Engaged by policyholder’s defense counsel to analyze whether carrier actions constituted Insurance Bad Faith relative to assigning improper Workers Compensation and Commercial General Liability class codes and processing inaccurate premium audits. Case required analysis of carrier’s failure to determine and apply correct NCCI class codes for 4 years of audits and renewals. These deficiencies resulted in significant lost business opportunities due to wildly inaccurate NCCI Experience Modifiers 50-220% higher than actual, erratic premiums accounting, and disputes over revised audits premiums. Attorneys Lindsay Wright Brett, Brendan Cook and Lola Ojeniyi, Baker & McKenzie (713) 427-5000. Zurich v. TxEx Energy, Case No. 4:20-cv-3622 In United States District Court for the Southern District of Texas Houston Division.
Commercial General Liability Insurance Expert Witness Cases
Engaged by policyholder counsel to review Insurance Agent Errors and Omissions standards of care for placing Commercial General Liability and/or Professional Liability coverage. Agent failed to recognize and address Advertising Injury exposures created by operations of the real estate firm policyholder which provided advertising and marketing services to developers and real estate entities. When policyholder was sued for “copyright Infringement” the claim was denied based on the Advertising Injury exclusion. Attorneys Andrea DeField and Austin Priddy, Hunton Andrews Kurth, LLP, (305) 810-2500. Urban Living v. ISB Insurance Services, Case No. 202055546 In The 55th Judicial District Court of Harris County, Texas.
Retained by counsel for carrier seeking recovery from the insurance agency based on material misrepresentations regarding the fire protection system required by the carrier to insure a hotel. Engagement required analysis of communications between insured/agency and managing general agent relative to carrier underwriting guidelines and non-compliance with inspection requirements. Litigation ensued following initial claim denial and later payment for a total fire loss to the hotel. Attorney Jennifer Martin, Wilson, Elser, Moskowitz, Edelman & Dicker (214) 698-8000. Liberty Mutual Insurance Europe v. Cottom/RCI Insurance Group, Case No: CJ-2016-03004 In The District Court Of Tulsa County State of Oklahoma.
June 16, 2020Don Hirsch
Engaged by Surplus Lines intermediary’s defense counsel to evaluate allegations of Agent Errors & Omissions and Insurance Bad Faith involving placement and renewal of a contractor’s Commercial General Liability policies. Analysis involved guardrail operations being excluded, multiple policies and additional insured issues. Litigation followed carrier’s claim denial for a vehicle accident involving guardrail repairs performed by the contractor. Attorney Tom Alleman, Dykema Gossett PLLC (214) 698-7830. Guerra v. US Risk, et al, Cause No. C-3634-18-B In The District Court of Hidalgo County, Texas 93rd Judicial District.
April 4, 2020Don Hirsch
Engaged by policyholder counsel to analyze Property and Business Income/Extra Expense coverage issues under Property, Docks & Piers and Excess Ocean Marine policies for two fire losses originating from a tenant’s dockside storage of wood pellets. Case included review of coinsurance issues, tenant’s status as a Dependent Property for Business Income loss plus carrier subrogation against tenant’s Commercial General Liability policy. Travelers (as subrogee of Port of Port Arthur) v. Texas Pellets, et al, Cause No. B-203,222 In 60th Judicial District Court, Jefferson County, Texas. Attorney Clint Brasher, Brasher Law Firm, PLLC. (409) 832-3737
September 3, 2019Don Hirsch
Retained by counsel defending a landlord policyholder against tenant allegations of injury due to negligence following an apartment complex fire loss. Policyholder provided suit papers to the agent, who in turn failed to forward same to carrier resulting in a default judgment being entered in favor of the tenant. Carrier denied coverage based on extreme prejudice for late claim reporting. Case required analysis of issues regarding Agents Errors & Omissions, Insurance Bad Faith and Commercial General Liability. Geier v. Stonewood Apartments v. The Sloan Agency, Case No. 1716-CV25412 In the Circuit Court of Jackson County, Missouri at Kansas City. Attorney Wes Carillo, Ensz & Jester, PC, (816) 474-8010.
