Insurance Law Alert

February 2015

In This Issue
Colorado Supreme Court Holds That Notice-Prejudice Rule Does Not
Apply to Date-Certain Notice Requirements in Claims-Made Policies
The Colorado Supreme Court ruled that the notice-prejudice rule does not apply to violationsof date-certain notice requirements in claims-made policies. Craft v. Philadelphia Indem. Ins.
Co., 2015 WL 658785 (Colo. Feb. 17, 2015). (click here for full article)“They know theirclients, the clients know
them, their litigators grew up
with our management. Manyother firms do insurance work,
but we go straight for Simpson
Thacher for the ‘bet-the-company’
fact-intensive stuff.”–Benchmark Litigation
2015

New Jersey Supreme Court Upholds “Fairly Debatable” Standard as
Defense to Insurer Bad Faith
The New Jersey Supreme Court reiterated that a “fairly debatable” standard should be applied
to insurer bad faith claims and held that an insurer did not act in bad faith by rejecting an
arbitration award because it had “fairly debatable” reasons to do so. Badiali v. New Jersey
Manuf. Ins. Grp., 2015 WL 668206 (N.J. Feb. 18, 2015). (click here for full article)

Pollution Claims Are Not Within Scope of Completed Operations Hazard,
Says Seventh Circuit
The Seventh Circuit ruled that an insurer had no duty to defend or indemnify pollution claims,
finding that they did not fall within a Completed Operations Hazard exception to a pollution
exclusion. Visteon Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 2015 WL 294384(7th Cir. Jan. 23, 2015). (click here for full article)

In Deepwater Horizon Case, Texas Supreme Court Rules That BP’s
Additional Insured Coverage is Limited by Drilling Contract Terms
The Texas Supreme Court ruled that BP Plc was not entitled to additional insured coverage
under policies issued to Transocean Ltd., the owner of the Deepwater Horizon oil rig, because
the Drilling Contract between the parties expressly provided that BP was responsible forsubsurface pollution liabilities. In re Deepwater Horizon, Relator, 2015 WL 674744 (Tex. Feb.
13, 2015). (click here for full article)

Illinois Appellate Court Rules That Store Displays Constitute“Advertisements” Under Advertising Injury Provision
An Illinois appellate court ruled that an insurer was obligated to defend an intellectual property
infringement suit, finding that the claims alleged covered “advertising injury.” Selective Ins.
Co. of the Southeast v. Creation Supply, Inc., 2015 WL 522247 (Ill. App. Ct. Feb. 9, 2015).
(click here for full article)

Simpson Thacher & Bartlett LLP

1

New York Court Holds That False Advertising Claims Are Barred by
Failure to Conform Exclusion
A New York federal district court ruled that a Failure to Conform exclusion precluded coveragefor various common law and statutory claims asserted in class action suits against an energy
supplement manufacturer. General Star Indem. Co. v. Driven Sports, Inc., 2015 WL 307017(E.D.N.Y. Jan. 23, 2015). (click here for full article)

Insurer’s Delay in Providing Defense Did Not Breach Duty, Says California
Court
A California federal district court ruled that an insurer did not breach its duty to defend by
failing to provide an immediate and complete defense. Travelers Prop. Cas. Co. of Am. v.
Kaufman & Broad Monterey Bay, Inc., 2015 WL 581509 (N.D. Cal. Feb. 11, 2015).
(click here for full article)

Pennsylvania Court Rules That Where Lawyer Was Not Hired As In-HouseCounsel, No Attorney-Client Privilege
A Pennsylvania federal district court ruled that attorney-client privilege does not apply
to a company’s internal communications with an attorney that was hired to perform risk
management functions rather than to act as in-house counsel. Casey v. Unitek Global Services,
Inc., 2015 WL 539623 (E.D. Pa. Feb. 9, 2015). (click here for full article)

STB News Alert
Simpson Thacher is named National Insurance Practice of the Year by Benchmark Litigation
for the third consecutive year. (Click here for additional information)2

Late Notice Alert:
Colorado Supreme Court Holds
That Notice-Prejudice Rule Does
Not Apply to Date-Certain Notice
Requirements in Claims-Made
Policies

