Insurance Law Alert

May 2019

In This Issue
Sixth Circuit Rules That Three Harassment And Assault Claims Arise Out
Of A Single Occurrence
The Sixth Circuit ruled that sexual assault and harassment claims by three women against a
co-worker arose out of the single occurrence of negligent hiring and supervision. Scott Fetzer
Co. v. Zurich American Ins. Co., 2019 WL 1925550 (6th Cir. Apr. 30, 2019). (Click here forfull article)“[Simpson Thacher]is one of the preeminentand most sophisticatedcoverage litigation firms.”– Chambers USA 2019(quoting a client)

Reversing Trial Court, Illinois Appellate Court Rules That AsbestosRelated Claims Do Not Arise From A Single Occurrence Under Liability
Policies
An Illinois appellate court ruled that bodily injury claims arising out of asbestos exposure aroseout of multiple occurrences based on location and nature of exposure, rather than a single
occurrence based on the manufacture of an allegedly defective product. Continental Casualty
Co. v. Hennessy Indus., Inc., 2019 WL 1803101 (Ill. Ct. App. Apr. 23, 2019). (Click here forfull article)

Cyber Coverage Claims Dismissed In Part By New Jersey Court
A New Jersey federal district court granted part of an insurer’s motion to dismiss claims arisingout of a denial of coverage for cyber fraud losses under a crime protection policy. Children’sPlace, Inc. v. Great American Ins. Co., 2019 WL 1857118 (D.N.J. Apr. 25, 2019). (Click here forfull article)

New York Court Deems Insured v. Insured Exclusion Ambiguous As To
Creditor Trust
A New York court ruled that an insured v. insured exclusion in an excess D&O policy was
ambiguous as to whether it applied to claims brought by a creditor trust and therefore did not
bar coverage. Westchester Fire Ins. Co. v. Schorsch, 2019 WL 1901372 (N.Y. Sup. Ct. N.Y. Cnty.
Apr. 29, 2019). (Click here for full article)

Ninth Circuit Reverses Dismissal Of Breach Of Contract Claims Against
D&O Insurer
The Ninth Circuit ruled that a district court erred in dismissing breach of contract claims
against a D&O insurer, finding that issues of fact exist as to whether a demand letter against
the insured company constituted a “claim” first made outside the policy period. Kelly v. Starr
Indem. & Liab. Co., 2019 WL 1895825 (9th Cir. Apr. 29, 2019). (Click here for full article)

Simpson Thacher & Bartlett LLP

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Second Circuit Affirms Insurers’ Win On Late Notice And Waiver
The Second Circuit affirmed a New York district court decision dismissing coverage claims
based on late notice, finding that the insurers did not waive their right to disclaim coverageon that basis. New York State Electric & Gas Corp. v. Century Indem. Co., 2019 WL 1817781(2d Cir. Apr. 25, 2019). (Click here for full article)

Iowa Supreme Court Rules That Bad Faith Claims Are Not Viable Against
Third-Party Claims Administrator
The Iowa Supreme Court held that a common law cause of action for bad faith failure to pay
workers’ compensation benefits is not actionable against a third-party claims administrator.
De Dios v. Indem. Ins. Co. of N. Am., 2019 WL 2063289 (Iowa May 10, 2019). (Click here forfull article)

Policyholder Entitled To Appoint Independent Counsel At Insurer’s
Expense, Says Illinois Appellate Court
An Illinois appellate court ruled that an insured was entitled to retain independent counsel
rather than use insurer-appointed counsel based on a conflict of interest arising out of apunitive damages claim. Xtreme Protection Servs., LLC v. Steadfast Ins. Co., 2019 WL
1976482 (Ill. Ct. App. May 3, 2019). (Click here for full article)

