Rivkin Radler

Insurance Coverage

Michael A. Kotula handles complex litigation involving asbestos, environmental pollution, health hazards, toxic tort, product liability, lead paint, personal and advertising injury, construction defect, financial services and other insurance coverage claims.

With more than 28 years of experience, his practice includes litigation involving high exposure construction and workplace accident and product liability cases, often involving additional insured or vendors endorsement issues and priority of coverage disputes.

Michael also counsels large institutions and businesses on effective risk transfer, and drafts insurance policy language for insurance companies and institutional clients. He counsels healthcare providers and drafts risk retention group insurance policies and endorsements.

Michael has qualified to serve as an expert witness on insurance coverage matters, and has testified at trial in New York Supreme Court, New York County.

Michael successfully tried Radiator Specialty’s benzene health hazard coverage claim in a bench trial to a no-pay judgment for an insurer client. Radiator Specialty Co. v. Arrowood Indem. Co., Case No. 13 CVS 2271 (N.C. Super. Ct. Mecklenburg Cty. Feb. 22, 2019) (Final Judgment).

He won summary judgment that excess policies had no duty to defend or to pay or reimburse defense costs for tens of thousands of asbestos claims in the Carrier action in New York. Carrier Corp. v. Allstate Ins. Co., Index No. 2005-EF-7032, Decision & Order (N.Y. Sup. Ct. Onondaga Cty. Nov. 21, 2018).

Michael won summary judgment dismissing claims for defense and indemnity in the American Properties construction defect coverage action in New Jersey, involving underlying claims concerning 192 residential units in six buildings and common areas, on the basis that the Pre-Existing Damage Exclusion barred coverage and certain damage did not trigger coverage under an insurer client’s primary policies.  First Specialty Ins. Co. v. Interstate Fire & Cas. Co., Docket No. L-996-16 (N.J. Super. Mercer Cty. Sept. 4, 2018).

He won summary judgment in the Sapa Extrusions product liability coverage action in Pennsylvania, concerning an underlying action that had sought over $100 million in past and future damages, on the basis that there was no “occurrence” resulting in “property damage.”  Sapa Extrusions, Inc. v. Liberty Mutual Ins. Co., Case No. 3:13-2827, 2018 U.S. Dist. LEXIS 73162 (M.D. Pa. May 1, 2018).

Michael successfully tried Amtrak’s Sunnyside Yard $30 million environmental contamination claim in a three-week jury trial in Brooklyn to a no-pay verdict for an insurer client in the Amtrak environmental contamination, health hazard and asbestos coverage action seeking over $179 million.  Certain Underwriters at Lloyd’s, London v. National Passenger Railroad Corp., Case No. 1:14-cv-04717 (E.D.N.Y. Sept. 27, 2017).

In an action brought by a successive insurer for contribution for pollution cleanup costs for a gasoline release from an underground storage tank brought in connection with New York Navigation Law claims, Michael won summary judgment that an insurer client was provided late notice under seven years of primary coverage. State of New York v. Flora, Index No. L61-13 (N.Y. Sup. Ct. Albany Cty. 2017).

He won summary judgment in the Troy Belting asbestos coverage action in New York that a putative policyholder had failed to meet its burden of proving the terms and conditions of 25 years’ worth of allegedly missing primary insurance policies. Pacific Employers Ins. Co. v. Troy Belting & Supply Co.,Case No. 1:11-cv-912, 2016 U.S. Dist. LEXIS 134224 (N.D.N.Y. Sept. 29, 2016).

Following removal of a Georgia state court action to federal court in Atlanta and transfer to the Southern District of New York in the Fairbanks actions, Michael won summary judgment that the Georgia Supreme Court would adopt a pro rata time-on-the-risk allocation of indemnity costs for numerous asbestos bodily injury claims, would hold the policyholder responsible for the orphan share attributed to an insolvent insurer, and that umbrella policies had no duty to pay defense or indemnity costs because of an asbestos exclusion. Liberty Mut. Ins. Co. v. Fairbanks Co., 170 F. Supp. 3d 634 (S.D.N.Y. 2016).

He won summary judgment that a pro rata time-on-the-risk allocation applied to numerous benzene and asbestos claims, and that excess policies had no duty to defend or to pay or reimburse defense costs in the Radiator Specialty action in North Carolina. Radiator Specialty Co. v. Arrowood Indem. Co., Case No. 13 CVS 2271 (N.C. Super. Mecklenburg Cty. 2016) (Orders on Allocation and Defense Costs).

Michael won summary judgment that numerous excess policies had no duty to defend or to pay or reimburse defense costs for tens of thousands of black lung and asbestos claims in the Mine Safety action in Delaware. Mine Safety Appliances Co. v. AIU Ins. Co., 2014 Del. Super. LEXIS 49 (Del. Super. New Castle Cty. 2014).

