By Amanda Bronstad, From The National Law Journal
Bill Cosby has brought in prominent insurance litigator Kirk Pasich to fend off two lawsuits filed by American International Group Inc. challenging its coverage of the comedian’s legal defense in defamation cases filed by women accusing him of rape and sexual assault.
On June 26, AIG Property Casualty Co. brought two suits—one in Massachusetts and one in California—seeking declaratory judgments that “sexual molestation, misconduct or harassment” exemptions in Cosby’s insurance policies prevented the insurer from covering the comedian’s defense against defamation claims. Pasich, a rainmaker who led a 10-lawyer team from Dickstein Shapiro’s Los Angeles office last summer to Liner, successfully got the sexual-misconduct exclusion claims in the California case tossed out on Nov. 13.
But on Jan. 8, U.S. District Judge Beverly Reid O’Connell allowed AIG to assert additional exclusions in the policies. Pasich, a former member of Dickstein’s executive committee who now heads Liner’s insurance recovery group, said he plans to get the sexual-misconduct exclusion claims dismissed in Massachusetts.
Pasich, whose practice is focused largely on the entertainment business, said rulings by both judges could impact insurers beyond AIG.
The claims “are not for the alleged sexual misconduct themselves but on defamation of statements made on behalf of Mr. Cosby in the last few years,” Pasich said. “The argument is if you have an exclusion that applies for example to sexual misconduct, does that apply to the claim of defamation in which somebody denies something? AIG’s argument was the exclusion did apply; Mr. Cosby that it didn’t apply. That issue certainly has much broader implications.”
AIG attorneys James Wagoner, a partner at McCormick, Barstow, Wayte & Carruth in Fresno, California, and William Schneider, a partner at Boston’s Morrison Mahoney, did not respond to requests for comment. An AIG spokeswoman also did not respond.
The insurance cases are among a raft of legal problems for Cosby, who faces additional defamation lawsuits and is fighting criminal charges filed last month of aggravated indecent assault. Both cases involved homeowners’ and personal excess liability insurance policies. The California case deals with three policies covering a lawsuit brought by fashion model Janice Dickinson on May 20 for defamation after Cosby and his lawyers accused her of lying about a 1982 incident in which she claims he sexually assaulted her.
In the insurance case, O’Connell dismissed the sexual-misconduct exclusion claims with prejudice, writing: “Sexual misconduct may be the subject matter of defendant’s statements, but defendant’s statements, not his alleged sexual misconduct, directly caused the injury for which Dickinson now seeks relief.”
She also found that the policy’s language, which covered defamation claims “arising out of” sexual misconduct, was ambiguous.
AIG plans to appeal O’Connell’s decision. Pasich said a decision by the U.S. Court of Appeals for the Ninth Circuit could have wider impact given that the “arising out of” language is common in insurance policies.
In its amended complaint this month, AIG cites additional exclusions for claims arising out of “criminal, willful, intentional or malicious” actions, “business pursuits” or the use of “controlled substances.” AIG included the claims after Dickinson added Cosby’s former attorney, Marty Singer of Los Angeles-based Lavely & Singer, as a defendant in her complaint, which is pending in Los Angeles Superior Court.
The Massachusetts case involves two policies covering a 2014 defamation lawsuit brought by Tamara Green, which was amended later to include six other women. On Dec. 15, U.S. District Judge Mark Mastroianni, who also is overseeing the underlying defamation case, rejected Cosby’s motion to dismiss or stay the case on jurisdictional ground and a motion by AIG to stay the underlying case pending resolution of the insurance action. An initial scheduling conference in the case is set for Jan. 27.
IMAGE: Bill Cosby. Credit: Sam Aronov via iStockphoto.com
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