Martin C. Pentz

Representative Experience

• Peabody Essex Museum, Inc. v. United States Fire Ins. Co., 802 F.3d 39 (1st Cir. 2015): Lead counsel for Museum in suit seeking insurance coverage in connection with cleanup of underground oil release. Established insurer’s breach of duty to defend Museum in connection with agency notice of responsibility; thereby shifted burden to insurer to show inapplicability of exception to “pollution exclusion,” which insurer failed to sustain; recovered full defense costs, without “allocation”; successfully avoided “pro rata” allocation of cleanup costs, instead securing more favorable “fact-based” allocation through expert evidence. 
• Certain Underwriters at Lloyd’s London v. Chicago Bridge & Iron Co., 406 S.W.3d 326 (Tex. App.-Beaumont 2013, writ denied): Served as lead trial and lead appellate counsel in Texas coverage action arising from nationwide asbestos claims.  Won summary judgment rulings applying “all sums” coverage approach, and rejecting insurer pro rata allocation and horizontal exhaustion theories, based on collateral estoppel. Won trial rulings aggregating multiple claims at a given site into a single “occurrence” for purposes of exhausting retention amounts. Affirmed in all respects on appeal.
• Dominion Energy, Inc. v. Zurich Am. Ins. Co., 2013 U.S. Dist. LEXIS 150569 (D. Conn. 2013): Won summary judgment on insurer’s duty to defend “additional insured” under “automatic additional insured endorsement” in connection with underlying wrongful death action. Court rejected insurer argument that defense obligation applied only if named insured was solely at fault. 2015 U.S. Dist. LEXIS 25795 (D. Conn. 2015):  Established insured’s entitlement to pre-judgment interest and fees of prosecution of coverage action.  2016 U.S. Dist. LEXIS 32980 (D. Conn. 2016): Established insured’s entitlement to recovery of costs incurred before tender of defense to insurer.
• EaglePicher Mgmt. Co. v. Zurich Am. Ins. Co., 640 F. Supp. 2d 1109 (D. Ariz. 2009): Won summary judgment on liability of insurer to indemnify insured for loss arising from dishonesty of IT director, who diverted substantial company funds to entities he owned or controlled.  Case settled following summary judgment rulings.
• OneBeacon Ins. Co. v. Georgia-Pacific Corp., 474 F.3d 6 (1st Cir. 2007): Secured for client Georgia-Pacific Corporation a district court judgment holding that, contrary to an insurer’s contention, the cancellation of an umbrella liability policy after three months did not reduce the aggregate limit of liability of the policy from $10 million to $2.5 million, but rather left the full $10 million limit intact. Decision affirmed on appeal by First Circuit.
• Scott v. NG US 1, Inc., 450 Mass. 760 (2008): Won summary judgment dismissing G.L. Ch. 21E action by property owner claiming successor liability of defendant utility for contamination allegedly caused by former manufactured gas plant operations of company whose assets were purchased by defendant. Affirmed on appeal by Massachusetts Appeals Court, 67 Mass. App. Ct. 474 (2006), and on further appellate review by Massachusetts Supreme Judicial Court.
• KeySpan New England, LLC v. Hanover Ins. Co., 24 Mass. L. Rep. 511 (2008): Won summary judgment against primary insurer on duty to defend DEP Ch. 21E proceeding regarding former coal tar processing facility. Tried a “lost policies” case against a second insurer, successfully establishing terms of policies. Won summary judgment on second insurer’s duty to defend; secured 10-year stay of primary insurer’s counterclaims seeking declaration of no indemnity obligation; won summary judgment on “trigger-of-coverage” and “known loss” issues. Case settled as to all insurers.
• Allmerica Financial Corp. v. Certain Underwriters at Lloyd’s, London, 449 Mass. 621 (2007): Submitted amicus curiae brief on behalf of public utility company, urging Court to narrow apparent scope of “known loss” doctrine in Massachusetts; Court rejected application of “known loss” in case presented, and clarified the “proper narrow construction of the known loss doctrine” to apply only to insurance purchased when liability was known or substantially certain.
• Chicago Bridge & Iron Co. v. Certain Underwriters at Lloyd’s, London, 59 Mass. App. Ct. 646 (2003), rev. denied, 441 Mass. 1101 (2004): Served as lead trial and lead appellate counsel in precedent-setting case arising from alleged environmental liability of policyholder from wood treating operations of a former affiliate. The $6 million judgment won after trial was affirmed on appeal in a frequently-cited opinion holding that policyholder was entitled to recover “all sums” under each triggered policy, rather than mere pro-rated amount.
• Smith & Nephew, Inc. v. Federal Ins. Co., 113 Fed. Appx. 99, 2004 U.S. App. LEXIS 21452 (6th Cir. 2004): Secured reversal by Sixth Circuit of district court opinion granting insurer summary judgment. The Court of Appeals held that insurer had a duty to defend the policyholder under “personal injury” provisions of a general liability policy for underlying action alleging the policyholder’s participation in a conspiracy to defame a self-styled “whistle-blower.” Case settled on remand.
• D’Amelio v. Federal Ins. Co., 2004 U.S. Dist. LEXIS 7488 (D. Mass. Apr. 28, 2004): Insurer held on summary judgment to be obligated to honor an arrangement under which a directors and officer liability policy was set up as primary to a representations and warranties liability policy. Court rejected the insurer’s contention that the controlling shareholder (sued for alleged breaches of representations and warranties) was not acting in D&O policy’s “insured capacity” in a stock purchase and sale agreement.
• Narath, et al. v. Executive Risk Ins. Co., 2004 WL 924231(D. Mass. Mar. 14, 2002): Defeated an insurer motion for summary judgment based on “insured vs. insured” exclusion in directors and officers policy. Court held that the case nominally brought in name of bankrupt insured against directors did not invoke exclusion where bankruptcy trustee, acting for the benefit of creditors, was real party in interest.
• Hakim v. Massachusetts Insurers Insolvency Fund, 424 Mass. 275 (1997): Retained to appeal a summary judgment granted to an insurer on grounds that an “owned property” exclusion precluded coverage under homeowners policy liability provisions for costs of clean up of home heating oil spill. The Supreme Judicial Court reversed the judgment, agreeing that costs incurred to abate contamination of third-party property are covered, even if remedial work is performed on the policyholder’s property. The case is now widely cited to defeat “owned property” defense under commercial liability insurance.