d'Arcambal, Ousley & Cuyler Burk, LLP

MBE WBE

  • WBE

Firm Size

  • 11-20

Willing to Act as Local Counsel

  • Yes

d’Arcambal Ousley & Cuyler Burk, LLP (“DO&CB”) specializes in commercial litigation of all types, with an emphasis on the representation of corporations in the financial and insurance services industries throughout New York, New Jersey, and Pennsylvania, concentrating in the following substantive areas:

  • Corporate and Commercial Litigation
  • Fraud Litigation
  • Life, Annuities, Health, and Disability Product and Plan Litigation (including ERISA)
  • FINRA Arbitrations
  • Regulatory Law and Insurance Products and Employee Benefit Plan Support and Advice
  • Insurance Coverage Litigation
  • General Defense Litigation and Products Liability
  • Commercial Transactions
  • Employment Discrimination and ERISA Issues

Contact

New York, NY

40 Fulton Street - Suite 1005

Person of contact: Michelle d'Arcambal

Parsippany, NJ

Four Century Drive

Person of contact: Jaclyn Malyk

Philidelphia, PA

1500 Market Street - 12th Floor

Person of contact: Nada Peters

Practice Areas

  • ADR/Arbitration
  • Banking and Finance
    • Commercial and Industrial Lending and Financing
    • Litigation
  • Insurance
    • Employment Practices
    • Extra Contractual/Bad Faith
    • Life, Health, Disability/ERISA
    • Litigation
    • Product Liability
    • Professional Liability/E&O/D&O
    • Property/Premises/Homeowners
    • Regulatory
    • Subrogation
    • Worker’s Compensation
  • Litigation/Trials
    • Class Action
    • Corporate/Commercial (Shareholder Derivative Suits, Securities, FINRA, Antitrust, Banking, Bankruptcy, etc.)
    • Employment (HR, Discrimination, ERISA, Labor, Workers Comp, etc.)
    • Health and Healthcare Law
    • Insurance
    • Personal Injury (Torts, Premises Liability, Toxic Torts)
    • Restaurant Retail & Hospitality
  • Securities
    • FINRA Litigation
    • Litigation

Firm Bio

d’Arcambal Ousley & Cuyler Burk, LLP (“DO&CB”) specializes in commercial litigation of all types, with an emphasis on the representation of corporations in the financial and insurance services industries throughout New York, New Jersey, and Pennsylvania, concentrating in the following substantive areas:

  • Corporate and Commercial Litigation
  • Life, Annuities, Health, and Disability Product and Plan Litigation (including ERISA)
  • FINRA Arbitrations
  • Regulatory Law and Insurance Products and Employee Benefit Plan Support and Advice
  • Insurance Coverage Litigation
  • Reinsurance Litigation and Arbitration
  • Mortgage Fraud Recovery Actions and Home Mortgage Indemnity Insurance Actions
  • City of New York Fire Department and Environmental Control Board violations and other alleged violation matters
  • Insurer Recovery Actions
  • Employment Discrimination and ERISA Issues
  • Defense Litigation and Products Liability

DO&CB is an AV-rated women-owned law firm comprised of skilled lawyers who have gained knowledge and experience through previous practice with major law firms and corporations.  The firm’s diversity in thought, experience, and background reflects its corporate clients’ law departments, clients, and customers.  DO&CB is a member of the National Association of Minority and Women-Owned Law Firms (“NAMWOLF”) and is certified as a Women’s Business Enterprise (“WBE”).

PRACTICE AREAS

Corporate and Commercial Litigation

DO&CB specializes in all forms of litigation and alternative dispute resolution involving the financial services industry, the hotel industry, and commercial contracts.

Representative Matters

  Financial Services Industry

  • Represented banks in connection with mortgage fraud actions against brokers, title insurers, appraisers, and settlement agents.
  • Represented banks in connection with litigation to recover unpaid claims pursuant to home mortgage indemnity insurance.
  • Successfully opposed class certification of claims that improper charges were assessed by a national bank in connection with providing a mortgage payoff statement. Fontana v. Champion Mortg. Co., Inc., 32 A.D.3d 453, 819 N.Y.S.2d 472 (2d Dep’t 2006).

  Hotel and Hospitality Industry

  • Represented a major hotel in connection with resolving a class action brought seeking payment of penalties due to alleged ATM notice defects.
  • Represented hotels and/or property owners regarding all types of violations of City and State regulations, including fire code, building code, and environmental violations, before both criminal courts and local agencies.  Representation includes assistance with compliance, proof of compliance, disputing violations and negotiating the resolution of violations.
  • Obtained dismissal of an action alleging unjust enrichment and quantum meruit in connection with identifying a potential real estate development for a hospitality corporation.
  • Successfully defended breach of duty of good faith and fair dealing case arising from major food manufacturer’s termination of licensing agreement with a hospitality corporation.

