Elizabeth Fisher

Obtained grant of writ of certiorari by the United States Supreme Court, continued as counsel at the merits stage, and obtained a favorable 9-0 decision in a case raising important issues under the Double Jeopardy Clause. McElrath v. Georgia, 601 U.S. 87, 144 S.Ct. 651 (U.S. 2024). Obtained ruling by Nevada federal court granting liability insurer’s motion for summary judgment, holding that the insurer is not obligated to provide coverage for liability arising out of a hotel fire because the policy at issue provided coverage only for designated premises or operations that are necessary or incidental to the ownership, maintenance, or use of the designated premises, not including the hotel where the fire occurred. Las Vegas Dragon Hotel, LLC v. Allied World Insurance Company, No. 23-cv-00687 (D. Nev. Aug. 13, 2024). Obtained a decision by the Maryland Court of Appeals (on certified question) holding that a law firm representing Homeowners Associations in connection with negotiating and documenting repayment plans with homeowners with delinquent dues is not subject to the Maryland Consumer Loan Law. The decision resolves an important issue of first impression that affects all businesses and professionals extending credit in Maryland as “an ancillary function” of their operations. Nagle & Zaller, P.C. v. Delegall, 480 Md. 274 (2022). Read more here. Obtained summary judgment in the trial court and a decision by the Maryland Court of Special Appeals affirming the judgment, holding that a former client suing his attorneys for malpractice must prove that the attorneys proximately caused the alleged loss via the trial within the trial, even if the attorneys engaged in so-called bright line malpractice or allegedly guaranteed recovery of a sum certain. Saunders v. Markey, No. 24-C-19-003511 (Md. Ct. Spec. App. Nov. 3, 2021). Obtained ruling by California federal court granting liability insurer’s motion for summary judgment, holding that the insurer is not obligated to provide coverage for an individual under a corporate general liability policy because the individual was not sued in an insured capacity. Obagi v. Valley Forge Insurance Company, No. 20-cv-07059 (C.D. Cal. Oct. 1, 2021).

Helped to update Foundation’s mailing list and coordinate annual fundraiser

The United States District Court for the Southern District of New York, applying Michigan law, has held that a claims-made E&O policy does not afford coverage where the insured failed to comply with a condition precedent to coverage requiring it to provide notice of a claim within 90 days of the policy’s expiration, irrespective of whether the insurer can demonstrate prejudice. Atos Syntel Inc. v. Ironshore Indem. Inc., 2024 WL 4227709 (S.D.N.Y. Sept. 17, 2024).

The United States District Court for the Northern District of Illinois, applying Illinois law, has held that an E&O policy does not afford coverage for a settlement with two government agencies, including the payment of fines or penalties, to resolve a dispute regarding the insured’s allegedly fraudulent business practices. Diamond Residential Mortg. Corp. v. Liberty Surplus Ins. Corp., 2024 WL 1254220 (N.D. Ill. Mar. 25, 2024).

The United States District Court for the Middle District of Florida, applying Florida law, has held that a law firm was not entitled to coverage under a professional liability policy for claims involving its allegedly fraudulent billing practices because those claims did not involve “professional services” as defined by the policy and numerous exclusions otherwise precluded coverage. James River Ins. Co. v. Sheehe & Asscs., P.A., 2024 WL 821282 (M.D. Fla. Feb. 12, 2024).

The Superior Court of Delaware has held that collateral estoppel bars an insured company from relitigating whether, under a second excess follow-form D&O policy, an SEC letter and order (collectively the “SEC Matter”) constitute a Securities Claim against an insured company because another court already held they did not when interpreting the primary D&O policy. Hertz Global Holdings, Inc. v. Alterra Am. Ins. Co., 2023 WL 8716803 (Del. Super. Ct. Dec. 18, 2023). The court further held that the SEC Matter did not constitute a Claim against “Insured Persons,” and, even if the defense of the SEC Matter was reasonable and necessary for two covered lawsuits, the defense costs the company incurred in connection with the SEC Matter still were not covered.

The United States District Court for the Middle District of Florida has held that an insurer was entitled to rescind a professional liability insurance company where the insured architecture firm made multiple material misrepresentations in its application. RLI Ins. Co. v. OutsideIn Architecture LLC, 2023 WL 5840590 (M.D. Fla. Sept. 11, 2023). The court, however, would have held that the lawsuit triggered the insurer’s duty to defend because the claim was not related to an earlier demand letter and the insured had not given prior notice of the claim to its previous insurer where the first demand letter focused on an unrelated alleged breach of contract, not the allegedly negligent conduct raised in the lawsuit. Similarly, the court rejected the insurer’s argument that the policy’s prior knowledge provision precluded coverage because the insurer could not prove the insured knew it committed a negligent act, error, or omission, despite its awareness of the accident.