Obtained agreement by insurer to assume defense of client in personal injury lawsuit as additional insured under sub-contractor’s commercial general liability policy and to reimburse client for all defense costs incurred up to date of insurer’s assumption of defense, where client’s own carrier had disclaimed coverage based upon alleged late notice. Subcontractor’s insurer assumed defense of client within a month of filing declaratory judgment action and reversed prior position that its policy was excess to client’s policy pursuant to the “other insurance” clauses of the policies following receipt of letter demonstrating that controlling case law required subcontractor’s policy to be considered primary.
Represented law firm in declaratory judgment action filed by its professional liability carrier and obtained reimbursement of 100% of defense costs incurred by firm in defending underlying legal malpractice claim.
After a Bronx church was sued for lead paint exposure injuries allegedly sustained by one of the children in its day care program, the church’s general liability carrier commenced a declaratory judgment action in which it sought to avoid having to defend or indemnify the church in the underlying personal injury lawsuit. We were hired by the church to represent it in the lawsuit and convinced the insurance carrier and the plaintiffs and co-defendants in the underlying personal injury lawsuit to participate in a global mediation of the two lawsuits. With the assistance of a mediator, we convinced both the church’s insurer and the co-defendant in the underlying lawsuit to contribute substantially to the settlement of the plaintiff’s claims in the underlying lawsuit, as well as to dismiss the declaratory judgment action against the church, all without incurring the expense of conducting a single deposition in the declaratory judgment action.
After our client was involved in a serious accident while driving a leased car, he was sued by the occupants of the other the other vehicle, along with the leasing company that owned the leased car, a subsidiary of a major international auto manufacturer. Both the client’s auto insurer and the leasing company agreed to settle the lawsuit for nearly two million dollars without consulting our client. Immediately following the settlement, the leasing company sued our client to recover the full amount of the settlement paid, plus attorneys' fees, based upon an indemnification clause hidden in the fine print of the auto lease contract, which placed all of the client’s assets, including his house, at risk. We sued the auto insurance carrier and the in-house counsel that represented him in the underlying lawsuit for failing to protect our client’s interests in the underlying answer and failing to obtain his informed consent to settlement. Ultimately, we filed dispositive motion practice that forced the leasing company to substantially compromise its claim against our client and then forced the auto carrier and its in-house counsel to pay almost the entire amount of the liability.
In a precedent-setting decision by Judge Joseph F. Bianco in the United States District Court for the Eastern District of New York, American Auto. Ins. Co. v. Security Income Planners & Co., 847 F.Supp.2d 454 (E.D.N.Y 2012), we obtained both insurance coverage and an award of attorneys’ fees for an investment and financial planning firm under the firm’s errors and omissions insurance policy for claims arising from a ponzi scheme. A former officer of the client investment firm secretly defalcated millions of dollars from the firm’s clientele as part of a ponzi scheme he was running. After the fraud was discovered, the former corporate officer was arrested and convicted of various financial crimes. Numerous victims of the fraud then sued the client in state court lawsuits. After the client tendered the defense of the various claims and lawsuits to its errors and omissions liability insurance carrier, the insurance carrier filed a lawsuit in federal court in which it sought a declaratory judgment that it is not obligated to defend the client, by paying defense costs and legal fees for the state court lawsuits filed against the client, or to indemnify the client for any damages awarded against it in the state court lawsuits. The insurer alleged that numerous exclusions contained in the insurance policy applied to the claims and lawsuits and, therefore, the policy did not provide any coverage for the claims and lawsuits. In response, we filed a motion for partial summary judgment on behalf of the client in which he argued that the carrier was legally obligated to pay for the defense of the state court lawsuits filed against the client and to reimburse the client for the costs of defending against the declaratory judgment action filed by the insurer in federal court. In his extensive written opinion, Judge Bianco agreed and ordered the errors and omissions carrier to pay for the defense of the client in the state court lawsuits and to reimburse the client for the legal fees incurred in defending against the declaratory judgment lawsuit filed by the insurance carrier.
