by excess insurer that sought to recoup $2 million from client under liability insurance policies that client issued to tour bus company. The court held that full-deductible fronting policies did not require client to contribute to the settlement of underlying personal injury lawsuits, and that client has no indemnity liability under its fronting policies as a matter of law.

• Obtained summary judgement in the Southern District of New York and affirmance from the Second Circuit Court of Appeals of defense, indemnity and bad faith claims under contractor’s professional liability insurance: (1) for the first claim, the relevant claim was first made in a contractual notice before the policy period when reported, that the reporting requirement could not be waived, and that additional allegations in subsequent litigation and arbitration related back to the original claim; and (2) for the second claim, that subcontractor claims for unpaid amounts were not for covered professional liability despite allegations that the additional work was caused by the insured’s professional negligence in mismanagement. To our knowledge, this is the first appellate decision on contractor professional insurance coverage. 

• Obtained dismissal of auto insurer from a Washington statewide class action alleging that total loss auto damage claims had been improperly handled by factoring in adjustments not specifically permitted under state law, because any statutory violation did not involve the actual harm required for consumer class actions under recent Ninth Circuit authority.

• Represented an insurance company client in recovering its settlement payment from a wrongful eviction lawsuit, successfully denying any obligation to indemnify because any liability for the conduct complained of (the willful dispossession of tenants from the rental unit) is barred from being covered by California Insurance Code section 533, which applies when the harm suffered is intended by the conduct; also defeated the insureds’ cross-complaint for breach of contract and bad faith. This was a test case for the client with no on-point appellate authority.  

• Obtained summary judgment for an insurer client against general contractor insured that construction professional policy did not apply because demand for remedial work was not covered professional loss.

• Obtained summary judgment for an insurer client against the insureds, a bar owner and the building owner, and against the claimants, with respect to insurance coverage for wrongful death claims arising out of a San Francisco bar’s security guard/doorman shooting of a prospective patron after denying the victim entrance to the bar.

• Obtained decision from Ninth Circuit Court of Appeals enforcing New York choice of law clause as a limit on our client's policy obligations with respect to contribution and reimbursement claims by and against a co-insurer and enforcing "excess" other insurance clause as relieving our client's pollution liability policy from owing any amounts for defense or indemnity where CGL insurer had overlapping coverage.

• Obtained order from the Second Circuit Court of Appeals (affirming summary judgment in insurer's favor) that New York's common law strict "no-prejudice" rule barring coverage for late notice applies to policies with New York choice of law clauses that are not subject to NY Ins. Law s. 3420(a)(5) (which creates a prejudice requirement for certain policies) because those policies were issued and delivered outside of New York; therefore, insurer with policy issued and delivered outside of New York had no duty to defend or indemnify insured as a matter of New York law with respect to $10 million coverage for $40+ million in claims that were tendered to the insurer months and years late, and the insurer did not need to demonstrate prejudice.

• In California federal court, obtained summary judgment that the New York choice of law clause of an insurance policy applied and precluded coverage based on the insured's late notice of a pollution claim and failure to obtain the insurer's consent prior to incurring $2 million in remediation costs. Court also found that policy was not subject to NY Ins. Law s. 3420(a)(5) (which creates a notice-prejudice requirement for certain policies) because the policy was issued and delivered outside of New York.

• Obtained judgment of no coverage, affirmed on appeal, on class action complaint brought on behalf of all California insureds, seeking coverage under specialized liability policies for new wave of lawsuits brought against all California insureds.

• Successfully represented many insurance industry clients in monitoring coverage and in coverage lawsuits involving intellectual property, employment, professional liability, serious injury, privacy, advertising injury, construction defect, securities fraud, asbestos and pollution liability disputes.

• Successful representation of cedents and reinsurers in reinsurance arbitrations.

Business Litigation

• Successfully represented group of franchisees against $95 million class action after substituting in to oppose terminating sanctions motion (granted against co-defendant), eventually obtaining dismissal of entire action.

• Successfully obtained summary judgment and affirmance on appeal of business sued for liability in devastating injury to police officer.

• Successfully represented a Fortune 500 company in prosecuting lost profit claims arising from a $150 million acquisition agreement, obtaining settlement in excess of component purchase price.

• Successfully represented client in an industry-wide class action, obtaining approval of settlement for the smallest share of claimed damages of any industry participant.

Real Estate Litigation

• Successfully represented client in defending breach of lease claims for a facility that was shut down, obtaining dismissal without any payment.

• Successfully prosecuted a multimillion-dollar mold claim for a property owner.

• Successfully obtained recovery for high-end homeowner in nondisclosure case.

• Successfully resolved many real estate contract disputes.

