The firm handled its usual variety of litigation matters in 2012, with an emphasis on insurance coverage and defense, commercial litigation, personal injury and wrongful death.
Insurance Coverage
Drawing on its decades of experience with insurance coverage disputes, the firm handled a variety of coverage claims for both insurance companies and policyholders:
•a client owned a number of rental properties, one of which was severely damaged by fire. The insurer told the client that his building loss would yield only the amount scheduled for the building under his blanket coverage, $1.1 million, provided he rebuilt. The firm argued that the client's blanket policy coverage supported a far larger payout and ultimately obtained $3.5 million for the client with no obligation to rebuild;
•the firm represented the City of Westfield against Sun Life Assurance Company of Canada and a former insurance advisor, in a coverage dispute of over $628,000 in health insurance benefits. The insurer denied coverage on the basis that the cancer treatment at issue had been experimental and excluded from coverage. On behalf of the City, the firm countered with a new and untested Massachusetts statute, M.G.L. c. 175, §110L, which mandated insurance coverage in certain types of cancer trials. The firm obtained an affidavit from the Harvard Medical School professor who had conducted the trial at Dana Farber in Boston, which supported coverage under the statute. The case was resolved at mediation in Boston;
•a young couple moved into their first home. Shortly afterwards, a wall collapsed onto an oil tank in the basement. The resulting spill of oil cost several hundred thousand dollars to remediate. Their homeowners’ insurer denied coverage, citing pollution exclusions in the policy. The firm cited a recent statutory requirement that insurers “make available” oil remediation coverage. The insurer had not offered such coverage. The firm filed suit and the insurer finally accepted coverage in full for the clean-up costs shortly after a hearing when the firm sought an injunction ordering the insurer to pay the costs.
•on behalf of several insurance company clients, Weinberg & Garber investigated and litigated a variety of coverage issues under homeowner and dwelling policies, including fraud and misrepresentation, lack of occupancy, faulty workmanship, business use and tree damage;
General Litigation
•A dying woman's gift of her house to her niece triggered intensive litigation and two separate lawsuits, in which the firm represented the recipient of the house. The gift was part of a division of assets between the woman and her long-time companion. The circumstances of the gift included her power of attorney for the companion, her approaching death, and the companion's lack of competence. The firm was brought into the case about a year into the lawsuit. Legal analysis depended on the interplay among the laws of agency, gift, power of attorney, competency, and real estate. After intensive motion practice and the filing of a third-party claim by the firm, the matter was resolved through negotiation.
•A conflict between former business partners in a restaurant began with an injunction, followed by claims of fraud and breach of fiduciary duty, which were met by the client's counterclaims for trade libel, defamation and breach of fiduciary duty. Suit remains pending.
•On behalf of several insurance company clients, the firm maintains an active insurance defense practice, defending policyholders from third-party claims in a variety of contexts, including premises liability, slip and falls, and dog bites.
•The firm offers counsel to clients threatened by litigation. The firm has guided one local client through difficult legal issues raised in the aftermath of the death of a partner in a large business concern.
Appellate Practice
The firm maintains an active appellate practice. We briefed and argued a coverage dispute before the Massachusetts Appeals Court, arising from a freeze-up claim in which the firm obtained a jury verdict for a mid-size insurer client. In another case, the firm is temporarily licensed in Vermont to file briefs and argue before the Vermont Supreme Court, in a case which stems from a challenge to development rights to build a 40-unit condominium expansion of an existing development near the Killington ski resort.
Construction Litigation
The firm handled a number of construction cases – for both contractors and owners. One case arose from a fire which destroyed the client's home then under construction. The firm assisted in obtaining a favorable recovery from the client's insurer and is now proceeding in litigation against the responsible contractors. In another case, the firm represents a designer/contractor for compensation against homeowner who asserted various groundless construction flaws to avoid payment.
Personal Injury and Wrongful Death
The firm continues to handle personal injury and wrongful death cases.
•a six-figure settlement was obtained for the victim of a head-on collision who suffered permanent leg injuries;
•suit was unnecessary for resolution of a wrongful death case arising from the death of a Pittsfield man who was struck by a car; the claim against the driver was resolved for payment of the insurance policy limits to the client;
•negotiation and, if necessary, litigation were pursued in several cases where the insurance company's offer on a claim was unreasonably low.