Insurers often call upon Wiley to represent them on appeal in cases that raise issues of precedential importance to the industry or present high financial exposure to the insurer retaining the firm. Wiley attorneys have represented insurers and industry trade groups in federal and state appellate courts throughout the country – including all of the federal courts of appeals, as well as state supreme courts and intermediate courts of appeals. The firm’s Insurance Appellate Practice includes many former judicial clerks from federal and state courts, and the Group also calls on the expertise of the firm's former United States Supreme Court clerks.
Wiley has the capability to provide full briefing and oral argument of insurance issues in any appellate setting. The Insurance Appellate Practice often advises insurance clients on coordinated nationwide litigation strategy for the pursuit of desired legal results and minimizing litigation risks, including the selection of cases and issues for appeal. We handle many coverage cases from inception in the trial court through completion of appellate proceedings. Other times, Wiley is retained at the appellate stage to take a fresh look at the issues and potential grounds for appeal, as our appellate attorneys are adept at isolating and developing key legal issues appropriate for appellate review.
Wiley’s insurance appellate work addresses the full range of contractual and excontractual issues arising under general liability and professional liability policies, including the meaning of substantive policy provisions, issues relating to defense (such as reimbursement and reasonableness of defense costs and choice of counsel) and indemnification, procedural issues (such as jurisdiction, forum non conveniens, arbitration, choice of law, and forum selection clauses), and “bad faith” claims. Representative cases include:
- Travelers Indemnity Co. v. CNH Industrial America, LLC, 2018 WL 3434562 (Del. July 16, 2018). Represented insurer on appeal to the Delaware Supreme Court from a nearly $14 million judgment against the insurer in a case involving whether a comprehensive general liability policy provided coverage for hundreds of asbestos claims, obtaining decision reversing and directing that judgment be entered for the insurer.
- First Horizon Nat’l Corp. v. Houston Cas. Co., No. 17-5767 (6th Cir., filed on July 5, 2017) and No. 15-2235, 2017 WL 2954716 (W.D. Tenn. June 23, 2017). Currently representing insurer on appeal to the Sixth Circuit after prevailing in the district court, which held that an insured’s boilerplate notice of a potential claim was untimely and insufficient to provide notice of an actual claim.
- Cas. Co. of Reading, Pa. v. Belcher, 709 F. App’x 606 (11th Cir. 2017). Represented insurer in appeal to the Eleventh Circuit, in which the court affirmed the trial court’s ruling that 11 claims brought by patients against a pharmacy and pharmacist for negligently repackaging two preservative-free drugs for injections by the same doctor to treat the same condition constituted “related claims.”
- Cont’l Cas. Co. v. Boughton, 695 F. App’x 596 (2d Cir. 2017). Successfully briefed and argued appeal in which the Second Circuit affirmed a judgment based on a partial summary judgment and later jury verdict obtained by Wiley in the district court determining that the insurer was entitled to rescind a professional liability policy.
- Cont’l Cas. Co. v. Kool Radiators Inc., 689 F. App’x 877 (9th Cir. 2017). Represented insurer in appeal to the Ninth Circuit, which affirmed the trial court’s decision that an insured’s soliciting an investment in an entity in which it had a personal stake did not constitute “professional services” under an accountants errors and omissions (E&O) policy.
- Edwards v. Cont’l Cas. Co., 841 F.3d 360 (5th Cir. 2016). Represented insurer in appeal to the Fifth Circuit, in which the court held that a lawsuit seeking only the return of legal fees paid to insured attorney as contingency fee from settlement does not seek covered “damages” and does not allege an act or omission in the performance of legal services.
- Christensen v. Darwin Nat’l, 645 F. App’x 533 (9th Cir. 2016) and No. 13-00956, 2014 WL 1628133 (D. Nev. Apr. 14, 2014). Prevailed in trial court on summary judgment in litigation alleging bad faith and seeking extra-contractual damages. On appeal, obtained affirmance on grounds that business enterprise and trust exclusions in the lawyers professional liability policy barred coverage for lawsuit alleging self-dealing by the insured attorney and law firm.
- The PNC Fin. Servs. Grp., Inc. v. Houston Cas. Co., 647 F. App’x 112 (3d Cir. 2016). Successfully defended insurer in appeal of trial court ruling determining that insured’s settlement in excess of $100 million of claims from bank customers arising from allegedly excessive overdraft protection fees did not constitute insurable loss under subject policies. Also obtained reversal of trial court ruling that plaintiffs’ attorneys’ fees awarded out of settlement funds were covered.