Florida Appellate Court Rules That Insurer’s Post-Suit Payment Of
Appraisal Award Constitutes Confession Of Improper Coverage Denial
A Florida appellate court ruled that an insurer’s post-suit payment of an appraisal award
constitutes a confession that it incorrectly denied benefits and that such conduct raised anissue of fact as to the insurer’s bad faith. Bryant v. GeoVera Specialty Ins. Co., 2019 WL
2017972 (Fla. Ct. App. May 8, 2019). (Click here for full article)

Fifth Circuit Enforces Arbitration Clause Notwithstanding State Law
Banning Arbitration Of Insurance Disputes
The Fifth Circuit ruled that an arbitration clause was enforceable notwithstanding a statestatute banning arbitration of insurance disputes and a “conformity to statute” clause in theinsurance policy. McDonnel Grp., LLC v. Great Lakes Ins. SE, 2019 WL 2082905 (5th Cir. May
13, 2019). (Click here for full article)

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Number Of
Occurrences
Alerts:Sixth Circuit Rules That Three
Harassment And Assault Claims
Arise Out Of A Single Occurrence
Reversing an Ohio district court decision, theSixth Circuit ruled that sexual assault andharassment claims by three women against a
co-worker arose out of the single occurrenceof negligent hiring and supervision. Scott
Fetzer Co. v. Zurich American Ins. Co., 2019
WL 1925550 (6th Cir. Apr. 30, 2019).
Three women sued Fetzer, a vacuum
manufacturer, and a Fetzer employee, alleging
that he harassed and assaulted them and that
Fetzer negligently hired and supervised him.
After the parties settled the suit, Fetzer sought
reimbursement from Zurich under generalliability policies. The policies provided$2 million of coverage per occurrence, witha $1 million per-occurrence deductible. Of
the three settlements, only one exceeded
the per-occurrence deductible. Zurich paid
the amount in excess of the deductible but
refused to pay anything for the other two
settlements. In ensuing litigation, the parties
disputed whether the underlying claims
arose out of a single occurrence or multiple
occurrences. An Ohio district court found thatthe claims alleged multiple occurrences.
The Sixth Circuit reversed, finding that“occurrence” was subject to more than one
reasonable interpretation in this context. The
court explained that while “occurrence” could
refer to the separate acts of assault against
each woman, it could also refer to Fetzer’s
overall negligent supervision. Construing thisambiguity in Fetzer’s favor, the court held thatthe operative occurrence was the company’s
negligent supervision. In doing so, the court
noted that Ohio’s cause-oriented approachto number-of-occurrence disputes support
this result. The court explained that although
three women incurred separate injuries as aresult of the alleged harassment, their injuriesarose from one proximate cause.

Reversing Trial Court, Illinois
Appellate Court Rules That
Asbestos-Related Claims Do Not
Arise From A Single Occurrence
Under Liability Policies
An Illinois appellate court ruled that bodily
injury claims arising out of asbestos exposure
arose out of multiple occurrences based on
location and nature of exposure, rather thana single occurrence based on the manufactureof an allegedly defective product. Continental
Casualty Co. v. Hennessy Indus., Inc., 2019
WL 1803101 (Ill. Ct. App. Apr. 23, 2019).
Ammco, a brake equipment manufacturer,
was sued in numerous personal injury
asbestos suits. Ammco’s insurers sought adeclaration as to several coverage issues,
including the number of occurrences forpurposes of determining the limits of liability
under the policies. An Illinois trial court
ruled in the insurers’ favor, finding that thecontinuous manufacture of allegedly defective
products constituted a single occurrence. The
appellate court reversed.

The appellate court ruled that the underlying
asbestos claims should be grouped bylocation such that each location constitutes
a separate occurrence. The court relied on“premises language” in the policies’ definitionof “occurrence,” which states that “all such
exposure to substantially the same generalconditions existing at or emanating fromeach premises location shall be deemed
one occurrence.”
The court declined to apply a “cause test”
for determining the number of occurrences,
explaining that the cause-based analysis
is appropriate only when the terms of thepolicy do not otherwise clarify the numberof-occurrences issue. Such an analysis
was not appropriate, the court reasoned,3

because “the premises language clearlyrequires the bundling of claims that arise
from substantially the same conditions at thesame location.”