  Other Commercial Matters

  • Obtained dismissal of claims for fraud, tortious interference with a contract, antitrust violations, New York State consumer fraud statute violations and punitive damages in connection with a claim for skilled nursing benefits.
  • Resolved an information technology contract dispute favorably on behalf of a corporate client.

 LIFE, ANNUITIES, HEALTH, AND DISABILITY PRODUCTS AND PLAN LITIGATION

DO&CB represents some of the most prominent insurers and administrators of life, annuities, health, and disability products and specializes in all forms of group and individual policy litigation.

Representative Matters

  ERISA and non-ERISA Litigation (Life, Health, and Disability Group Plans)

  • Successfully resolved numerous ERISA governed long-term disability benefits actions,   frequently through mediation.
  • Obtained summary judgment in suits to recover benefits under ERISA plans.

       Dismissals on the Merits

Benefit Determination Not Arbitrary and Capricious

  • Obtained summary judgment dismissing claims for health and long-term disability benefits in numerous actions involving ERISA plans based on a finding that the determination was not arbitrary and capricious, including decisions regarding the appropriate treatment for Lyme disease and treatment for substance abuse.  See, e.g., Salerno v. Prudential Ins. Co. of Am., No. 1:08-CV-0787 (LEK/DRH), 2009 U.S. Dist. LEXIS 66804, 2009 WL 2412732 (N.D.N.Y. Aug. 3, 2009);  Healix Healthcare, Inc. v. Metrahealth Ins. Co., No. 97 Civ. 6838 JSM, 1999 U.S. Dist. LEXIS 1288, 1999 WL 61832 (S.D.N.Y. Feb. 10, 1999); Silver Hill Hosp. v. Rizzo, No. 97 Civ. 8207 (RPP), 1999 LEXIS 9896, 1999 WL 447446 (S.D.N.Y. June 30, 1999).
  • Obtained summary judgment on ERISA-governed Accidental Death and Dismemberment plan upholding administrator’s determination that a partial loss of thumb and functional loss of fingers did not constitute “dismemberment” under the terms of the plan.  Khan v. Prudential Ins. Co. of America, No. 08-02292 (D.N.J. Mar. 31, 2010).
  • Obtained summary judgment in New Jersey Federal District Court dismissing plaintiff’s denial of coverage claim and holding that a company’s denial of accidental death and dismemberment benefits based upon the sickness exclusion was not arbitrary and capricious. Wortendyke v. The Prudential Ins. Co. of America, No. 10-06060 (D.N.J. May 11, 2012).    
  • Obtained summary judgment dismissing plaintiff’s denial of coverage claim and holding that Prudential’s denial of accidental death and dismemberment benefits based upon an intoxication exclusion was not arbitrary and capricious. Benoit v. Prudential Ins. Co. of Am., No. 07-CV-6407, 2008 LEXIS 56706, 2008 WL 2917492 (W.D.N.Y. July 24, 2008).    

Other

  • Obtained summary judgment on disputed amount of AD&D benefit under ERISA-governed welfare plan. The Prudential Ins. Co. of Amer. v. Brimberry, No. 13-07429, 2014 WL 3510109 (C.D. Cal. July 11, 2014).
  • Obtained summary judgment dismissing a claim for accidental death benefits under an ERISA-governed policy on the basis that the loss was excluded under the policy’s medical treatment exclusion as well as time-barred by the policy’s contractual limitation provision.  Eterovich v. Prudential Ins. Co. of Am., No. 11-2907, 2012 U.S. Dist. LEXIS 15271, 2012 WL 406272 (D.N.J. Feb. 8, 2012).
  • Obtained summary judgment dismissing plaintiff’s claim for damages under ERISA 510 (29 U.S.C. § 1140) and seeking a private right of action for a violation of HIPAA.  The court stated that the plaintiff had authorized the company to disclose information to relevant parties such as her employer. Further, the court rejected plaintiff’s HIPAA claim stating, among other things, that she had no standing to bring a private right of action against the company for violating HIPAA.  Bamforth v. Frontier Commc’ns Corp., 2012 U.S. Dist. LEXIS 175882 (N.D.N.Y Dec. 12, 2012).
  • Obtained summary judgment holding that Prudential was not estopped from asserting that the ERISA benefit plan participant’s son was ineligible for coverage, participant was not entitled to convert dependent coverage to an individual policy retroactively, participant’s claim for breach of the common law duty of good faith and fair dealing was preempted by ERISA, and claim captioned as a request for “equitable relief” in fact sought nothing other than money. Bicknell v. Lockheed Martin Grp. Benefits Plan, 410 F. App’x 570 (3d Cir. 2011).

