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For more than two decades, David Cutter has focused his practice on handling and litigating insurance coverage matters.  David has a diverse practice, litigating matters involving management liability, commercial general liability, and property disputes in jurisdictions across the country.  

In 2020, David has achieved a number of significant victories for BatesCarey clients, including prevailing in three appeals that he argued and numerous trial court victories.  See, e.g., Hanover Ins. Co. v. MRC Polymers, Inc., 2020 IL App (1st) 192337 (affirming application of products and liability services exclusion to bar coverage); RLI Ins. Co. v. Acclaim Res. Partners, LLC, 2020 IL App (4th) 190757-U (affirming finding that contractual fee dispute did not trigger coverage because there was no “wrongful act”); U.S. Specialty Ins. Co. v. Vill. of Melrose Park, 455 F. Supp. 3d 681 (N.D. Ill. 2020) (finding prior and pending litigation exclusion barred coverage); Hanover Ins. Co. v. R.W. Dunteman Co., 446 F. Supp. 3d 336, 338 (N.D. Ill. 2020) (finding coverage unavailable due to untimely reporting of claim).  

While much of David’s practice involves litigated disputes, he also provides advice in a monitoring role for claims involving complex underlying and coverage issues.  In that capacity, David helps his clients understand their coverage, defense and settlement obligations, assists with the evaluation of underlying exposures, and develops creative strategies for closing claims.

Clients appreciate David for developing unique approaches for moving matters towards efficient resolution through either focused litigation or settlement. When matters are not amenable to an early resolution, David’s breadth of experience enables him to utilize targeted discovery, strategic dispositive motion practice, and, if necessary, trial and appeal to obtain favorable results for insurers. 

David has been consistently recognized by Chambers, The Legal 500, Best Lawyers and Super Lawyers as a leading commercial lawyer. As noted in recent editions of Chambers, David "is an excellent lawyer and advocate for his client;" he “is respected in the field as an excellent litigator;” and “clients describe him as ‘a very smart and hard-working trial lawyer.’”  

Representative Matters

DELAWARE

AR Capital, LLC, et al. v. XL Specialty Insurance Company, et al., Case No. N19C-01-024 MMJ (CCLD) (Del. Super. Ct.).  Defending insurer in declaratory judgment action seeking a ruling that the policies provide coverage for an SEC investigation and subsequent settlement, as well as numerous civil actions, and asserting claims for breach of the implied covenant of good faith and fair dealing.  See AR Capital, LLC v. XL Specialty Ins. Co., 2020 WL 4907990 (Del. Super. Ct. Aug. 3, 2020) (granting motion to stay Delaware action in lieu of competing New York action).  

Energy Transfer Equity, LP, et al. v. Twin City Fire Insurance Company, et al., Case No. N19C-11-009 EMD (CCLD) (Del. Super. Ct.).  Representing insurer in breach of contract action alleging that D&O insurers owe indemnity coverage for underlying shareholder lawsuit seeking additional merger consideration and involving application of a “bump up” exclusion. 

Guaranteed Rate, Inc. v. ACE American Insurance Company et al., Case No. N20C-04-268 MMJ (CCLD) (Del. Super. Ct.). Representing excess insurer in breach of contract and bad faith action seeking coverage for settlement of a civil investigative demand brought by the U.S. Department of Justice. 

ILLINOIS

Allied World Insurance Company v. Amishi Mehta, M.D., et al., Case No. 2018-CH-12526 (Ill. Cir. Ct.).  Representing insurer in declaratory judgment action seeking a ruling that insurer owes no coverage for two related underlying lawsuits under a psychiatrics’ professional liability policy based on a prior knowledge exclusion.  

Brava, Inc. v. Country Mutual Insurance Company, Case No. 20-MR-1531 (Ill. Cir. Ct.).  Defending insurer in action for declaratory judgment and breach of contract arising out of a first-party property claim for business interruption damages due to COVID-19. 

Hansen v. Country Mutual Insurance Company, Case No. 1:18-cv-00244 (N.D. Ill.).  Defending insurer in putative class action asserting breach of contract, fraud, and statutory bad faith related to the estimation of losses associated with first party residential property claims.  

IMEG Corp. v. Atlantic Specialty Ins. Company et al., Case No. 20-cv-03316 (N.D. Ill.).  Representing insurer in declaratory judgment action seeking a ruling that there is no coverage for self-disclosures by the insured to state and federal governments for potential violations of the False Claims Act and related state law. 