Cyber Coverage
Alert:
Cyber Coverage Claims Dismissed
In Part By New Jersey Court
A New Jersey federal district court grantedpart of an insurer’s motion to dismiss claims
arising out of a denial of coverage for cyberfraud losses under a crime protection policy.
Children’s Place, Inc. v. Great American Ins.
Co., 2019 WL 1857118 (D.N.J. Apr. 25, 2019).
The Children’s Place, Inc. (“TCP”) discovered
two payments totaling nearly $1 million
made to an unauthorized third-party hacker.
According to the complaint, the hacker
allegedly falsified email domain names toappear identical to those of individuals
employed by a vendor of TCP. Additionally,
the hacker allegedly intercepted emails
between TCP and the vendor and altered
payment instructions in order to direct
payments to the hacker’s account. TCP
sought coverage under three provisions ofa crime protection policy: (1) Computer
Fraud; (2) Forgery or Alteration; and(3) Fraudulently Induced Transfers. The
insurer denied coverage and, in ensuing
litigation, moved to dismiss TCP’s breach ofcontract and declaratory judgment claims.
The court refused to dismiss the claims
for coverage under the Computer Fraud
provision, finding that the complaint alleged
facts sufficient to state a claim for relief. The
policy defines Computer Fraud as “the useof any computer . . . to gain direct access to[TCP’s] computer system.” The court held thata viable claim for Computer Fraud coverage
existed because the complaint alleged that the
hacker accessed the vendor’s email system
and intercepted emails between TCP and thevendor. The insurer argued that a valid claim
was not alleged because the complaint alleged
access to the vendor’s emails, not TCP’s
computer system. Rejecting this argument,
the court reasoned that by improperly
accessing the vendor’s email system, thehackers effectively gained access to TCP’s

computers as well, noting that “an email
system that does not send the messages tothe intended recipient is no longer under thecontrol of the sender.” The court also rejected
the insurer’s causation argument (i.e., that theloss of funds was caused by the actions of TCP
employees in effectuating the transfer rather
than the hacker’s computer fraud). The court
explained that at the dismissal stage, it was
obligated to accept as true TCP’s allegationthat loss was a “direct result” of the hacker’s
access to the computer system.
However, the court granted the insurer’s
motion to dismiss claims seeking coverage
under the Forgery or Alteration and the
Fraudulently Induced Transfers provisions.
The policy defines Forgery or Alteration
as “loss resulting directly from forgery or
alteration of checks, drafts, promissory
notes, or similar written promises, orders, ordirections to pay a sum certain in money.”
The court noted that the complaint failed toallege that any forged materials referenced “asum certain in money.”
In dismissing the claims seeking coverage
under the Fraudulently Induced Transfers
provision, the court explained that TCP had
failed to allege that it verified the authenticity
and accuracy of the payment instructions, acondition precedent to coverage. The court
granted leave to amend these claims within
thirty days.
Approximately a dozen courts have addressedcoverage for cyber-related losses presented
under similar Computer Fraud provisions.
Many of those cases arose out of a wiretransfer initiated by a fraudulent email
sent by third-party hackers impersonating
a bank, vendor or other entity with whom
the policyholder regularly communicates.
Outcomes have turned largely on courts’interpretation of the terms “use” (as in “useof a computer”) and “directly” (as in whether
there is causation between the fraudulent
activity and the policyholder’s loss) as applied
to the facts at issue. In some cases, thedeterminative issue was whether there was“unauthorized entry” into the policyholder’scomputer system, a requirement thathas been deemed unfulfilled where thepolicyholder’s employees effectuated atransfer (even if at the instruction of a hacker/
impersonator).

