Adam H. Fleischer

Practice Areas

Adam H. Fleischer leads a talented team of attorneys handling high-profile insurance claims across the U.S. including COVID-19 business income claims, football concussion class actions, mass product suits, molestation claims and disputes involving wrongful convictions.

His trailblazing work continues to evolve as the chair of the nation’s first Opioid Coverage Task Force which assists clients in managing the risks of America's worst drug epidemic in history.

At the onset of the pandemic, Adam quickly pivoted the coverage team to address the growing number of COVID-19 litigation cases around the world and formed BatesCarey’s COVID-19 Team. He is currently litigating COVID-19 class actions and coverage cases across the country – from Texas to Mississippi; North Carolina to Missouri; Ohio, Pennsylvania and West Virginia – that threaten the viability of the insurance industry.

Adam also handles cases involving commercial general liability; cyber risks, technology and data security; professional liability and reinsurance.

Career

Adam has built one of the country’s most highly regarded coverage teams, balancing the industry’s challenges in negotiating and resolving volatile claims nationwide, while also protecting the insurance interests at the industry’s foundation.

As a BatesCarey founding member, Adam serves on the Management Committee. He is admitted to practice in the U.S. Supreme Court; the U.S. Courts of Appeals for the Second, Third, Seventh, Eighth, Ninth and Tenth Circuits; Illinois; New York; Ohio and federal courts including Colorado, Indiana and Michigan.

Professional Memberships

• ARIAS—U.S.

• Claims & Litigation Management Alliance, National Steering Committee member for 50-State Claims Handling Guidelines

• International Underwriting Association of London, U.S. Representative to COVID-19 Claims Steering Committee

• American College of Coverage Counsel, Fellow

Publications

Adam is shaping the national insurance industry conversations with his thought leadership in legal and industry publications. Some of his most recent publications include:

• “Insurance for Public Nuisance: Masters Pharma gets it Rite” International Association of Claims Professionals, Declarations Magazine (October 2022)

• "Delaware High Court Gets It Right With Opioid Nuisance Ruling" Law360 (January 11, 2022)

• "Courts Should Heed Contract Law In COVID-19 Physical Loss" Law360 (July 29, 2021)

• "Insurance Ruling Clarifies Excess Coverage For Opioid Suits" Law360 (May 26, 2021)

• "Courts Shouldn't Consider Bodily Injury Claims In Opioid Suits" Law360 (October 28, 2020)

• "Recent Rulings Expose Flaws in COVID-19 Business Interruption Claims" BatesCarey (September 3, 2020)

• "Breaking News: MDL Panel Hears COVID-19 Arguments" BatesCarey (July 30, 2020)

• "Why COVID-19 Insurance Suits Should Not Be Consolidated" Law360 (May 6, 2020)

• "Civil Authority Coverage: Does it Apply to COVID-19?" BatesCarey and Law360 (March 23, 2020)

• "Coronavirus, Courts, and Coverage" BatesCarey (March 19, 2020)

• "Can America’s Opioid Epidemic Squeeze into Tort or Insurance Law?" For the Defense (December 2019)

• “What does the $572 million Oklahoma opioid judgment mean for other opioid defendants and insurers?” Advisen Front Page News (September 3, 2019)

• “How Opioid ‘Negotiating Class’ Would Affect Civil Claims” Law360 (July 1, 2019)

• "9th Circ. Gets It Right On Molestation Insurance Coverage" Law360 (March 12, 2019)

• “Outside the Courts: As Opioid Legal Actions Unfold, Solutions to This Societal Problem May Lie Elsewhere” CLM Magazine (October 2018)

• “Settlement Aspirations Enter the Opioid MDL” Law360 Expert Analysis (January 10, 2018)

Personal

Learn more: https://www.batescarey.com/attorneys/adam-h-fleischer/.

Work Highlights

The cases that Adam handles are often ripped from the headlines, including the Sandy Hook school shooting, the Mandalay Bay mass shooting and the NCAA concussion litigation.

Adam has represented insurance and reinsurance clients in analyzing and evaluating many complex high-profile cases, including matters such as:

• Opioid Epidemic – Adam created the nation’s first Opioid Coverage Task Force and amassed the leading legal team navigating opioid insurance matters globally ad litigating multi-billion-dollar suits in London, California, Delaware, New York and beyond, He is actively engaged in assisting insurers in monitoring the novel and evolving liability theories faced by their insureds and in determining the extent to which the exposures from the opioid litigation may be covered by insurance.

• COVID-19 litigation – Adam also developed the firm’s COVID-19 Team, achieving new legal precedent in multiple circuit courts of appeal and courts nationally. Since the start of the pandemic, the firm has secured a dozen important dismissals of COVID-19 business interruption claims for clients and has successfully argued issues of first impression in the U.S. Court of Appeals for the Fifth, Sixth and Eight Circuits that involved suits in Mississippi, Ohio, Texas, North Carolina and elsewhere.

