Biography

Joseph K. Powers' practice focuses on handling and resolving coverage and bad faith disputes on behalf of insurers, with an emphasis on the defense of insurers in coverage and bad faith litigation.

Litigation Matters

Mr. Powers has handled motions, trials and appeals in state and federal courts in New York, New Jersey and throughout the United States and Puerto Rico. He has substantial experience handling claims arising from a broad array of insurance products, including commercial property and casualty, professional indemnity, fidelity and other specialty lines products. Representative matters include:

• Acted as lead trial counsel for a commercial package insurer in a three-week trial in Federal Court in Boise, Idaho in October 2002 relating to claims under a crime policy for a $14 million employee dishonesty loss. The trial followed a reversal of summary judgment by the 9th Circuit in Gulf USA Corp. v. Federal Insurance Co., 259 F.3d 1049 (9th Cir. 2001). Despite the reversal, Mr. Powers obtained a defense verdict at trial. 
• Served as lead trial counsel for a CGL insurer in a one-week trial in Federal Court in Manhattan in December 1999 relating to the interpretation of coverage for trademark infringement under the advertising injury liability coverage of the policy. The case resulted in a highly favorable ruling for insurers after it was appealed to the 2nd Circuit in Hugo Boss Fashions v. Federal Insurance Co., 252 F.3d 608 (2d Cir. 2001). 
• Acted as lead trial counsel for Lloyd's Underwriters in a two-week trial in State Court in Manhattan in June 2000 relating to a dispute over the purported rescission of an all-risk cargo policy issued to a financial institution. The case was reported on appeal at Chase Manhattan Bank v. Each Individual Underwriter, 287 A.D.2d 303, 731 N.Y.S.2d 150 (1st Dept. 2001).
• Obtained summary judgment for a commercial property insurer in a New Jersey case holding that a lower layer first-party insurer owes no fiduciary duty toward an excess first-party insurer to exhaust its policy limit in settlement in order to protect the excess insurer from a potential verdict in excess of that limit. The judgment was affirmed on appeal in M&B Apartments, Inc. v. Teltser, 328 N.J.Super. 265, 745 A.2d 586 (N.J.App.Div. 2000). 
• Obtained summary judgment for a liability insurer under a commercial fleet policy in a case in which the court held that the insurer was not vicariously liable for alleged malpractice by attorneys selected by the insurer to defend the insured. The appeal of the case is reported at Sumo Container Station v. Evans Orr, 278 A.2d 169, 719 N.Y.S.2d 223 (1st Dept. 2000).
• Obtained summary judgment for a financial institution insurer on a $35 million claim relating to the attempted reformation of a fidelity bond in Donaldson, Lufkin & Jenrette, Inc. v. Vigilant Insurance Co., 209 A.D.2d 185, 618 N.Y.S.2d 278 (1st Dept. 1994), lve. to appeal denied, 85 N.Y.2d 1021, 631 N.Y.S.2d 281, 655 N.E.2d 395 (1995). 
• Secured a defense verdict for a financial institution insurer following a two-week trial in Federal Court in Puerto Rico in August 1992 in a case brought by the FDIC over a failed bank. F.D.I.C. v. CNA Cas. Co. of Puerto Rico, 786 F.Supp. 1082 (D. Puerto Rico 1991).

Presentations & Publications

Mr. Powers is the author or coauthor of numerous articles on insurance coverage and bad faith liability, including: 

• Coauthor, "A Guide Through the 'Legal Nebula' of Loss Causation," In-House Defense Quarterly (Winter 2008).
• "Bad Faith Claims Under New Jersey's Fairly Debatable Standard," Mealey's Litigation Report: Bad Faith, pp. 24-38 (June 1, 1999).
• "Unique Fidelity Coverage Issues Presented by Claims Involving Bribes, Kickbacks and Illicit Profits," IV Fid. Law Assn. v.1 (1998).
• "Availability of Rescission as a Remedy or Defense," 32 Torts & Insurance L.J. 905 (1997).
• "Jury Instructions in Fidelity Bond Cases: Discerning the Meaning of 'Manifest Intent,'" International Insurance Law Review (March 1993).

Memberships & Honors

Mr. Powers is a member of the American Bar Association (Torts and Insurance Practice Section), the New York State Bar Association (Section on Insurance Law) and the Defense Research Institute.