July 11, 2019Don Hirsch
Retained by counsel defending against a third-party landlord’s allegations of Agents Errors & Omissions and Insurance Bad Faith for ‘failure to procure’ additional insured status. Policyholder’s landlord alleged reliance on being a Certificate Holder on ACORD Certificates of Liability Insurance as grounds for being an additional insured under policyholder’s Commercial General Liability and Environmental Liability policies. Engagement required analysis of insurance requirements in the lease, scope of coverage for additional insureds and/or whether landlord ever requested being added as an additional insured. Landlord’s allegations also included Business Income Loss of Rents during site cleanup. HLT v. AssuredPartners, Case No. 1:18-cv-00045-RP, In The United States District Court For The Western District of Texas, Austin Division. Attorney Lisa Yerger, Macdonald Devin P.C. (214) 499-5116
January 12, 2019Don Hirsch
Retained by contractor’s defense counsel to review Commercial General Liability policy structure relative to insurance requirements listed in a Subcontract. Dispute involved Workers Compensation and a third party over action. Case required opinions regarding whether the Subcontractor’s policies complied with the Subcontract’s “Additional Insured” language. Moss v. J4 Development, Cause No. 2016DCV4519, In The 327th Judicial District Court of El Paso County, Texas. Attorney Jim Mounts, Ray McChristian & Jeans, PC (915) 832-7253
August 30, 2018Don Hirsch
Engaged by insurance agent’s defense counsel to analyze allegations of Insurance Agent Errors and Omissions and Insurance Bad Faith. Case involved multiple Commercial Auto policies, Commercial General Liability, Professional Liability and required analysis of coverage grants for loading/unloading. Dispute followed carrier claim denial due to vehicle in question not being described as a ‘Covered Auto’. Attorneys Amanda Harvey and Kayleigh Watson, Wilson Elser Moskowitz Edelman & Dicker LLP (214) 698-8000. National Ambulance v. Hija Insurance Agency, et al. Cause No. 2016-52143 In 11th Judicial District Court, Harris County, Texas.
January 26, 2018Don Hirsch
Retained by counsel for carrier seeking to rescind a Commercial General Liability policy based on agent’s failure to disclose material underwriting information on the application. Case required analysis of issues relative to Agents Errors & Omissions, Insurance Bad Faith Claims Handling and Workers Compensation issues involving an injured worker. Atlantic Casualty v. N&A Properties; Case 4:17-CV-368-A in United States District Court for the Northern District of Texas, Fort Worth Division. Attorneys Camille Johnson and Steve Santayana, Savrick, Schumann, Johnson, McGarr, Kaminski & Shirley, LLP, (214) 368-1515.
October 20, 2017Don Hirsch
Engaged by defense counsel to analyze Agent Errors & Omissions issues relative to whether the agent was provided a copy of an oil field services Master Services Agreement. Plaintiff had failed to provide the agent with accurate information to obtain Jones Act / USL&H Maritime Workers Compensation and/or Other States coverage. The dispute resulted from the Commercial General Liability carrier denial of a contractual liability indemnity claim (under the customer’s MSA) for an employee injury which occurred over water. Zadok v. Bell Insurance, Cause No. 2016-44757 In 80th Judicial District Court, Harris County, Texas. Attorneys Ryan Brown and Nathan Shackelford, Hermes Law, PC (214) 749-6800.
July 21, 2017Don Hirsch
Engaged by defense counsel to opine regarding Agent Errors & Omissions relative to whether the insurance agent was ever provided a copy of an oil field Master Services Agreement. The dispute resulted from an employee injury, plaintiff’s previous failure to complete required actions to obtain Workers Compensation and carrier denial of a Commercial General Liability claim. Allegations against the agent included failure to procure Commercial Auto and Commercial General Liability to comply with MSA contractual liability insurance requirements. Emperor v. Millennium Insurance Services; Cause No. 2016CI14546 In The District Court of Bexar County, Texas 150th Judicial District. Attorney Frank McNiff, Welder Leshin Lorenz McNiff Buchanan Hawn, LLP, (361) 561-8008.
June 16, 2017Don Hirsch
Engaged by defense counsel to address allegations of Managing General Agent E&O / Bad Faith involving placement of surplus lines. Litigation resulted following claim denial for a vehicle accident involving a city bus being driven by a temporary staff employee. Case involved Non-owned Autos coverage under Commercial Auto and/or as an endorsement to Commercial General Liability policies. Attorneys Heather Duplantis and Kevin Welsh, Phelps Dunbar LLP (225) 346-0285. Johnson v. City of Alexandria, Number 247,208 In 9th Judicial District Court For The Parish Of Rapides, Division “G”, State of Louisiana.
January 6, 2017Don Hirsch
Engaged by defense counsel to analyze allegations of Agent Errors & Omissions and Insurance Bad Faith involving placement of Surplus Lines Commercial General Liability. Case involved policy conditions that a general contractor be named as additional insured under subcontractors’ Commercial General Liability policies and maintain Certificates of Liability Insurance. General contractor was sued based on a subcontractors faulty work allegedly resulting in a fatality. Litigation ensued after carrier’s claim denial for failure to comply with policy terms and conditions. Attorney John Scott, Hardin, Kundla, McKeon & Poletto (973) 912-5222. Repoli v. LA Design and Construction, Lynoxx Group, et al / Coughlin v. Repoli, et al; Docket Nos. ESX-L-8325-14 and ESX-L-I011-15, Superior Court of New Jersey, Law Division: Essex County.
