We've been on all sides

Plaintiffs, defendants, individuals, corporate officers, businesses, insurers, institutions. You’re our client and we draw on our experience to guide you through any dispute.

Attorney Bios     Practice Areas

We're Strategic

We pride ourselves on constantly charting a course to the best outcome for our client. No one size fits all approaches, no diving into expensive and unnecessary work. We think many steps ahead and are always prepared to leverage an opportunity or take the right detour.

Josh uses his big firm litigation experience to deliver high quality results on a cost effective basis. He is also hands-on, flexible, innovative and a pleasure to work with. I often refer clients to Gardner and Rosenberg for their litigation needs.

~ Peter L., General Counsel

We Communicate

“Trust me, I’m the lawyer”....“Well, I’m the client.”
Our clients want our advice, and they want us to solve problems. But not without communicating. Every matter involves different goals, risk tolerance and budget. We give our clients candid advice, while always striving to involve them at the key decision points in a case.

Josh Gardner stepped into a messy case with a national insurer and quickly sorted out the issues. He constantly gave us updates and laid out the options and likely scenarios on how we could proceed. We felt like we were able to make informed choices while entrusting our case to Gardner & Rosenberg.

~ Jerry B., Business Owner

We Solve Problems....

Our approach is professional, collegial and resolution based. We understand how to bring a complex dispute to rest. We’ve done it with business transactions, partnership disputes and sensitive investigations requiring building trust with counsel, parties or government officials.

I went into a business venture with a family member and found myself in an all-out feud that became as much personal as it was about the business. Gardner & Rosenberg understood that and got their arms around an out of control battle better than any other lawyer could have.

~ Client

....In Court When Necessary

When we reach an impasse, or the need arises we don’t back down. We are trial lawyers and we try cases when necessary. While we work to find resolutions short of trial, our peers know we’ll go the distance if we have to.

As the controller for a large regional distributor, I have entrusted numerous matter to Gardner & Rosenberg. We’ve used other lawyers in the past, but they often recommended settling quickly or just writing off challenging matters. Nick Rosenberg knows how to get results and isn’t afraid to play hardball. He genuinely wants to win for us.

~ Controller, Regional Wholesaler

Insurance Coverage: Massachusetts Insurers Cannot Recoup Defense Costs Provided Under Reservation of Rights

A Massachusetts Superior Court last month issued a significant victory for policyholders. In the case Holyoke Mutual Insurance v. Vibram, the court ruled that an insurer that provides a defense under a reservation of rights may not later recoup attorney fees from the policyholder if a court ultimately determines there to have been no coverage.

Someone sues you or your company. You submit a claim to your insurance carrier. Your insurer hires a lawyer to represent you. But then your own insurance company turns and brings a new suit against you for a declaratory judgment that it no longer needs to pay your lawyer in the underlying case. In many states, if the court ultimately determines there to be no coverage, the insurer can then go so far as to recoup from you the money the insurer paid your lawyer. At least for now, that is not the law in Massachusetts.

In the Holyoke case, the family of an Ethiopian marathon runner sued Vibram for naming a shoe after the runner without the family’s permission. Vibram submitted the claim to two of its insurers under its commercial general liability policies. The insurers issued a reservation of rights, but tendered a defense to Vibram.

The insurers then brought a separate declaratory judgment action, in which the court determined there was no coverage for the underlying claim. The insurers then sought to recoup from Vibram the insurers’ costs in defending the underlying suit.

Judge Mitchell Kaplan noted that states are split on whether an insurer may recoup its defense costs, and the Massachusetts Supreme Judicial Court has not yet addressed the issue.

Judge Kaplan rejected the insurers’ argument that they never agreed to pay for defense costs that ultimately were not owed, and making them do so would unjustly enrich the policyholder.

Instead, Judge Kaplan noted that an insurer’s duty to defend arises broadly when the underlying complaint shows even a possibility that there may be coverage. He reasoned that insurers are not unjustly enriched by fronting defense costs. Rather, insurers have financial incentives to provide a defense. For example, providing a defense may insulate an insurer from paying a policyholder’s attorney fees in an action by an insured to establish a duty to defend. Providing defense costs may similarly protect an insurer from a bad faith coverage claim and exposure to multiple damages under Chapter 93A. The court explained, that “when in doubt an insurer has an economically sound and self-interested reason to provide a defense under a reservation of right until the coverage issue can be resolved.” Nor, the court reasoned, is there any explicit language in the Vibram policy that would allow for recoupment. The court, however, chose not to force the insurers to pay for the defense costs that had been incurred by Vibram, but not yet paid by the insurers, before the court found there to be no coverage.

Both sides have appealed the decision.

Gardner & Rosenberg, P.C. represents policyholders in all types of complex coverage disputes involving many different types of policies, including Director and Officer, Commercial General Liability, Employment Practices Liability, Errors and Omissions, Life, Homeowners, and Long Term Care.

Delay in Responding to Lawsuit Not a Waiver of Arbitration Provision

The Massachusetts Appeals Court ruled in favor of Gardner & Rosenberg’s client, reversing the trial court’s denial of his request to compel arbitration of a fee dispute with prior counsel.