Michael E. Beatty, M.D., P.C. v. Accident Fund General Insurance Company, et al., Case No. 3:17-cv-01001-NJR-DGW (S.D. Ill.).  Defending insurer in putative class action alleging statutory consumer fraud claims related to violation of requirements to pay interest on certain insurance payments.  

QBE Specialty Insurance Company v. Cedarhurst of Edwardsville Operator, LLC et al., Case No. 20-MR-73 (Ill. Cir. Ct.). Representing insurer in declaratory judgment action seeking a ruling that insurer owes no coverage for two related underlying lawsuits on the grounds that the defendants are not Insured entities and that an exclusion for employment-related conduct applies.  

NEW YORK

Endurance American Ins. Co. v. Brigade Capital Management, LP, Index No. 655757/2020.  Representing insurer seeking declaratory judgment that no defense or indemnity coverage is available because claim involves uninsurable disgorgement and restitution.    

Wellspring Capital Management LLC, et al. v. Ironshore, et al., Index No. 653517/2020 (N.Y. Super. Ct.).  Defending insurer in declaratory judgment and breach of contract action seeking coverage and an allocation between two separate D&O towers for underlying actions alleging fraudulent transfers, negligent misrepresentation, and breach of fiduciary duty. 

XL Specialty Insurance Company, et al v. AR Capital, LLC, et al., Index No. 650018-2019 (N.Y. Super. Ct.).  Representing insurer in declaratory judgment action seeking a declaration that the policies do not provide coverage for an SEC investigation and subsequent settlement, as well as numerous civil actions.  See XL Specialty Ins. Co. v. AR Capital, 181 A.D.3d 546, 121 N.Y.S.3d 269, 270 (2020) (argued appeal resulting in affirmance of motion to dismiss action in lieu of competing Delaware action). 

INDIANA 

USA Gymnastics v. ACE American Insurance Company, et al., Adv. Case No. 19-50012 (Bankr. S.D. Ind.).  Representing D&O insurer in connection with coverage litigation arising out of the Larry Nassar sex abuse.

MICHIGAN

Fraser Trebilcock Davis & Dunlap, P.C. v. Argonaut Insurance Company, Case No. 334-CB (Mich. Cir. Ct.).  Defending insurer in declaratory judgment and breach of contract action seeking a ruling that lawyers professional liability policy provides coverage for written demands and sanctions motions. 

WISCONSIN

Joy Global Inc. v. Columbia Casualty Company, et al., Case No. 18-CV-2034 (E.D. Wisc.).  Defending insurer in coverage action involving “bump up” exclusion.

CONFIDENTIAL ARBITRATION

Energy Company v. D&O Insurers.  In U.S. arbitration proceeding, defending insurer in action seeking coverage for appraisal action, asserting defenses based on lack of claim for a Wrongful Act within the insuring agreement, and run-off exclusion.

Natural Gas Company v. D&O Insurers.  In U.S. arbitration proceeding, defending insurer in action seeking coverage for securities and derivative lawsuits, asserting defense based on related claim provisions.

Presentations

Internal and web-based presentations for clients on multiple topics, including:

  • “Challenges in Handling Claims and Underwriting Risks in the United States”
  • “Key Issues in Fidelity Bond Interpretation”
  • “Defending Insurers and their Insureds Against Class Actions”
  • “Private Company D&O Claims in the United States”
  • “The Meaning of ‘Bad Faith’ and How to Avoid It”
  • “Underwriting Challenges That Can Undermine Policy Meaning”
  • “Implications of the Revised Federal Rules on Insurance Claims”
  • “Litigating Insurance Claims in the Midwest”

“The Insurance Coverage Landscape,” Perrin National Construction Defect Conference, November 2018

“Ever-Expanding Liability of Construction Design Professionals: A Survey of Design Liability Trends and Practical Effects,” 2018 CLM Management & Professional Liability Conference, June 2018

“The Professional Part in Construction Defect Claims,” Perrin National Construction Defect Conference, November 2016

“Business Espionage - A Minefield of PLI Exposures,” PLUS Professional Risk Symposium, April 2016

“Extra-Contractual - What Is the Meaning of Bad Faith,” CLM Annual Conference, April 2016

“Navigating Prior and Pending and Other Issues,” PLUS Professional Risk Symposium, April 2015

“How to Waive Attorney-Client Privilege Without Even Trying,” CLM Annual Conference, March 2015