     Dismissals Based on ERISA Affirmative Defenses

            Exhaustion of Administrative Remedies

  • Obtained summary judgment dismissing claim for health benefits due to plaintiff’s failure to exhaust administrative remedies and successfully opposed motion for summary judgment dismissing ERISA causes of action for unjust enrichment and equitable restitution. Antell v. United Healthcare Ins. Co., No. 1:10-cv-03194-RJS, 2012 U.S. Dist. LEXIS 188246 (S.D.N.Y. Mar. 16, 2012).

            Time Barred

  • Obtained judgment on the pleadings holding that courts must adhere to the accrual date as set forth in an ERISA plan, even if the limitations period begins to run before an individual can bring a legal action. The court also found that plaintiff’s notice of claim and proof of loss submissions were barred by the plan’s express time limits.  Salerno v. Prudential Ins. Co. of Am., No. 1:08-CV-0787 (LEK/DRH), 2009 U.S. Dist. LEXIS 66804, 2009 WL 2412732 (N.D.N.Y. Aug. 3, 2009); see also Gassiott v. Prudential Ins. Co. of Am., No. .08 Civ. 7358 (JFK), 2009 U.S. Dist. LEXIS 93136, 2009 WL 3188428 (S.D.N.Y. Oct. 6, 2009).
  • Obtained judgment dismissing action for long term disability benefits under group, non-ERISA plan on the basis that the claim was time-barred pursuant to the policy’s three year contractual limitations period providing that no action may be brought more than three years after the time proof of loss is required.  The court rejected plaintiff’s argument that the accrual date provided for in the contractual limitations provision should be ignored and/or equitably tolled because plaintiff was engaged in an internal appeals process.   

             Pre-emption

  • Successfully argued that an ERISA plan beneficiary’s New Jersey Consumer Fraud Act claim was preempted by ERISA. Grimes v. Prudential Fin., Inc., No. 09-419 (FLW), 2010 LEXIS 64530, 2010 WL 2667424 (D.N.J. June 29, 2010).
  • Obtained decision denying motion to remand based on assignment of claims to provider, and holding that ERISA pre-empted all of the state statutory and common law claims relating to claims under ERISA plans. Weisenthal v. UnitedHealthCare Ins. Co. of New York, Nos. 07 Civ. 1175 (LAP), 07 Civ. 0945 (LAP), 2007 U.S. Dist. LEXIS 91447, 2007 WL 4292039 (S.D.N.Y. Nov. 29, 2007).
  • Obtained summary judgment holding that ERISA preempted breach of contract and duty of good faith and fair dealing claims and dismissing ERISA complaint for failure to exhaust plan’s administrative procedures before seeking judicial relief. Majka v. Prudential Ins. Co. of Am., 171 F. Supp. 2d 410 (D.N.J. 2001).

