Michael A. KotulaPartner
Michael A. Kotula has more than 30 years of experience handling complex coverage litigation involving asbestos, environmental pollution, health hazards including benzene, lead paint and opioids, toxic tort, product liability, personal and advertising injury, construction accident and defect, sexual abuse, financial services and other insurance coverage claims.
Michael also counsels large institutions, businesses and property owners on effective risk transfer, leveraging insurance coverage and underlying liability insights. He drafts risk-transfer provisions in leases and other agreements and reviews insurance policies for compliance with risk-transfer requirements. He drafts insurance policy language for insurance companies and institutional clients. He counsels healthcare providers and drafts risk retention group insurance policies and endorsements.
Michael has qualified to serve as an expert witness on insurance coverage matters, and has testified at trial in New York and New Jersey.
In the Stomley insurance coverage action over a well blowout and damages for total loss of well and cleanup costs, and a penalty for violations of law, Michael represented the insurers who won summary judgment. The Court held that the claim was untimely under a claims-made and reported coverage, and that coverage was barred by several exclusions and insuring agreement terms under CGL coverage. Certain Underwriters at Lloyd’s, London v. Stomley Sales & Consulting, LLC, Index No. 651616/2021 (N.Y. Sup. Ct. N.Y. Cty. Sept. 22, 2023
Michael represented insurers who won partial summary judgment in In re: CVS Opioid Insurance Litigation in Delaware. The Court held that nine underlying representative opioid lawsuits brought by state and local governments and an Indian tribe against CVS, seeking recovery of their economic losses in responding to the opioid crisis, did not seek damages because of bodily injury or property damage under numerous insurance policies. In re: CVS Opioid Insurance Litigation, C.A. No. N22C-02-045 PRW CCLD, 2023 Del. Super. LEXIS 745 (Del. Super. Ct. New Castle Cty. Aug. 25, 2023).
Michael won a decision in the North Carolina Supreme Court adopting pro rata time-on-the-risk allocation for defense and indemnity costs in a long-tail benzene health hazard and asbestos coverage case, in a case of first impression, reversing a Court of Appeals decision declaring “all sums” allocation applicable. Radiator Specialty Co. v. Arrowood Indem. Co., 382 N.C. 387, 881 S.E.2d 597 (2022). He had previously won summary judgment in the trial court that excess policies had no duty to defend or to pay or reimburse defense costs, and that pro rata allocation was applicable, and successfully tried the case in a bench trial to a no-pay final judgment for an insurer client. Radiator Specialty Co. v. Arrowood Indem. Co., Case No. 13 CVS 2271 (N.C. Super. Ct. Mecklenburg Cty. Feb. 22, 2019) (Final Judgment); Radiator Specialty Co. v. Arrowood Indem. Co., Case No. 13 CVS 2271 (N.C. Super. Mecklenburg Cty. 2016) (Orders on Allocation and Defense Costs).
He won affirmance of an award of summary judgment in the First State/Ferguson Enterprises asbestos coverage case that an excess policy did not drop-down in place of an insolvent underlying policy. First State Ins. Co. v. American Home Assur. Co., 463 F. Supp. 3d 298 (D. Conn. 2020), aff’d sub nom. First State Ins. Co. v. Columbia Cas. Co., 2022 U.S. App. LEXIS 16655 (2d Cir. June 16, 2022).
Michael won affirmance of an award of summary judgment dismissing claims for defense and indemnity in the American Properties construction defect coverage action in the New Jersey Appellate Division, involving underlying claims concerning 192 residential units in six buildings and common areas, on the basis that the Pre-Existing Damage Exclusion and the EIFS Exclusion barred coverage under an insurer client’s primary policies issued to a developer/sponsor. American Properties at Madison, LLC v. Interstate Fire & Cas. Co., 2021 N.J. Super. Unpub. LEXIS 1432 (N.J. Super. App. Div. July 13, 2021).
In the Carrier asbestos bodily injury coverage action, Michael won reversal of a trial court ruling that coverage is triggered by injury-in-fact as a matter of law from a claimant’s date of first exposure to asbestos, and affirmance of an award of summary judgment that excess policies had no duty to defend or to pay or reimburse defense costs for tens of thousands of asbestos claims. Carrier Corp. v. Allstate Ins. Co., 187 A.D.3d 1616, 133 N.Y.S.3d 697 (4th Dep’t 2020).
Michael won summary judgment in the Sapa Extrusions product liability coverage action in Pennsylvania, concerning an underlying action that had sought over $100 million in past and future damages, on the basis that there was no “occurrence” resulting in “property damage” triggering coverage under several policies issued by an insurer client, which was affirmed in relevant part by the Third Circuit Court of Appeals. Sapa Extrusions, Inc. v. Liberty Mutual Ins. Co., Case No. 3:13-2827, 2018 U.S. Dist. LEXIS 73162 (M.D. Pa. May 1, 2018), aff’d in relevant part, reversed in part, 939 F.3d 243 (3d Cir. 2019).
