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Melissa Brill

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: New York
45 Broadway
16th Floor
New York, NY 10006
P: (212) 908-1257
TF: (800) 437-7040
F: (866) 825-3144

Melissa Brill

Recent News:
126 Cozen O’Connor Attorneys Named to the Best Lawyers in America
One hundred twenty-six Cozen O’Connor lawyers from 20 of the firm’s national offices have been selected for inclusion in the 2018 edition of The Best Lawyers in America.
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Melissa Brill represents major professional liability, property and general liability insurers in complex insurance coverage, bad faith litigation, and products liability throughout the country. Melissa counsels and represents insurers in a wide variety of coverage disputes, including complex commercial matters, bank failures, mass toxic torts, September 11 and Hurricane losses.

Melissa renders coverage opinions and advises insurers on insurance-related matters. She also represents clients in commercial litigation and appeals.

She actively supports non-profit and for-profit boards. Melissa has served on the Board of Directors of Homesite Insurance Company of New York and non-profits: Young Leadership Counsel, Big Brothers Big Sisters and Park Slope Afterschool Center Corps (PSACC). Melissa has been named to Cozen O’Connor’s Pro Bono Honor Roll every year for the past 12 years for her representation of pro bono clients. Her pro bono representations include enforcing women’s rights under the Violence Against Women Act, seeking asylum in the United States on behalf of unaccompanied minors and obtaining reparations for Holocaust victims.

Melissa regularly presents on various topics including Excess and Umbrella Insurance, Negotiation Strategies, Roll of Coverage Counsel, Issues Impacting Multi-National Claims Handling, Construction Defect Coverage and more.

Melissa received her Bachelor of Arts in East Asian Studies and Japanese Language from Pennsylvania State University in 1991. Melissa earned her law degree, with honors, from Temple University School of Law in 1995. After law school, she clerked for the Honorable Edward Biester of Pennsylvania.

Experience

New York‘s Appellate Division, Second Department affirmed a trial court order granting summary judgment to our client, an insurer in action involving coverage for a night club that was destroyed by fire caused by a break-in and arson. The insurer had a warranty requiring a burglar alarm be fully operational. The insured had the required burglar alarm, but it was not in use on the night of the fire. Coverage was denied for breach of the warranty. The insured sued and argued among other things that “fully operational” was ambiguous, and required only that the alarm be usable, not in use. The trial court disagreed with and granted summary judgment. The Second Department affirmed on appeal.

Represented an Italian product manufacturer, and obtained a trial court order dismissing the manufacturer for lack of personal jurisdiction. New York’s Appellate Division, First Department unanimously affirmed on appeal.

Represented a national insurance organization, which was sued in SDNY for RICO violations by the president of the sole shareholder of an insolvent insurance company. Plaintiff alleged a decade-long pattern of racketeering activities and conspiracies to defraud US insurance consumers. After motion to dismiss the claims against the client was granted, the shareholder entity brought a separate RICO action against the insurance organization in the SDNY. The court again granted a motion to dismiss the claims against the client, and the entity appealed to the Second Circuit. The Second Circuit affirmed the decision dismissing the RICO complaint.

Successfully moved to dismiss a declaratory judgment action in which the owner of a new residential building in New York City sought a declaration that our client was obligated to defend and indemnify it for repair and remediation costs it incurred when the building at the construction project, and the building next door, were allegedly damaged by a subcontractor insured by our client. Defeated the plaintiff's argument that it qualified as an additional insured because the insured's subcontract incorporated the insurance and indemnification provisions of the trade contract between the owner and the general contractor. In granting the motion to dismiss, the court agreed that the incorporation clause was binding only as to prime contract provisions relating to the scope, quality, character, and manner of the work to be performed by the subcontractor and not to insurance and indemnity provisions, which must be strictly construed.

Publications

7th Circuit: Damage to Property Exclusion Applies Broadly to Damage Caused by Defective Work

January 08, 2018

Melissa Brill and Alexander Selarnick discuss the Seventh Circuit's decision in W. Side Salvage, Inc. v. RSUI Indem. Co.

New Jersey Court: Continuous Trigger Ends When Nature of Damage Is Known [Global Insurance Alert]

October 26, 2017

Melissa Brill and Laura Dowgin discuss the decision in Air Master & Cooling, Inc. v. Selective Ins. Co. of Am., and its impact on progressive property damage claims in New Jersey.

