Michelle R. Migdon is a principal in the firm’s insurance recovery group. Michelle has significant experience representing policyholder clients in all aspects of insurance recovery and counseling and all varieties of insurance coverage litigation. Michelle also handles other complex commercial litigation matters in both federal and state courts.
Michelle has substantial experience in insurance disputes involving claims-made directors and officers, errors and omissions, and professional liability policies. In particular, she has handled lawsuits seeking to obtain substantial insurance recoveries for losses arising out of multibillion-dollar settlements of class action and other litigation involving alleged securities law violations, fraud, and breach of fiduciary duty claims. These insurance claims included settlements made by a major financial institution in connection with the Enron and WorldCom securities class actions. In this context, Michelle has addressed multiple coverage issues of importance to policyholders, including the effect of settlements with underlying insurers on exhaustion of underlying coverage limits, the scope and application of a fraud exclusion;,compliance with cooperation and consent to settle provisions, allocation of loss among covered and uncovered parties and claims, claims for rescission based on allegedly material misrepresentations, and the sufficiency of a notice of circumstances.
Michelle has also handled insurance claims involving first party property and business interruption insurance, commercial general liability insurance, credit risk insurance, builders risk insurance, and fiduciary liability insurance. At a prior firm, Michelle was part of the team of lawyers that represented the lessees of the World Trade Center involving their insurance claim for property and business interruption losses following the September 11, 2001 terrorist attacks, and also represented a major telecommunications company in an arbitration involving the recovery of credit risk insurance payments after the collapse of the telecommunications market.
- Representation of Teachers Insurance and Annuity Association of America (TIAA), College Retirement Equities Fund (CREF), and other related entities (collectively, TIAA-CREF) in an insurance coverage lawsuit filed in Delaware Superior Court seeking reimbursement from TIAA-CREF’s professional liability insurers of more than $60 million for the defense and settlement of class action lawsuits relating to delays in processing account holders’ transfer requests in certain investment accounts. Obtained a landmark decision from President Judge Jan Jurden granting summary judgment to TIAA-CREF on October 20, 2016, finding that a civil settlement of a lawsuit involving claims for disgorgement was an insurable loss under New York law, see 2016 WL 6534271 (Del. Super. Oct. 20, 2016), and secured a verdict on December 12, 2016, after a six-day jury trial, finding that one insurer waived its consent to settle defense and that TIAA-CREF was entitled to recover 100 percent of its defense costs as reasonable and necessary. The decision was affirmed by the Delaware Supreme Court on July 30, 2018.
- Representation of Verizon Communications Inc. in an insurance coverage lawsuit filed in Delaware Superior Court seeking reimbursement under executive and organization liability insurance policies for tens of millions of dollars in defense costs that Verizon and a former officer/director incurred in successfully defending against lawsuits arising out of securities-related transactions entered into in connection with Verizon’s divestiture of certain directories businesses. In a March 2017 decision, the court granted summary judgment to Verizon, dismissing the insurers’ defense that the underlying lawsuit did not constitute a “Securities Claim” as defined in their policies, see 2017 WL 1149118 (Del. Super. March 2, 2017).
Prior to joining the firm:
- Represented Syracuse University in a claim for coverage under a Not-For-Profit Individual and Organization Insurance Policy. In March 2013, the university was awarded summary judgment for 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.
- Represented Signal Products Inc., a handbag manufacturer, in a lawsuit seeking defense cost coverage and bad faith damages from its commercial liability insurer relating to an underlying intellectual property and trade dress action brought against various fashion entities and licensees by a brand name company. In a favorable summary judgment opinion by the Central District of California, the firms' lawyers secured a landmark ruling, finding that California’s statute providing for the appointment of independent counsel by the insured where there is conflict with its insurer does not limit the insured to obtaining payment for defense counsel from only one law firm.
- Represented a major New York City real estate owner and developer that incurred property damage and time element losses at multiple downtown office buildings as a result of Superstorm Sandy.
- Represented JPMorgan Chase & Co. and its subsidiaries in claims for bankers’ professional liability coverage in connection with its settlement of class action lawsuits arising out of the financial, banking, and other professional services it provided to Enron. Among other issues in the case, the Appellate Division, First Department, rendered a favorable decision, finding that the policyholder’s notice of potential claims that might be brought against it concerning Enron was sufficiently detailed to bring subsequent Enron-related claims into the insurance coverage in place at the time the notice was sent. JPMorgan Chase & Co. v. The Travelers Indemnity Co., et al., Index No. 600674/06, Supreme Court, New York County. See 73 A.D.3d 9 (App. Div. 1st Dep't 2010).
- Represented JPMorgan Chase & Co. and its subsidiaries in claims for bankers professional liability coverage in connection with its settlement of class action lawsuits arising out of its underwriting of WorldCom bonds. JPMorgan Chase & Co. v. AIU Ins. Co, et. al., Index No. 601904/06, Supreme Court, New York County.
- Represented JPMorgan Chase & Co., as successor to Bank One Corporation, in claims for bankers’ professional liability insurance in connection with its settlement of multidistrict litigation involving breach of fiduciary duty claims by owners of NCFE bonds. JPMorgan Chase & Co. v. Indian Harbor Ins. Co., et al., Index No. 603766/08, Supreme Court, New York County.
- Represented the scaffolding contractor for the construction site at Four Times Square in New York City in an appeal to the Second Circuit to enforce an insurance company’s waiver of subrogation rights under a builder’s risk policy. After the insurer paid the property owner for property loss claims, the insurer, as subrogee, sued the contractor to recover the amounts it had paid, alleging gross negligence in the construction and installation of the scaffolding. In an important decision, in favor of the contractor, the Second Circuit held that the public policy of the state of New York does not prohibit waivers of subrogation with respect to gross negligence claims where the parties to a construction contract have agreed to insure such losses as part of their risk allocation agreement and where the injured party is not deprived of compensation for its loss. See St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, Inc., 409 F.3d 73 (2d Cir. 2005).
- Represented Lucent Technologies Inc., a major telecommunications company, in an arbitration seeking recovery of credit risk insurance payments for defaulted loans issued to its customers prior to the collapse of the telecommunications market, which loans were insured pursuant to a trust arrangement.
- Represented Silverstein Properties Inc., the lessee of the World Trade Center, in its insurance claim for property and business interruption losses following the September 11, 2001 terrorist attacks.
Community & Professional Activities
- Member, The Association of the Bar of the City of New York, Committee on Insurance Law, 2010-2013
Media & Events
- McKool Smith Secures One of the Largest Verdicts Against Protective Life Insurance Policy in Alabama09.25.2018
- Delaware Supreme Court Affirms McKool Smith’s $40 Million+ Coverage Win for TIAA – Rules Settlement of Civil Disgorgement Claims Insurable Under New York Law07.31.2018
J.D., magna cum laude, New York University School of Law, 1997
- Order of the Coif
A.B., magna cum laude, Duke University, 1994
- U.S. District Court, Southern District of New York, 2000
- U.S. District Court, Eastern District of New York, 2000
- New York, 1998