Addressing a matter of first impression under
Colorado law, the Colorado Supreme Court
ruled that the notice-prejudice rule does not
apply to violations of date-certain noticerequirements in claims-made policies. Craft
v. Philadelphia Indem. Ins. Co., 2015 WL
658785 (Colo. Feb. 17, 2015).
Under a notice-prejudice rule, coverageremains available to a policyholder unlessthe untimeliness of the notice prejudiced theinsurer’s interests. Colorado has adopted
the notice-prejudice rule in the context ofunderinsured motorist and occurrencebased policies. In Craft, the court addressed
whether the rule applies to claims-madepolicies that contain time-specific noticerequirements. The policy at issue required
the insured to give notice (1) “as soon aspracticable” after learning of a claim and (2)“not later than 60 days” after expiration of thepolicy. Because the first requirement was not
implicated by the facts of the case, the soleissue considered by the court was whether thenotice-prejudice rule applied to the second
requirement, known as a “date-certain”
clause. The Colorado Supreme Court held thatit does not.
The court reasoned that the date-certain
notice requirement of a claims-made policy
defines the scope of coverage. Therefore,“to excuse late notice in violation of such arequirement would rewrite a fundamental
term of the insurance contract.” The court
further explained that the rationales for
applying a notice-prejudice rule in theoccurrence-based policy context do notextend to claims-made policies. Morespecifically, the court indicated that whereasa prompt notice provision in an occurrencebased policy serves to allow an insurer toinvestigate claims and participate in the
defense and settlement negotiations, adate-certain requirement in a claims-madepolicy defines the “temporal boundaries ofthe policy’s basic coverage terms.” The court
therefore concluded that while “excusing late
notice and applying a prejudice requirement
makes sense in the context of a prompt noticerequirement, extending such concepts to adate-certain notice requirement ‘would defeat
the fundamental concept on which coverage ispremised.’”In setting this bright-line rule, the court
expressly declined to apply a notice-prejudicerule where a claims-made policy is renewed,
creating back-to-back policy periods. A
small minority of courts have endorsed thisapproach in order to “fill the ‘gaps’ between
successive policy periods that may result
when a claim is made in one period but
not reported until the subsequent policy
period, after the previous policy’s reporting
period has expired.” See, e.g., AIG Domestic
Claims, Inc. v. Tussey, 2010 WL 3603844(Ky. Ct. App. Sept. 17, 2010) (finding that
two successive claims-made policies created“seamless coverage” such that policyholder’s
failure to report a claim during the first policy
period did not bar coverage because the claim
was reported during the second policy period)(discussed in November 2010 Alert). The
court deemed such decisions inapposite.

3

Bad Faith Alert:

New Jersey Supreme Court Upholds“Fairly Debatable” Standard as
Defense to Insurer Bad Faith
The New Jersey Supreme Court reiterated
that a “fairly debatable” standard should beapplied to insurer bad faith claims and heldthat an insurer did not act in bad faith byrejecting an arbitration award because it had“fairly debatable” reasons to do so. Badiali
v. New Jersey Manuf. Ins. Grp., 2015 WL
668206 (N.J. Feb. 18, 2015).
The coverage dispute arose out of a
motor vehicle accident. An insured driver(“plaintiff”) filed an uninsured motorist
claim, which proceeded to arbitration that
resulted in an award in plaintiff’s favor.
Plaintiff’s insurer, New Jersey Manufacturers
Insurance Group (“NJM”), rejected theaward and refused to pay. Plaintiff broughtsuit and a trial court confirmed the award
and found NJM liable. In a subsequentaction, plaintiff alleged that NJM acted inbad faith. Thereafter, the court awarded
summary judgment in NJM’s favor, holdingthat NJM’s rejection of the arbitration award
was based on “fairly debatable” reasons andtherefore not in bad faith. The New Jersey
Appellate Division and New Jersey Supreme
Court affirmed.
The New Jersey Supreme Court held thatthe bona fides of NJM’s rejection of thearbitration award was “fairly debatable”
in light of policy language and a priorunpublished Appellate Division opinion in acase to which NJM was a party. Addressing amatter of first impression, the court explainedthat although unpublished decisions haveno legal precedential value, an unpublisheddecision may form a sufficient basis foravoiding a finding of bad faith, particularly
where, as here, the insurer was involved in
the other litigation and thus had reason tobelieve that “it was making a legitimate legal
and business decision.” The unpublisheddecision aside, the court held that policy
language established a “fairly debatable”
basis for rejecting the award. NJM’s policy
provided that either party may demand atrial if an arbitration award exceeds $15,000.
Here, although NJM’s share of the arbitration
award was less than that amount, the total
award was approximately $29,000. The court
therefore concluded that NJM’s refusal toaccept the arbitration award, based on its
total value rather than NJM’s proportionate
share, was not unreasonable. (However,the court ruled that going forward, any
policy references to $15,000 as the basis
for rejecting an arbitration award should beinterpreted to refer to the amount that theinsurance company is required to pay, not to
the total amount of the award).
Badiali reinforces that under New Jersey law,
first-party bad faith requires a showing that“no debatable reasons existed for denial of
the benefits.” The court expressly declined
to adopt an approach that considers theinvestigation and valuation performed by theassigned claims handler in denying coverage,
expressing reservations “about the potential
discovery complications associated with suchan approach.”4