Allocation Governed by “All Sums” Where Policy Contains “Prior Insurance” or “Non-Cumulation” Clause

July 24, 2017

Melissa Brill and Alexander Selarnick discuss the Second Circuit adoption of the New York Court of Appeals’ previous holding that the “all sums” provision in the insuring agreement permits an insured to access the limits of all policies in any triggered year, when the insurance policies contain “prior insurance” or “non-cumulation” clauses.

New York High Court: No Coverage for Additional Insured Where Named Insured Is Not Partially Liable [Global Insurance Alert]

June 07, 2017

Melissa Brill and Laura Dowgin discuss a Court of Appeals decision that expressly rejects that there is no material difference between the phrases “arising out of” and “caused, in whole or in part by” in additional insured endorsements.

New York Court Confirms: Additional Insured Coverage Limited to Contractual Privity [Global Insurance Alert]

September 23, 2016

Melissa Brill and Laura Dowgin discuss a recent New York Supreme Court, Appellate Division, First Department decision that found an additional insured endorsement provided additional insured coverage only to the entity in direct contractual privity with the named insured.

Don’t Let a Little Concealer Ruin Your Coverage Defenses [Avoiding Insurance Bad Faith Blog]

September 22, 2016

May an insurer in New York delay asserting (or conceal, according to Estee Lauder) a late notice defense without waiving it? According to the New York Court of Appeals a jury should decide whether the insurer manifested a clear intent to abandon the defense. Estee Lauder, Inc. v. OneBeacon Insurance...

Consequential Damage Caused by Subcontractor’s Faulty Work is Covered under Developer’s CGL Policy [Global Insurance Alert]

August 09, 2016

On August 4, 2016, the New Jersey Supreme Court joined a long list of states’ high courts when it affirmed a ruling that consequential damages resulting from a subcontractor’s faulty work constituted “property damage” caused by an “occurrence” under the property developer/general contractor’s commercial general liability policies.

New York’s Highest Court Creates Exception to Pro Rata Allocation [Global Insurance Alert]

May 09, 2016

Melissa F. Brill and Laura B. Dowgin discuss the May 3, 2016, decision by the New York Court of Appeals that answered two certified questions posed by the Delaware Supreme Court regarding the appropriate allocation method for long-tail claims among successive excess carriers.

New York Court Erodes Privilege for Attorney-Insurer Communications [Global Insurance Alert]

August 18, 2014

On July 31, 2014, the New York Supreme Court, Appellate Division, First Department chipped away at the privilege protections available to insurers. In National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. TransCanada Energy USA, Inc., 119 A.D.3d 492 (1st Dept. July 31, 2014), the First Department affirmed a 2013 New York County Supreme Court ruling that documents prepared in the ordinary course of an insurer’s investigation as to whether to pay a claim are not privileged — even if these documents are prepared by an attorney.

K2: New York Court of Appeals Vacates Decision, Rejects 'Coverage by Estoppel' [Property Casualty360]

March 28, 2014

Melissa Brill of the Global Insurance department discusses K2 and the Court of Appeals decision to reject the notion of coverage in this article published by Property Casualty360.

Expect More TCPA Class Actions In NY [Law360]

March 10, 2014

Melissa Brill of the Global Insurance Department discusses TCPAS Class Actions in Law360. "A recent shift in Second Circuit law may lead to a rise in class actions under the Telephone Consumer Protection Act. After a 2012 U.S. Supreme Court case shed light on the proper interpretation of a section of the TCPA, the Second Circuit paved the way for TCPA class actions in New York federal courts."

The New York Court of Appeals Vacates its Decision and Rejects “Coverage by Estoppel” [Global Insurance Alert]

February 28, 2014

The New York Court of Appeals rarely hears reargument of its decisions, let alone reverses itself. On February 18, 2014, the Court of Appeals did just that.

Second Circuit: TCPA Class Actions Permitted in New York Federal Courts [Class Action Defense Review Blog]

January 24, 2014

A recent shift in 2nd Circuit law may lead to a rise in class actions under the Telephone Consumer Protection Act (TCPA). See Bank v. Independence Energy Grp. LLC, 736 F.3d 660 (2d Cir. 2013). After a 2012 Supreme Court case shed light on the proper interpretation of a section of the TCPA, the...