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D&O Alerts:
New York Court Deems Insured v.
Insured Exclusion Ambiguous As
To Creditor Trust
A New York court ruled that an insured v.
insured exclusion in an excess D&O policy
was ambiguous as to whether it applied
to claims brought by a creditor trust andtherefore did not bar coverage. Westchester
Fire Ins. Co. v. Schorsch, 2019 WL 1901372(N.Y. Sup. Ct. N.Y. Cnty. Apr. 29, 2019).
Westchester Fire Insurance Company,a seventh-level excess insurer of RCAP
Holdings, LLC, sought dismissal of coverageclaims based on an insured v. insured
exclusion. The exclusion bars coveragefor claims brought by one insured against
another under the policy. However, an
exception to the exclusion applies to claims
brought by a bankruptcy trustee or examiner,
receiver, conservator, liquidator “or othercomparable authority.” The parties disputed
whether a creditor trust, establishedpursuant to a restructuring agreement
in connection with RCAP’s bankruptcy
proceedings, falls within the scope of “othercomparable authority.”is the substantive equivalent of a creditor
committee because it was established toobtain funds for RCAP’s creditors. The court
agreed with RCAP, finding the exclusion tobe ambiguous. Construing this ambiguity infavor of coverage, the court held that it did
not bar coverage under Westchester’s policies.

Ninth Circuit Reverses Dismissal Of
Breach Of Contract Claims Against
D&O Insurer
The Ninth Circuit ruled that a district court
erred in dismissing breach of contract claims
against a D&O insurer, finding that issuesof fact exist as to whether a demand letter
against the insured company constituted a“claim” first made outside the policy period.
Kelly v. Starr Indem. & Liab. Co., 2019 WL
1895825 (9th Cir. Apr. 29, 2019).
Scott Kelly and John DeWald (“Plaintiffs”)
operated a real estate investment firm.
Kenneth Brehnan loaned Plaintiffs money
in exchange for promissory notes. In 2010,
Brehnan sent a demand letter, seeking
payment of amounts due and warning thathe “would like to try not to proceed with legal
remedy . . . as being recommended by mylegal team.”
In May 2011, Plaintiffs applied for andobtained a claims-made D&O policy issued byStarr. In November 2011, Brehnan issued asecond demand letter warning of his intention
to assert claims against Plaintiffs. In August
2012, Brehnan filed suit. Starr disclaimed
coverage. After Plaintiffs settled with
Brehnan, they sued Starr, alleging breach ofcontract and negligence. A California district
court granted Starr’s summary judgment
motion, finding that the insurer had no duty
to defend or indemnify because the initial
Brehnan demand letter was a claim first madeprior to inception of the policy.

Westchester argued that the exclusion barredclaims brought by a creditor trust establishedto gather and distribute creditor assets under
the supervision of a three-member board,
because such a trust is not “substantively
independent and disinterested in the same
way that a bankruptcy trustee or similar entity
is and, consequently, is not a comparable
authority.” In contrast, RCAP contended
that “comparable authority” is ambiguous
and that in any event, the creditor trust

The Ninth Circuit reversed, finding issues offact as to whether the demand letter was a“claim.” The court explained that the demand
letter was not necessarily a “claim . . . against
such Insured Person for any Wrongful Act”
because it was not clear that the demand
letter alleged any wrongful acts. The court
stated: “Brehnan demanded money owed
pursuant to contracts with Plaintiffs’
companies, which at most establishes aquestion of fact whether the claim would becovered by the Policy.”
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The Ninth Circuit also declined to upholdthe dismissal of Plaintiffs’ claim on the basisof material misrepresentations in the policy
application. It reasoned that Plaintiffs’
failure to disclose the initial demand letterin the application did not constitute amaterial misrepresentation because issuesof fact exist as to whether the demand
was a “circumstance[] that might lead topotential claims.”