  Individual Life and Disability Insurance and Annuities Litigation

             Rescission  Litigation

  • Obtained summary judgment based on material misrepresentations by the insured regarding his medical history, which plaintiff claimed the company should have ascertained from the records available. Court rejected plaintiff’s claim that company was estopped from rescinding based on “post-claim underwriting” and Appellate Division clarified that actual notice of misrepresentation is required to be shown.  Kerrigan v. Metropolitan Life Ins. Co., 2013 N.Y. Misc. LEXIS 6489 (N.Y. Sup. Ct. 2013) aff’d 117 A.D.3d 562 (1st Dep’t 2014); Motions for Leave to Appeal to Court of Appeals denied.
  • Obtained summary judgment rescinding life insurance policy based on material misrepresentations regarding financial disclosures. Jae v. Metro. Life Ins. Co., No. A-2302-11T4, 2013 N.J. Super. Unpub. LEXIS 340, 2013 WL 535256 (App. Div. Feb. 14, 2013), cert. denied, 68 A.3d 891, 214 N.J. 176 (2013).
  • Obtained summary judgment on claim for rescission based on equitable fraud as a result of insured’s material misrepresentation regarding his cardiac condition on limited insurance agreement and insured’s subsequent death during binder period. Rothy v. Prudential Insurance Company, No. MON-L-4668-11 (N.J. Super. Ct. Nov. 4, 2013).
  • Successfully tried a disability insurance fraud rescission case (outside the contestability period) in the Federal District Court, Southern District of New York (Rakoff, J).  The Second Circuit affirmed the district court’s holding that the insured’s misrepresentations “continued in her trial testimony” and that her fraudulent intent was clearly established by the record.  Dormer v. Nw. Mut. Life Ins. Co., No. 08 Civ. 8725 (JSR), 2009 U.S. Dist. LEXIS 76611, 2009 WL 2603123 (S.D.N.Y. Aug. 24, 2009), aff’d, 408 F. App’x 452 (2d Cir. 2011).
  •  Obtained summary judgment rescinding a $1,000,000 policy based upon material misrepresentations in the policy where plaintiff argued, among other issues, that the insured did not understand English. Park v. Metro. Life Ins. Co., 421 F. App’x 197 (3d Cir.), cert. denied, 132 S. Ct. 243, 181 L .Ed. 2d 138 (U.S. 2011).
  • Obtained summary judgment based on financial and medical misrepresentations, finding also that insurer is not stopped based on agent’s knowledge. New England Life Insurance Co. v. Taverna, 2002 U.S. Dist. LEXIS 10747.
  • Obtained summary judgment rescinding two life insurance policies, with face values totaling $1,000,000, based upon misrepresentations in the application regarding the insured’s mental health and cardiac condition. Ghilliani v. MetLife, No. 78A. 2001 (New York Surrogate’s Court, Suffolk County).
  • Obtained summary judgment dismissing claims relating to several disability riders. Jasmine v. MetLife, No. 99.11325 (New York Supreme Court, New York County).

Sales Practices Litigation

  • Obtained summary judgment dismissing complaint alleging improper sale of annuities, including allegation that monies should have been invested in the stock market, and that agent exercised undue influence and recommended annuities solely to obtain commissions.
  • Successfully opposed plaintiff’s summary judgment motion seeking life insurance benefits. Opposition was based on misrepresentations of medical history and identity of premium payor contrary to anti-money laundering and PATRIOT Act requirements. Successfully cross-claimed to add a cause of action under the New Jersey Fraud Protection Act.  Decision was upheld by Appellate Division, First Department.  Johnson v. Metro. Life Ins. Co., 24 Misc. 3d 956, 880 N.Y.S.2d 842 (N.Y. Sup. Ct. 2009), aff’d, 79 A.D.3d 450, 913 N.Y.S.2d 44 (N.Y. App. Div. 1st Dep’t 2010).
  • Obtained decision holding that plaintiff’s action was barred by his failure to opt out of a multi-state federal court class action settlement governing the policy. Greene v. Metro. Ins. and Annuity Co., No. 07-2903 (MLC), 2009 U.S. Dist. LEXIS 33767, 2009 WL 1045016 (D.N.J. Apr. 20, 2009).

            Other Litigation

  • Obtained dismissal of lawsuit against insurance company and its broker-dealer and registered investment advisor unit on the basis that causes of action alleging that defendants negligently supervised a financial advisor, were vicariously liable for actions taken with respect to elderly customer’s insurance policies, annuities, and other investments, and had breached a direct fiduciary duty to Plaintiff were time-barred. Davoli v. Dourdas, 2015 N.Y. Misc. LEXIS 1345 (N.Y. Sup. Ct. Apr. 20, 2015).
  • Obtained dismissal of all six counts of complaint brought by former spouse of deceased and mother of adult children to whom MetLife has paid the death benefits. The Court held that the negligent infliction of emotional distress count was “utterly without merit and, indeed, frivolous” and that the breach of contract count alleging that plaintiff was due the insurance monies on her own behalf was barred by New Jersey’s divorce revocation statute. The Court dismissed the remaining counts for failure to state a claim, noting, inter alia, “In the absence of pled facts, Plaintiff’s allegation is merely a legal conclusion devoid of factual support.” Dean v. New England Mutual Life Ins. Co., Metropolitan Life Ins. Co. t/a MetLife, No. 14-2211 (D.N.J. Jan. 29, 2015).
  • Obtained summary judgment and successfully opposed class certification in a class action alleging age discrimination in premium charged on life policies with continuation of premium provision. Lunn v. Prudential Ins. Co. of Am., 283 F. App’x 940 (D.N.J.), aff’d, 2008 WL 2569339 (3d Cir. 2008).
  • Obtained appellate court decision holding that, pursuant to the express terms of New York Insurance Law Section 3214, the interest to be awarded for the pre-judgment period is the interest settlement option rate of the life insurance policy at issue, and not the statutory nine percent rate. Gassman v. Metro. Life Ins. Co., 56 A.D.3d 608, 868 N.Y.S.2d 98 (N.Y. App. Div. 2d Dep’t 2008).