- C. and A.N. Miller Dev. Co. v. Cont’l Cas. Co., 814 F.3d 171 (4th Cir. 2015). Successfully briefed and argued case in which the Fourth Circuit affirmed the district court’s ruling that the insurer properly denied coverage based upon policy’s related-claims provision.
- VierraMoore, Inc. v. Cont’l Cas. Co., 607 F. App’x 749 (9th Cir. 2015). Represented insurer in appeal to the Ninth Circuit, which affirmed the ruling that it had no duty to defend or indemnify an insured under an errors and omissions liability policy and that the insurer was entitled to recoupment for funds paid to settle the underlying claim.
- Strategy Grp., PLC v. Cont’l Cas. Co., 620 F. App’x 422 (6th Cir. 2015) and No. 14-2154, 2014 WL 11515524 (W.D. Tenn. Sept. 23, 2014). Prevailed in the trial court on motion to dismiss complaint seeking coverage under accountants professional liability policy. On appeal, obtained affirmance on grounds that an exclusion of any potential coverage for the claims, and the concurrent causation doctrine, did not apply because all of the insured’s actions entailed the recommendation of illegal tax shelters.
- XL Specialty Ins. Co. v. Lakian, 632 F. App’x 667 (2d Cir. 2015). Represented insurer in district court and on appeal in a coverage interpleader action.
- Protection Strategies, Inc. v. Starr Indem. & Liab. Co., 611 F. App’x. 775 (4th Cir. 2015) and No. 13-763, 2014 WL 1655370 (E.D. Va. Apr. 23, 2014). Represented insurer at trial and on appeal to the Fourth Circuit, which affirmed the trial court decision granting summary judgment to our client based on the prior knowledge, fraud, and personal profit exclusions, holding that the insurer was entitled to recoup defense costs it had paid, and awarding a monetary judgment to our client.
- Piedmont Office Realty Tr., Inc. v. XL Specialty Ins. Co., 790 F.3d 1252 (11th Cir. 2015). Successfully represented an insurer in federal district court, and on appeal, in a lawsuit alleging breach of contract and bad faith involving consent-to-settle and no-action clauses. The Eleventh Circuit affirmed the district court’s dismissal of the lawsuit with prejudice.
- Piedmont Office Realty Tr., Inc. v. XL Specialty Ins. Co., 771 S.E.2d 884 (Ga. 2015). Successfully briefed and argued a coverage action before the Georgia Supreme Court and obtained a unanimous ruling in favor of insurer on consent-to-settle and no-action clause issues.
- XL Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208 (Del. 2014). Presented oral argument and obtained a unanimous ruling from the Delaware Supreme Court holding that a coverage action by a litigation trust against several insurance carriers was not ripe because the trust had not obtained a settlement or judgment, and the insureds’ defense costs had been covered by other insurance.
- Singletary v. Beazley Ins. Co., Inc., 585 F. App’x 177 (4th Cir. 2014). After obtaining summary judgment in the district court, prevailed on appeal of coverage action alleging bad faith.
- XL Specialty Ins. Co. v. Perry, Nos. 12-56275, 12-56296, 12-56311, 12-56337, 12-56347, 12-56350 (9th Cir. 2014). Represented insurers in appeal of a ruling establishing that a variety of civil claims and investigations arising out of the collapse of IndyMac Bancorp related back to prior claims made before the inception of the policy period.
- Kilcher v. Cont'l Cas. Co., 747 F.3d 983 (8th Cir. 2014). As appellate counsel, obtained an Eighth Circuit decision reversing the trial court and holding that claims by four siblings against an investment advisor alleged “Interrelated Wrongful Acts” and therefore constituted a single claim because each sibling alleged that the advisor provided unsuitable investment advice and breached her fiduciary duties to each sibling in the same manner.
- Cont'l Cas. Co. v. Law Offices of Melbourne Mills, Jr., PLLC, 676 F.3d 534 (6th Cir. 2012) and No. 5:06-272-JMH, 2010 WL 996472 (E.D. Ky. Mar. 16, 2010). Represented insurance carrier in the trial court and on appeal, obtaining a Sixth Circuit decision affirming the trial court’s judgment and holding that an insured attorney’s failure to disclose circumstances that could result in a claim and pending disciplinary proceedings constituted material misrepresentations justifying rescission of the policy.
- Bryan Bros., Inc. v. Cont'l Cas. Co., 660 F.3d 827 (4th Cir. 2011) and 704 F. Supp. 2d 537 (E.D. Va. 2010). Successfully represented insurer at trial and on appeal in the Fourth Circuit, in which the court held that there was no coverage under a professional liability policy for a claim where a single insured had knowledge of circumstances that could reasonably be expected to result in a claim before the inception date of the policy.
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