Late Notice Alert:
Second Circuit Affirms Insurers’
Win On Late Notice And Waiver
The Second Circuit affirmed a New York
district court decision dismissing coverageclaims based on late notice, finding that theinsurers did not waive their right to disclaim
coverage on that basis. New York StateElectric & Gas Corp. v. Century Indem. Co.,2019 WL 1817781 (2d Cir. Apr. 25, 2019).
New York State Electric & Gas Corporation(“NYSEG”) sued Century and OneBeacon,seeking indemnity for expenses relating
to the investigation and remediation ofcontamination at numerous gas plant sites.
The insurers denied coverage based on late
notice. NYSEG argued that the insurers
had waived their right to do so. A New
York district court granted the insurers’
summary judgment motion, and the Second
Circuit affirmed.
As to waiver, the Second Circuit ruledthat NYSEG failed to demonstrate a clear
manifestation of intent to waive the late notice
defense, as required by New York law. NYSEG
based its waiver argument on the fact thata disclaimer letter that included late notice
as a basis for denying coverage was neversent to NYSEG. Deeming this insufficientto establish waiver, the court noted that theletter was not sent because NYSEG had not,at that time, asked Century to take action andno coverage determination had been made. In
any event, Century ultimately issued a generalreservation of rights that listed “late notice” asa potential issue.
The court also rejected NYSEG’s assertion
that OneBeacon waived its late notice defense
because although it specifically mentioned
late notice in a disclaimer for a different

policy, it issued a general disclaimer reserving“all of its rights” under the policy at issue.
The court explained that since neither party
was able to locate the relevant policy at thetime of disclaimer, OneBeacon “did nothave knowledge of the facts upon which theexistence of its right to disclaim coverage
under the relevant policy depended.”
After finding no waiver, the court addressed
the merits of the late notice defense. The
parties disputed whether NYSEG’s obligation
to provide notice of an occurrence “as soon
as practicable” was first triggered at the timeof the operative occurrence or when NYSEG
reasonably should have known that liability
from the occurrence was likely to implicate
coverage. The court declined to resolve thatissue, finding that under either standard,
NYSEG failed to provide timely notice.

Bad Faith Alert:
Iowa Supreme Court Rules That
Bad Faith Claims Are Not Viable
Against Third-Party Claims
Administrator
Answering a certified question, the Iowa
Supreme Court held that a common law causeof action for bad faith failure to pay workers’
compensation benefits is not actionableagainst a third-party claims administrator.
De Dios v. Indem. Ins. Co. of N. Am., 2019
WL 2063289 (Iowa May 10, 2019).
A worker who was injured during thecourse of employment sued his workers’
compensation insurer and its third-party
claims administrator, alleging bad faith
failure to pay benefits. The Iowa Supreme
Court ruled that the claim was not actionableagainst the third-party administrator.
The court explained that the primary
6

justification for recognizing bad faith claims
against workers’ compensation carriers
is “the existence of certain ‘affirmative
obligations’ placed upon them by our
statutory and regulatory scheme.” However,those same duties do not apply to thirdparty administrators under Iowa law,and administrators are therefore not theequivalent of insurers for purposes of bad
faith liability.
As the court noted, courts in the majorityof jurisdictions that have addressed thisissue have concluded that bad faith is notactionable against third-party administratorsin the workers’ compensation context.
Colorado courts, as an exception to thisgeneral trend, have allowed such badfaith claims to proceed based on a specificstatutory and regulatory scheme governing
workers’ compensation. Courts in otherjurisdictions, including Arizona, Oklahoma
and Washington, have allowed claimants topursue claims against third parties where
those entities (1) engaged in tasks that createda quasi insurer-insured relationship; (2) were
subject to the same statutory duties as
insurers; or (3) bore some of the financial riskof loss for the workers’ compensation claims.