After obtaining an award and subsequent settlement in favor of the client in an underlying property dispute, the former counsel sought to recover a disputed fee from the client. Despite the arbitration provision in the fee agreement with the client, counsel brought suit in Superior Court. The Superior Court denied the client’s request to compel arbitration and other efforts to seek arbitration, implicitly based on the client’s delayed response to the lawsuit.

The Appeals Court reversed and remanded the case to be sent to arbitration per the parties’ agreement. The Court held that although a default later entered on the docket, the client did not waive his right to arbitration – the first thing he did when responding to the lawsuit was to demand arbitration and he acted consistently with his desire to resolve the dispute through arbitration. Read the Appeals Court's decision here.

Gardner & Rosenberg “SLAPPS” Back for Clients

In two recent cases, Gardner & Rosenberg won motions to dismiss under the so-called Anti-SLAPP statute. The law is designed to prevent lawsuits brought to stifle participation in petitioning activities to the government. The statute is a powerful shield against suits brought to deter a party from exercising its legal rights. The court must award attorney fees to a party that brings a successful motion.

In the first case, Gardner & Rosenberg represented a commercial tenant who complained to a town Board of Health about the conditions in its offices, and then brought suit to be relieved from its lease. The landlord counterclaimed against the tenant claiming the tenant exaggerated the scope of the issues to the town board. The court agreed with Gardner & Rosenberg that its client’s acts of speaking to the Board of Health and bringing suit were protected petitioning activity, and dismissed the landlord’s claim. Click here for a copy of the court’s decision.

In the second case, a tenant brought suit against its landlord concerning conditions at its property. The landlord then brought a separate lawsuit against the tenant’s attorneys, claiming that the attorneys "conspired" with the tenant to bring the first case. Gardner & Rosenberg represented the tenant’s attorneys in the suit against them. The court fully agreed with Gardner & Rosenberg that the attorneys' acts in representing their client in the case against the landlord were protected petitioning activity, and dismissed the claims against the attorneys. Click here for a copy of the court’s decision.

Gardner & Rosenberg Obtains Judgment Against Boston-area Attorney Accused of Dropping the Ball

Gardner & Rosenberg this week obtained a $490,000 judgment against a Boston-area attorney in a legal malpractice case.  Gardner & Rosenberg’s client – a regional commercial supply company – accused its prior attorney of neglecting numerous commercial collection matters for which he was hired over several years.  When it came to the client's attention that matters it thought had been pursued were, in several cases, never even filed in court, it brought suit.  Gardner & Rosenberg assisted in obtaining a judgment of roughly the full amount of the neglected claims and attorneys' fees for the defendant's conduct in the proceedings.

Civil Settlement with Attorney General Over Alleged Mortgage Violations

After over two years years of litigation, Gardner & Rosenberg’s client this week favorably resolved a civil lawsuit suit brought by the Massachusetts Attorney General under the state’s consumer protection statute.  The Attorney General alleged that the client, along with others, violated regulations concerning the provision of mortgage related services.  Under the terms of the settlement, the client makes no penalty payments and agreed to refrain from certain mortgage services-related activities.

Settlement For Client Against Long Term Care Insurance Company

Gardner & Rosenberg secured a settlement of its client's lawsuit against a national insurance company arising from its denial of coverage to a policyholder under a long-term care policy.  Read the Complaint...

 

[REDACTED FOR PRIVACY]

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE COUNTY SUPERIOR COURT

_______________________________ ____________________,                            )             CASE NO: _________ Plaintiff,                                                                   ) v.                                                                                ) CONTINENTAL CASUALTY COMPANY         ) Defendant                                                                ) _______________________________ )

COMPLAINT

Plaintiff _____________ submits this Complaint against Defendant Continental Casualty Company ("CCC") for breach of its insurance policy and for bad faith claims handling.

THE PARTIES

  1. ___________ is an individual who resides in _______________.
  2. CCC is an insurance company registered to do business in Massachusetts, and, on information and belief, with a principal place of business in Chicago, Illinois.

JURISDICTION AND VENUE

  1. This Court has personal jurisdiction over CCC because it transacts business in the Commonwealth, and because the acts and conduct that are the subject matter of this action arose from CCC's transaction of business in the Commonwealth.
  2. Venue is proper in this county because ___________ lives in this county.