Life Insurance Interpleader Actions

  • National coordinating counsel for two major life insurers involving the resolution and litigation of competing claims for life insurance proceeds and slayer statutes. Actively involved in interpleader litigation throughout the United States Federal District, state and probate courts.
  • Obtained dismissal of a lawsuit pending in the Central District of California on the basis that it was an improperly filed anticipatory lawsuit in favor of a later-filed interpleader action filed by the insurer in the District of New Jersey.  Brimberry v. The Prudential Ins. Co. of America, No. 13-00186 (C.D. Cal. May 2, 2013).  
  • Obtained a preliminary injunction and constructive trust over funds paid to a putative beneficiary in the face of a competing claimant’s post-payment claim for the proceeds.  Pruco Life Ins. Co. v. Noviello, No. OCN-L-496-13 (N.J. Super. Ct. May 1, 2013); The Prudential Ins. Co. of America v. Hewitt-Jackson, No. 13-00788 (W.D. Pa. Sept. 10, 2013).
  • Successfully argued to the District Court, Eastern District of Kentucky that the standard of review was arbitrary and capricious with respect to decision to interplead ERISA-governed life insurance benefits.

Health Provider Litigation, including Affirmative Fraud Actions

  • Successfully moved to compel arbitration and stay litigation in action brought by hospital against insurance company regarding DRG payments under a hospital service agreement. Montefiore Medical Center v. Aetna Health, Inc., 2013 N.Y. Misc. LEXIS 2356 (N.Y. Sup. Ct. Mar. 22, 2013).
  • Obtained partial summary judgment based on affirmative defenses on behalf of a health insurer and plan sponsors defending against action brought by group of neurosurgeons seeking additional payments for over 190 surgeries paid by health insurer according to plan terms.  Neuroaxis Neurosurgical Assocs., PC v. Costco Wholesale Co., 919 F. Supp. 2d 345 (S.D.N.Y. 2013).
  • Represented health insurers in connection with New York and New Jersey state court actions brought by non-participating providers seeking to avoid ERISA protections and standing issues by claiming negligent misrepresentation, and other torts allegedly unique to the providers.
  • Obtained full recovery of overpayments made by insurer under hospital contract. Successfully arbitrated claims brought by hospital that insurer has underpaid hospital pursuant to contract.

           Affirmative Fraud Actions

  • Mediated advantageous settlements on behalf of health insurers in several actions involving provider fraud litigations.
  • Represented health insurers in obtaining temporary restraining orders enjoining providers and billing companies from balance billing plan members pursuant to a scheme to coerce egregious overpayments from insurer.
  • Successfully opposed provider’s multiple motions in New Jersey Superior Court to dismiss counterclaims for fraud stemming from provider’s failure to collect co-insurance and deductibles.
  • Obtained summary judgment holding that provider’s failure to collect co-insurance and deductibles entitled insurer to recovery. LIPA v. MetLife, No. 99-02351 (New York Supreme Court, Nassau County).
  • Obtained summary judgment on behalf of UHC dismissing a complaint brought by a provider alleging libel, tortious interference with contractual relations, and anti-trust violations in connection with a claims audit. Long Island Pulmonary Associates, P.C. v. Metropolitan Life Insurance Co., 303 A.D.2d 645, 756 N.Y.S.2d 788, 2003 N.Y. App. Div. LEXIS 3135 (N.Y. App. Div. 2d Dep’t. 2003).

Health Benefits Litigation

  • Obtained summary judgment dismissing a putative class action challenging secondary payer status of the group plan when the member was eligible for Medicare coverage. When the same class plaintiff commenced a similar putative class action in federal court, the court granted summary judgment and denied class certification. Regan v. N.Y.S. Dept. of Civil Serv.,  284 A.D.2d. 950, 725 N.Y.S.2d 917 (N.Y. App. Div. 4th Dep’t 2001).  Regan v. Metro. Life Ins. Co., 80 F. App’x 718 (2d Cir. 2003), cert. denied, 543 U.S. 875, 125 S. Ct. 84, 160 L. Ed. 2d 126 (U.S. 2004).
  • Obtained summary judgment in numerous actions based on anti-assignment, reasonable and customary charge and/or statute of limitations provisions in health insurance plans.  See, e.g., Basri v. MetLife Ins. Co., 306 A.D.2d 302, 760 N.Y.S.2d 654 (N.Y. App. Div. 2d Dep’t 2003).
  • Successfully litigated, through trial and appeal, a lawsuit challenging the reduction of skilled nursing benefits from twenty-four to two hours per day. Recovery Home Servs. v. Metro. Life Ins. Co., 284 A.D.2d 178, 726 N.Y.S.2d 253 (N.Y. App. Div. 2d Dep’t 2001).
  • Obtained summary judgment upholding Medicare supplemental plan’s determination that plaintiff’s stay in skilled nursing facility was not covered under the terms of the health plan at issue, as her medical condition did not require skilled care. Berkowitz v. Neuman v. United Health Care, No. 98-6831 (New York Supreme Court, Bronx County).
  • Obtained summary judgment with respect to RICO, fraud, and New York State Consumer Fraud statute claims regarding denied claims for skilled nursing care. Hutton v. MetLife, No. 97-09312 (New York Supreme Court, Westchester County).
  • Obtained summary judgment and denial of a motion for class certification in connection with a putative class action under New York State’s Well Baby statute. Gosinski v. MetLife, No. 95-126777 (New York Supreme Court, New York County).

