Extracontractual Liability Litigation

Overview                                                                                                                                                                                 

In the context of claim-related litigation, the threat of extracontractual liability continues to grow as the plaintiffs’ bar presses for stricter regulation of insurance companies and advances ever-evolving theories of liability against insurers. Indeed, in many states, the range and severity of statutory and common law remedies available to policyholders and tort plaintiffs has expanded dramatically. To combat this threat, insurance companies need experienced counsel with a proven track record of defending against, and defeating, bad faith claims. 

For more than three decades, Robinson+Cole has successfully defended many market-leading insurance companies in well over 500 cases in which policyholders and tort plaintiffs sought to recover extracontractual remedies.

Our Services

Our dedicated team of highly experienced lawyers are regularly called upon to represent primary and excess insurers in high-exposure, industry-significant, and complicated extracontractual matters involving an array of insurance products, including the following:

  • property
  • liability
  • life, health, and disability
  • directors and officers
  • professional liability
  • excess and surplus

We have defended clients against bad faith and consumer fraud cases in numerous jurisdictions, including all of the New England states, New York, New Jersey, Pennsylvania, Michigan, Illinois, Iowa, Missouri, Tennessee, Georgia, Florida, Oklahoma, Texas, Louisiana, Mississippi, and South Carolina, among others.

Although most of these disputes were successfully resolved before trial, our team has tried many cases, often in jurisdictions unfriendly to the insurance industry, and has achieved positive results for our client partners. We are often asked to “parachute” into a case to take over the defense from another firm or to supplement or consult with the client’s existing defense team, and have done so in many jurisdictions, including Florida, Texas, Oklahoma, Louisiana, Michigan, and New Jersey. In each case we achieved a successful resolution.  

Through our decades of experience in the bad faith arena, we have developed strategies for defending extracontractual lawsuits and have successfully applied them to reduce clients' extracontractual exposures in a wide variety of first- and third-party claim disputes, including the following:  

  • early identification of potentially problematic claims through careful analysis of claims files and witness interviews
  • identifying claims that are vulnerable to a dispositive motion
  • dogged pursuit of data and documents during the discovery process
  • careful and extensive witness preparation of company personnel for depositions and trial
  • effective use of trial technology  

Our Team

Using the insight and experience garnered from representing insurers in bad faith actions over many years, we have a unique ability to identify and combat the “bad faith setup” in the context of both first- and third-party claims. For this reason, clients often hire us before litigation to consult with claim professionals and in-house counsel on challenging claims issues to ensure compliance with good faith investigation and claim settlement practices and to avoid exposure to extracontractual liability. Our clients appreciate our ability to identify cases suitable for early resolution, which often results in far less legal expenses.

Our lawyers’ skill in defending bad faith litigation is reflected in their membership in prestigious organizations, including the following:

  • the American College of Trial Lawyers
  • the American College of Coverage and Extracontractual Counsel
  • the Federation of Defense and Corporate Counsel  
    • Experience
      • Defended a market-leading insurer in a Massachusetts direct action in which the injured plaintiffs sought more than $40 million in punitive damages against our client (primary insurer on business auto policy) for its alleged failure to promptly settle a catastrophic personal injury claim. Following two years of highly contentious litigation and a six-week trial, the court found that our client's effort to settle the underlying tort case was prompt, fair, and reasonable and entered judgment in its favor, which was upheld on appeal. The co-defendant excess insurer (which had a $50 million policy) was ordered to pay a record $22 million in punitive damages and attorneys' fees for violating the Consumer Protection Act, in addition paying $9 million to satisfy the underlying tort judgment.  

      • Defended a major medical malpractice carrier and helped avoid a potentially devastating extracontractual exposure arising from its alleged failure to settle a catastrophic birth injury case within policy limits. The underlying Connecticut medical malpractice case resulted in a $53 million jury verdict against a physician with only $2 million in policy limits. With prejudgment interest, the physician faced exposure of more than $100 million, which the plaintiff sought to treble to $300 million for failure to settle within limits. We were hired by the malpractice insurer shortly after the verdict entered and successfully negotiated a favorable settlement.

      • Defended several international insurers in highly publicized actions alleging widespread claims-handling fraud by adjusters and engineering consultants in flood cases. After several days of evidentiary hearings and extensive briefing, we successfully extricated our clients from the sanctions proceedings. We also successfully defended several civil RICO actions alleging essentially the same conduct and were lead counsel in establishing that these claims were preempted by the National Flood Insurance Act. 

      • Represented an insurer in a bad faith lawsuit in federal court in Detroit, Michigan, arising from a claim under a motor truck cargo policy. The insured alleged that our client extinguished the insured's right to pursue recovery for uninsured losses from at-fault parties and sought a seven-figure compensatory and punitive damages award. The client retained us to replace another law firm just three weeks prior to the scheduled trial date. In that short time, we identified and completed important depositions that had been overlooked, retained and secured a report from a critical construction expert, and developed essential defenses to the damages claim requiring an in-depth understanding of a highway and bridge construction project and the cost impacts of construction delays. The case was ultimately resolved on terms that were extremely favorable to our client.

      • Won a precedent-setting coverage and bad faith case in the U.S. Court of Appeals for the First Circuit involving an assigned claim for $5 million under our client’s commercial excess liability policy arising out of a wrongful death suit. The district court granted our motion to dismiss the action based upon our contention that the terms of the estate’s collusive settlement with our client’s insureds did not trigger the excess policy. The First Circuit affirmed, also holding that the complaint failed to state a viable claim under the Consumer Protection Act. The First Circuit held that there was no coverage under the excess policy, and no Mass. Gen. L. ch. 93A liability, because the insured defendant’s legal obligation to pay damages to the plaintiff was not triggered by the settlement agreement reached in the underlying action. Salvati v. Am. Ins. Co., No. 16-1403, 2017 U.S. App. LEXIS 7366, at *20 (1st Cir. Apr. 26, 2017).

      • Successfully represented a group of property and casualty insurers in a coverage and bad faith lawsuit in Houston, Texas, in which the insureds sought more than $100 million for alleged business interruption losses, costs associated with defense of toxic tort suits, Superfund project costs, and bad faith damages, all arising from the insureds’ operation of a California landfill deemed to have polluted a key source of drinking water for the Los Angeles area. The dispute settled before trial on terms very favorable to our client.  

      • Successfully defended a commercial property insurer in an action alleging violation of the Massachusetts Consumer Protection Act, Mass. Gen. L. c. 93A. The plaintiff-insured alleged that the insurer knowingly and willfully underpaid the claim for fire damage and rental value loss and sought to recover several million dollars in compensatory and punitive damages, and attorneys' fees. We developed and executed an aggressive defense strategy that included early depositions of key witnesses, which drastically reduced the value of the insured’s case, leading the insured to voluntarily withdraw the lawsuit and release all claims against our client for no payment.

      • Successfully defended an insurer in a multimillion-dollar bad faith action arising from the insurer's denial of a claim of physical damage to vast quantities of enterprise hardware, loss and corruption of millions of dollars in proprietary software, and loss of sensitive medical data. After six days of contentious depositions that clearly exposed the plaintiff-insureds fraud, the case was voluntarily dismissed without any payment by our client.

      • Won summary judgment in a case of first impression under Maine law on a statutory bad faith claim. Following an initial exchange of documents, we obtained a stay of all other discovery pending a decision on our summary judgment motion. The court ruled in our favor on the question of whether the policy’s suit limitation provision not only barred the insured’s claim for breach of contract but also applied to its statutory bad faith claim. 

Our Team

Members