November 24, 2016Don Hirsch
Engaged by counsel defending a trucking company against allegations of improper insurance premium allocations charged to owner-operators. Case required market research relative to insurance coverages and premiums available to individual owner-operators vs. premiums allocated to owner-operators under a master truckers program. Engagement included analysis of owner-operator leases and customer Master Service Agreements insurance requirements for Commercial Auto, Commercial General Liability, Pollution Liability, Commercial Umbrella and Motor Truck Cargo. Attorneys Ed Chociey and Ron Leibman, Riker Danzig Scherer Hyland & Perretti LLP (973) 538-0800. Gassoway v. Benchmark; Case No.4: 15-cv-00488 In United States District Court, Southern District of Texas
April 12, 2016Don Hirsch
Engaged by policyholder counsel to analyze primary and excess carriers’ claims handling practices relative to denial of a multi-million dollar claim for theft of bitumen being stored in China. Both Inland Marine and Ocean Marine coverage was afforded under a single Marine Open Cargo policy form. Engagement required analysis of manuscript Marine Insurance policy forms relative to Bulk Oil Clauses, bills of lading and bailee interests. Great American v. Castleton; Civil Action No. 15-cv-03976-JSR In United States District Court For The Southern District of New York. Attorneys John Shugrue and Caroline Upton, Reed Smith, LLP (312) 207-1000.
July 9, 2015Don Hirsch
Engaged by insurance agent’s defense counsel and designated as their Agent Errors & Omissions and Insurance Bad Faith expert. Case involved Certificates of Liability Insurance issued after a policyholder declined renewal of a Commercial Umbrella. Litigation resulted from an injury to a bounce house patron, and whether the successor policyholder had Commercial General Liability with/without Commercial Umbrella coverage. Attorney George Carr, Janik LLP (440) 740-3016. KMAG v. Chubb, Case No. 1:15CV66 in United States District Court Northeastern District of Ohio, Eastern Division.
June 6, 2015Don Hirsch
Engaged by plaintiff counsel to evaluate Insurance Bad Faith issues stemming from “failure to disclose material terms” of Commercial General Liability and Commercial Umbrella Liability over several years’ renewal policies. Case required assessment of Agents Errors & Omissions relative to Surplus Lines renewal procedures for Equine Liability coverage. Attorney Doug Patrick, Covington, Patrick, Hagins, Stern & Lewis, P.A., (864) 242-9000. Lanzone v. BB&T Insurance Services, In The Court of Common Pleas No.: 2013-CP-23-2758, State of South Carolina, County of Greenville.
October 2, 2014burld
Engaged as consulting expert by counsel defending against allegations of Agent Errors & Omissions. Case involved client expectations of coverage for “business risk tax liability”. Claim was denied under Commercial General Liability, Property and Inland Marine policies. Boat Town v. Belter Insurance Agency; Cause No. D-1-GN-10-003327 In The District Court of Travis County, Texas, 53rd Judicial District. Attorney Darrell Cockcroft, Thompson Coe Cousins & Irons, LLP (512) 703-5094.
July 24, 2014burld
Engaged by counsel defending allegations of bad faith for both Managing General Agent E&O and carrier claims handling practices. Dispute resulted from denial of ‘Well Out of Control’ and pollution claims from a ‘plugged & abandoned well’ fluids release. Case required analysis of an Energy Exploration & Development policy relative to first party property and third party pollution liability coverage. Denbury Resources v. Lloyds of London, et al; Cause No. 2012-10397 In The District Court of Harris County, Texas, 270th Judicial District. Attorneys Bart Hall and Jonathan Womack, Phelps Dunbar LLP (504) 566-1311.
June 19, 2014burld
Engaged by policyholder counsel as its Commercial General Liability and Pollution Liability expert relative to Insurance Bad Faith claims handling. Environmental contamination resulted from a pipeline valve failure, requiring site remediation. Litigation resulted following carrier’s denial of the pollution claim based on alleged late reporting. Arrow Pipeline v. National American Insurance Co., et al; Case No. CJ-2012-00313 In the District Court of Tulsa County, State of Oklahoma. Attorney Mark Blongewicz, Hall Estill Attorneys (918) 594-0400.
