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Abby J. Sher

Member

: Philadelphia
One Liberty Place
1650 Market Street
Suite 2800
Philadelphia, PA 19103
P: (215) 665-2761
TF: (800) 523-2900
F: (215) 253-6765

Abby J. Sher

Abby Sher practices in the Global Insurance Department, focusing in the area of complex liability coverage, with an emphasis on professional liability, medical professional liability coverage and bad faith litigation. Abby also counsels clients in the first-party context, providing analyses of claims handling obligations in the wake of catastrophic losses, including Superstorm Sandy, Hurricane Isaac, and Hurricane Irene. Abby has been named a “Rising Star in Insurance Coverage” by Super Lawyers Pennsylvania.

Abby has authored articles and alerts on SIRs and large deductibles, bad faith litigation, and D&O coverage. She also speaks on these topics and related coverage issues at industry events and in-house client seminars.

Abby earned her law degree, cum laude, from the University of Pennsylvania Law School where she was the senior editor for the Journal of Constitutional Law. While in law school, she served as a summer intern for the Honorable Susan Peikes Gantman of the Superior Court of Pennsylvania and as an intern for the Montgomery Child Advocacy Project. Upon graduating, Abby received the Distinguished Pro Bono Service Award for her work with the Anti-Defamation League and the Innocence Project. She earned her undergraduate degree, cum laude, from Brandeis University. Prior to joining the firm, Abby participated in the Cozen O’Connor Summer Associate Program.

Experience

Following a 2-week trial centering on a $4.3 million homeowner’s fire loss claim, the Superior Court granted our insurer equitable rescission. Before trial, we successfully moved to dismiss the plaintiffs’ bad faith claim. We then convinced the court that the policy which might have covered the loss was void ab initio due to the plaintiffs’ material misrepresentations during the application process. In addition, the court found that the plaintiffs had been unjustly enriched by payment to an innocent mortgagee, and entered judgment in our client’s favor in the amount of the $1.4 million payment to the mortgagee.

Won a jury verdict in favor of the insurer in a case centering on property damage that we proved was caused by a landslide and thus excluded from coverage. Contending that the exclusion did not apply, the plaintiffs sought $6 million under claims for breach of contract, failure to adjust the claim, violations of the Tennessee Consumer Protection Act, and bad-faith refusal to pay. The court granted our motion to bifurcate the trial, and after 10 days the jury found for our client on the breach of contract claim. This result was affirmed by the U.S. Court of Appeals for the Sixth Circuit.

Won summary judgment in related cases involving damage to two oceanfront homes during Storm Sandy. The combined claims totaled more than $5 million, and the coverage dispute centered on the wording of the surface water exclusion in the operative insurance policies, which did not indicate whether the exclusion applied when the water was wind-driven or a storm surge. We convinced the court that the terms of the exclusion unambiguously reached damage caused by a storm surge, that the plaintiffs had no reasonable expectation of coverage, and that they were judicially estopped from arguing that anything other than flood caused the loss.

Secured a jury verdict of almost $1 million on behalf of our insurance company client, which was sued for breach of contract and bad faith by a homeowner whose 11,000 sq. ft. home burned to the ground. After an investigation revealed that the plaintiff was involved in setting the home ablaze, the client denied her claim for violation of the policy's concealment or fraud condition and application of the intentional acts exclusion. The plaintiff sought damages of $11.2 million, and the client counterclaimed to recover its investigation costs and advance payments made to the plaintiff. After six days of testimony and argument, the jury found in the client's favor after only three hours of deliberation.

Publications

PA Supreme Court Addresses Level of Proof Required Under Statutory Bad Faith Claim [Avoiding Insurance Bad Faith Blog]

September 29, 2017

In an opinion dated September 28, 2017, the Pennsylvania Supreme Court, Western District, considered as an issue of first impression the level of proof required to prevail in a bad faith claim, examining the elements of a bad faith insurance claim under the PA bad faith statute, 42 Pa.C.S. Section...

Large Deductibles and Self-Insured Retentions – Potential Bad Faith Exposures [Avoiding Insurance Bad Faith Blog]

March 29, 2017

As the economy recovers from the Great Recession, the insurance industry is experiencing an increase in the need to evaluate risk retention and risk transfer mechanisms tailored to the commercial policyholders’ risk management goals as applied to its policy provisions and obligations owed to its...

New Appleman on Insurance Law Library Edition

December 01, 2016

Deborah Minkoff and Abby Sher Author chapter 1A: Self-Insured Retentions Versus Large or Matching Deductibles in the 2016 New Appleman on Insurance Law Library Edition.

Pennsylvania Supreme Court Rules Statutory Bad Faith Claims are Assignable [Global Insurance Alert]

December 23, 2014

On December 15, 2014, the Supreme Court of Pennsylvania held that bad faith claims brought pursuant to 42 Pa. C.S. § 8371 may be assigned by an insured to an injured third party under Pennsylvania law. See Allstate Prop. & Cas. Ins. Co. v. Wolfe, No. 39 MAP 2014 (Pa. Dec. 15, 2014).