In an action by a successive insurer for contribution for pollution cleanup costs for a gasoline release from an underground storage tank brought in connection with New York Navigation Law claims that contaminated a public drinking water well, Michael won affirmance of an award of summary judgment that an insurer client was provided late notice under seven years of primary coverage. State of New York v. Flora, Index No. L61-13 (N.Y. Sup. Ct. Albany Cty. 2017), aff’d, 173 A.D.3d 1402, 102 N.Y.S.3d 771 (3d Dep’t 2019), leave to appeal denied, 34 N.Y.3d 910, 119 N.Y.S.3d 73 (2020).
Michael successfully tried Amtrak’s Sunnyside Yard $30 million environmental contamination claim in a three-week jury trial in Brooklyn to a no-pay verdict for an insurer client in the Amtrak environmental contamination, health hazard and asbestos coverage action seeking over $179 million. Certain Underwriters at Lloyd’s, London v. National Passenger Railroad Corp., Case No. 1:14-cv-04717 (E.D.N.Y. Sept. 27, 2017).
He won summary judgment in the Troy Belting asbestos coverage action in New York that a putative policyholder had failed to meet its burden of proving the terms and conditions of 25 years’ worth of allegedly missing primary insurance policies. Pacific Employers Ins. Co. v. Troy Belting & Supply Co., Case No. 1:11-cv-912, 2016 U.S. Dist. LEXIS 134224 (N.D.N.Y. Sept. 29, 2016).
Following removal of a Georgia state court action to federal court in Atlanta and transfer to the Southern District of New York in the Fairbanks actions, Michael won summary judgment that the Georgia Supreme Court would adopt a pro-rata time-on-the-risk allocation of indemnity costs for numerous asbestos bodily injury claims, would hold the policyholder responsible for the orphan share attributed to an insolvent insurer, and that umbrella policies had no duty to pay defense or indemnity costs because of an asbestos exclusion. Liberty Mut. Ins. Co. v. Fairbanks Co., 170 F. Supp. 3d 634 (S.D.N.Y. 2016).
Michael won summary judgment that numerous excess policies had no duty to defend or to pay or reimburse defense costs for tens of thousands of black lung and asbestos claims in the Mine Safety action in Delaware. Mine Safety Appliances Co. v. AIU Ins. Co., 2014 Del. Super. LEXIS 49 (Del. Super. New Castle Cty. 2014).
He won affirmance of summary judgment in the Ross Development environmental insurance coverage action in South Carolina, involving significant cleanup costs at a former manufacturing facility in Charleston, that claims for RCRA contribution and fraudulent conveyance under more than 20 years of primary CGL policies were barred by the “sudden and accidental” and absolute pollution exclusions. Ross Dev. Corp. v. Fireman’s Fund Ins. Co., 910 F. Supp. 2d 828 (D.S.C. 2012), aff’d, 526 Fed. Appx. 299 (4th Cir. 2013).
Michael won summary judgment that excess policies had no duty to defend or to pay or reimburse defense costs for tens of thousands of asbestos claims in the IMO Industries asbestos coverage action in New Jersey. IMO Industries, Inc. v. Transamerica Corp., Docket No. L-2140-03 (N.J. Super. Ct. Mar. 20, 2008).
He counseled major insurance companies in connection with the W.R. Grace bankruptcy action, which involved massive asbestos liabilities.
Michael won affirmance of trigger of coverage and allocation rulings that environmental cleanup costs at two landfill sites did not reach the attachment points of umbrella policies of an insurer client in the Wolverine World Wide action in Michigan. Wolverine World Wide, Inc. v. OneBeacon Ins. Co., 2007 Mich. App. LEXIS 657 (Mich. App.), appeal denied, 2007 Mich. LEXIS 2846 (2007).
He successfully represented a major insurance company in the New Jersey Waste Management environmental insurance coverage action, which involved claims for over $1 billion of insurance coverage at 134 polluted waste sites in 28 states and Canada. See, e.g., Waste Management, Inc. v. Admiral Ins. Co., Opinion Docket No. HUD -L-931-92 (N.J. Super. Hudson Cty. 1998, 2000) (granting summary judgment to Fireman’s Fund as to four alleged lost policies, and at five test sites on after-acquired and after-involved liability issues).
Michael served as counsel for an insurer client in a successful jury trial and a subsequent appeal in the ACC Chemical environmental insurance coverage action in Iowa, which sought over $100 million of insurance coverage, resulting in a no-pay judgment. Fireman’s Fund Ins. Co. v. ACC Chemical Co., 538 N.W.2d 259 (Iowa 1995) (holding late notice barred claims for coverage).