FINRA EXPERTISE

DO&CB lawyers have had extensive experience representing life insurance companies for over twenty years.  In doing so, we have acquired extensive knowledge of insurance products, life and annuity contracts with and without variable features or other securities components, employee benefits plan design, and associated legal and financial requirements.  In addition, while employed as in-house counsel, several firm lawyers defended sales practices related putative class actions and individual opt-out and lawsuits involving variable and nonvariable life and annuity products.  Many of these cases involved alleged misrepresentations relating to “vanishing premiums,” assertions that products were not suitable for the customers, or theories that unauthorized promissory notes were used in connection with the sale process. 

Firm lawyers have handled arbitrations and mediations involving variable life and annuity products before the Financial Industry Regulatory Authority (FINRA) and the National Association of Securities Dealers (NASD).  DO&CB lawyers work with the firm’s securities product law specialists to handle these matters with our streamlined dispute resolution processes in an expeditious and cost-efficient manner.  Many of the arbitrations handled by firm lawyers have involved alleged suitability and pricing representation issues for variable life and annuity products.  Some of the arbitrations involved allegations of “selling away” by registered representatives of unauthorized products such as questionable promissory notes.

REGULATORY LAW AND INSURANCE PRODUCTS AND EMPLOYEE BENEFIT PLAN AND ADVICE

DO&CB lawyers have specialized knowledge of regulations pertaining to individual and group life, health, and disability products and group annuity products, many of which are subject to securities law and regulation.  The firm’s lawyers have represented insurers in connection with various regulatory issues including matters before the Department of Insurance in New Jersey and New York, contested regulatory matters before administrative bodies and in court, insurance rate matters, insurance-related tax disputes, and blind inquiries.  One of the firm’s attorneys, Jim Lenaghan, is the Director of the New Jersey Life and Health Guaranty Association and thus has experience with regulators and the FDIC.

DO&CB is uniquely positioned to provide advice and support with respect to financial products marketed and delivered nationwide.  For example, in connection with the development of new products as well as existing products, the firm routinely advises insurance clients on each jurisdiction’s requirements as to contract and certificate language and filing, and the extra-territorial application of those requirements, approval, group identity, advertising, pre-existing conditions, outline of coverage, “free-look” periods, portability, continuation and conversion, and disclosures.  The firm further reviews particular products and advises on whether the product complies with the substantive regulations in each jurisdiction, nationwide.  The firm also provides advice as to various related issues, such as the advertisement of insurance products. 

EMPLOYMENT LITIGATION: ERISA AND DISCRIMINATION

In addition to the employment related ERISA claims such as levels of benefits, reductions, and pensions, several of the DO&CB lawyers have experience with labor and employment issues. Our lawyers have been engaged to represent defendants in employment discrimination claims in state and federal courts as well as before administrative agencies.  DO&CB lawyers have experience in claims arising under state and federal law, including hostile work environment sexual harassment claims and claims of discrimination based on gender, race, religious affiliation and age. 

DO&CB has defended claims on behalf of major corporations as well as smaller local companies. DO&CB has counseled clients regarding the drafting of employment contracts, releases and covenants not to compete.  We have drafted and reviewed sexual harassment policies to provide maximum protection against liability for unauthorized acts of others in the workplace and to avoid “hostile work environment” claims.  DO&CB lawyers have represented employees and employers in non-compete/confidentiality disputes and have provided guidance to avoid problems in all employment decisions, such as hiring, terminations, lateral assignments, promotions, leaves of absence, short-term illnesses, work related injuries, disability accommodations, and wage and hour requirements.

