Foran Glennon Palandech Ponzi & Rudloff

News

2017

Charles Rocco and Rodrigo Tordecilla Obtain Summary Judgment on $2.6 Million Dollar Hurricane Sandy Claim

Charles Rocco and Rodrigo Tordecilla obtained summary judgment on behalf of Fireman’s Fund Insurance Company (“FFIC”) in a case filed by homeowners, Mark and Esther Stern (the “Plaintiffs”).  The litigation arose out of a claim for alleged damages to a residential property in Monsey, New York (the “Property”), caused by Hurricane Sandy on October 29, 2012.  The Property was covered by a homeowner insurance policy (“Policy”) issued by FFIC.  FFIC issued three denials, in 2013, for portions of the claim based on certain exclusions in the Policy.  The adjustment of the remaining portions of the claim continued.  Plaintiffs eventually filed a lawsuit against FFIC in October of 2016.  The lawsuit sought a declaration that Plaintiffs’ losses, incurred as a result of Hurricane Sandy, were covered under the Policy, and that FFIC was obligated to pay Plaintiffs for their losses.

The Policy contained a suit limitation provision, which required Plaintiffs’ to bring a lawsuit against FFIC “within two years after the occurrence.”  The Policy defined “occurrence” as “accidental loss and damage to covered property which occurs during the policy period and is caused by one or more causes of loss we cover.”  FFIC moved for summary judgment based on Plaintiffs’ failure to commence a lawsuit within two years after the occurrence.  Plaintiffs’ opposition attacked the authenticity of the copy of the Policy submitted by FFIC with its motion, and argued that the suit limitation provision was ambiguous.  Further, Plaintiffs argued that FFIC did not make its final coverage decision until April 1, 2015.  Thus, even if the suit limitation provision applied, it accrued from April 1, 2015.  Therefore, according to Plaintiffs, their lawsuit filed in October of 2016, was within the Policy’s two year suit limitation.

Judge Robert M. Berliner of the Supreme Court of the State of New York, County of Rockland, found that FFIC’s motion “established [FFIC’s] prima facie entitlement to judgment as a matter of law.” The Court noted that FFIC effectively refuted Plaintiffs’ attack on the authenticity of the Policy.  The Court acknowledged FFIC’s argument that Plaintiffs’ own admissions in the complaint, including references to the terms of the Policy, proved the Policy’s authenticity.  Likewise, the Court rejected Plaintiffs’ claim of ambiguity, and agreed with FFIC’s argument that the action was time-barred, pursuant to the Policy.  In reaching its conclusion, the Court held that Plaintiffs were unable to substantiate their allegation that FFIC denied the claim on April 1, 2015.  Accordingly, the Court held that the lawsuit was untimely regardless of whether the suit limitation period commenced on October 29, 2012 (the date of the loss), or in 2013 (during which FFIC issued the three denial letters).  Based on the foregoing, the Court found the action time-barred, and granted FFIC’s motion for summary judgment.

Foran Glennon Becomes Founder Member of Insurance Law Network Spanning Four Continents

Foran Glennon announced today it has become a founder member of newly launched Global Insurance Law Connect, a formal network with member firms in eight countries. This will enable Foran Glennon to efficiently and effectively serve clients’ global needs by offering an extensive network of local lawyers with specialized insurance law knowledge.

Founder member firms are Batini Traverso Grasso & Associati (Italy), BLM (UK), Byrd & Associates (France) and Foran Glennon Palandech Ponzi & Rudloff PC (USA). Other members are Blanco & Asociados (Spain), Khaitan Legal Associates (India), Riisa & Co (Norway) and Santo Bevilaquo Advogados (Brazil).

Jim Glennon, Partner, said: “We were all inspired by client demand. In this highly competitive rating environment, underwriters are looking for income growth in new markets or from new products – extending their business into often unfamiliar territory. The insurance industry is asking for specialist advice across multiple markets and delivered in a comprehensive manner.

“We are pleased to have formalized our relationship with our fellow member firms by putting in place the broadest network underpinned by stringent due diligence and rigorous quality control. This gives insurers comfort that they can use the strength and breadth of the network to access the right advisors, in the right places, in the right way, and reduce the time and money they spend on managing their risks.

“Over the past year and a half, we have gotten to know the principals from the other founding firms to ensure they are committed to providing the insurance industry with excellent service in a cost-effective and efficient manner.  The alliance also makes sense since many of us share common clients.  In fact, we have already worked jointly with other member firms on matters that obtained successful results for our clients.”

Mike Brown, Chairman of Global Insurance Law Connect, said “We are delighted to have Foran Glennon as one of our founder members. Their disciplined approach, skilled team and the reputation of their insurance practice in the US makes them a perfect fit for this extensive global network of specialist legal insurance practitioners.”

Recognizing the wide range of issues that insurers face today, Global Insurance Law Connect has been created to help insurers:

  • develop best-in-class products,
  • advise on coverage,
  • resolve disputes, manage claims and litigation, and
  • understand the impact of regulation.

A cornerstone of the offering is 14 special legal and risk interest groups that will work throughout the Global Insurance Law Connect network to share expert knowledge with clients across classes of business such as product liability, D&O, marine, energy and cyber. Additional groups will be added as the alliance grows in the next six months.

Please visit www.globalinsurancelaw.com for more details.

Robert Boylan and Eric Shukis Obtain Summary Judgment on $30 Million Dollar Indemnification Claim

Robert Boylan and Eric Shukis obtained summary judgment on behalf of Xchanging Solutions Limited and Xchanging Solutions USA, Inc. (together, “Xchanging”) in a case filed by Xerox State & Local Solutions, Inc. (“Xerox”).  The litigation arose out of an asset purchase agreement (“APA”) executed by the parties.  Through the APA, which was governed by New York law, Xchanging sold Xerox its remaining rights and obligations under information and technology contracts with various states, including the State of Tennessee.

The contract with the State of Tennessee obligated Xchanging to design and build a complex software application related to the State’s various eligibility systems.  In the APA, Xchanging made certain representations and warranties regarding the estimated cost and time to complete the project.  Xerox claimed that Xchanging’s estimates were inaccurate and incomplete, arguing that cost and scheduling overruns had forced it to spend nearly $100 million on the project – far in excess of what it originally anticipated.  Accordingly, Xerox sought indemnification from Xchanging for the APA’s full purchase price of roughly $30 million, plus interest.

Notably, the APA included a “survival clause,” which provided that Xchanging’s liability for breach of representations and warranties “survived” the closing for the applicable statute of limitations plus thirty days.  In other words, the statute of limitations was arguably extended by thirty days.  Relying on the APA’s survival clause, Xerox filed suit after the limitations period expired but just before the expiration of the additional thirty-day window.

Xchanging moved for summary judgment because under New York law an agreement to waive or extend the statute of limitations is unenforceable unless made in a writing signed after the cause of action has accrued.  Furthermore, under New York law, contractual representations and warranties are breached, if at all, at the time they are made. Synthesizing these two points, Xchanging argued that the APA’s survival clause was unenforceable because, at best, the alleged breach of representations and warranties occurred – and Xerox’s indemnification claim accrued – simultaneously with the promise to extend the statute of limitations.

Judge Louis B. Stanton of the Southern District of New York agreed with Xchanging, ruling that the APA’s thirty-day extension was invalid and Xerox’s $30 million indemnification claim was accordingly time-barred.  The opinion is located here: Xerox State & Local Sols., Inc. v. Xchanging Sols. (USA), Inc., — F.3d —, No. 13 CIV. 3472 (LLS), 2016 WL 6135660 (S.D.N.Y.).

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