Appellate Litigation

• Hunt Construction v. Berkley Assurance Co., ___ F.App’x ___ (2d Cir. 2022) (contractor’s professional coverage) – Obtained affirmance of summary judgment for professional liability insurer that coverage was barred because unreported contractual notice was when claim first made, the reporting requirement could not be waived, additional allegations in subsequent claims related back to original claim, and subcontractor payment claim was not covered.

• Pitzer College v. Indian Harbor Ins. Co., 8 Cal.5th 93 (2019) (pollution coverage) – Represented pollution liability insurer with respect to appeal of summary judgment considering enforceability of choice of law clause with respect to defenses of late notice and lack of consent.

• Ameron Corp. v. American Home Assur. Co., 625 F. App'x 803 (9th Cir. 2015) (product liability coverage) – Obtained reversal of summary judgment against client CGL insurer on its defense cost contribution claim against non-defending insurer, and entry of duty to defend determination against non-defending insurer, with respect to Canadian lawsuit alleging coatings failures and resulting corrosion to offshore and onshore energy production facilities.
• Gemini Ins. Co. v. Indian Harbor Ins. Co., 608 Fed.Appx. 479 (9th Cir. 2015) (pollution coverage) - Obtained reversal of adverse D. Haw. summary judgment against client pollution liability insurer on both CGL insurer's defense cost contribution claim and client's settlement reimbursement claim, based on NY choice of law clause and "excess" other insurance provision.
• Indian Harbor Ins. Co. v. City of San Diego, 586 Fed.Appx. 726 (2d Cir. 2014), affirming 972 F.Supp.2d 634 (SDNY 2013) (pollution coverage) — obtained affirmance of summary judgment that a New York choice of law clause was enforceable against a California policyholder and required application of the New York common law strict notice rule, such that the policyholder's late notice barred coverage for $40+ million in claims.
• FedEx Home Delivery v. Stone (Tex.App. - Houston 2014) (auto liability) - Obtained settlement after oral argument of multi-million dollar personal injury judgment arising from vehicle liability after challenging trial court's refusal to include statutorily immune party Texas Department of Transportation on the verdict form for allocation of fault.
• Bruns v. E-Commerce Exchange, Inc., 51 Cal. 4th 717 (Cal. 2011) (class action) – Obtained for a group of businesses the dismissal of a $96 million class action alleging that they violated the Telephone Consumer Protection Act by sending unsolicited advertisement via fax machine on the basis of plaintiffs' delays in prosecuting the case and bringing it to trial. Obtained a unanimous decision from the California Supreme Court that established the statutory five-year period for bringing a case to trial is stayed only when the stay encompasses all proceeding in the action, and that partial stays do not automatically toll the running of the limitations period. On remand, the California Court of Appeal affirmed the dismissal of the class action.
• Tozzi v. Shinefield, 2011 WL 3298958 (Cal. App. 2011) (real estate fraud) – Obtained a decision from a California Court of Appeal reversing the dismissal of two defendants from a suit brought on behalf of two individuals who alleged that they were defrauded into paying more than a $1 million over their original bid on a house by the existence of a sham counteroffer.
• Stout v. Balboa Ins. Co., 2009 WL 3683792 (Cal. App. 2009). (pollution coverage) – Represented general liability insurer with respect to issues of coverage for pollution liability under products and premises coverages.
• May v. Nine Plus Properties, Inc., 143 Cal. App. 4th 1538 (Cal. App. 2006) (serious injury) – Defended an owner and operator of a body shop against a claim for severe bodily injury brought by a police officer who was paralyzed after he was struck by a pick-up truck driven by an individual who had stolen it from the body shop's lot. Obtained summary judgment for owner on the basis that it had no duty to protect the public against the actions of a thief. The California Court of Appeals affirmed in a unanimous decision.
• Moothart Chrysler-Plymouth, Inc. v. Universal Underwriters Ins. Co., 2003 Cal. App. Unpub. LEXIS 5269 (Cal. App. 2003) (business practices coverage) – Represented garage insurer against class action claims by all of its California insured businesses for coverage of claims of violation of the California Unfair Competition Law arising from errors in advertised financing. Obtained demurrers to complaint and unanimous affirmance of dismissal on appeal.
• Aerojet-General Corp. v. Am. Excess Ins. Co., 97 Cal. App. 4th 387 (Cal. App. 2002) (pollution coverage) – Represented liability insurers on appeal of the dismissal of an insured's declaratory judgment action due to the res judicata effect of a prior action. The California Court of Appeal affirmed the dismissal of the action.
• Dart Industries, Inc. v. Commercial Union Ins. Co., 28 Cal. 4th 1059 (Cal. 2002) (lost policy coverage-amicus) — Submitted amicus brief for London market insurers on heightened burden of proof in lost-document cases; this was the seminal California case on coverage under lost policies.
• Homeowners Ass'n of Seaview Community v. The Housing Group, No. A079962 (Cal. App. 1999) (professional liability coverage) – Intervened on behalf of a professional liability insurer in an underlying construction defect action brought by a developer against its insured in order to set aside the $12 million award after learning that the insured had agreed not to oppose the damages hearing that was the basis of the bad-faith action against our client.
• Cooper Cos. v. Transcontinental Ins. Co., 31 Cal.App.4th 1094 (Cal. App. 1995) (pre-merger coverage) – Submitted amicus brief for London market insurers on inapplicability of liability policies to acts of a company acquired through merger or acquisition that occurred prior to the merger or acquisition.
• Bergen Brunswig Corp. v. Safety Mut. Cas. Corp., 985 F.2d 571 (9th Cir. 1993) (business practices coverage) – Obtained on behalf of Liberty Mutual a decision from the U.S. Court of Appeals for the Ninth Circuit affirming a district court summary judgment decision that the insured was not entitled to defense and indemnity under the "advertising injury" clause of a comprehensive general liability policy for class action securities fraud and negligent representation claims brought against the insured.