April 1, 2013burld
Engaged by counsel for third party seeking to compel vicarious liability coverage for a non-owned watercraft accident. Case included issues of Insurance Bad Faith stemming from carrier’s denial of a Commercial Umbrella claim. The Umbrella was placed as Surplus Lines using an ISO-based policy form with a manuscript Marine Liability endorsement. Case required knowledge of the nuances between Commercial General Liability and Excess Marine Liabilities. Antill Pipeline v. Chartis; Civil Action No. 09-3646, c/w 10-2633, and c/w 11-2131 in United States District Court Section C-2 for the Eastern District of Louisiana. Attorneys Bob Reich and Larry Plunkett – Reich, Album & Plunkett, LLC (504) 830-3999.
July 1, 2012burld
Consulting expert engaged by counsel for carrier and surplus lines agent pursuing recovery from retail agent. Case involved placement issues for a Food Borne Illness policy covering Trade Name Restoration, Loss of Business Income and Incident Response. Following claim denial for an E-coli outbreak, litigation resulted from retail agent’s “failure to disclose material terms” to restaurant franchisees enrolled under a Master policy. Lloyds and Professional Liability Insurance Services v. IMA of Kansas; Cause no. D-1-GN-10-004172 In District Court of Travis County, Texas, 353rd Judicial District. Attorney Christopher White, Lewis Brisbois Bisgaard & Smith LLP (214) 722-7100.
February 3, 2012burld
Engaged by carrier as Claims Made and Reported Professional Liability Insurance expert. Case involved late notice of claim and required expertise with Agents Errors & Omissions, Commercial General Liability (including Pollution Liability) and Commercial Umbrella. Environmental Analytics, Inc. v. Chartis Claims, Inc., et al. Cause No. 2010-42050; In The 234th J.D. Court Harris County, Texas. Attorneys Tim Kilgore and Dan Lynn, Jackson & Campbell, PC (202) 457-1632.
February 1, 2012burld
Engaged by counsel for third party seeking recovery for construction defect claims. Case required coverage analysis of contractor’s Commercial General Liability in contrast to manufacturer’s Products Liability as well as Insurance Bad Faith in regards to carrier claims handling practices. Mid-Continent Casualty v. Advantage Buildings, et al, Case No. 1016-CV21855, Circuit Court of Jackson County Missouri at Kansas City. Attorney David Schatz, Husch Blackwell, LLP , (816) 329-4707.
April 1, 2011burld
Engaged by policyholder’s counsel seeking coverage for construction defect claims. Case involved aspects of Agent Errors & Omissions and Insurance Bad Faith resulting from placement of Commercial General Liability and Products Liability Insurance coverage. Central to the dispute were allegations against the agent of failure to disclose material facts. Sanderson v. JDW Insurance, Cause No. 2009-3145, 120th Judicial District Court, El Paso County, Texas. Attorney Jim Martinez, James A. Martinez, P.L.L.C. (317) 637-0700.
February 1, 2011burld
Retained as consultant to evaluate ongoing projects coverage continuity issues relative to termination of a rolling OCIP (Owner Controlled Insurance Program). Consultation included forensic review of premium audit procedures for Commercial General Liability, Completed Operations, Commercial Umbrella, Inland Marine Builders Risk and Workers Compensation. Policyholder Tarrant County College District; Attorney Burch Waldron, Law, Snakard & Gambill, P.C. (817) 878-6319.
November 1, 2010burld
Engaged by contractor’s attorney to analyze contractual liability claim denial under Products Liability Insurance. Case involves Agents Errors & Omissions, Surplus Lines, Commercial General Liability, and aspects of Insurance Bad Faith resulting from questionable Certificates of Insurance. Cause No. 2009-65915; High Tech Plumbing v. Colony Insurance Company, et al. In the 127th Judicial District Court of Harris County, Texas. Attorney Kelly Prather, Greenwood Prather Law Firm, (713) 333-3200.
August 1, 2010burld
Retained by counsel for policyholder seeking coverage under a 1973 ISO Comprehensive General Liability form. Expert affidavit addressed issues involving Commercial General Liability and Products Liability Insurance coverage under Surplus Lines policies. Case also involved Pollution Liability coverage and Reliance Insurance Company liquidation proceedings (No. 269 MD 2001 In The Commonwealth Court of Pennsylvania). Reliance Insurance Co. v. Raybestos Products, United States District Court, Southern District of Indiana, Indianapolis Division, Cause No. IP 97-0027-C-Y/G. Attorney Brett Nelson, Plews Shadley Racher & Braun LLP, (317) 637-0700.