Coverage Alert:

Pollution Claims Are Not Within
Scope of Completed Operations
Hazard, Says Seventh Circuit
The Seventh Circuit ruled that an insurer
had no duty to defend or indemnify pollution
claims, finding that they did not fall within aCompleted Operations Hazard exception to apollution exclusion. Visteon Corp. v. National
Union Fire Ins. Co. of Pittsburgh, Pa., 2015
WL 294384 (7th Cir. Jan. 23, 2015).
Visteon, an automobile parts manufacturer,
was sued for allegedly contaminating soil
and groundwater. National Union, Visteon’s
liability insurer, denied coverage based ona pollution exclusion. In ensuing litigation,an Indiana federal district court ruled that
Michigan law governed the dispute, thatthe pollution exclusion barred coverage forall claims and that a Completed Operations
Hazard clause, which operated as an
exception to the pollution exclusion, did not
apply. The Seventh Circuit affirmed.
Addressing choice of law, the court concluded
that Michigan (rather than Indiana) law
governed the coverage dispute. Visteon
advocated application of Indiana law because
the alleged pollution occurred at an Indiana
plant site. The court disagreed, explainingthat the litigation arose from a dispute
over the insurance contract rather than theunderlying pollution-related activities, andnoting that the policy covered risks at sites
throughout the world. The court followed
Indiana’s “uniform-contract-interpretation
approach” under which the law of a single
state is applied to the entire insurance
contract even though “it covers multiple risks
in multiple states.” See National Union Fire
Ins. Co. of Pittsburgh, PA v. Standard Fusee
Corp., 940 N.E. 810 (Ind. 2010) (discussed in
February 2011 Alert). Under this approach,the single state that is chosen is typically“the state having more insured sites than any
other.” Here, fourteen of Visteon’s plants
were located in Michigan—more than in any
other state—and the personnel in charge ofadministering insurance contracts (including
the policy at issue) were stationed there,
as was the policyholder’s headquarters.
Therefore, notwithstanding that the property
damage occurred in Indiana, the Seventh
Circuit upheld application of Michigan law.

The Completed Operations Hazard exception
restored coverage for pollution-related
damages “occurring away from premises
you own or rent and arising out of … Your
Work except … work that has not yet been
completed or abandoned.” Visteon argued
that this clause applied because the causeof the contamination—the seeping of toxic
solvents—was the resulted of “completed”
work. More specifically, Visteon contended
that its “work” was “completed” each timea contract to supply automobile parts was
performed. The Seventh Circuit disagreed.
Siding with National Union, the court
reasoned that work was not complete because
operations continued at the plant for several
years after the seepage and long after the
National Union policy expired. In rejecting
Visteon’s argument, the court noted that it’s
adaptation would “erase[ ] the line between
completed and ongoing operations” and“swallow[ ] the entire pollution-exclusion
clause—the exception becoming the rule.”
As the Seventh Circuit noted, courts haveapplied the completed operations hazard
exception to the pollution exclusion
narrowly; only to damage or injury caused byoccurrences which arise after the completionof work by the policyholder.

