Kenneth H. Frenchman is a Principal in the Insurance Recovery Practice Group with significant experience in insurance coverage litigation, counseling on insurance-related issues, and securing settlements with prominent property and casualty insurers from all over the world, recovering in excess of $2 billion for his clients. Ken represents several large and small corporate policyholders in litigations and arbitrations around the nation for damages and declaratory relief arising out of, among other things, insurance companies’ breach of contract, bad faith, and attempted rescission of policies. He litigates many of the most significant and cutting-edge insurance coverage cases in the country. These include coverage for liabilities relating to professional liability, breaches of representations and warranties, asbestos, products, toxic torts, environmental property damage, directors and officers, errors and omissions, first-party property damage, business interruption, intellectual property, athlete’s disabilities, crime/fidelity and employment. He counsels clients in matters throughout the country, including in New York, New Jersey, Illinois, Delaware, Colorado, Kansas, Ohio, West Virginia, Oregon, Alaska, and North Carolina. Ken's representative clients include Philips Electronics, Syracuse University, New Jersey Transit, the Carlyle Group, and Givaudan Flavors & Fragrances. He has also served as a party arbitrator in substantial insurance coverage matters.
Ken was recognized by Law360 as a 2017 "Insurance MVP" and is ranked by Chambers USA as a New York leading lawyer in the area of Insurance: Dispute Resolution: Policyholder. According to Chambers USA, "Ken is hailed by sources as 'very thorough. He thinks outside the box, is knowledgeable, anticipatory and communicates options clearly.'" He has also been recommended in The Legal 500’s guide to outstanding lawyers nationwide for Insurance: Advice to Policyholders, which in 2017 referred to him as a “top-notch trial lawyer and strategist.” Ken has been listed in New York Metro Super Lawyers and is recognized with an AV® Preeminent™ Peer Review Rating—the highest peer review rating—by Martindale-Hubbell.
- Representation of Givaudan Fragrances Corporation in securing a victory for corporate policyholders with far-reaching implications in protecting a corporate insured’s right to reorganize its business as it sees fit, without fear of risking the forfeiture of its historic insurance coverage. The unanimous New Jersey Supreme Court decision upheld an earlier appellate court ruling that affirmed Givaudan’s right to seek more than $500 million in insurance coverage for governmental and private claims related to environmental damage to the Passaic River and Newark Bay. Upon remand, after defeating the defendant-insurers’ dispositive summary judgment motions, Ken successfully resolved the dispute on a carrier by carrier basis; the last of which, settled on the first day of trial in which Ken was acting as first chair.
- Representing former shareholders of a privately held corporation based in Mexico City in a confidential arbitration against an insurer in connection with a claim under a Seller-Side Representation and Warranties Insurance Policy. In December 2018, after a four-day hearing before a panel of three arbitrators where Ken was acting as first chair, the panel unanimously found for the policyholder and ordered that the insurer must pay nearly $10 million, which was the overwhelming majority of its claim.
- Representing a power company based in Peru who had bought electric power distributors in Guatamala in a confidential arbitration against an insurer in connection with a claim under a Buyer-Side Representation and Warranties Insurance Policy involving breaches of representations and warranties related to legal and tax obligations. In 2019, Ken first chaired a four-day arbitration before a panel of three arbitrators seeking more than $30 million. The parties are still awaiting a decision.
- Representing NJ Transit Corporation in connection with its claim for coverage under all-risk property insurance policies for water-damage to their property arising out of Hurricane Sandy over-and-above the $100 million flood sublimit. In August 2017, Ken argued before the Superior Court of New Jersey and secured a ruling on summary judgment in favor of New Jersey Transit entitling it to coverage for its losses, up to the full $400 million limits of its policies. The court also rejected and dismissed the insurers' claim for reformation of the policies.
- Representing a corporate policyholder in a confidential arbitration against an insurer for water-damage arising out of Hurricane Sandy. In January 2017, after Ken first-chaired a nine-day hearing before a panel of three arbitrators, the panel unanimously found for the policyholder and declared that the insurer must pay the full extent of the policyholder’s claim, up to the $17.5 million limit.
- Representing a corporate policyholder in connection with coverage under professional liability policies for more than $50 million of defense and indemnity costs arising out of claims brought by mortgage borrowers as well as regulators. After the trial court erroneously dismissed the case based upon a so-called “fee arrangement exclusion,” Ken convinced the New York’s Appellate Division, First Department, to reverse and remand. The case is still pending in New York County’s Commercial Division.
Prior to joining the firm:
- Representing Syracuse University in pursuing a claim under a Not-For-Profit Individual and Organization Insurance Policy wherein the university sought and was awarded on summary judgment costs it incurred responding to and conducting an investigation in connection with a number of state and federal grand jury subpoenas concerning facts and circumstances relating to allegations of sexual abuse, and in particular the allegations against the university's former associate basketball coach. In December 2013, New York’s Appellate Division, 4th Department, unanimously affirmed the trial court’s summary judgment ruling.
- Representing Warren Pumps in a three-week trial in Delaware against more than a dozen insurance companies, securing a decisive jury verdict which held that the insurance companies were liable to provide defense and indemnity coverage for thousands of asbestos related claims.