He won summary judgment in the Ross Development environmental insurance coverage action in South Carolina, involving significant cleanup costs at a former manufacturing facility in Charleston and claims under more than 20 years of primary CGL policies – a decision that was affirmed by the U.S. Court of Appeals for the Fourth Circuit. Ross Dev. Corp. v. Fireman’s Fund Ins. Co., 910 F. Supp. 2d 828 (D.S.C. 2012), aff’d, 526 Fed. Appx. 299 (4th Cir. 2013).

Michael won summary judgment that excess policies had no duty to defend or to pay or reimburse defense costs for tens of thousands of asbestos claims in the IMO Industries action in New Jersey.

He counseled major insurance companies in connection with the W.R. Grace bankruptcy action, which involved massive asbestos liabilities.

Michael won affirmance of trigger of coverage and allocation rulings that environmental cleanup costs at two landfill sites did not reach the attachment points of umbrella policies in the Wolverine World Wide action in Michigan. Wolverine World Wide, Inc. v. OneBeacon Ins. Co., 2007 Mich. App. LEXIS 657 (Mich. App.), appeal denied, 2007 Mich. LEXIS 2846 (2007).

He successfully represented a major insurance company in the New Jersey Waste Management environmental insurance coverage action, which involved claims for over $1 billion of insurance coverage at 134 polluted waste sites in 28 states and Canada. See, e.g., Waste Management, Inc. v. Admiral Ins. Co.,Opinion Docket No. HUD -L-931-92 (N.J. Super. Hudson Cty. 1998, 2000) (granting summary judgment to Fireman’s Fund as to four alleged lost policies, and at five test sites on after-acquired and after-involved liability issues).

Michael served as counsel for another major insurance company in a successful jury trial and subsequent appeals in the ACC Chemical environmental insurance coverage action in Iowa, which sought over $100 million of insurance coverage. Fireman’s Fund Ins. Co. v. ACC Chemical Co., 538 N.W.2d 259 (Iowa 1995) (holding late notice barred claims for coverage).

Michael has won countless summary judgment decisions in construction accident and construction defect coverage actions in New York. See, e.g., Campbell & Dawes, Ltd. v. Great American Assurance Co., Opinion Index No. 108885/11 (N.Y. Sup. N.Y. Cty. 2013) (awarding summary judgment for late notice of construction accident); QBE Ins. Corp. v. M&R European Constr. Corp., Index No. 602293/00 (N.Y. Sup. N.Y. Cty. 2012) (awarding summary judgment for late notice of construction defect claims); Stout v. 1 East 66th Street Corp., 90 A.D. 3d 898, 935 N.Y.S. 2d 49 (2d Dep’t 2011) (enforcing excess “other insurance” clause in construction accident case); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Great American E & S Ins. Co., 86 A.D. 3d 425, 926 N.Y.S. 2d 508 (1st Dep’t 2011) (awarding summary judgment for late notice of construction accident); Pavarini McGovern, LLC v. Airflex Industrial Inc., 30 Misc. 3d 1232A, 926 N.Y.S. 2d 325 (N.Y Sup. N.Y. Cty. 2011) (awarding summary judgment for late notice of construction defect claims); Macklowe Org. v. K.G. Mechanical Inc., 2008 N.Y. Mis. LEXIS 10569 (N.Y. Sup. N.Y. Cty. 2008) (rejecting additional insured claim for construction accident); Bovis Lend Lease LMB, Inc. v. Zurich American Ins. Co., Index No. 600465/04 (N.Y. Sup. N.Y. Cty. 2006) (rejecting additional insured claim for construction accident).

After law school, Michael clerked for the Honorable Curtis von Kann, J.S.C., in the District of Columbia Superior Court, Civil Division, assisting with management of a caseload of over 600 civil cases, researching and writing opinions and orders, and writing special jury instructions and jury voir dire questions.

Michael wrote the chapter on Environmental and Toxic Tort Coverage Issues for New Appleman Law of Liability Insurance. He also wrote a chapter on As Damages for “The Reference Handbook on the Commercial General Liability Policy,” published in 2010 and 2014 editions by the ABA’s Tort Trial and Insurance Practice Section.

A frequent speaker on insurance coverage issues, he has given seminars for the American Bar Association, the Defense Research Institute, Practising Law Institute, Mealey’s, the New Jersey Institute for Continuing Legal Education and the New York Law Journal, as well as for national and international insurance and reinsurance companies. In addition, Michael is a member of the Standing Committee on Ethics and Professionalism of the American Bar Association’s TIPS section and an editor of the TIPS Law Journal.  Michael is also the past chair of the Excess, Surplus Lines and Reinsurance General Committee of the ABA’s TIPS Section and is active in offering CLE on complex coverage matters. Most recently, Michael was a speaker at DRI’s Insurance Coverage and Claims Institute in March 2018, and moderated a panel on emerging allocation issues at the ABA Insurance Section: Insurance Coverage Litigation Committee’s annual meeting in February 2017.

Michael is a member of the American Bar Association's Insurance Practice Section and the Defense Research Institute.

Michael received a juris doctor, with honors, from George Washington University Law School and a B.A. from Emory University.