Additional
Insured Alert:

In Deepwater Horizon Case, Texas
Supreme Court Rules That BP’s
Additional Insured Coverage is
Limited by Drilling Contract Terms
The Texas Supreme Court ruled that BP
Plc was not entitled to additional insured
coverage under primary and excess policies
issued to Transocean Ltd., the owner ofthe Deepwater Horizon oil rig, because
the Drilling Contract between the parties
expressly provided that BP was responsible
for subsurface pollution liabilities. In re
Deepwater Horizon, Relator, 2015 WL
674744 (Tex. Feb. 13, 2015).
The parties did not dispute that BP wasan additional insured under Transocean’s
policies. However, Transocean and theinsurers argued that BP was not entitled tocoverage for subsurface pollution liabilities
because it explicitly assumed those risks in
the Drilling Contract. A Louisiana federal
5district court agreed, ruling that any
additional insured coverage available to BP
under Transocean’s policies was limited toliabilities assumed by Transocean in the
Drilling Contract. The district court heldthat because Transocean had not assumed
subsurface pollution liability risks, BP could
not be deemed an additional insured as tothose risks. In re Oil Spill by the Oil Rig“Deepwater Horizon” in the Gulf of Mex. On
Apr. 20, 2010, 2011 WL 5547259 (E.D. La.
Nov. 15, 2011) (discussed in December 2011
Alert). The Fifth Circuit reversed, reasoningthat coverage should be ascertained solely
from the “four corners of the insurance
policies” without reference to the Drilling
Contract. On rehearing, the Fifth Circuit
withdrew its opinion and sought guidancefrom the Texas Supreme Court.
The central issue referred to the Texas
Supreme Court was whether the insurance
policies incorporated the terms of the Drilling
Contract, such that the allocation of liabilities
in the Drilling Contract would define thescope of additional insured coverage. BP
argued that nothing in the insurance policies
indicated an intent to incorporate theDrilling Contract, and that under the termsof the policies, BP is covered for all “liability
imposed by law,” including subsurface
pollution. In contrast, Transocean and theinsurers argued that BP is an additional
insured “only by virtue of the status conferred
to it under the Drilling Contract, to which
the policies necessarily refer by predicating
additional-insured status on the existence ofan oral or written ‘Insured Contract’ requiringsuch coverage.” The insurers therefore
contended that the Drilling Contract wasnecessarily incorporated into the policies.
Because the Drilling Contract required
Transocean to name BP as an additional
insured only for above-surface pollution risks(assumed by Transocean), the insurers argued
that BP is not entitled to additional insured
coverage for subsurface pollution liabilities.
The Texas Supreme Court agreed. The court
reasoned that the language in the insurance
policies providing additional insured coverage“where required” necessitates reference to theDrilling Contract, which assigned liability forsubsurface pollution to BP, not Transocean.
The decision leaves unanswered the questionof what language is necessary to establish
the incorporation of a separate contract
in insurance policies, such that the scopeof coverage is governed by the terms of anagreement to provide additional insured
coverage, rather than the insurance policy
itself. The court noted that there are no“magic” words required to do so. Rather,a clear manifestation of intent to include
the contract as part of the policy must be
established. Under In re Deepwater Horizon,a relevant factor in this analysis is whether
the additional insured is specifically namedin the policy, or alternatively (as was thecase here), is made an additional insured
by virtue of a separate indemnity contract,which, under the terms of the insurance
policy, establishes additional insured status.
As the decision illustrates, if incorporation isestablished, a separate contract can operate
to limit the scope of coverage even where theinsurance policy contains no such limitation.

Advertising
Injury Alerts:

Illinois Appellate Court Rules
That Store Displays Constitute“Advertisements” Under
Advertising Injury Provision
An Illinois appellate court ruled that aninsurer was obligated to defend an intellectual
property infringement suit, finding that theclaims alleged covered “advertising injury.”
Selective Ins. Co. of the Southeast v. Creation
Supply, Inc., 2015 WL 522247 (Ill. App. Ct.
Feb. 9, 2015).

