Brian S. Scarbrough represents corporate policyholders in disputes with insurers and has significant experience both in counseling regarding insurance coverage and in litigating insurance coverage disputes. He successfully has pursued hundreds of millions of dollars of insurance recoveries for policyholders in state and federal court as well as in domestic and international arbitrations.
In a counseling role, Brian frequently reviews existing or proposed policy language to help policyholders maxmize coverage. Brian has undertaken policy reviews both for renewal programs and in placing new programs of insurance, including for spun-off entities, at the primary, excess and umbrella layers. Such counseling has included all major types of coverage, both occurrence-based and claims made, and both first party and third party: D&O (including Side A only and difference in conditions), E&O, professional liability, employment practices liability, environmental, CGL and products liability, Bermuda Form, cyber, commercial property, trade credit and punitive damage wrap policies. Brian also counsels on insurance issues raised by cryptocurrencies, Initial Coin Offerings, blockchain and other distributed ledger technologies.
In a litigation role, Brian has tried insurance cases to summary judgment or jury verdict in state and federal courts nationwide at the trial and appellate levels. This includes cases involving large environmental liabilities with multiple primary and excess insurers, claims handling practices, the duty to defend, D&O liabilities, Chinese drywall liabilities, commercial property and business interruption loss. As an example, in 2013, Brian secured a groundbreaking victory in one of the year’s most significant pollution exclusion rulings, as noted by Law360 and Mealey’s. In a ruling of first impression under Massachusetts law, a Colorado court rejected the application of an insurer’s absolute pollution exclusion to Chinese Drywall claims, finding that that an absolute pollution exclusion was ambiguous as to whether Chinese drywall was a “pollutant”. Brian also has tried insurance cases to final merits decisions in domestic and international arbitrations, including London arbitrations under Bermuda Form policies. Brian has extensive experience with London Market insurance, including schemes of arrangement under U.K. law. He also has negotiated and drafted numerous settlement agreements with insurers, including commutation agreements, policy buy backs and coverage in place agreements. Brian has litigated reinsurance disputes, including reinsurance arbitrations, and has both counseled and litigated as to captive insurance issues.
Outside of the insurance context, Brian has broad experience obtaining discovery in the U.S. under 28 U.S.C. Section 1782 for use in foreign litigation and arbitration.
Brian serves as an updating author to the firm treatise Directors and Officers Liability: Prevention, Insurance and Indemnification, has presented at leading insurance seminars and has authored or co-authored a number of insurance articles and updates. He is regularly quoted by Law360 and other publications as a source on trends, challenges and advancements in the insurance industry. Brian also maintains an active pro bono practice, including pro bono insurance litigation and counseling.