J. David Freel Obtains Summary Judgment for National Insurance Company

HCC partner J. David Freel recently secured summary judgment in Rhode Island Superior Court in favor of a national insurance company. In the process, the case was dismissed at the pretrial stage forgoing protracted discovery and litigation.

David successfully argued that the policy’s criminal acts exclusion was clear and unambiguous, and excluded coverage based upon the undisputed facts of this case as a matter of law. As a result, the carrier owed the policyholder no duty to defend nor indemnify in connection with an underlying civil lawsuit.

In September 2014, the insured was confronted by a person with whom he had a prior feud. An altercation ensued. The insured proceeded to drive his vehicle at the other person, striking him, and causing serious bodily injury.

In the subsequent criminal case, the insured was convicted of “[d]riving so as to endanger, resulting in personal injury,” under Rhode Island General Laws § 31-27-1.1, and was sentenced to five years in prison.

In September 2017, the person who was struck by the insured brought a civil action alleging that the insured negligently struck him with his vehicle. The insurer provided the insured with a defense under a full reservation of rights – preserving the right to deny the claim afterward. The insurer then brought the declaratory judgment action seeking to terminate any duty to defend and indemnify.

The automobile policy excluded from coverage “bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person.”

David argued, and the court agreed, that the bodily injury the claimant allegedly suffered was reasonably expected to result from the insured’s criminal act. Moreover, the court rejected opposing counsel’s arguments that the exclusion was ambiguous and should apply only to acts that are both intentional and criminal.

David Freel maintains an extensive insurance coverage practice and frequently defends insurance companies against actions for breach of contract and bad faith in the Rhode Island courts.

January 8th, 2021|

Peter E. Garvey: Pandemic Litigation Being Filed Locally and Nationally Against Insurance Carriers

Just this past week, one of the first pandemic-related lawsuits was filed in the State of Rhode Island. This local case is titled, Procaccianti Companies v. Zurich American. Procaccianti Companies is America’s sixth largest privately held hotel owner and developer, and its lawsuit has already garnered national attention in Law 360.

Procaccianti Companies brought suit against Zurich American for failing to cover losses incurred during statewide COVID-19 shutdown mandates. The company argued in the U.S. District Court for the District of Rhode Island that the presence of the virus at its hotels triggered coverage under its $300 million policy. Law 360’s description of the hotelier’s claims against Zurich America can be found here.

Many similar lawsuits are also being filed across the country. The Connecticut Law Tribune reports that some 1,300 pandemic litigation matters have been brought against insurance carriers. To date, there have been about 85 state and federal court rulings nationwide, most favoring the insurance companies. However, no appellate court has addressed the issue, according to the publication. Even so, one recent federal court case in Florida is typical.

According to Law 360 a Florida federal judge dismissed with prejudice a lawsuit brought by a proposed class of Florida restaurants over business interruption insurance coverage stemming from the COVID-19 pandemic because the plaintiffs failed to allege any physical damage.

U.S. District Judge Ursula Ungaro granted the insurance carrier’s motion to dismiss and denied all pending motions, pointing to recent orders in state and federal courts finding that physical loss is needed to recover under policyholders’ all-risk commercial property insurance, Law 360 noted. The Florida case is El Novillo Restaurant et al. v. Certain Underwriters at Lloyd’s London et al. The complete Law 360 article describing this Florida ruling can be found here.

Higgins, Cavanagh & Cooney will continue to monitor court filings as well as the legal literature for pandemic litigation brought locally, regionally and nationally as many more cases are likely to arise and the possibility remains that results may vary.

For more information about pandemic-related litigation contact Peter E. Garvey at pgarvey@hcc-law.com or any of the other partners at the firm.

December 11th, 2020|

Important Workers’ Compensation Decision Rendered by the R.I. Supreme Court

On November 5, 2020, the Rhode Island Supreme Court reexamined the Exclusivity Provision of the state’s Workers’ Compensation Act in Selby v. Baird.

The plaintiff suffered a serious injury while working as a foreman for a tree removal crew. He brought a workers’ compensation claim against Mulch-N-More and was awarded benefits. He then filed a separate negligence claim in Superior Court against Mike’s Professional Tree Service.

The Supreme Court held that the plaintiff was an employee of Mike’s Professional Tree Services, citing its dominion and operational control over the plaintiff. The fact that another company served an administrative function in providing the plaintiff with his paycheck and workers’ compensation benefits did not change that fact. Thus, the Supreme Court affirmed the Superior Court’s ruling in granting summary judgment and denied the negligence claim.

This case was on point with prior holdings. Even so, the Court’s latest decision may allow for a more expansive application of the Exclusive Remedy Doctrine in future tort actions.

If you have any questions whatsoever regarding this or any other workers’ compensation matter, please do not hesitate to contact either Sarah Wheeler (swheeler@hcc-law.com) or Peter Garvey (pgarvey@hcc-law.com).

A thorough explanation of the Court’s decision can be found in the Client Alert here.

November 23rd, 2020|

Business Journal Interviews Paul Callaghan on Law Firms’ Response to the Pandemic

Higgins, Cavanagh & Cooney partner Paul S. Callaghan was recently interviewed by the Providence Business News on the ways in which law firms were responding to the challenges of the pandemic.

The newspaper reported that despite all the difficulties and hardships in recent months, some law firms have weathered the pandemic fairly well. For example, Higgins, Cavanagh & Cooney has not had to lay off anyone. In fact, the firm hired two new attorneys within the last eight months. As a large firm with offices in Boston and Hartford, Connecticut, Higgins, Cavanagh & Cooney had already invested in state-of-the-art technology to ease the transition to working remotely.

In the interview, Paul also said, “Obviously, we have adhered to all of Governor Gina Raimondo’s mandates with the wearing of masks, the taking of everyone’s temperature, and other safety measures such as deep cleanings throughout the office. In addition, we gradually brought back employees into the office in accordance with the Governor’s mandates.”

As for the measures that will be here to stay after the pandemic, Paul offered the following assessment. “Many of the changes regarding remote depositions, court appearances, and meetings are most probably here to stay, at least in the short term and maybe permanently,” he said. “How well law firms can adapt to these changes and challenges will underscore the agility and resourcefulness of legal teams in meeting the future needs of clients.”

“The pandemic has taught all of us to have an even greater appreciation for the dedication of our lawyers, staff, and clientele and their devotion to their families,” he concluded.

November 17th, 2020|

HCC Again Named a Tier 1 Law Firm by U.S. News – Best Lawyers® “Best Law Firms”

U.S. News & World Report and Best Lawyers recently released their “Best Law Firms” selections for the State of Rhode Island.

Higgins, Cavanagh & Cooney once again received a Tier 1 law firm ranking for Personal Injury – Defendants and Product Liability – Defendants.

This marks the eighth consecutive year that Higgins, Cavanagh & Cooney has achieved this Tier 1 designation in these practice areas from U.S. News & World Report – Best Lawyers®.

The rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer reviews from leading attorneys in their field, and review of additional information provided by law firms.

Firms selected for the 2021 “Best Law Firms” list are recognized for professional excellence because of consistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

“This distinction by U.S. News & World Report and Best Lawyers highlights the depth of our experience and the extent of our legal talent at Higgins, Cavanagh & Cooney. We are delighted and honored to be recognized by our clients and colleagues in this manner following such a rigorous evaluation process by this prestigious arbiter of excellence within the legal industry.” said Managing Partner James A. Ruggieri.

The 2021 rankings are based on the highest attorney and law firm participation on record.

November 5th, 2020|