6

Creation Supply was sued for trademark
infringement and Lanham Act violations,among other claims, in connection with
its sale of square-shaped colored markers.
Selective Insurance sought a declarationthat it had no duty to defend because
the complaint did not allege advertising
injury. Specifically, Selective argued that
there was no causal connection between
Creation Supply’s advertising activities
and the damages alleged in the underlying
case because the claims were based on
Creation Supply’s sale of the markers, not its
advertising activities. Both sides moved forsummary judgment. An Illinois trial court
ruled in Creation Supply’s favor, and theappellate court affirmed.
The policy defined “advertisement” as “anotice that is broadcast or published to thegeneral public or specific market segments
about your goods, products, or services for the
purpose of attracting customers.” The court
concluded that Creation Supply’s in-store
retail display, which depicted the shapeand design of the markers, constituted anadvertisement. In so ruling, the court notedthat the placards were “more than the mere
display of the product itself and affirmatively
serve to attract customers.” The court
therefore reasoned that the retail display
served as “an announcement disseminating
the product to the public.”
Importantly, the court emphasized that
not all retail product displays constituteadvertising. The court distinguished anin-store retail display that does not depict

the infringing product, such as a “large bin
containing the markers and nothing more,”noting that under such circumstances,“Selective would have a valid argument thatthe retail product display did not constituteadvertising as contemplated by the policy.”
Illinois precedent also illustrates that productdisplays do not constitute advertising if
they are not disseminated to the public. See
Santa’s Best Craft, LLC v. Zurich AmericanIns. Co., 941 N.E.2d 291 (1st Dist. 2010)(product displays presented to 75-100
retailers by invitation in policyholder’sshowroom did not constitute advertising)(discussed in February 2011 Alert).

New York Court Holds That False
Advertising Claims Are Barred by
Failure to Conform Exclusion
A New York federal district court ruled thata Failure to Conform exclusion precluded
coverage for various common law andstatutory claims asserted in class action suits
against an energy supplement manufacturer.
General Star Indem. Co. v. Driven Sports,
Inc., 2015 WL 307017 (E.D.N.Y. Jan.
23, 2015).
The suits alleged that Driven Sports, Inc.
marketed an energy supplement (“Craze”)
as containing natural ingredients, when infact, it contained an illegal and potentiallydangerous methamphetamine analog. The
complaints alleged a variety of statutory andcommon law causes of action, including false
advertising, unfair competition, deceptive
practices and consumer protection violations.
General Star agreed to provide a defense
subject to a reservation of rights, including
the right to recoup defense costs in the event
it was determined that the policy did notprovide coverage. General Star sought adeclaration as to its coverage obligations, andboth parties moved for summary judgment.
The court ruled in General Star’s favor,
finding that the policy’s Failure to Conform
exclusion barred coverage for all claims.
The Failure to Conform exclusion precludes
coverage for “personal and advertising injury
arising out of the failure of goods, products
or services to conform with any statementof quality or performance made in [thepolicyholder’s] advertisement.” The court
concluded that all of the injuries alleged in theunderlying suits “arose out of” Craze’s failure
to conform with advertised statements about7it. The court reasoned that all underlying
claims stemmed from allegations that Craze
failed to meet its advertised quality.
The court rejected Driven Sports’ assertion
that the underlying complaints alleged bothcovered and uncovered claims, such that
General Star was obligated to defend thesuits in their entirety. In doing so, the court
held that under New York law, “the questionis whether the plaintiffs in the underlying
action would be able to prove the allegedly
covered claim without proving the uncovered
claim.” Here, the court found that none of theunderlying claims could be proven without
proving that Craze failed to conform withadvertisements about its quality. The court
likewise rejected Driven Sports’ argumentthat statements on its website gave rise to
separate and independent disparagement
claims (outside the scope of the Failure to
Conform exclusion), explaining that website
statements were not referenced in theunderlying complaints and therefore not thebasis of any underlying claims. Finally, thecourt rejected the notion that phrase “quality
or performance” in the exclusion was vague
and/or did not encompass allegations relating
to the ingredients of a product.
The court also addressed General Star’s claim
for recoupment of defense costs. Indicatingthat New York law is “unclear” on this issue,
the court concluded that recoupment was
not appropriate because the policy wassilent on the issue and the policyholder
expressly refused to consent to recoupment.
However, the court ruled that policy language
established that the policy was “selfliquidating,” such that defense costs expendedby General Star counted against the limitsof liability.