IndependentCounsel Alert:
Policyholder Entitled To Appoint
Independent Counsel At Insurer’s
Expense, Says Illinois Appellate
Court

complaint alleged intentional conduct, which
was excluded from coverage under the policy.
Steadfast appointed counsel and reserved its
right to deny coverage. Xtreme continued touse its own counsel to defend the suit andsought a declaration that it was authorized
to retain independent counsel based on a
conflict of interest arising from Steadfast’s
reservation of rights. In response, Steadfast
waived its right to deny coverage based on
any policy exclusions but reserved its right todeny coverage for punitive damages. Steadfast
argued that as a result of this waiver, there
was no longer any conflict of interest, andXtreme was obligated to utilize insurerappointed counsel.
An Illinois trial court disagreed and granted
Xtreme’s motion for judgment on thepleadings. The trial court held that Xtreme
was entitled to counsel of its choice based on
Steadfast’s ongoing reservation as to punitive
damages. The appellate court affirmed,
stating that Steadfast “has little interest in
defending against [the underlying] claims forpunitive damages.”
Importantly, the court noted that anunderlying claim for punitive damages does
not automatically give rise to a conflict ofinterest justifying the use of independent
counsel. Rather, a conflict of interest exists
when punitive damages form a substantial
portion of the potential liability and where
the insurer’s disclaimer for punitive damages
leaves the policyholder with the greaterinterest and risk in the litigation. The court
deemed this standard met because theunderlying complaint sought no less than$120,000 in compensatory damages and noless than $2.1 million in punitive damages.

An Illinois appellate court ruled that aninsured was entitled to retain independent
counsel rather than use insurer-appointed
counsel based on a conflict of interest arisingout of a punitive damages claim. Xtreme
Protection Servs., LLC v. Steadfast Ins. Co.,2019 WL 1976482 (Ill. Ct. App. May 3, 2019).
A lawsuit brought against Xtreme Protection
Services alleged eavesdropping, trespass,intrusion upon seclusion and intentional
infliction of emotional distress. Xtreme
tendered the complaint to Steadfast, but
requested permission to select its own defense
counsel. Xtreme argued that a conflict ofinterest existed because the underlying
7

Property
Coverage Alert:
Florida Appellate Court Rules
That Insurer’s Post-Suit Payment
Of Appraisal Award Constitutes
Confession Of Improper Coverage
DenialA Florida appellate court ruled that aninsurer’s post-suit payment of an appraisal
award constitutes a confession that it
incorrectly denied benefits and that suchconduct raised an issue of fact as to theinsurer’s bad faith. Bryant v. GeoVera
Specialty Ins. Co., 2019 WL 2017972 (Fla. Ct.
App. May 8, 2019).
The coverage dispute arose out of a water leakin the policyholders’ residence. An adjuster
estimated the loss at approximately $21,000.
The insurer requested a sworn proof of loss,
which the policyholder did not provide within
the 60-day period required by the policy.
However, before the 60 days expired, theinsurer issued a coverage notice, indicatingthat it would pay for limited coverage of$6,000. Thereafter, the policyholders filed
suit, alleging breach of contract and bad
faith. They submitted a proof of loss on thesame day they filed an amended complaint.
Litigation was stayed so that the parties could
comply with the policy’s appraisal provision.
The appraisal award itemized damages inexcess of $30,000. One month after theappraisal award was issued, the insurer paid
the balance due under the appraisal award.
Following this payment, a Florida trial court
granted the insurer’s summary judgment
motion, holding that the policyholders had
not timely submitted a proof of loss and had
never disputed the insurer’s adjustment of
the loss prior to filing suit. The appellate
court reversed.
The appellate court ruled that the insurer’s
payment of the appraisal award constituted
a confession that it breached the policy byerroneously invoking certain policy provisions
to limit coverage. The court noted that not all
post-suit payments by an insurer fall withinthe “confession of judgment” doctrine, but
explained that where, as here, an incorrect
partial denial of benefits is followed by the
insurer’s abandonment of its prior coverage

position and payment of an appraisal award,
the doctrine applies.
The appellate court also ruled that the insurer
waived the proof of loss requirement by
issuing the initial payment of $6,000 anddenying coverage above that amount without
citing the failure to provide proof of loss as abasis for denying or limiting coverage.
Finally, the court ruled that in light of theaforementioned findings, issues of disputed
fact exist as to whether the insurer acted
in good faith when it incorrectly limited
coverage in the first place.