INSURANCE COVERAGE LITIGATION

DO&CB’s lawyers are leaders in insurance coverage litigation, having been at the forefront of many major coverage cases over the past three decades.  DO&CB’s victories include summary judgment, defeating summary judgment to obtain favorable settlements, and trial and appellate successes in matters arising out of the scope of coverage.  Such issues often involve complex, long-tail exposure claims by Fortune 500 policyholders under primary, umbrella, excess or captive policies.  

DO&CB lawyers’ role as litigation counsel or advisory counsel has extended to coverage issues for liabilities as varied as environmental, asbestos, FRT plywood, latex glove, tobacco, Y2K, professional malpractice, advertising, construction, business torts, labor disputes, and employment.  The DO&CB lawyers have counseled our clients on how to avoid unfair claims practices litigation by instituting procedures for claims handling and drafting reservation of rights letters.

DEFENSE LITIGATION AND PRODUCTS LIABILITY

DO&CB’s defense litigation practice includes defending claims arising out of products liability, personal injury, contracts, toxic torts, construction, intellectual property, and professional liability. As a result of the firm’s experience in these areas, DO&CB’s lawyers are consistently confronted with related issues such as foreign law and treaties, indemnification, corporate successor liability, bankruptcy, and preemption.

DO&CB also has a practice specializing in the defense of products liability claims on behalf of manufacturers and distributors.  DO&CB’s products liability clients include Fortune 100 companies.  DO&CB lawyers have defended claims involving, among other things, construction equipment, food products, vehicles, recreational equipment, industrial machinery and swimming pools.   

In addition to claims involving defects in retail consumer products, DO&CB has extensive experience representing companies in the Food and Beverage Industry in cases including claims involving food borne illnesses, infestation, warning labels and/or duty to warn, general liability arising out of trucking incidents, and food licensing agreement disputes.  DO&CB lawyers have also counseled clients related to crisis management and product recall issues.   

COMMERCIAL TRANSACTIONS

DO&CB lawyers have substantial experience in insurance and other commercial transactions.  Lawyers in the firm have managed and performed a variety of specific tasks in mergers of insurance companies, assumption insurance and/or reinsurance matters, securities product development, rehabilitations and insolvencies, prospectus preparation and oversight, and required governmental filings at state and local levels.  

Several DO&CB lawyers have worked for many years in real estate, zoning, banking and other commercial transactions.  DO&CB also has substantial experience dealing with tax, accounting and project management experts who are involved in such transactions.  If litigation should arise or be threatened during or after a transaction, the firm has substantial experience in handling such matters successfully and in a cost-efficient manner.