Defense Alert:

Insurer’s Delay in Providing
Defense Did Not Breach Duty, Says
California Court
A California federal district court ruled thatan insurer did not breach its duty to defend by
failing to provide an immediate and complete
defense. Travelers Prop. Cas. Co. of Am. v.
Kaufman & Broad Monterey Bay, Inc., 2015
WL 581509 (N.D. Cal. Feb. 11, 2015).
Travelers agreed to defend certain additional
insured parties (the “Defendants”) in anunderlying product liability suit subject to areservation of rights. The Defendants opposed
Travelers’ choice of counsel on the basis of apurported conflict of interest. Travelers filed
suit arguing that Defendants’ refusal to accept
appointed counsel constituted a breach of thepolicy’s cooperation clause and the impliedcovenant of good faith and fair dealing.
Defendants counterclaimed that Travelers
failed to provide an immediate and complete
defense. The court disagreed and ruled inTravelers’ favor.
Travelers received notice of tender on
July 6, 2012. Two weeks later, Travelers
acknowledged tender and requested certain
documentation. Defendants did not respond.
Approximately three months later, Travelers
again contacted Defendants, who thereafter
immediately forwarded the requested
materials. Within one week of receiving the
documentation, Travelers agreed to provide
a defense. The court held that this factual
record established that Travelers fulfilled
its obligation to provide an immediate
defense. The court rejected Defendants’contention that Travelers was obligated toprovide a defense immediately upon tender,
finding that “the duty to defend did notarise until [Travelers] was provided with all
the information necessary to determine theexistence of coverage.”
The court explained that a reservation ofrights that includes “extensive limitations”
of the insurer’s defense obligations does not,without more, constitute a failure to provide
a complete defense. The court further ruledthat Travelers did not violate its defense
obligations by settling the underlying action
without Defendants’ consent (and thereafter
withdrawing its defense of the action). The
court explained that a defending insurer
has the right to control the defense andsettlement of the underlying action so longas the insurer does not further its own
interests at the policyholder’s expense. Here,
Defendants failed to show that the settlement
and subsequent withdrawal resulted inincreased fees or costs above what they would
have otherwise incurred. In particular, thecourt held that Travelers was entitled to limit
its settlement to claims arising out of thenamed insured’s work because the policy’s
additional insured clause provided coverage
only for claims arising out of the named
insured’s work.

8

Privilege Alert:

Pennsylvania Court Rules That
Where Lawyer Was Not Hired As
In-House Counsel, No AttorneyClient Privilege
A Pennsylvania federal district court ruledthat attorney-client privilege does not apply
to a company’s internal communications
with an attorney that was hired to perform
risk management functions rather than to act
as in-house counsel. Casey v. Unitek Global
Services, Inc., 2015 WL 539623 (E.D. Pa. Feb.
9, 2015). Although the decision was issued inan employment discrimination case, insurers
may be able to rely on its holding in coveragelitigation to obtain full access to risk manager
files.
Unitek had hired Casey as its Director of
Risk Management and then promoted her
to Vice President of Safety and Risk. Unitek
later fired Casey, allegedly as a result of her
discrimination and harassment complaints.
During litigation, Unitek argued that Casey
was employed as an attorney and wastherefore prohibited from using privileged
communications to support her claims. The
court disagreed, finding that an attorneyclient relationship did not exist between
Casey and Unitek.
First, the court found that Casey was not
hired as an attorney or for the purposeof providing legal advice, but rather forassessing the company’s risk and insurance
needs—a position that required no legal
knowledge. Second, the court ruled that
Casey’s participation in insurance claim
litigation management did not establish
an attorney-client relationship. Although
Casey received court notices, retained andcommunicated with outside counsel, verified
pleadings, made discovery responses, granted
settlement authority, and attended quarterly
litigation update meetings, the court foundthat “the cases were not assigned to her officebecause she was an attorney. Rather, she tookcharge of these claims because the insurance
policies which she negotiated and oversaw
would indemnify Unitek for any loss.” Thecourt therefore concluded that Casey was “notacting as Unitek’s attorney,” but instead “wasacting as a client to outside counsel.”
Alternatively, the court held that evenassuming that Casey was in-house counsel,

