Joseph K. Powers’ practice focuses on handling and resolving coverage and bad faith disputes on behalf of insurers, with an emphasis on the defense of insurers in coverage and bad faith litigation.
Mr. Powers has handled motions, trials and appeals in state and federal courts in New York, New Jersey and throughout the United States and Puerto Rico. He has substantial experience handling claims arising from a broad array of insurance products, including commercial property and casualty, professional indemnity, fidelity and other specialty lines products.
- Obtained summary judgment under primary and excess insurance policies regarding property damage at a large-scale construction project in Maryland. The district court determined that the insurer was entitled to summary judgment because their insured did not obtain consent before settling underlying action. The 4th Circuit affirmed the grant of summary judgment in Perini/Tompkins Joint Venture v. ACE American Insurance Co, No. 12-2415, 2013 WL 6570947 (4th Cir. 2013).
- Achieved summary judgment for insurer under professional liability policy that excluded coverage based upon losses arising out of derivative investments. The Central Dist. of California ruled that an investor in Brookstreet Securities Corp., which is facing fraud allegations from securities regulators, was not owed any coverage from the defunct brokerage firm’s liability insurer. Summary judgment was affirmed by the 9th Circuit in Illinois Union Insurance Co. v. Brookstreet Securities Corp. et al., 10-55060 (9th Cir. 2011).
- Obtained summary judgment under a professional liability policy. The court ruled that the Insured’s declaratory judgment action must fail because the Insured’s claim was made prior to the inception of the policy. Regency Title Co. v. Westchester Fire Insurance Company, et al, Case No. 4:11-cv-390 (E.D. Tex. Nov. 15, 2013).
- Secured a reversal in the 10th Circuit of a summary judgment motion for Insured. The dispute arose out of coverage under an errors-and-omissions policy. The case is reported at C.L.Frates & Company v. Westchester Fire Ins. Company, 728 F.3d 1187 (10th Cir. 2013).
- Successfully moved to dismiss an action in the U.S. District Court for the Middle Districut of Florida under a professional liability policy due to plaintiff Insured’s failure to comply with claims-made-and reported provision of the policy. The dismissal was affirmed by the 11th Circuit in Jennings Construction Services Corp. v. ACE American Insurance Co., 2012 WL 3052900 (11th. Cir 2012).
- Obtained summary judgment for insurer under an Excess Educator’s Legal Liability policy. Plaintiffs were self-insured join insurance funds. The Superior Court of New Jersey granted the insurer’s summary judgment motion based upon the plaintiff’s failure to give proper and timely notice of the underlying claim. Gloucester, Cumberland, Salem School Districts Joint Ins. Fund et al. v. Gulf Ins. Co., et al, 2013 WL 105254 (2011).
- Successfully moved to dismiss insurer from action in case involving underlying bankruptcy action in Bankruptcy Court in District of Del. Plaintiff debtors sought coverage for defense costs and indemnification in connection with bankruptcy case in state court. The court also dismissed counts against our client for breach of contract and covenant of good faith and fair dealing. The 3rd Circuit affirmed the lower court’s dismissal in Delta Financial Corp., et al., v. Westchester Surplus Ins. Co, et al., 378 Fed.Appx. 241 (3rd Circuit 2010).
- Lead trial counsel for a commercial package insurer in a three-week trial in Federal Court in Boise, Idaho, in October 2002 relating to claims under a crime policy for a $14 million employee dishonesty loss. The trial followed a reversal of summary judgment by the 9th Circuit in Gulf USA Corp. v. Federal Insurance Co., 259 F.3d 1049 (9th Cir. 2001). Despite the reversal, Mr. Powers obtained a defense verdict at trial.
- Lead trial counsel for a CGL insurer in a one-week trial in Federal Court in Manhattan in December 1999 relating to the interpretation of coverage for trademark infringement under the advertising injury liability coverage of the policy. The case resulted in a highly favorable ruling for insurers after it was appealed to the 2nd Circuit in Hugo Boss Fashions v. Federal Insurance Co., 252 F.3d 608 (2d Cir. 2001).
- Lead trial counsel for Lloyd’s Underwriters in a two-week trial in State Court in Manhattan in June 2000 relating to a dispute over the purported rescission of an all-risk cargo policy issued to a financial institution. The case was reported on appeal at Chase Manhattan Bank v. Each Individual Underwriter, 287 A.D.2d 303, 731 N.Y.S.2d 150 (1st Dept. 2001).
- Obtained summary judgment for a commercial property insurer in a New Jersey case holding that a lower layer first-party insurer owes no fiduciary duty toward an excess first-party insurer to exhaust its policy limit in settlement in order to protect the excess insurer from a potential verdict in excess of that limit. The judgment was affirmed on appeal in M&B Apartments, Inc. v. Teltser, 328 N.J.Super. 265, 745 A.2d 586 (N.J.App.Div. 2000).
- Obtained summary judgment for a liability insurer under a commercial fleet policy in a case in which the court held that the insurer was not vicariously liable for alleged malpractice by attorneys selected by the insurer to defend the insured. The appeal of the case is reported at Sumo Container Station v. Evans Orr, 278 A.2d 169, 719 N.Y.S.2d 223 (1st Dept. 2000).
- Obtained summary judgment for a financial institution insurer on a $35 million claim relating to the attempted reformation of a fidelity bond in Donaldson, Lufkin & Jenrette, Inc. v. Vigilant Insurance Co., 209 A.D.2d 185, 618 N.Y.S.2d 278 (1st Dept. 1994), lve. to appeal denied, 85 N.Y.2d 1021, 631 N.Y.S.2d 281, 655 N.E.2d 395 (1995).
- Secured a defense verdict for a financial institution insurer following a two-week trial in Federal Court in Puerto Rico in August 1992 in a case brought by the FDIC over a failed bank. F.D.I.C. v. CNA Cas. Co. of Puerto Rico, 786 F.Supp. 1082 (D. Puerto Rico 1991).
Presentations and Publications
- “Notice and Disclaimer Pitfalls Involving Excess Policies, and Follow Form Issues,” co-presented in-house to clients (November 8, 2013).
- Co-author, “A Guide Through the ‘Legal Nebula’ of Loss Causation,” In-House Defense Quarterly (Winter 2008).
- “Bad Faith Claims Under New Jersey’s Fairly Debatable Standard,” Mealey’s Litigation Report: Bad Faith, pp. 24-38 (June 1, 1999).
- “Unique Fidelity Coverage Issues Presented by Claims Involving Bribes, Kickbacks and Illicit Profits,” IV Fid. Law Assn. v.1 (1998).
- “Availability of Rescission as a Remedy or Defense,” 32 Torts & Insurance L.J. 905 (1997).
- “Jury Instructions in Fidelity Bond Cases: Discerning the Meaning of ‘Manifest Intent,’” International Insurance Law Review (March 1993).
- New York
- 2nd U.S. Circuit Court of Appeals
- U.S. District Court (E.D.N.Y.)
- U.S. District Court (S.D.N.Y.)
- J.D. (1977) University of Notre Dame Law School
- B.A. (1974) University of Notre Dame, with honors
Memberships and Affiliations
- American Bar Association (Torts and Insurance Practice Section
- New York State Bar Association (Section on Insurance Law)
- Defense Research Institute