Acted as co-counsel and obtained summary judgment and declaratory judgment that client, a former IT director for Forbes Magazine, was “Totally Disabled” under both “Own Occupation” and “Any Occupation” phases of employer sponsored, group long-term disability insurance policy, and awarded attorney’s fees pursuant to ERISA statute. The court’s decision awarded the client all of his past benefits, interest, and attorney’s fees, and obligates the carrier to continue paying the client until he is 65, unless he recovers. The total value of this victory is more than $1.5 million. The court’s opinion addressed numerous cutting-edge ERISA issues, including scope of review of administrator’s adverse benefit determination, standard of review, vesting of rights under ERISA plan and admission of medical records not contained in “administrative record.” Lijoi v. Continental Cas. Co., 414 F. Supp. 2d 228 (E.D.N.Y. 2006) and Lijoi v. Continental Cas. Co., 2007 WL 708238 (E.D.N.Y. 2007). Case featured as front-page story in Mealey’s Litigation Report: Disability Insurance (February/March 2006).
Acted as co-counsel on extensive pre-trial motions, trial, post-trial motions, and subsequent appeal by defendants in disability insurance claim by orthopedic surgeon. Obtained $2M judgment for past benefits and interest and defeated $1M counterclaim by carrier for refund of past benefits allegedly obtained by fraud (client entitled to receive additional $3M in monthly benefits over his lifetime). Korn v. First Unum Life Ins Co., 57 A.D.3d 948, 869 N.Y.S. 2d 790 (2d Dept. 2008) (affirming trial court’s denial of defendants’ post-trial motions and entry of judgment in favor of plaintiff). Case featured as front-page story in Mealey’s Litigation Report: Disability Insurance (February/March 2006).
Acted as co-counsel and won summary judgment and dismissal of equitable restitution claims brought by health insurer against regional fuel oil company on grounds that carrier’s claim for recovery of all claims paid under group health insurance plan did not constitute equitable relief within the meaning of ERISA Section 502(a)(3)(B). Discovery showed that group health policy was not obtained by fraudulent misrepresentation on policy application and carrier’s initiation of litigation was the result of efforts to engage in post-claim underwriting after group incurred large medical bills during third year of group health plan. Scarangella v. Group Health, Inc., 2009 WL 764454 (S.D.N.Y. 2009) (subsequent motion for attorney’s fees granted).
Defeated $3.5M fraud and unjust enrichment claims brought by disability insurance carrier against client, a currency trader at an investment bank, and obtained $4.25M settlement of client’s counterclaim for disability benefits.
Prepared successful ERISA appeal and obtained reversal of denied long term disability benefits on behalf of service technician whose comorbid disabling conditions (back and neck disc herniations and advanced heart disease) prevented him from performing the material and substantial duties of his occupation. The carrier initially concluded that there were numerous sedentary occupations that the client could perform based upon its erroneous characterization of duties of his occupation, failure to perform an appropriate vocational assessment, and impermissible cherry-picking of the client’s medical records. On appeal, we submitted detailed occupational descriptions and personal statements of the client, the client’s family members, and the client’s co-workers, narrative reports from the client’s treating physicians and a renowned specialist which demonstrated that the carrier had mischaracterized the restrictions and limitations resulting from the client’s medical condition, and a thorough vocational assessment demonstrating that the client was not vocationally qualified for the alternate occupations the carrier claimed our client could perform. After reviewing the appeal, the carrier reversed its decision and reinstated the long term disability benefits, which spared our client the emotional stress and expense of litigating the claim denial.
Prepared successful ERISA appeal and reversal of denied long term disability benefits of estates and trusts attorney whose lower back problems and side-effects from narcotic pain mediations prevented her from performing the material and substantial duties of her occupation. The carrier initially denied the claim based upon the opinion of its in-house physicians that, based solely upon a review of records and without the benefit of a physical examination of the client, the client was capable of performing the material and substantial duties of her occupation. On appeal, we submitted extensive personal statements from the client and her family members, along with a detailed narrative report from her treating psychiatrist which demonstrated that the client’s subjective complaints of pain were consistent with the disc herniations demonstrated on her MRI’s. In addition, we cited extensive caselaw which establishes that a disability carrier cannot ignore subjective complaints of pain as evidence of disability and outlined the extensive instances in which the carrier had misstated or ignored evidence of disability documented in the client’s extensive medical records. After reviewing the several thousand page appeal submitted on behalf of the client, the carrier reversed its decision and reinstated the client’s long term disability benefits.