Admissions

• California
• U.S. District Court for the Northern District of California
• U.S. District Court for the Eastern District of California
• U.S. District Court for the Central District of California
• U.S. District Court for the Southern District of California
• U.S. Court of Appeals for the Second Circuit
• U.S. Court of Appeals for the Fifth Circuit
• U.S. Court of Appeals for the Eighth Circuit
• U.S. Court of Appeals for the Ninth Circuit
• U.S. Court of Appeals for the Tenth Circuit
• U.S. Court of Appeals for the Eleventh Circuit

Education

• Harvard Law School, J.D., cum laude, 1991
• Princeton University, A.B., cum laude, 1988

Experience

• Duane Morris LLP
  - Partner, 2006-present
• Hancock Rothert & Bunshoft LLP
  - Partner, 1999-2005
  - Associate, 1991-1999

Professional Activities

• American Bar Association
  - Section of Litigation
  - Insurance Coverage Committee
• Claim and Litigation Management (CLM) Alliance, Member
• Association of Business Trial Lawyers
• Defense Research Institute

Honors and Awards

• Listed in The Best Lawyers in America, 2020-2024

• Chambers USA: America's Leading Lawyers for Business, Nationwide - Insurance: Dispute Resolution: Insurer, 2014-present
• Chambers USA: America's Leading Lawyers for Business, California - Insurance: Insurer, 2009-present
• Legal 500 U.S., Insurance: Advice to Insurers, 2014-present
• Listed in Northern California Super Lawyers
• Top Rated Lawyer in Insurance Law, Martindale-Hubbell, 2014-present
• AV® Preeminent™ Peer Review Rated by Martindale-Hubbell

Selected Publications

• Editorial Board Member and Regular Contributor to the Duane Morris Insurance Law Blog
• Co-author, "Pandemic B.I. Claims: After the Sound and Fury, Where Are We Now?," PropertyCasualty360, June 18, 2020

  Pandemic B.I. Claims: After the Sound and Fury, Where Are We Now?
• Co-author, "Cyber Insurance For Data Breach: Being Prepared If The Black Hats Come Calling," (Part I, Part II) Front Page News, January 1, 2016
• Author, "Stipulated Judgments to Set Up Insurers - Not In California," Law360, November 4, 2015
• Co-author, "U.S. Supreme Court Decision on Patient Protection and Affordable Care Act: Implications for Health Insurance Issuers," Duane Morris Alert, June 29, 2012
• "The Termination Provision in Fidelity Insurance Policies: Practitioners Discuss a Split in Authority," Bloomberg Law Reports-Commercial Insurance, March 5, 2012
• Co-author, "Legislating Construction Accidents: The Trend of 'Occurrence' Statutes to Create Insurance Coverage for Construction Defect Lawsuits," Chapter in Aspatore Thought Leadership: Insurance Law 2012, February 2012
• Participant, "2011 Roundtable Series: Class Action," California Lawyer, July 2011
• Author, "Managing Commercial Liability Disputes," chapter in Inside the Minds: Negotiating Insurance Policy Disputes, Aspatore Books, 2011
• Co-author, "Stemming the Tide: The Lesson of Steadfast v. AES and Terminating the Duty to Defend Climate Change Lawsuits," Going Green Hot Topic feature on the American Bar Association Insurance Coverage Litigation Committee website, April 2010
• Co-author, "Keep it Cool: Potential Coverage Defenses to ''Global Warming'' Lawsuits," Coverage, American Bar Association Section of Litigation, Committee on Insurance Coverage Litigation, July/August 2009
• Profiled by Law 360, July 2, 2009
• "Latest Case Law On Coverage Issues Affecting Professional Liability And Directors & Officers Insurance," Mealey's Litigation Report: Insurance, December 2007
• Contributor, The XL Insurance Contract Guide for Design Professionals - A Risk Management Handbook for Architects and Engineers (2007 X.L. America, Inc.)
• "When Government Creates New Privacy Rights, Do Insurers Pay?," Coverage, July/August 2005
• "Cumis Conundrum," The Recorder, January 2005
• "Latest Case Law on Coverage Issues Affecting Professional Liability and Directors & Officers Insurance," Mealey's Litigation Report: Insurance, September 2004; reprinted in Mealey's Commentary Review: Emerging Insurance Disputes, September 2005
• "Recent Developments In Coverage Issues Affecting Claims-Made Policies," Mealey's Litigation Report: Insurance, July 22, 2003
• "Insurance Coverage Issues in California Mold Litigation," Mealey's Litigation Report: California Insurance, June 2003
• "Curbing the Bad-Faith Setup," Claims Magazine, December 2002
• "The Dart Not Thrown: A Response to the California Supreme Court's Invitation to Establish an Evidentiary Standard for Proof of Lost Insurance Policies," Mealey's Litigation Report: Insurance, October 1, 2002