Unitek failed to identify any specificprivileged communications that warranted
the issuance of a protective order. In thiscontext, the court emphasized that evenwhen communications are made between
a company and its counsel, attorney-client
privilege applies only if the “communicationin question was made for the express purposeof securing legal not business advice.” Here,the court held that Unitek had not establishedthat any specific communications were madeto Casey in her role as legal advisor.
Finally, the court denied Unitek’s motion
to file certain privileged documents under
seal. The court acknowledged the “privileged
character of some of the exhibits” but heldthat by using attorney-client privilege as acomplete defense to Casey’s lawsuit, Unitek
waived its right to assert privilege. As
discussed in our January 2015 Alert, courts
routinely refuse to protect attorney-client
communications where a party seeks to use
privilege “as both a sword and a shield.”

STB News Alert
Last month and for the third consecutive
year, Benchmark Litigation named
Simpson Thacher the National Insurance
Practice of the Year, recognizing the Firm’s
representations of insurers and reinsurers
and describing Simpson Thacher as the
go-to firm for litigation and trial of complex
insurance matters. Benchmark Litigation
recognizes firms that have emerged as leadersin particular areas of law over the past 12
months based on extensive industry research.
9

Simpson Thacher has been an international leader in the practice of insurance and reinsurance law for
more than a quarter of a century. Our insurance litigation team practices worldwide.
Mary Kay Vyskocil+1-212-455-3093
mvyskocil@stblaw.com

Chet A. Kronenberg+1-310-407-7557
ckronenberg@stblaw.com

George S. Wang
+1-212-455-2228
gwang@stblaw.com

Andrew S. Amer
+1-212-455-2953
aamer@stblaw.com

Linda H. Martin+1-212-455-7722
lmartin@stblaw.com

Deborah L. Stein+1-310-407-7525
dstein@stblaw.com

David J. Woll
+1-212-455-3136
dwoll@stblaw.com

Bryce L. Friedman+1-212-455-2235
bfriedman@stblaw.com

Craig S. Waldman+1-212-455-2881
cwaldman@stblaw.com

Mary Beth Forshaw+1-212-455-2846
mforshaw@stblaw.com

Michael D. Kibler+1-310-407-7515
mkibler@stblaw.com

Elisa Alcabes+1-212-455-3133
ealcabes@stblaw.com

Andrew T. Frankel+1-212-455-3073
afrankel@stblaw.com

Michael J. Garvey+1-212-455-7358
mgarvey@stblaw.com

Lynn K. Neuner+1-212-455-2696
lneuner@stblaw.com

Tyler B. Robinson+44-(0)20-7275-6118
trobinson@stblaw.com

This edition of the
Insurance Law Alert was
prepared by Mary Beth Forshaw(mforshaw@stblaw.com/+1-212455-2846) and Bryce L. Friedman(bfriedman@stblaw.com/+1-212-4552235) with contributions
by Karen Cestari(kcestari@stblaw.com).

The contents of this publication are for informational purposes only. Neither this publication nor the
lawyers who authored it are rendering legal or other professional advice or opinions on specific facts
or matters, nor does the distribution of this publication to any person constitute the establishment of an
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Please click here to subscribe to the Insurance Law Alert.
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West Tower, Mirae Asset Center 1
26 Eulji-ro 5-gil, Jung-gu
Seoul 100-210
Korea+82-2-6030-3800
Tokyo
Ark Hills Sengokuyama Mori Tower
9-10, Roppongi 1-Chome
Minato-Ku, Tokyo 106-0032
Japan+81-3-5562-6200
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