Kurt M. Mullen

My focus

General commercial litigation

I represent a variety of  medium- and large-sized businesses in commercial disputes. This includes work in various courts across the Northeast, as well as in arbitration and other forms of alternative dispute resolution.

Insurance coverage and guaranty association issues

Insurance coverage issues—especially related to catastrophic losses, additional insured issues and bad faith claims—have been on the rise over the last several years. I devote a large part of my practice to counseling and representing clients in connection with these and other insurance coverage issues. And there continues to be significant litigation over the interpretation of state insurance guaranty association statutes and the extent to which general insurance law applies to these entities.

Appellate

I have argued in all levels of the Massachusetts appellate courts and the Connecticut Supreme Court, and have worked on appellate briefs in cases across New England and New Jersey.

I also provide second opinions to clients who have received adverse rulings or judgments on the strength of their appellate agents.

Representative experience

Appellate Cases

• Massachusetts Insurers Insolvency Fund v. Berkshire Bank, 475 Mass. 839 (2016) (reversing trial court’s summary judgment ruling and holding that the Massachusetts guaranty fund is entitled to recover workers’ compensation benefits paid to claimant on behalf of high net worth insured).
• Connecticut Insurance Guaranty Association v. Drown, 314 Conn. 161 (2014) (holding an insurer’s breach of its duty to defend a medical malpractice suit before becoming insolvent does not bar the Connecticut guaranty association from contesting its obligation to pay a claim made under the insolvent insurer’s policy and that the underlying claim was barred by the policy’s vicarious liability exclusion).
• Suffolk Construction Co., Inc. v. Illinois Union Ins. Co., 80 Mass. App. Ct (2011) (Reversing trial court’s summary judgment ruling and holding that additional insured endorsement to sub-subcontractor’s commercial general liability insurance policy, providing coverage for additional parties “as required by contract, provided the contract is executed prior to loss,” required that the contracting parties have a signed, written contract in order for contractor and subcontractor to be covered as additional insureds under policy).

Other cases:

• Insituform Technologies, Inc. v. American Home Assurance Co., 566 F.3d 274 (2009) (Reversing district court’s judgment ruling excess insurer liable for cost of repairing and replacing insured’s work and holding that “following form” endorsement did not create new liability for excess insurer inconsistent with other basic provisions in the excess policy, including the “your product” and “your work” exclusions, which still operated to bar coverage for construction defect claim).

Looking ahead

Increased data breaches and related state and federal regulatory changes have the potential to result in insurance coverage litigation, especially as the cyber insurance market continues to develop and mature.

Insights

Presentations

• “Veteran Litigators: A How-To,” NCIGF Legal Seminar, Denver, CO, June 27, 2019

Publications

• “Determining the Insurer’s Response” (with Gregory P. Deschenes), 1 New Appleman Insurance Law Practice Guide 11-1 (Mathew Bender & Co., Inc. 2007)
• “The Differences and Similarities in Dealing with Primary vs. Excess Carriers” (with Gregory P. Deschenes), presented at the Mealey’s All Sums: Reallocation & Settlement Credits Conference (November 2006)
• “Ethical Obligations and Out-of-State Arbitration,” ABA Commercial and Business Litigation Journal, (2004)