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Meissner Tierney Fisher & Nichols S.C.

1 National Ranking & 8 Metro Rankings | Website

Significant Matters

Attorneys Michael Cohen and Joseph Sarmiento Obtain Unanimous Decision from the Wisconsin Supreme Court

Attorneys Michael Cohen and Joseph Sarmiento successfully appealed an adverse decision from the Wisconsin Court of Appeals to the Wisconsin Supreme Court on behalf of Acuity Insurance in Acuity v. Chartis Specialty Insurance Company, 2015 WI 28. The case arose out of a natural gas explosion which destroyed a church and damaged a number of buildings in Oconomowoc, Wisconsin. Acuity’s insured, an excavation contractor, was alleged to have ruptured the natural gas line that led to the explosion. Acuity defended and indemnified its insured under a commercial general liability policy issued to its insured, which did not contain an absolute pollution exclusion. The excavation contractor was also insured under a contractor’s pollution liability policy issued by Chartis. The trial court agreed with Acuity that natural gas constituted “pollution conditions” as defined in the Chartis policy and required Chartis to reimburse Acuity for one half of the defense and indemnity costs Acuity had paid on behalf of the excavation contractor. The Wisconsin Court of Appeals unanimously reversed. The Wisconsin Supreme Court then unanimously reversed the Court of Appeals’ decision, finding that, in the circumstances of the case, natural gas was an “irritant or contaminant” under the definition of “pollution conditions” in the Chartis policy and Chartis was required to reimburse Acuity as ordered by the trial court.

 

Attorney Mark Malloy Obtains Dismissal of Fiduciary Duty Case in Northern District of Illinois

Attorney Mark Malloy successfully defended a breach of fiduciary duty claim in the United States District Court for the Northern District of Illinois. Malloy represented a national appraisal firm based in Milwaukee that was sued by an Illinois corporation for alleged breach of fiduciary duty. The case arose out of testimony offered by the client appraiser in an underlying lawsuit filed in Cook County among shareholders of the corporation. The testimony related to an independent valuation prepared by the appraiser for the company a few years before the underlying shareholder lawsuit was filed. The plaintiffs alleged that the testimony offered breached the appraiser’s fiduciary duty to the corporation, which they claimed arose out of a prior valuation conducted by the appraiser. The case was originally filed in Cook County, but Malloy and his team, associates Tim Nichols and Henry Weiner, removed the case to federal court. In federal court, they brought a motion to dismiss on multiple theories, including the position that all claims were barred by witness testimony immunity and that no fiduciary duty existed as a matter of law for the appraiser. The court granted the motion, dismissing all claims on the merits and with prejudice.

 

Attorney Mark Malloy Obtains Defense Verdict in Milwaukee County Mold Trial

Attorney Mark Malloy obtained a defense verdict in a mold case tried before a jury on January 5, 2015 to January 8, 2015 in Milwaukee County. In the action, a condominium unit owner who purchased a condominium in 2005 sued the condominium association for damages relating to mold that was discovered in the walls and ceilings of the unit in 2010. The unit owner had purchased the property on an “as is” basis, and sued the association, claiming that the association negligently failed to maintain common areas and/or breached duties owed to the unit owner under the condominium bylaws. The owners were seeking damages in excess of $10 million relating to property damage and personal injury. Malloy represented the association’s insurance carrier and, together with counsel for the association, argued that the unit owner was negligent in the purchase of the home and maintenance of unit owner responsibility areas, and that this negligence was the sole cause of the damages claimed. After four hours of deliberation, the jury returned a verdict finding that the association was not negligent and did not breach any duties owed to the unit owners.

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