He has won countless summary judgment decisions and appeals in construction accident and construction defect coverage actions in New York. See, e.g., Campbell & Dawes, Ltd. v. Great American Assurance Co., Opinion Index No. 108885/11 (N.Y. Sup. N.Y. Cty. 2013) (awarding summary judgment for late notice of construction accident); QBE Ins. Corp. v. M&R European Constr. Corp., Index No. 602293/00 (N.Y. Sup. N.Y. Cty. 2012) (awarding summary judgment for late notice of construction defect claims); Stout v. 1 East 66th Street Corp., 90 A.D. 3d 898, 935 N.Y.S. 2d 49 (2d Dep’t 2011) (enforcing excess “other insurance” clause in construction accident case); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Great American E & S Ins. Co., 86 A.D. 3d 425, 926 N.Y.S. 2d 508 (1st Dep’t 2011) (awarding summary judgment for late notice of construction accident); Pavarini McGovern, LLC v. Airflex Industrial Inc., 30 Misc. 3d 1232A, 926 N.Y.S. 2d 325 (N.Y. Sup. N.Y. Cty. 2011) (awarding summary judgment for late notice of construction defect claims); Macklowe Org. v. K.G. Mechanical Inc., 2008 N.Y. Mis. LEXIS 10569 (N.Y. Sup. N.Y. Cty. 2008) (rejecting additional insured claim for construction accident); Bovis Lend Lease LMB, Inc. v. Zurich American Ins. Co., Index No. 600465/04 (N.Y. Sup. N.Y. Cty. 2006) (rejecting additional insured claim for construction accident).
After law school, Michael clerked for the Honorable Curtis von Kann, J.S.C., in the District of Columbia Superior Court, Civil Division, assisting with management of a caseload of numerous civil cases, researching and writing opinions and orders, and writing special jury instructions and jury voir dire questions.
Michael wrote the chapter on “Environmental and Toxic Tort Coverage Issues” for New Appleman Law of Liability Insurance. He also wrote a chapter on As Damages for The Reference Handbook on the Commercial General Liability Policy, published in the 2023, 2014 and 2010 editions by the ABA’s Tort Trial and Insurance Practice Section.
A frequent speaker on insurance coverage issues, he has spoken at seminars for the American Bar Association, the Defense Research Institute, Practising Law Institute, Mealey’s, the New Jersey Institute for Continuing Legal Education and the New York Law Journal, as well as for national and international insurance and reinsurance companies. In addition, Michael is a member of the Standing Committee on Ethics and Professionalism of the American Bar Association’s TIPS section and an editor of the TIPS Law Journal. Michael is a past chair of the Excess, Surplus Lines and Reinsurance General Committee of the ABA TIPS Section and is active in offering CLE on complex coverage matters. Michael spoke on Horizontal v. Vertical Exhaustion: Trends and Takeaways at the ABA TIPS Section: Insurance Coverage Litigation Committee’s annual coverage seminar in February 2022; on insurer intervention in underlying liability actions at DRI’s Insurance Coverage and Claims Institute in March 2018; and moderated a panel on emerging allocation issues at the ABA TIPS Section: Insurance Coverage Litigation Committee’s annual coverage seminar in February 2017.
The Legal 500 recommends Michael in the Insurance: Advice to Insurers category. Since 2022 he has been recognized by Who’s Who Legal: Insurance & Reinsurance as a leading practitioner, among only 769 attorneys from around the world to be recognized in this prestigious publication. He has been named to Best Lawyers in America® for Insurance Law, Super Lawyers in Metro New York in Insurance Coverage, and a Top Rated Lawyer in Insurance Law by American Lawyer Media. He has earned the AV PreeminentTM rating from Martindale-Hubbell, its highest rating, for over 15 years.
The Legal 500 recommends Rivkin Radler’s Insurance Coverage practice in the Insurance: Advice to Insurers category. The Insurance Coverage Practice Group is recognized in the Chambers USA directory in the Insurance: Dispute Resolution: Insurer category, and in the U.S. News – Best Lawyers “Best Law Firms” Metropolitan New York Tier 1 for Insurance Law.
926 RXR Plaza
Uniondale, NY 11556-0926
District of ColumbiaCourt Admissions
United States District Courts for the Southern, Eastern, Western and Northern Districts of New York, the District of New Jersey and the District of Columbia
United States Court of Appeals for the Second, Third and Fourth CircuitsBar Affiliations
American Bar Association – Insurance Practice Section
Defense Research InstituteEducation
George Washington University Law School, Juris Doctor with Honors
Emory University, B.A.