Second Circuit: TCPA Class-Action Filings Permitted in New York Federal Courts [Global Insurance Alert]

January 23, 2014

A recent shift in 2nd Circuit law may lead to a rise in class action litigation under the Telephone Consumer Protection Act (TCPA). See Bank v. Independence Energy Grp. LLC, 736 F.3d 660 (2d Cir. 2013). After a 2012 Supreme Court case shed light on the proper interpretation of a section of the TCPA, the U.S. Court of Appeals for the 2nd Circuit took up the question on December 3, 2013 and paved the way for TCPA class action suits in New York federal courts.

K2: Will NY Court of Appeals Reaffirm Coverage By Estoppel? [Property Casualty 360]

January 07, 2014

In an article titled “K2: Will NY Court of Appeals Reaffirm Coverage by Estoppel?” Melissa Brill (Global Insurance, New York Downtown) discusses what will happen if the New York Court of Appeals upholds its recent “coverage by estoppel” decision on reargument. The article examines the meaning of the court’s decision, the Jan. 7 reargument, and the positions that the parties, and amici curiae, have taken in their briefing for that reargument. To read the article, click here.

NY Insurers Breaching Duty to Defend May Lose Defenses to Indemnification [Property Casualty360]

August 26, 2013

Melissa Brill of the Global Insurance Department writes this article titled NY Insurers Breaching Duty to Defend May Lose Defenses to Indemnification in Property Casualty360 that focuses on the K2 decision,

New York Court of Appeals to Insurers: If You Breach Your Duty to Defend, You May Lose Your Defenses to Indemnification [Avoiding Insurance Bad Faith Blog]

June 14, 2013

The New York Court of Appeals, the state’s highest court, recently held that an insurer that breached its duty to defend could not later rely on otherwise applicable exclusions to deny coverage for indemnification. Under this apparently new rule, an insurer’s wrongful failure to defend may result in...

NY Court to Insurers: If You Breach Your Duty to Defend, You May Lose Your Defenses to Indemnification [Global Insurance Alert]

June 14, 2013

The New York Court of Appeals, New York’s highest state court, recently held – in what appears to be a new position in New York – that an insurer that breached its duty to defend could not later rely on otherwise applicable exclusions to deny coverage for indemnification.

Superstorm Sandy is Causing New York and New Jersey Legislators to Reconsider Passing Legislation that Would Establish a Private Right of Action for Bad Faith Claim Handling [Global Insurance Alert]

April 05, 2013

Policyholders in New York and New Jersey presently have no private right of action against insurance companies for alleged violations of each state’s respective statutory claim handling guidelines – New York’s Unfair Claim Settlement Practices Act, N.Y. Ins. Law § 2601, and New Jersey’s Unfair Claim Settlement Practices Act, N.J. Admin. Code tit. 11, §§ 2-17.6 and 2-17.7. Although the New York and New Jersey statutes each prohibit insurers from engaging in unfair claim settlement practices, neither allows insureds the right to enforce the laws or seek damages for a violation by filing a lawsuit against the insurer. Rather, the Insurance Department for each state are vested with the exclusive power of enforcement, and then only when an insurer engages in a pattern of violations demonstrating that the mishandling of claims is a general business practice. That may soon change, however.

Winter 2009 [Insurance Coverage Observer]

January 29, 2009

In this issue, we identify key coverage developments from the year 2008. We summarize recent court decisions dealing with coverage for toxic torts, environmental losses, construction defect and property losses. We also address new decisions in the areas of insolvency and reinsurance.

Put it in Writing: No Additional Insured Coverage Without a Written Contract on the Date of the Loss [Insurance Coverage Alert - November 27, 2006]

November 27, 2006

Put it in Writing: No Additional Insured Coverage Without a Written Contract on the Date of the Loss - Insurance Coverage Alert - November 27, 2006 - On October 31, 2006, the New York First Department Appellate Division issued an opinion in National
Abatement Corp. et al v. National Union Fire Insurance Company of Pittsburgh Pa., 2006 Slip Op. 07828
(October 31, 2006), affirming a trial court decision holding that a contractor is not entitled to additional insured
coverage under a subcontractor’s CGL policy when

Webinar: Who is an Additional Insured? What Insurers Need to Know	Webinar	09/27/2017
2015 Professional Liability Seminar	New York, NY	10/29/2015
2013 Professional Liability Seminar	New York, NY	10/10/2013