Arbitration Alert:
Fifth Circuit Enforces Arbitration
Clause Notwithstanding State Law
Banning Arbitration Of Insurance
Disputes
The Fifth Circuit ruled that an arbitration
clause was enforceable notwithstanding astate statute banning arbitration of insurance
disputes and a “conformity to statute” clausein the insurance policy. McDonnel Grp., LLC
v. Great Lakes Ins. SE, 2019 WL 2082905(5th Cir. May 13, 2019).
The dispute centered on whether a builder’srisk policy provided coverage for water
damage to a construction project. When
McDonnel brought suit, the insurers moved
to dismiss pursuant to the policy’s arbitration
provision. McDonnel argued that thearbitration provision was invalid in light ofa “conformity to statute provision,” whichstated that “[i]n the event any terms of thisPolicy are in conflict with the statutes of thejurisdiction where the Insured Property is
located, such terms are amended to conformto such statutes.” McDonnel noted thatLouisiana statutory law expressly prohibits
arbitration agreements in insurance policies
covering property located within the state. See
La. Rev. Stat. Ann. § 22:868(A)(2).
A Louisiana federal district court dismissed
the suit in favor of arbitration, ruling thatfederal law preempted Louisiana statutory
law. The Fifth Circuit affirmed. The Fifth
Circuit ruled that the McCarran-Ferguson
Act, which allows state statutes governing
the business of insurance to reverse preempt8federal law, did not apply. Under Fifth
Circuit precedent, McCarran-Ferguson
reverse preemption is limited to federal
legislation and does not encompass aninternational treaty such as the Convention
on the Recognition and Enforcement of
Foreign Arbitral Awards. See Safety Nat’lCas. Corp. v. Certain Underwriters at Lloyd’s
London, 587 F.3d 714 (5th Cir. 2009). Having
rejected application of the Louisiana statutebarring arbitration, the court concluded
that there was no conflict between state
law and the policy so as to invoke theconformity provision.
The two other federal circuit courts thathave addressed whether reverse preemption
pursuant to the McCarran-Ferguson Act
extends to the Convention have reachedconflicting conclusions. Compare Stephensv. American Int’l Ins. Co., 66 F.3d 41 (2dCir. 1995) (holding that state law that
precludes insurance dispute arbitration
reverse preempts the Convention) with
ESAB Grp. Inc. v. Zurich Ins. plc, 2012 WL
2697020 (4th Cir. July 9, 2012) (rejecting
reverse preemption and reasoning that the

McCarran-Ferguson Act applies only tofederal statutes, not international treaties
such as the Convention) (discussed in July/
August 2012 Alert).

STB News Alerts
Simpson Thacher has been ranked among
the leading law firms in the United Statesin Chambers USA 2019. The Firm and its
lawyers were recognized in 54 practice
categories, including a #1 ranking for“Insurance: Dispute Resolution” in
the Chambers’ Nationwide and New
York categories.
Bryce Friedman spoke at the New YorkState Bar Association’s Insurance Coverage
Update 2019 program on May 10 in New
York City. Bryce spoke on a panel entitled“Fundamentals of Policy Interpretation,”
which discussed black letter law, policy
ambiguities, intent of parties and extrinsic
evidence.

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

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

Susannah S. Geltman+1-212-455-2762
sgeltman@stblaw.com

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

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mgarvey@stblaw.com

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

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

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

Summer Craig+1-212-455-3881
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Chet A. Kronenberg+1-310-407-7557
ckronenberg@stblaw.com

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

Daniel J. Stujenske+1-212-455-2419
dstujenske@stblaw.com

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

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

This edition of the
Insurance Law Alert was
prepared by Mary Beth Forshaw
mforshaw@stblaw.com /+1-212-4552846 and Bryce L. Friedman
bfriedman@stblaw.com /+1-212-4552235 with contributions
by Karen Cestarikcestari@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
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Please click here to subscribe to the Insurance Law Alert.
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