Michael J. Smith

Michael J. Smith is a shareholder in the firm practicing in the area of complex litigation. With extensive experience in various types of commercial litigation, a significant part of his practice is devoted to complex insurance (and reinsurance) coverage issues. His experience includes matters involving mass tort (including long tail claims involving complex trigger and allocation issues), environmental, management liability (directors and officers), bad faith/extra-contractual liability, professional liability/errors and omissions, advertising injury, construction defect, and property claims.

Mike is frequently designated by clients and co-parties as lead counsel for purposes of arguing pre-trial motions and handling trial matters. His responsibilities include developing case strategies to ensure cost-effective outcomes, handling all aspects of discovery and motion practice, pretrial and trial practice, as well as conducting effective case negotiations (including, where appropriate, Alternative Dispute Resolution). He also advises clients regarding preventative measures and provides training to avoid or minimize liability exposure.

Mike has extensive litigation and trial experience in both state and federal courts throughout the country, and is admitted to practice in Pennsylvania, New Jersey, New York, Connecticut, Ohio, and Washington, D.C., as well as before the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania, the District of New Jersey, and the U.S. Court of Appeals for the 3rd Circuit, 6th Circuit, and 10^th Circuit. He has also been admitted, pro hac vice, to various courts throughout the country, and has handled matters in California, Connecticut, Delaware, Florida, Georgia, Indiana, Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Washington state, and West Virginia.

Mike was a shareholder and partner at Cozen O’Connor from 2000-2013 where he practiced nationally in the area of complex litigation. From 1993-2000, Mike practiced in state and federal courts throughout Pennsylvania and New Jersey (including jury trials, bench trials, arbitrations and appeals) with a well-respected boutique litigation firm headquartered in Philadelphia, handling tort, products liability, insurance coverage, commercial litigation, civil rights, labor and employment, and professional liability matters.

Primary Practice Areas

• Appellate Practice
• Climate, Energy & Environmental
• Complex Litigation
• Construction Defect Coverage
• Extra-Contractual / Bad Faith
• First Party Coverage
• Mass & Toxic Torts
• Management Liability, Directors & Officers, and Financial Institutions
• Professional Liability / Errors & Omissions

Areas of Focus

• Advertising Injury & Business Tort Coverage
• CGL Insurance Coverage
• Directors’ & Officers’ (D&O) Coverage
• Financial Services & Banking Coverage
• Long Tail Claims & Allocation
• Products Liability Coverage
• Professional Liability (E&O) Coverage
• Property Coverage
• Rescission & Fraud
• Trust Services Liability Coverage
• Umbrella & Excess Coverage

Teachers Insurance and Annuity Association/TIAA CREF v. U.S. Specialty Ins. Co., et al., Super. Court of DE, N21C-10-121 PRW (represent insurer in connection with dispute over coverage for underlying related claims involving insured’s alleged fraudulent sales tactics).

Roosevelt Inn, Inc., et al. v. UFVS Management, Inc., et al., U.S.D.C. E.D. PA, Docket No. 21-00053(AMC) (represent insurer in dispute over coverage for underlying sexual trafficking claims at hotels)

SPX Corporation v. Arrowood Indemnity Company, et al., Mecklenburg County Superior Court Case No. 16-CVS-15605.  (Court granted client’s Motion for Summary Judgment Against another insurer’s $9 million+ Contribution Claim). 

Kessler Dental Associates v. The Dentists Insurance Company (Eastern District of Pennsylvania 2020). Obtained summary judgment on COVID-19-related business interruption claims made by dental practice where clear and unambiguous policy language did not provide for coverage and, even coverage was triggered, a clear and unambiguous exclusion barred coverage.

Balis Family Restaurant Corporation Et Al V. Hospitality Supportive Systems, LLC, et al, U.S.D.C. E.D. PA, Docket No. 2:19-cv-00189-CDJ (represented insurer in connection with dispute over coverage for underlying dram shop claims, including matter where claimant left insured’s bar and later mysteriously disappeared into river, dying)

Certain Underwriters at Lloyd’s London, et al. v. AT&T Corp., et al., Supreme Court of the State of New York, County of New York, Index No. 653090/2013 (represent insurers in connection with insurance coverage action involving coverage for underlying asbestos-related bodily injury claims, including so-called “assumption of duty” claims)

Sycamore Partners Mgmt., L.P., et al. v. Endurance American Ins. Co., et al., Case No. N18C-09-211 AML CCLD (Del. Super. Ct. 2018) (represented insurer in coverage litigation involving underlying claims of fraudulent conveyances relating to various restructuring agreements in which policyholder was involved).