May 1, 2010burld
Retained by defense counsel for carrier as their Commercial General Liability and Insurance Bad Faith expert. Case involved carrier standards & practices for claims investigation, setting reserves and claims settlement. Litigation resulted after insurer denied payment of fatality claim in: Allen v. Guide One Insurance Company; Commonwealth of Kentucky, 44th Judicial Circuit, Bell Circuit Court, Civil Action No.: 06-CI-00583. Attorney David A. Trevey, Fulkerson & Kinkel, (859) 253-0523.
March 1, 2010burld
Retained by hospital’s in house general counsel to provide analysis of CCIP for a large hospital addition. Engagement included assessment of how and what coverage would be extended to the owner under a CCIP (Contractor Controlled Insurance Program) in contrast to an OCIP (Owner Controlled Insurance Program). Client requested evaluation of issues involving Commercial General Liability, Completed Operations, Commercial Umbrella, Inland Marine Builders Risk (including “soft costs”) and Workers Compensation. Attorney John McNey, General Counsel, Cook Children’s Medical Center , (682)-885-1330.
March 1, 2009burld
Retained by plaintiff counsel to provide analysis regarding Agent Errors & Omissions & Risk Manager Standard of Care. Litigation resulted after denial of a large “Construction Defect (Contractors Rework/Rip & Tear)” claim under an OCIP (Owner Controlled Insurance Program). Claim was denied under Commercial General Liability and Commercial Umbrella Insurance. Roy Anderson Corporation v. Sawyer-Foster Insurance, et al; Circuit Court Harrison County Mississippi, First Judicial District, Case No. A2401-07-215. Attorneys Paul T. Benton & Tricia Beale (228) 432-0305.
September 1, 2007burld
Defense counsel engagement regarding alleged Insurance Bad Faith placement of a loss sensitive insurance program and carrier’s claim reserve methodology. Case required expertise in Commercial General Liability, Workers Compensation, Agent Errors & Omissions. Attorneys Leland de la Garza and David Tabor – Shackelford, Melton & McKinley, LLP (214) 780-1400 Lauren Engineers and Contractors, Inc. v. Hilb Rogal, and St. Paul Insurance , 104th District Court, Taylor County, TX, Cause # 23376-B.
February 1, 2007burld
Retained by defendant to offer opinions regarding basis used for a disputed Commercial General Liability audit. Attorneys Matt Nowak and Brandon Starling – Nowak & Stauch, LLP Dallas, TX (214) 823-2006. Everest Indemnity Insurance Company v. Ranger Fire, Inc.; Cause #01721104805 17th District Court, Tarrant County, TX .
September 1, 2006burld
Engaged by insurance carrier as Agent Errors & Omissions, Commercial General Liability and Professional Liability Insurance expert. Dispute arose from late notice of claim under both Occurrence form and Claims Made policies. Attorney Carol Keough – Coats Rose Yale Ryman Lee (713) 653-7372; REO vs. Zurich American Insurance Co., et al. Cause No. C-1739-01-CA (Severed cause); in The 139th J.D. Court, Hidalgo County, Texas.
February 1, 2006burld
Engaged to assist defense attorneys answering alleged Agent Errors & Omissions. A fireworks explosion and fire resulted in multiple fatalities and widespread property losses. Allegations involved coverage placement disputes for numerous lines of insurance: Commercial Auto, Workers Compensation, General Liability Insurance, Commercial Umbrella, and Property Insurance. Attorneys Brent Cooper and Joyce Ondich – Cooper & Scully, PC, (214) 712-9500. Joseph M. Lamb, Jr. d/b/a Pyrotechnics by Lamb v. Britton-Gallagher, et al; Civil Action No. 2-04CV-400, US District Court, Eastern District of Texas, Marshall Division.
September 1, 2005burld
Case involved Commercial General Liability and Professional Liability coverage issues relative to compliance with insurance requirements in a software contract. Defense Attorney Dan Bates – Decker, Jones, McMackin, McClane, Hall & Bates, P.C., Fort Worth, TX, (817) 336-2400. Bell Helicopter v. Global Technical Services, Inc., Cause # 17-215027-05, 17th District Court, Tarrant County, Texas.
August 1, 2004burld
Litigation involved Commercial General Liability Insurance third party over action and establishing “Non-employee” status of plaintiff under Texas Workers Compensation Insurance Nonsubscriber statutes. Engaged by plaintiff’s attorney Mike Henry – Jose, Henry, Brantley, MacLean & Alvarado, L.L.P., (817) 877- 3303. Lewis v. The Williams Companies, Inc., et al; Cause No. 2003-29049; 334th District Court, Harris County, Texas.
August 1, 2004burld