You've Got a Friend in Me: A Conversation with Marshall Gilinsky of Anderson Kill

Law.com
10/31/2022

Marshall Gilinsky of Anderson Kill talks about the distinctive elements of Huntington Ingalls's claim that led the Supreme Court of Vermont to issue a favorable ruling in the company's COVID-related business interruption suit.

In the slew of business interruption cases related to the COVID-19 pandemic, many amicus curiae briefs have been filed for both insurers and policyholders. An “amicus brief,” as it is commonly called, is filed by law firms and/or attorneys who are not involved in the case itself, but who wish to vocalize their support for either the plaintiff or the defendant. Many amicus briefs for insurers have been filed by lawyers who are paid by trade associations that are funded, unsurprisingly, by insurers. Policyholders do not have such allies on standby, but neither are they without friends. United Policyholders, a nonprofit with more than 30 years’ experience of pro-policyholder insurance litigation, has helped fill that gap. Attorneys from firms such as Anderson Kill, Covington, and Hunton Andrews have logged many pro bono hours helping policyholders, be they individuals or businesses, advocate their own cases on behalf of United Policyholders. 

In Huntington Ingalls Industries v. Ace American Ins. Co., 2022 VT 45 (Vt. 2022), the Supreme Court of Vermont ruled that Huntington Ingalls Industries (Huntington Ingalls), the largest military shipbuilder in the U.S., had made sufficient allegations to survive a motion for judgment on the pleadings, reversing the trial court’s grant of judgment on the pleadings to Ace American and other reinsurers of Huntington Ingalls’s commercial property policy. Marshall Gilinsky, a shareholder at the Boston office of Anderson Kill, filed an amicus brief for Huntington Ingalls in its appeal to the Supreme Court of Vermont. 

Business Interruption Checklist

Gilinsky named four key factors for a businessowner’s COVID-based business interruption suit: physical loss or damage to the insured property; restriction of access to the insured property; lost profits due to the covered event; and quantification of the alleged loss.

“To the extent an insurance company attempts to restrict coverage based on an exclusion,” he said, “It is the insurance company that bears the burden of proving that the exclusion unambiguously applies.” 

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