R.T. Vanderbilt Company, Inc. v. Hartford Accident & Indemnity Co., et al., Superior Court, Judicial District of Waterbury Connecticut, Complex Litigation Dep’t, No. X02-CV-07-5016321S.  (Served as lead trial, appellate and Supreme Court counsel in Phase I & II multi-week trials for 28 insurers in insurance coverage matter involving underlying asbestos, silica and talc-related claims.  Case is believed to be one of the largest insurance cases in Connecticut history and was a leading insurance case followed nationwide.)

New Jersey Transit Corp. v. Certain Underwriters at Lloyd’s, London, et al., Law Division Docket No. ESX-L-6977-14, Appellate Docket No. A-001027-17, Supreme Court Docket No. 083801.  (Argued before trial court, New Jersey Appellate Division and New Jersey Supreme Court issue of reformation of insurance policy in connection with Superstorm Sandy coverage dispute.) 

NRG Energy, Inc. v. XL Specialty Insurance Co., et al., Case No. N17C-08-335 PRW CCLD (Del. Super. Ct. 2017) (represented insurer in connection with coverage claim arising out of underlying litigation in which Noteholders alleged fraudulent obligations, transfers and insider preferences in connection with a corporate acquisition).

Everest National Ins. Co., et al. v. Illinois Union Ins. Co., et al., County of Kings, New York (2017) (Obtained summary judgment for clients with respect to claims as to a duty to defend, compelling other insurers to defend clients as additional insureds under their respective policies, and to reimburse clients for past defense costs.)

First Horizon National Corp. v. Houston Cas. Co., Western District of Tennessee (2017) (Obtained summary judgment for its client under a Blended Risk Insurance Program totaling $75 million, with a finding that the insurers properly denied coverage under their policies because the underlying claim against the insured did not fall within the applicable policy period, and, even if it did, the insured failed to give proper notice of the Claim. The Court also concluded that the insured’s bad faith claim failed, and dismissed all claims in the matter with prejudice.)

United Natural Foods, Inc. and Alfred’s Organics, Inc. v. Everest National Insurance Company, Superior Court, Rhode Island (Providence), C.A. No. PC-2014-6109 (represented insurer in connection with dispute over whether insurer was required to fund an underlying settlement involving directly assessed punitive damages).

Everest Indemnity Insurance Co. v. Valley Forge Inc., No. 15-593, E.D. Pa.; 2015 U.S. Dist. LEXIS 140277 (Obtained summary judgment on duty to defend, duty to indemnify and bad faith claim in case brought by Commonwealth of PA against insured alleging violation of Solid Waste Management Act, the Clean Streams Law and Pennsylvania common law.)

Anna Kormilitsyna, et al. v. Everest National Insurance Co., Supreme Court of New York, County of New York, Index No. 650769/2013. (Obtained partial summary judgment entered dismissing declaratory judgment count and breach of implied covenant of good faith and fair dealing.)

Green, et al. v. Everest National Insurance Company, et al., Court of Common Pleas, Philadelphia County, Pennsylvania, Docket No. 120403113. (Preliminary objections in nature of demurrer granted in favor of insurer in direct action suit.)

Everest National Insurance Company v. New Quality’s Bar Que Hut, et al. U.S.D.C. E.D. PA, Docket No. 2:2011- CV-02435. (Motion for judgment on the pleadings granted in favor of insurer finding no coverage for claims alleging violation of Telephone Consumer Protection Act.)

Evraz Claymont Steel, Inc., et al. v. Harleysville Mutual Insurance Company, et al., Superior Court of Delaware, New Castle County, C.A. No. N10C-12-038 JRS. (Summary judgment entered in favor of insurer regarding additional insured endorsement.)

Everest National Insurance Company v. J. Daniel Brett & Co., et al., U.S.D.C. E.D. PA Docket No. 08-CV-642 (Motion for judgment on the pleadings granted in favor of insurer based on “dual entity”/professional services exclusion)

Plant Insulation v. Fireman’s Fund Ins. Co., et al., Super. Court of CA, San Francisco, CGC-06-448618 (represented insurer in coverage litigation involving asbestos “products” and “non-products” claims)

COVID-19 Business Interruption Litigation: Currently representing several insurers in state and federal courts (including appeals) regarding business interruption losses from the COVID-19 pandemic.

Faulty Workmanship/Business Risk/Construction Defect: Represent insurers in connection with construction defect insurance coverage claims under CGL policies.

Personal and Advertising Injury: Represent insurers in disputes involving claims against other insurers involving disputes over additional insured and contractual liability coverage (e.g., false arrest, detention, or imprisonment; malicious prosecution; wrongful eviction; infringement on intellectual property; slander or libel).

Additional Insured/Contractual Liability Coverage: Represent insurers in claims against other insurers involving disputes over additional insured and contractual liability coverage.

