Greg Deschenes focuses his practice on complex commercial litigation, with an emphasis on all aspects of insurance-related litigation. Representing major insurance companies and insurance guaranty funds in state and federal courts across the country, Greg has prevailed at trial and the appellate level in cases involving property and casualty insurance coverage, bad faith, insurance insolvency and class actions.
What do you focus on?
I have over twenty-five years of experience litigating insurance coverage disputes involving environmental and toxic tort, construction defect, catastrophic losses, advertising injury and personal injury, directors and officers liability, business interruption, life and disability insurance claims.
I regularly represent a number of insurance guaranty funds in coverage litigation and disputes with receivers of insolvent insurers. I also have acted as regional counsel in New England for a Fortune 200 property and casualty insurance company in the defense of major environmental insurance coverage and bad faith/extra-contractual liability lawsuits.
I also have significant experience defending products liability, environmental, securities fraud and complex business litigation cases.
What do you see on the horizon?
The insurance industry will face a number of challenges, including increased regulatory scrutiny from the recent financial crisis and managing emerging risks, such as climate change, data security breaches and cyber-attacks and other catastrophic events. Those insurers anticipating this change view it as an opportunity.
- Successfully defended insurance guaranty fund in asbestos bodily injury coverage action and prevailed at trial on a defense that one of the insured’s excess liability policies was void by reason of having been procured by misrepresentation. Given the ratio of indemnity to defense costs, the trial court’s decision eliminated in excess of $28 million of liability for the insurance guaranty fund. On appeal, the Massachusetts Supreme Judicial Court affirmed the trial court’s misrepresentation decision voiding the policy and further held that coverage under other policies was triggered by inhalation of asbestos fibers during policy period, not by bodily injury during policy period, and rejected the insured’s argument that “exposure in residence” triggered coverage. A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502 (2005).
- Successfully represented insurance guaranty fund in coverage litigation brought by Massachusetts Electric Company and others seeking coverage for environmental cleanup costs for former manufactured gas plants in Lynn, Salem, and Malden, Massachusetts. Issues addressed included owned property exclusion, application of aggregate limits, allocation and settlement credits, and trigger of coverage. A primary focus of the case involved extensive fact and expert discovery concerning sources and effects of contamination during and after the 1800s to support a denial of coverage based on lack of a fortuitous loss. Obtained a ruling that fortuity is an implied requirement of all insurance policies (including those not containing an express expected/intended occurrence definition), and that the insured bears the burden of proving that the loss at issue was neither expected nor intended. Massachusetts Electric Co., et al. v. Commercial Union Insurance Co., et al. (Worcester Superior Court, Commonwealth of Massachusetts, C.A., No. 99-00467B).
- Successfully represented a major life insurance company in a “vanishing premium” case by defeating a motion for nationwide class certification in the federal district court for the District of Massachusetts. The plaintiffs alleged that the life insurer fraudulently induced them to purchase interest sensitive whole life insurance policies by promising that the annual premiums of the policies would “vanish” in the future, and they sought court approval to represent a nationwide class of thousands of policyholders who purchased these policies in the 1980s. Even though the same court had granted class certification against another insurer in an earlier “vanishing premium” case, we persuaded the court that, based on the facts of this case and established federal precedent, the court should deny the plaintiffs certification of a nationwide “vanishing premium” class for trial. Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271 (D. Mass. 2000).
Greg also has extensive appellate experience and has successfully represented clients in cases before the First Circuit Court of Appeals, the Massachusetts Supreme Judicial Court, the Maine Supreme Judicial Court, the New Hampshire Supreme Court, and the Rhode Island Supreme Court.
Representative appellate experience includes the following:
- A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502 (2005) (trigger of coverage is inhalation of asbestos fibers and not bodily injury or exposure in residence).
- Liberty Mut. Ins. Co. v SCA Services, Inc., 412 Mass. 330 (1992) (in a multimillion-dollar environmental coverage lawsuit, successfully represented primary liability insurer in persuading the Massachusetts Supreme Judicial Court to reverse the trial court’s grant of summary judgment and helped to establish favorable Massachusetts precedent on the pollution exclusion clause found in liability policies. The court held that the insurers had no duty to defend the insured in a hazardous waste action because the underlying complaint alleged that the damage was caused by waste disposal activities occurring continuously over a protracted period of time as part of regular business activities and therefore did not state a claim within the “sudden and accidental” exception to the pollution exclusion).
- In Re: Joint Petition of Special Deputy Receivers of Doctors Insurance Reciprocal, Risk Retention Group, Virginia State Corporation Commission, Case No. INS-2003-00092 (2008) (rejecting risk retention groups’ claim seeking policyholder-level priority in the Reciprocal of American estate based on assertions of constructive trust, piercing the reinsurance veil, and implied cut through).
- Truk-Away, Inc. v. Aetna Cas. & Sur. Co., 723 A.2d 309 (R.I. 1999) (affirming summary judgment for insurers with policies that had expired by 1974 where there was no evidence showing that property damage triggering coverage had taken place at hazardous waste landfill prior to 1977).
- Central Maine Power Co. v. Moore, 692 A.2d 943 (Me. 1997) (in a multisite environmental coverage lawsuit, successfully represented two excess liability insurers in persuading the Supreme Judicial Court of Maine to hold that an insured’s response costs to comply with consent decrees to remediate pollution were not covered as “damages” under excess liability insurance policies).
Greg has participated as a faculty member in many continuing legal education programs and has published numerous articles on litigation and insurance topics, including the following:
- “The Differences and Similarities in Dealing with Primary vs. Excess Carriers” (with Kurt M. Mullen), presented at the Mealey’s All Sums: Reallocation & Settlement Credits Conference (November 2006)
- “Determining the Insurer’s Response” (with Kurt M. Mullen), 1 New Appleman Insurance Law Practice Guide 11-1 (Mathew Bender & Co., Inc. 2007)
- “Insurer Insolvency” (with Joseph C. Tanski) in Massachusetts Liability Insurance Manual 16-1 (2nd Supplement 2009)