SELECTED REPORTED CASES

FEDERAL COURT DECISIONS

  •  Antell v. United Healthcare Ins. Co., No. 1:10-cv-03194-RJS, 2012 U.S. Dist. LEXIS 188246 (S.D.N.Y. Mar. 16, 2012).
  • Benoit v. Prudential Ins. Co. of Am., No. 07-CV-6407, 2008 LEXIS 56706, 2008 WL 2917492 (W.D.N.Y. July 24, 2008).   
  • Bicknell v. Lockheed Martin Grp. Benefits Plan, 410 F. App’x 570 (3d Cir. 2011).
  • Dormer v. Nw. Mut. Life Ins. Co., No. 08 Civ. 8725 (JSR), 2009 U.S. Dist. LEXIS 76611, 2009 WL 2603123 (S.D.N.Y. Aug. 24, 2009), aff’d, 408 F. App’x 452 (2d Cir. 2011).
  • Eterovich v. Prudential Ins. Co. of Am., No. 11-2907 (SRC), 2012 U.S. Dist. LEXIS 15271, 2012 WL 406272 (D.N.J. Feb. 8, 2012).
  • Gassiott v. Prudential Ins. Co. of Am., No. .08 Civ. 7358 (JFK), 2009 U.S. Dist. LEXIS 93136, 2009 WL 3188428 (S.D.N.Y. Oct. 6, 2009).
  • Greene v. Metro. Ins. and Annuity Co., No. 07-2903 (MLC), 2009 U.S. Dist. LEXIS 33767, 2009 WL 1045016 (D.N.J. Apr. 20, 2009).
  • Grimes v. Prudential Fin., Inc., No. 09-419 (FLW), 2010 LEXIS 64530, 2010 WL 2667424 (D.N.J. June 29, 2010).
  • Healix Healthcare, Inc. v. Metrahealth Ins. Co., No. 97 Civ. 6838 JSM, 1999 U.S. Dist. LEXIS 1288, 1999 WL 61832 (S.D.N.Y. Feb. 10, 1999).
  • Lunn v. Prudential Ins. Co. of Am., 283 F. App’x 940 (D.N.J.), aff’d,2008 WL 2569339 (3d Cir. 2008).
  • Majka v. Prudential Ins. Co. of Am., 171 F. Supp. 2d 410 (D.N.J. 2001).
  • Neuroaxis Neurosurgical Assocs., PC v. Costco Wholesale Co., 919 F. Supp. 2d 345 (S.D.N.Y. 2013).
  • New England Life Ins. Co. v. Taverna, No. 00-CV-2400 (ILG), 2002 U.S. Dist. LEXIS 10747, 2002 WL 718755 (E.D.N.Y. Mar. 1, 2002).
  • Park v. Metro. Life Ins. Co., 421 F. App’x 197 (3d Cir.), cert. denied, 132 S. Ct. 243, 181 L .Ed. 2d 138 (U.S. 2011).
  • Regan v. Metro. Life Ins. Co., 80 F. App’x 718 (2d Cir. 2003), cert. denied, 543 U.S. 875, 125 S. Ct. 84, 160 L. Ed. 2d 126 (U.S. 2004).
  • Rome v. MTA/New York City Transit, No. 97-CV-2945 (JG), 1997 U.S. Dist. LEXIS 23436, 1997 WL 1048908 (E.D.N.Y. Nov. 18, 1997).
  • Salerno v. Prudential Ins. Co. of Am., No. 1:08-CV-0787 (LEK/DRH), 2009 U.S. Dist. LEXIS 66804, 2009 WL 2412732 (N.D.N.Y. Aug. 3, 2009).
  • Scannell v. Metro. Life Ins. Co., No. 03 Civ. 990 SAS, 2003 U.S. Dist. LEXIS 20749, 2003 WL 22722954 (S.D.N.Y. Nov. 18, 2003).
  • Weisenthal v. UnitedHealthCare Ins. Co. of New York, Nos. 07 Civ. 1175 (LAP), 07 Civ. 0945 (LAP), 2007 U.S. Dist. LEXIS 91447, 2007 WL 4292039 (S.D.N.Y. Nov. 29, 2007).
  • Wortendyke v. Prudential Ins. Co. of Am., Civil Action No. 10-06060 JLL (MAH) (D.N.J. May 11, 2012). 

STATE COURT DECISIONS

  • Basri v. Metro. Life Ins. Co., 306 A.D.2d 302, 760 N.Y.S.2d 654 (N.Y. App. Div. 2d Dep’t 2003).
  • Fontana v. Champion Mortg. Co., Inc., 32 A.D.3d 453, 819 N.Y.S.2d 472 (2d Dep’t 2006).
  • Gassman v. Metro. Life Ins. Co., 56 A.D.3d 608, 868 N.Y.S.2d 98 (N.Y. App. Div. 2d Dep’t 2008).
  • Harvey & Harvey v. Anonymous, 244 A.D.2d 651, 665 N.Y.S.2d 354 (N.Y. App. Div. 3d Dep’t 1997).
  • Johnson v. Metro. Life Ins. Co., 24 Misc. 3d 956, 880 N.Y.S.2d 842 (N.Y. Sup. Ct. 2009), aff’d, 79 A.D.3d 450, 913 N.Y.S.2d 44 (N.Y. App. Div. 1st Dep’t 2010).
  • Jae v. Metro. Life Ins. Co., No. A-2302-11T4, 2013 N.J. Super. Unpub. LEXIS 340, 2013 WL 535256 (App. Div. Feb. 14, 2013), certif. denied, 68 A.3d 891, 214 N.J. 176 (2013).
  • Kerrigan v. Metropolitan Life Ins. Co., 2013 N.Y. Misc. LEXIS 6489
  • Koloski v. Metro. Life Ins. Co., 5 Misc. 3d 1028, 799 N.Y.S.2d 161 (N.Y. Sup. Ct. 2004).
  • Lee v. Luk, 68 A.D.3d. 554, 889 N.Y.S.2d 464 (N.Y. App. Div. 1st Dep’t 2009).
  • Long Island Pulmonary Assoc., P.C. v. Metro. Life Ins. Co., 303 A.D.2d 645, 756 N.Y.S.2d 788 (N.Y. App. Div. 2d Dep’t 2003).
  • Recovery Home Servs. v. Metro. Life Ins. Co., 284 A.D.2d 178, 726 N.Y.S.2d 253 (N.Y. App. Div. 2d Dep’t 2001).
  • Teichman v. Cmty. Hosp. of W. Suffolk, 663 N.E.2d 628, 640 N.Y.S.2d 472 (N.Y. 1996).

 

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