Third Circuit Holds Insurer’s Interpretation of Employer’s Liability Exclusion is Fairly Debatable [Global Insurance Alert]

August 05, 2014

A recent 3rd Circuit decision, ArcelorMittal Plate, LLC v. Joulé Technical Services, Inc., 558 Fed.Appx. 205 (3d Cir. 2014) reiterates that under New Jersey law, an insurer does not act in bad faith when denying a claim that is “fairly debatable.” Although the court disagreed with the insurer’s application of the policy’s employer’s liability exclusion to preclude coverage, it also held that there was no basis to impose bad faith liability on the insurer.

Pennsylvania Supreme Court Notes Limited Reach of Multiple Trigger Rule in Insolvency Case [Global Insurance Alert]

August 04, 2014

On July 21, 2014, the Pennsylvania Supreme Court recently held, as a matter of first impression, that the Continuance of Coverage Provision of the Pennsylvania insurance insolvency statute, 40 P.S. § 221.21, precludes coverage for all “risks in effect” under an insurance policy, even when the policy was cancelled prior to liquidation.

The Impact of Halliburton on Directors and Officers Insurance [Global Insurance Alert]

July 10, 2014

Over the past year, directors and officers have been anticipating the Supreme Court’s ruling in Halliburton Co. et al. v. Erica John Fund, Inc., No. 13-317. In its recent 9-0 decision, the Supreme Court retained the fraud-on-the-market presumption of reliance adopted more than 25 years ago in Basic, Inc. v. Levinson, yet also held that defendants may rebut the presumption at the class certification stage. 573 U S. ___ (Slip Op. June 23, 2014) (Roberts, C.J.). This ruling signals that securities fraud class actions will continue unabated for the foreseeable future. Justice Ginsburg concurred in a separate opinion, joined by Justice Breyer and Justice Sotomayor. Justice Thomas also concurred in a separate opinion, joined by Justice Alito and Justice Scalia.

Pennsylvania District Court Considers Bad Faith Setup as Affirmative Defense [Global Insurance Alert]

December 16, 2013

As a matter of first impression under Pennsylvania law, the court in Shannon v. New York Central Mutual Insurance Company, No: 13-cv-1432 (M.D. Pa. Nov. 20, 2013) denied a motion to strike an insurer’s defense of “bad faith set-up,” asserted in response to a bad faith claim based on the insurer’s alleged failure to settle a claim.

Sexual Misconduct “During” Law Enforcement Activities Does Not “Arise Out of” Law Enforcement Activities [Global Insurance Alert]

June 19, 2013

In a recent case before the U.S. District Court for the Central District of Illinois, the court held that jail employees were not entitled to coverage for sexual molestation of an inmate under the law enforcement coverage part of the jail’s liability insurance policy. In so holding, the court declined to apply an expansive interpretation to the policy’s “arising out of” language.

Second Circuit Restricts Zeig to First-Party Context, Requiring Actual Payment of Underlying Limits [Global Insurance Alert]

June 14, 2013

The U.S. Court of Appeals for the 2nd Circuit recently eliminated the foundation for policyholders’ arguments in favor of “functional exhaustion.” In Ali v. Federal Insurance Co., No. 11-5000-cv (2d Cir. June 4, 2013), the 2nd Circuit held that functional exhaustion as permitted in the 1928 decision in Zeig v. Massachusetts Bonding & Ins. Co., 23 F.2d 665 (2d Cir. 1928) does not apply to excess liability policies.

Connecticut Court Confronts Duty to Investigate [Avoiding Insurance Bad Faith Blog]

June 13, 2013

In Capstone Building Corp. v. American Motorists Ins. Co., 2013 Conn. LEXIS 187 (Conn. June 11, 2013), the Supreme Court of Connecticut declined to recognize a cause of action for an insurer’s alleged bad faith conduct in investigating a general liability insurance claim, relying on the policy terms...

No Bad Faith Recovery Based on Insurer’s Investigation of Claims under Connecticut Law

June 12, 2013

On certification from the U.S. District Court for the Northern District of Alabama, the Supreme Court of Connecticut recently issued an opinion holding that an insurer’s bad faith conduct in the investigation of a third-party liability insurance claim does not provide a basis for recovery under Connecticut law. Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 2013 Conn. LEXIS 187 (Conn. June 11, 2013).

Seventh Circuit Decision in Koransky Bouwer Enforces Professional Liability Reporting Requirements [Professional Liability Alert]

April 24, 2013

Earlier this month the 7th Circuit affirmed a district court order that held an insurer properly denied coverage to the insured law firm based on its failure to comply with the reporting requirements under its claims-made professional liability policy.