- Representing MBIA in securing a victory just four months after the filing of the complaint, in which the Southern District of New York granted judgment in favor of MBIA and declared that the London market, under a professional liability policy, must pay tens of millions of dollars of MBIA's costs in defending suits arising from its restructuring of core business operations.
- Representing Morgans Hotel Group in its pursuit of coverage under an excess D&O policy for defense and indemnity amounts arising out of a derivative action and three related lawsuits. After filing a breach of contract/bad faith lawsuit in Delaware and bringing two separate motions for partial summary judgment prior to the insurer even filing an answer to the complaint, the policyholder was able to successfully settle the matter in just over two months.
- Representing TH Agriculture & Nutrition, LLC ("THAN"), formerly a subsidiary of Philips Electronics, as Special Insurance Counsel in connection with THAN's successful 524(g) "pre-packaged" bankruptcy, wherein THAN's Plan was confirmed, affirmed, and effective in approximately one year from filing.
- Representing Givaudan Flavors Corporation ("Givaudan") in connection with its pursuit of coverage for lawsuits alleging bodily injury stemming from exposure to diacetyl-containing products wherein Givaudan successfully settled a breach of contract and bad faith lawsuit for in excess of policy limits.
- Representing IMO Industries in connection with a breach of contract and bad faith lawsuit against its former parent and over 50 insurance companies in connection with coverage for asbestos-related liabilities. In connection with this lawsuit, the policyholder has won numerous summary judgment motions, prevailed in a trial phase against more than ten excess insurers, and reached favorable settlements with dozens of insurers. With respect to the non-settling excess insurers, the trial court's decision was affirmed on appeal securing more than $1 billion in coverage.
- Representing Philips Electronics and its subsidiaries in numerous insurance coverage lawsuits, including coverage lawsuits for asbestos liabilities, toxic torts, and other products-related coverage suits. In connection with these coverage suits, Philips-related entities have collected hundreds of millions of dollars from dozens of insurance companies.
- Representing ABT Building Products Corp. ("ABTco") in a case against an AIG-member company relating to insurance coverage for class-action lawsuits arising out of allegedly defective building products. After a nine-day trial, ABTCo was awarded breach of contract damages, trebled damages for violation of North Carolina's Deceptive and Unfair Trade Practices Act, all of ABTco's attorneys' fees and pre-judgment interest. The jury verdict and court award were affirmed in their entirety by the Fourth Circuit Court of Appeals.
Rankings & Honors
- Named a 2017 Insurance MVP by Law360.
- Ranked by Chambers USA in New York for Insurance: Dispute Resolution: Policyholder (Band 2). The 2019 edition notes that "He gets excellent results without wasting time or money on arguments with little merit," and another source remarks: "Soup to nuts he is one of the top coverage lawyers out there." 2015-2019
- Recommended by The Legal 500 as a recommended lawyer in the United States for Insurance: Advice to Policyholders, describing him as a “top-notch trial lawyer and strategist.” The 2016 edition notes that he "does a fantastic job." 2015-2017
- Recognized among the Best Lawyers In America for Insurance Litigation, 2018-2019
- Recognized by Super Lawyers for Insurance Litigation, 2014-2018
Media & Events
- Ken Frenchman Speaks With Claims Journal About Walmart’s Dispute with Insurers Concerning Reimbursement of Tracy Morgan Settlement Fees06.22.2017
- McKool Smith Recognized as a 2017 Leading U.S. Firm for Insurance and Patent Litigation by The Legal 50006.01.2017
- The Wall Street Journal: Seven Trial Lawyers Led by Robin Cohen Join McKool Smith to Launch Insurance Recovery Practice02.02.2016
- Lorman Education Services, Insurance Bad Faith Claims, "Bad Faith: A Policyholder Perspective," New York, NY. December 5, 2008.
- JAMS New York Resolution Center and the New York Law Journal, "Commercial Insurance Claims Arising from Super Storm Sandy: Is There a 'New Normal'?" New York, NY. April 4, 2013.
- Insurance Bad Faith Claims in New York, New York, NY. December 5, 2007.
- Perrin Conferences, "Emerging Insurance Coverage & Allocations Issues Conference," New York, NY. February 23, 2012.
- Mealey’s Mass Tort Insurance Coverage Conference, "Untangling Complicated Corporate Successorship Issues," Philadelphia, PA. March 19, 2007.
- Perrin Conferences, "Emerging Insurance Coverage & Allocations Issues Conference," New York, NY. January 24, 2011.
- American Conference Institute, Insurance Allocation, "Recent Rulings and Trends in Decision Making Impacting Allocation," October 29, 2014.
- “The Termination Provision in Fidelity Insurance Policies: Practitioners Discuss a Split in Authority,” Bloomberg Commercial Insurance Law Report (March 5, 2012)
J.D., New York University School of Law, 1999
B.S., University of Colorado, 1993
- U.S. District Court, Southern District of New York, 2001
- U.S. District Court, Eastern District of New York, 2001
- U.S. Court of Appeals, Tenth Circuit, 2006
- U.S. Court of Appeals, Seventh Circuit, 2009
- U.S. District Court, District of Colorado, 2013
- New York, 2000