• Sandusky molestation litigation involving claims against Penn State arising from its alleged involvement in failing to prevent child molestation by its former assistant football coach, Jerry Sandusky.

• Westport Ins. Co. v. City of Newport, Case No. 20-CI-00489 (Campbell County, KY) In issue of first impression, established rule that malicious prosecution “personal injury” “occurs” only on date of wrongful charging, and that policy is not triggered by the subsequent years of suffering and deprivation of rights, which constitute damages rather than the infliction of the triggering constitutional injury.

• Westport Ins. Corp. v. Sycamore Community Unit School District #427, --- F.Supp.3d ---, 2021 WL 3674614 (N.D. Ill.) Obtained judgment on the pleadings holding that insurer client owed no coverage in connection with an underlying sexual abuse claim because late notice and a criminal/dishonest acts exclusion barred coverage for, respectively, an insured school district and its alleged former employee.

• Sanders, et al. v. Ill. Union Ins. Co., et al., No. 124565 (Illinois Supreme Court) Obtained judgment holding that coverage under occurrence-based policies for malicious prosecution claims is triggered only at the time of the wrongful charging, and not in subsequent years of retrials or exoneration, at a cost-savings of $10M to the insurers.

• Financial Pacific Insurance Company v. Gotham Insurance Company, CV 2018-005881 (Superior Court of Arizona, Maricopa County) Obtained summary judgment ruling that insurer does not owe coverage for the liability of its policyholder’s alleged predecessor company, which the claimant alleged to be a legally indistinguishable entity from the insured policyholder.

• Rockhill Ins. Companies v. CSAA Ins. Exchange, Case No. 3:17-cv-00496-HDM-WGC (D. Nevada), affirmed No. 19-16716 (9th Cir. 2020) Claim seeking over $2.5 million for negligent spraying of Sporicidin excluded by general liability mold exclusion, and no bad faith under Contractor’s Pollution coverage where claimant never made settlement demand within the eroding limits of the pollution coverage, and where Rockhill’s settlement offers traced the advice of defense counsel.

• Westport Ins. Corp. v. California Casualty Management Co., 916 F.3d 769, 2019 WL 692668 (9th Cir.) On behalf of school district’s insurer, Westport Insurance Corporation, successfully recovered over $3.3 million from the excess insurer of three school administrators that had refused to participate in Westport’s settlement of molestation claims. The U.S. Court of the Appeals for the Ninth Circuit upheld the District Court’s summary judgment in favor of Westport and concluded that a California statute does not bar the insurer of a school district from seeking recovery from the insurer of public employees and that the non-settling insurer could not challenge Westport’s allocation of the settlement between the various victims and policy years.

• Gage County v. Nebraska Intergovernmental Risk Management Association, Case No. CI 17-0339 (Lancaster County, NE) In a matter of first impression, obtained ruling for excess insurers that the date six wrongfully incarcerated individuals were first charged was the single date triggering their constitutional injuries, and that continuing constitutional wrongs into later insurance periods did not trigger new insurance for the $28.1 million malicious prosecution judgment.

• Westport Insurance Corporation v. City of Waukegan, et al., 2017 WL 4046343 (N.D. Ill.) Achieved summary judgment ruling that insurer had no duty to defend or indemnify with regard to $8 million claim involving wrongfully incarcerated inmate whose second conviction took place during insurer’s policy period.

• National Surety Corp. v. First Specialty Insurance Corp., 2016 WL 7057503 (N.J. Super. Ct.) appeal dismissed A-001554-16T1 (N.J. Super. Ct. App. Div.) Obtained summary judgment in favor of primary insurer establishing that the insurer could use its discretion to settle on behalf of one of two sets of Additional Insureds, and that doing so would extinguish the duty to defend all remaining insureds and Additional Insureds.

• Michigan Millers Mut. Ins. Co. v. Westport Insurance Corporation (f/k/a Employers Reins. Corp.), No. 1:14-cv-00151 (W.D. Mich.) Successfully represented reinsurer against its cedent regarding the allocation between multiple reinsurance treaties of $14 million in loss and claim expense arising from five underlying lawsuits. Issues involved examination of bad faith liability as between umbrella and primary claims handling.

Experience

Adam’s experience spans a broad range of disputes across the U.S. involving Fortune 500 companies and issues such as environmental and health hazard matters, managed care and medical device claims, construction defect claims and public entity insurance challenges.

As a result of his cutting-edge work, Adam is regularly honored worldwide by the insurance industry.

Education

Awards