Check the White Pages for Personal Information: Massachusetts Decision Highlights the Expansion of Consumer Privacy Litigation [Cyber & Technology Alert]

March 26, 2013

Last week, in Tyler v. Michaels Stores, Inc., the Supreme Judicial Court of Massachusetts responded to certified questions presented by the district court and interpreted a Massachusetts statute to reflect the state’s interest in protecting consumer privacy. No. SJC-11145, 2013 Mass. LEXIS 40 (Mass. Mar. 11, 2013). In particular, the court held that a consumer’s zip code constitutes personal identification information, and that a consumer can bring an action under the relevant statute absent a claim of identify fraud.

Is Honesty Always the Best Policy? Illinois Appellate Court Holds Attorney's Ethical Obligations Trump Professional Liability Policy Term [Professional Liability Alert]

February 07, 2013

In a case of first impression, the Illinois Appellate Court considered whether a professional liability insurer can deny a defense to its insured, an attorney who admits he erred in providing legal services. Ill. State Bar Assoc. Mut. Ins. Co. v. Greenfield & Assocs., P.C., No. 1-11-0337, 2012 Ill. App. LEXIS 921 (Ill. Ct. App. Nov. 9, 2012). The court held the insurer had a duty to defend its insured against a legal malpractice claim. The court rejected the insurer’s reliance on the prohibition against admitting liability in its Voluntary Payments condition.

Distinguishing Between Large or Matching Deductibles and Self-Insured Retentions [ABA Coverage Journal]

March 08, 2012

Liability insurance for a large, complex claim is often a love-hate relationship. On the one hand, the policyholder and the insurer may stand on common ground in their adversity to the underlying claimant. On the other hand, the policyholder may find that the insurer—though the enemy of his enemy—is not necessarily his friend. The bigger and thornier the claim, the more likely that the insurer will reserve its rights to deny coverage.

Cyber Liability Insurance: The Value of an Educated Broker in the Age of E-Commerce

December 01, 2011

Recent media reports of cyber intrusions, data thefts and computer system malfunctions involving large, high-profile companies such as Sony PlayStation, Citigroup and Lockheed’s Security Vendor, RSA, have led a rapidly growing number of companies to consider the necessity of insurance coverage for technology and cyber privacy risks.

Understanding Your Cyber-Risk Policy [National Underwriter]

September 01, 2011

Increasing reports of cyber intrusions, data theft and computer-system malfunctions have led a rapidly growing number of companies to purchase insurance coverage to protect themselves from technology and cyber-privacy risks. As our technology-driven economy continues to evolve and businesses become more reliant on electronic communication and data storage, they are developing a heightened awareness that an unauthorized intrusion could endanger their tangible and intangible assets (including intellectual property) and, in many cases, their reputation and ability to conduct business.

Vivendi - The Multi-Billion Dollar Impact of Morrison on Foreign-Cubed Securities Litigation

March 30, 2011

On February 17, 2011, U.S. District Judge Richard J. Holwell in the Southern District of New York entered an order In re Vivendi Universal, S.A. Securities Litigation, 02-5571 (S.D.N.Y. Feb. 22, 2011), that dramatically reduced the potential amount of a plaintiff's jury verdict in a securities class action under section 10(b), originally estimated at approximately $9 billion.

D&O Liability: Vivendi – The Multi-Billion Dollar Impact of Morrison on Foreign-Cubed Securities Litigation [Insurance Coverage Alert!]

March 24, 2011

D&O Liability: Vivendi – The Multi-Billion Dollar Impact of Morrison on Foreign-Cubed Securities Litigation - Insurance Coverage Alert! - On February 17, 2011, U.S. District Judge Richard J. Holwell in the Southern District of New York entered an order in In re Vivendi Universal, S.A. Securities Litigation, 02-5571 (S.D.N.Y. Feb. 22, 2011), that dramatically reduced the potential amount of a plaintiff’s jury verdict in a securities class action under section 10(b), originally estimated at approximately $9 billion.

New Food Safety Modernization Act Expands Regulatory Authority Over Food Industry [General Litigation Alert!]

January 11, 2011

On January 4, 2011, in response to concerns regarding food-borne illnesses and related product recalls, President Obama signed into law the Food and Drug Administration Food Safety Modernization Act, H.R. 2751 (''FSMA'' or ''the Act''), which is being heralded as the most significant expansion of food safety requirements since the 1938 enactment of the Food, Drug, and Cosmetic Act. The Act focuses on preventive controls and expands the Food and Drug Administration’s (''FDA'') regulatory authority.

Webinar: Bad Faith on the Acela Corridor	Webinar	10/24/2018
PLRB 2014 Claims Conference & Insurance Services Expo	Indianapolis, IN	03/18/2014
2013 Excess Casualty Claims: Emerging Trends Every Claim Professional Needs to Know	New York, NY	11/14/2013
2013 Professional Liability Seminar	New York, NY	10/10/2013