Primary versus Excess Insurance Coverage Disputes: Represent insurers in disputes over primary versus excess coverage obligations.

Auto Liability/UM/UIM/First Party Coverage: Represent Insurers in connection with coverage issues involving Auto Liability/UM/UIM/First Party Coverage, stacking, workers compensation coverage issues.

Commercial Disputes: Represent businesses in contractual disputes over Agency Agreements, Ownership and Use of Expirations Following Termination of Agency Agreements.

• American College of Coverage Counsel
• American Bar Association
• Pennsylvania Bar Association
• New Jersey Bar Association
• Philadelphia Bar Association
• Defense Research Institute (DRI)
• Pennsylvania Defense Institute (PDI) – Board Member/ Director, Eastern District
• Philadelphia Association of Defense Counsel (PADC)-served as President, Treasurer and Secretary
• Arbitrator, Court of Common Pleas, Philadelphia
• Montessori Children’s House of Valley Forge (MCHVF) – served as Board Member

HONORS

Mike has been elected as a fellow of the American College of Coverage Counsel, an organization comprised of more than 350 attorneys involved in insurance coverage and extracontractual matters and honorary members from academia representing the interests of both insurers and policyholders. The college is focused on the creative, ethical, and efficient adjudication of insurance coverage and extra-contractual disputes, peer-provided scholarship, professional coordination, and the improvement of the relationship between and among our diverse members.

Mike has been repeatedly voted a Pennsylvania “Super Lawyer” as well as Best Lawyer in the Insurance Law category by his bar association peers. This honor is the result of an independent balloting survey sent to lawyers across the state and, overall, only 5 percent of lawyers are named to the list.

PUBLICATIONS & SPEAKING ENGAGEMENTS

As a complement to his extensive litigation practice, Mike has published articles and given speeches on issues of significant importance to the insurance industry. His publications and presentations include:

Panelist, Perrin Conference Emerging Insurance Coverage and Allocation Issues, May 11, 2017

Moderator and Speaker, Reservation of Rights and Denial of Coverage Letters: Key Issues and Practical Considerations, Client Seminar given on November 20, 2015

Moderator, Latest in Coverage and Bad Faith, 16th Annual Pennsylvania Bar Institute (PBI) Insurance Institute, May 9, 2012

Excess/Umbrella Insurance, client seminar given on December 8, 2010

Litigation Conduct and Bad Faith, client webinar presentation given on October 26, 2010

Litigation Conduct and Bad Faith, 2010 Cozen O’Connor Bad Faith/Extra-Contractual Conference: Unique Perspectives and Successful Strategies, presentation given on June 10, 2010, Philadelphia

Chinese Drywall: Background, Scope, and Insurance Coverage Implications, presentation given on October 1, 2009, Richmond, Va.

Chinese Drywall: Background, Scope, and Insurance Coverage Implications, presentation given on September 17, 2009, New York

Federal Magistrate Practice (Co-presented with the Honorable David Strawbridge), Philadelphia Association of Defense Counsel (PADC) Annual Meeting, June 11, 2008

Multiple Claimants and Insufficient Policy Limits: Slicing Up the Pizza Pie Without Getting Burned! Mealey’s Litigation Report: Insurance Bad Faith, May 6, 2008

Bad Faith and Punitive Damages Arising from Third-Party Liability Claims (Co-author), Property Loss Research Bureau and the Liability Insurance Research Bureau National Conference, 2005, San Antonio

Where There’s Smoke, Best’s Review, August 2005 – article regarding insurance coverage and welding rod claims

Insurance Coverage Issues, 1st and 2nd Annual ACI Advanced Forum on Welding Rod Litigation conferences, Nov. 15-16, 2004, New Orleans, and June 20-23, 2005, Chicago

Presentations for various insurance companies, entitled Bad Faith: Issues, Answers, and Practical Considerations, Bad Faith: Legal Issues and Pitfalls and Practical Considerations, and How to Avoid Bad Faith and Litigate Bad Faith Claims

The Truth About Hold Harmless and Indemnity Agreements, Insurance Society of Philadelphia

Reservation of Rights/Denial of Coverage Letters, Insurance Society of Philadelphia

CHARITABLE & CIVIC INVOLVEMENT AND PERSONAL INTERESTS

Mike has represented, on a pro-bono basis, individuals in connection with Accion Comunal Latino Americana de Montgomery County (ACLAMO), a community-based multiservice organization serving the needs of low- income families, especially those of Latino background in Montgomery County, PA. Mike has also provided pro bono services to the Montessori Children’s House of Valley Forge, Inc., a nonprofit school located in Valley Forge National Historical Park.