Jeffrey A. Kiburtz

Environmental/Asbestos

• Land developer in prosecuting coverage and bad-faith claims under Pollution Legal Liability / Cost-Cap policy for costs incurred remediating former military base (Heritage Fields El Toro LLC v. AIG Specialty Ins. Co., Orange County Superior Court).
• Helped secure landmark appellate ruling affirming California policyholders’ right to selectively exhaust triggered policies without “horizontally exhausting” all available coverage in other years (Montrose Chem. Corp. v. Superior Court, 5 Cal. 5th 215 (2020) (representing Amicus Curiae United Policyholders).
• Multiple clients in connection with analysis of long-tail coverage issues in jurisdictions throughout the country including California, Illinois, Indiana, Pennsylvania, New York, Texas, Wisconsin, Ohio, Washington, and Oregon; issues include trigger, “all sums” versus “pro-rata,” stacking of limits and deductibles, premises versus products, number of occurrences, allocation, policies purchased by prior acquisition targets, successor liability, anti-assignment clauses, indemnity under asset purchase agreements, lost policies and insurance policy archaeology.
• Multiple clients involved in brownfield redevelopment and claims for clean-up costs and liability under “cost cap” and pollution legal liability policies.
• Coverage for response and other costs incurred in connection with release and alleged seepage from coal ash impoundments.
• Private equity company in connection with acquisition of a building supply company with significant asbestos liability.
• Plumbing distributor in asbestos liability coverage under more than 20 years of primary, umbrella and excess policies.

Construction

• Developer of high-rise tower in connection with insurance coverage under CCIP program and other policies related to major subsidence issues.
• Developers of high-end condominium project in litigation in Hawaii under OCIP and Pollution Legal Liability policies.
• Construction products manufacturer in $55.3 million jury verdict for breach of contract, bad faith and punitive damages.
• Project owner in connection with coverage for eight-figure settlement under project-specific design liability policy.
• Owner of $10 million+ residential project in connection with OCIP wrap program and other contracting-phase coverage issues.
• Prosecution of coverage and indemnity claims by construction manager sued for delay and other damages in multi-prime, design-build commercial project.
• Additional Insured” coverage under policies issued to subcontractors that worked on commercial earthquake-retrofit and rehabilitation project.
• Coverage litigation and mediation involving suit brought against general contractor for alleged defects in government laboratory building.
• General contractor in litigation and mediation of claim involving $10 million in alleged construction defects damages suffered by casino owner.
• Infrastructure contractor in coverage dispute involving eight-figure, catastrophic rollover suit.
• Multiple clients in contracting-phase insurance advisory matters.
  
  

Cyber/Network Security/Data Privacy Breach

• Major university research hospital in litigation involving alleged data security breach claim involving 20,000 patients; case resulted in one of the first court rulings that statutory damages for privacy breaches are covered under general liability policies.
• Multiple clients in connection with the assessment and negotiation of policy language for cyber/network security/data privacy breach insurance policies.
• Multinational service provider in connection with coverage under primary and umbrella general liability policies for putative class litigation involving alleged TCPA violations.
• National retailer in litigation and negotiation of claims against its D&O and CGL insurers for coverage of class action claims alleging illegal recording of customer telephone calls.
• Captive insurer of global professional services company in adjusting a nearly $40 million claim for costs of responding to a foreign government sponsored advanced persistent attack on its network.

Healthcare/Life Sciences

• Healthcare network in obtaining coverage under multiple D&O towers for allegedly interrelated antitrust lawsuits.
• Coverage litigation resulting in favorable ruling on insurer’s efforts to have Illinois-domiciled case dismissed based on choice-of-law and forum selection clauses in German-language policy.
• Advised oncology-focused biotech company on potential coverage for HIPAA violations and other risks under proposed privacy and network security policy.
• Negotiation and mediation of claim involving coverage for losses incurred in internal investigation and dozens of product liability lawsuits under high-deductible insurance program consisting of captive, domestic commercial and Bermuda Form layers.
• Advised biopharmaceutical company on potential coverage for investigative costs and other issues under proposed D&O renewal.
• Arbitration and litigation involving coverage for loss exceeding $400 million stemming from suits brought worldwide by plaintiffs alleging HIV and Hepatitis-C infections from human plasma-derived products.
• Life sciences company under clinical trials professional liability policy for claim involving death of participant.
• Recovery under D&O policy for defense and settlement costs incurred in litigation involving allegations of improper pricing practices.
  Multiple insurance coverage and non-insurance contractual indemnity issues arising from losses related to alleged contamination of China-sourced active pharmaceutical ingredient.
  

Technology

• Major space research and development center prosecuting coverage and bad-faith claims arising out of insurer’s failure to pay for extensive damage to network servers and related computer equipment (Aerospace Corp. v. Factory Mutual Ins. Co., U.S. District Court, Central District of California).
• E-commerce company in connection with placement of professional liability and data breach policy and related risk management issues.
• Global software and professional service provider in recovery of almost $50 million under primary and excess technology professional liability policies for losses incurred in putative class litigation involving alleged fraud and conspiracy.
• Software company in recovery under D&O and fiduciary liability policies for losses incurred in government investigations and private litigation related to allegedly “backdated” stock options.
• IT service provider in connection with tail and other D&O coverage for claims against former directors and officers of acquired company and related indemnification issues.
• Technology company in connection with claim for informal and formal investigation costs.
• Claim under primary and excess professional liability policy for losses incurred in commercial IT services contract dispute.

Mergers and Acquisitions

• Multiple clients on D&O, Side A DIC, workers compensation and other insurance issues related to the sale of U.S. assets by foreign companies.
• Multiple clients on representations and warranties insurance in connection with purchase and sale of companies with significant asbestos and environmental liabilities.
• Insurance due diligence concerning coverage for projected asbestos liabilities.
• D&O tower claim involving alleged fraudulent conveyance and related claims brought by trustee of insolvent, former subsidiary stemming from leveraged recapitalization transaction. 

Financial Services

• Multiple clients in connection with the placement and renewal of their D&O programs, including global credit card and payment services company, credit and special situation investment fund, and traditional financial institutions.
• Global asset manager in connection with claims under D&O policies for investor suits involving various structured financial products.
• Fidelity bond claim arising from failed community bank in Hawaii.
• Negotiation and mediation of claim under trust errors and omissions policy for suit alleging mismanagement during conservatorship and trust administration.
• Coverage litigation under D&O and financial institution bond for suit involving alleged “affinity fraud” committed by bank employees and customers.
• Coverage litigation involving D&O policy for suit filed against publicly-traded community bank involving allegations that previously-acquired bank aided and abetted Ponzi scheme.