FACTUAL ALLEGATIONS

  1. ____________ is an insured under a Long Term Care Insurance Contract bearing policy number ____________ issued by CCC (the "Policy").
  2. On or about October 7, 2013, _____________ made a claim for benefits under the Policy for her stay at __________ (the "Facility") because of a medical condition.
  3. Not until on or about December 30, 2013, did CCC acknowledge receiving and reviewing the claim. On or about that date, CCC admitted that the Facility meets the Policy requirements.
  4. CCC denied the claim, however, and based its denial entirely on an erroneous assertion that ____________ did not qualify as "Chronically Ill" under the Policy.
  5. On information and belief, CCC made this determination despite the fact that the nursing service with whom it contracts to make recommendations concerning whether a policyholder is Chronically Ill, in fact determined that ________ was Chronically Ill.
  6. __________ attempted, repeatedly, to contact CCC concerning its claims decision.
  7. On or about January 20, 2014, ___________ formally requested that CCC reconsider its denial.
  8. On or about March 18, 2014, CCC wrote that it had reviewed ____________ correspondence, and said that it would be requesting documents from the Facility.
  9. On or about July 10, 2014, ___________ again formally appealed CCC's denial.
  10. On or about October 28, 2014, CCC wrote to __________ again denying the claim (the "Final Denial"). In the Final Denial, CCC admitted that it had originally denied the claim because it had determined that ________was not Chronically Ill as defined by the Policy.
  11. In the Final Denial, however, CCC finally admitted that its original bases for denial -- that ________ was not Chronically Ill -- was wrong. In the Final Denial, CCC admitted that __________ in fact had been Chronically Ill as defined by the Policy.
  12. So, in an attempt to find some other basis on which to deny coverage, it its Final Denial, CCC raised, for the first time, a new justification that, although _______ was Chronically Ill, and although the Facility qualified under the Policy, CCC did not have to provide coverage because ________ was receiving Qualified Long Term Care from her husband rather than from by the Facility's staff.
  13. CCC wrote that although the Facility was charging __________ for room and Board (approximately $6,000 per month), the care services she required were being provided by her husband.
  14. The Policy, however, does not require that Qualified Long Term Care be provided by the Facility.
  15. Additionally, the Facility did, in fact, provide various services that constitute Qualified Long Term Care under the Policy.
  16. Moreover, under the Policy, CCC agrees that it will pay for room and board irrespective of who provides the care services. The Policy, by its terms, includes room and board as a component of Qualified Long Term Care for which it will pay:

Each day You require Home and Community-Based Care, We will pay benefits as follows:

B. For Qualified Long Term Care received in an Alternate Care Facility, including room and board, the lessor of:

(1) The Maximum Daily Facility Benefit shown in the Schedule, or

(2) The expenses incurred for such care. (emphasis added)

21.  Had CCC explained this basis for denial when the claim was submitted, __________ would, of course, have had the Facility provide her the services provided by her husband

22.  The Facility charges only around $350 per month for the services provided by _________'s husband

23.  Accordingly, CCC's position is that because _________ had her husband, rather than the Facility, provide services that cost approximately $350 per month, CCC will not pay the room and board of approximately $6,000 per month.

24.  Indeed, after CCC informed _______ of its position, her husband ceased providing the services, and CCC began providing coverage.

CLAIMS FOR RELIEF

COUNT I - Breach of Contract

  1. ___________ incorporates all other allegations in this Complaint.
  2. CCC issued a binding Policy of insurance to _____________.
  3. ______________ performed all of her obligations under the Policy.
  4. CCC's denial of ____________ claim under the Policy constitutes a breach of the Policy that has caused __________ damage.

COUNT II - Declaratory Judgment

  1. __________ incorporates all other allegations in this Complaint.
  2. A dispute exists between _______ and CCC as to whether coverage exists under the Policy.
  3. The Court should enter an order that there is in fact coverage for the claim under the Policy.

COUNT III  -- Unfair Claims Handling

M.G.L. Chapter 93A (to be added in Amended Complaint)

Illinois Section 154

  1. ___________ incorporates all other allegations in this Complaint.
  2. CCC's wrongful conduct occurred in trade or commerce and primarily and substantially in the Commonwealth.
  3. CCC's conduct violated Massachusetts General Laws Chapter 176D (and therefore Chapter 93A) and Illinois Section 154.
  4. CCC's conduct was vexatious and unreasonable.
  5. CCC misrepresented pertinent facts and insurance Policy provisions relating to the coverage by shifting its bases for denial of coverage.
  6. CCC failed to acknowledge and act reasonably promptly upon communications with respect the claim.
  7. CCC failed to adopt and implement reasonable standards for the prompt investigation of the claim.
  8. CCC refused to pay the claim without conducting a reasonable investigation based upon all available information.
  9. CCC failed to affirm or deny coverage of the claim within a reasonable time.
  10. CCC failed to effectuate a prompt, fair and equitable settlement of the claim.
  11. CCC failed to provide promptly a reasonable explanation of the basis in the Policy in relation to the facts or applicable law for denial of the claim.
  12. CCC compelled __________ to institute this litigation in order to recover the amounts due under the Policy.
  13. CCC's wrongful acts caused ___________ damage.
  14. _____________ has sent a demand letter pursuant to Chapter 93A, and will amend this Complaint to reflect CCC's response, if any.

WHEREFORE, ___________ requests judgment against CCC in an amount to be determined at trial, together with enhanced and triple damages and attorney fees, and that the Court grant such other relief as is just and proper.

Jury Demand: ____________ demands a trial by jury on all issues so triable.

Dated: April 20, 2015

________________________

By her attorneys

_____________________

Josh Gardner (BBO No. 657347) Nick Rosenberg (BBO No. 657887) Gardner & Rosenberg P.C. 33 Mount Vernon Street Boston, MA 02108 Phone: 857-225-2743 Email: josh@gardnerrosenberg.com