Selected Speaking Engagements

• Speaker, "Class Actions Against Insurance Companies: Current Claims; Certification; Dispositive Motions, and More," Strafford Webinar, June 18, 2024
• Speaker, "Insurance Coverage: Defining Physical Loss or Damage; Testing Assumptions About What Triggers Coverage," Strafford Webinar, February 1, 2022

• Speaker, “Preserving Coverage Defenses: Key Considerations for Insurers and their Attorneys when Evaluating the Duty to Defend,” ABA Tort & Insurance Practice Section (TIPS) Section Conference, Los Angeles, May 3, 2018

• Panelist, "Refuse to Defend at Your Own Risk? An Insurer's Refusal to Defend and Settlement in Class Actions; When is Settlement Collusive?" 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts, San Francisco, May 27, 2016
• Speaker, "Insurer's Duty to Defend Additional Insureds: Navigating Differing Court Standards to Determine When Duty is Triggered," Strafford live webinar, January 26, 2016
• Speaker, "Detour Ahead: Federal Court Certification of Questions of Insurance Coverage Law to State Supreme Courts," 2015 Insurance Coverage Litigation Committee CLE Seminar, Tucson, AZ, March 4-7, 2015
• Moderator, "In-House Roundtable: Counsel and Claims Professional Insights on New and Emerging Issues in Insurance Coverage and Allocation," American Conference Institute's National Forum on Insurance Allocation, New York, October 29-30, 2014
• Speaker, "Recent Trends in Allocation of Continuous or Progressive Losses," HB Litigation Conference's Insurance Allocation Strategies 2013 Conference, Los Angeles, October 29, 2013
• Speaker, "Advanced Hot Topics in Liability Insurance Coverage: Advertising Injury and Product Disparagement," West LegalEdcenter, December 4, 2012
• Speaker, Keeping the (Good) Faith: California Law on Insurer Bad Faith in Third Party Liability Cases," West LegalEdcenter, September 13, 2012
• Panelist, "Casualty Claims and Litigation: Tales from the Front Lines," Advisen's Casualty Insights Conference, New York City, June 2, 2011
• Speaker, "Insurer Litigation Management Guidelines: Ethical Obligations and the Tripartite Relationship," Litigation Section of the Barristers Club, January 24, 2008
• "Preservation of Documents: Where We Are and Where We're Going," presented to the Association of California Insurance Companies Annual General Counsel Seminar, Las Vegas, Nevada, July 20, 2006
• "The Rules of the Road for Claims," presented to the Surplus Lines Association's Ethics Training for the Insurance Professional Seminar, Universal City, California and San Francisco, May 15 and 16, 2006
• "Personal Injury, Advertising Injury and Intellectual Property Coverage Matters," moderator for panel presented to ALFA International's Insurance Law Seminar, New York, New York, June 3, 2005
• "17200 as a Component of Broader Business Litigation Strategies," presented to Bridgeport Continuing Education's 17200 Litigation in California Seminar, San Francisco and Irvine, California, June 28, 2004 and September 10, 2004
• "Suits Against Insurers: Claims and Defenses," presented to Bridgeport's Third Annual Mold Insurance Litigation Conference, February 26, 2004
• "Recovery of Damages by Policyholders," presented to Bridgeport Continuing Education's Third Annual Managing Mold Liabilities Conference, July 16-17, 2003
• "Emerging Issues in California Indoor Air Quality and Toxic Mold Litigation," presented to the National Business Institute, February 28, 2003
• Insurer Client Seminars: Mr. Stern provides regular seminars to insurer clients on the Fair Claim Settlement Practices Act and on emerging issues as to insurance coverage and bad faith liability.