Mr. Gana’s experience includes securities arbitration and litigation in various dispute resolution forums including JAMS, NFA and FINRA and litigation in both State and Federal Courts. As lead counsel, Mr. Gana has tried more than forty cases to verdict before the state and federal trial and appellate courts, AAA, and has settled hundreds more cases through mediation and direct negotiation. In one case out of Illinois, for example, the question was whether a certificate of insurance created rights for a property owner under the general liability policy of a roofing contractor . The certificate said that United was covered under Taylor’s policy. The problem was that, unbeknownst to United, the policy itself provided no such coverage. One of United’s employees fell off a ladder supplied by Taylor.
The Port Authority case proves that even large organizations can get burned by judges who are uncomfortable with The Four Simple Rules. When you have come to a decision, simply use the contact form on the profiles to connect with a New Jersey attorney for legal advice. When you come across individuals who stand out to you, simply explore their profiles by clicking this link halestewartlaw.net
As an outside observer, I obviously don’t know what settlement discussions took place before this trial. There’s an old saying that “some cases just have to be tried.” I don’t believe that. Risk assessment may be complex, but it’s doable in every case, through the use of focus groups and other techniques.
This being America, the employee sued Taylor, which then sued United (the classic “claim-over” scenario.). Criticism of policyholder-side coverage lawyers notwithstanding, businessowners have been asking us specific and urgent questions about business interruption insurance in the context of the current public health emergency. I’m ever the optimist when it comes to coverage questions, but I unfortunately think that many business interruption claims may be a tough row to hoe.
The United case may have involved a mix-up in the paperwork, but some cases involve straight-up fraud. We recently handled a matter in which a contractor forged a certificate of insurance required by a contract, presumably because he couldn’t afford the actual coverage. Anyone, really, can easily fake an insurance certificate. Suppose a subcontractor with whom you’re worked before runs into money troubles.
Here again, we have physical damage in a direct causal chain to the policyholder’s premises. I suspect that the less direct the effect, the harder it will be to convince a judge to enforce business interruption coverage. The case, Emmis Communications v. Illinois National, dealt with the question of Directors’ and Officers’ liability coverage for litigation resulting from a complicated plan to take a company private. In 2010, seven separate shareholder lawsuits were filed against the policyholder, Emmis, after the go-private plan was abandoned. Emmis reported the lawsuits to its carrier, Chubb, which accepted coverage under a reservation of rights. The lawsuits were voluntarily dismissed, and no class was ever certified.
Yet BWD waited until the day before Sandy struck to alert Wakefern of the significance of the named storm deductible. Failing to abide by clear contractual obligations in a timely way will always have an impact on a jury. Under Owens, if a carrier denies the claim outright and doesn’t initiate the required allocation proceedings, the logical conclusion is that the carrier should be held liable for the full amount of the loss. Unfortunately, many judges are uncomfortable with that concept, so the delay, deny, defend game continues. Amazingly but perhaps not surprisingly, the Court found that, because the Fiume case settled and there had been no finding that Techno Consult had actually caused Fiume’s bodily injury, there was no coverage for the Port Authority. This portion of the decision turns the duty to defend on its head.
Second, it was important to prove that the truck was legally parked. No one on the defense side thought a verdict over $2 million was likely. RLI sold a liability insurance policy to a company called Techno Consult. The Port Authority was an additional insured under the policy. The Port Authority hired Techno Consult to discover and report upon any unsafe conditions at a project at the Harrison PATH Station.