Expert Consultancy


Expert Witness - David A. Gauntlett


David A. Gauntlett has extensive experience as an Expert Witness and has provided consultation services regarding insurance coverage issues, professional liability, broker liability, attorney liability, and fee arbitration matters.

Representative Cases:
 

PROFESSIONAL LIABILITY/BROKER LIABILITY

Wilson, Sonsini, Goodrich & Rosati (Rogers, Joseph, O'Donnell & Quinn) adv. Galloway, Superior Ct. of CA, County of Santa Clara, No. 739500
(Filed: 03/31/1994)

Render opinion on whether failure to tender copyright infringement claim to CGL insurers of client was legal malpractice under California law.

Farmer Publications Inc. (Clare Twedt) v. Tutton Ins. Co., CASC, County of Orange, Case No. 774812
(Complaint filed Jan. 31, 1997)

A jury awarded $300,000.00 as compensatory and punitive damages in a suit against an insurance broker that failed to advise a publisher that the CGL policy it sold to the owner of a telephone directory for Leisure World excluded any coverage for conduct by a publisher and that free-standing media policies were available, which, if they had been procured, would have covered the policyholder for a subsequently asserted copyright infringement lawsuit.

Donald Nunn v. CIGNA Property & Casualty Co., et al., Superior Ct. of CA, County of San Bernardino, Case No: VCV 002299 (Cal. Super. Ct. 1996)
(Filed 1995)

A jury awarded $1,866,435.58 as compensatory and punitive damages in a suit against the insured's brokers for their erroneous conclusion that there could be no potential coverage for trade secret misappropriation claims asserted against it under Nunn's "advertising injury" coverage. Nunn's insurer, CIGNA, agreed to defend it upon a subsequent direct tender of the claims to it, but refused to pay any of the $250,000.00 incurred for pre-tender fees. David A. Gauntlett convinced the jury to find property coverage.

Alexander Doll v. Bingler, U.S.D.C. (W.D. Pa.), Case No. 93-1114
(Complaint filed July 12, 1993)

In this malpractice lawsuit against a Pittsburgh, PA company, the court ruled that the lawyer's failure to tender a lawsuit alleging claims of trademark infringement was actionable negligence based on analysis of the scope of the policy's "advertising injury" coverage.

 

INSURANCE COVERAGE (Scope, History and Meaning of Policy Provisions)

Barrday Corp. v. Ace Ins. & Axe Ins., Underlying Case: Barrday Corp. et al. adv. State of California ex rel Aaron J. Westrick, Case No. BC 386586, CA Superior Court, Los Angeles County (Complaint filed 3/8/08)
Potential coverage for Qui Tam lawsuit analyzing California and Ontario law due to indirect claims for disparagement and defamation as well as direct claims for false advertising that injured the public.

C.R. Bard, Inc. v. Medmarc, Superior Ct. of Vt., Washington County, Case No. 245-5-05 (Complaint Filed 4/20/05)
Disparagement coverage implicated where comparative false advertising claims about competing product's efficacy denigrated its competitor's offering.

JTH Tax v. Travelers Indem. Co. of Conn., 2:04CV03786 (ABC) (JTLx) (C.D. Cal. Jan. 28, 2005)
(Complaint Filed April 27, 2004)

Coverage for "advertising injury" for "infringement of title" was implicated by trade name infringement lawsuit for use of name "Liberty Tax Services." Travelers' failure to recognize this potential for coverage in light of California Supreme Court dicta recognizing this potential in published federal district court case authority was bad faith. See Palmer v. Truck Ins. Exch., 21 Cal. 4th 1109, 1119 (1999) ("American Economy Ins. Co. v . Reboans, Inc. (N.D.Cal. 1994) 900 F.Supp. 1246, 1253 [same]" and other cases cited therein); Finger Furniture Co. v. Travelers Indem. Co., No. H-01-2797, 2002 WL 32113755 (S.D. Tex. (Houston Div.) Aug. 19, 2002).

Cruise America v. Baker & Hostetler, Superior Ct. CA, County of Los Angeles, Case No. BC 174721
(Complaint filed 07/17/1997)

Analyzing whether there was a singular occurrence for purposes of assessing the aggregate coverage available to an insured under a professional Errors & Omissions policy.

Hernandez, Jose Luis v. So. Cal. Physicians Ins., Superior Court CA, County of Los Angeles, Case No. SC033 931
(Complaint filed 12/06/1994)

David A. Gauntlett was retained by the plaintiff who was seeking to enforce a settlement made by a medical group arising out of a member physician's alleged legal malpractice.

American Torch Tip v. American States, U.S.D.C. (M.D. Fla.) Tampa Division, Case No. 94-1116-CIV-7-23A (Complaint filed July 15, 1994)
This case settled for a substantial six figure sum following David A. Gauntlett's submission of an affidavit on the scope of insurance coverage under the policy's "advertising injury" clause in this patent infringement lawsuit. David A. Gauntlett rendered an opinion on the scope of advertising injury coverage.

Verteq, Inc. v. Northbrook Property & Cas. Ins. Co. of Illinois, No. 8:93 CV-00334-AHS-RWR (C.D. Cal. Nov. 1 1993) (Consultant)
Plaintiff in an IP matter against a larger competitor, which sued under a counterclaim, thus triggering coverage. Given that proof that the counterclaim was not viable involved the same legal work necessary to win its suit as plaintiff for violation of IP rights, the competitor, by pursuing the counterclaim, funded the litigation against it. Indeed, when a dispute arose over the rate of reimbursement, which was resolved in arbitration under California law, the insurer's unwillingness to pay the full rate was found to be improper.

Verteq received reimbursement for all attorneys' fees expended at the full rate, prejudgment interest from date of invoice, and the attorneys' fees incurred in the arbitration to prove same. The latter fees were recoverable because the court found that Northbrook Insurance Co.'s reimbursement of counsel at a rate of only $150 per hour for litigation pending through 1994 was improper and constituted a breach of the covenant of good faith and fair dealing.

Although this result may not attend in every case, the net result was that the competitor ended up funding, via its ill-considered counterclaim, the entire cost of a successful litigation against it, without requiring the plaintiff to meet the standard for recovery of its attorneys' fees pursuant to the intellectual property statute under which it sought relief.

The Order can be seen here.

 

Advanced Polymer Technology, Inc. adv. Heritage Mutual Ins. Co., U.S.D.C., (S.D. Ind. [Indianapolis]) Case No. IP 96-0542-C-B/S (Complaint Filed 4/19/96)
David A. Gauntlett offered testimony at trial on the history of First Publication Exclusion.

New York New York Hotel & Casino, LLC v. General Star Indemnity Co., U.S.D.C. (D. Nev.) Case No. S-98-00393-HDM (RLH) (Filed 02/10/98)
Coverage dispute litigation over the use of the trademark name New York New York as used in relation to restaurant services within Las Vegas, Nevada.

Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Group, Superior Ct. of CA, County of Los Angeles, Case No. BC 069814 remanded in Ct. of Appeals, Second District, Div. 3, CA No. B083983 (Complaint filed 12/02/1992)
Bad Faith action which insured demanded payment of reasonable attorneys fees incurred in a covered trademark action.

Behringer Saws, Inc. v. The Travelers Indemnity Co. of Illinois, et al., No. CI-01-00025 (Ct. of Common Pleas of Lancaster County, Penn. 2004)
(Complaint filed January 2, 2001)
A significant Settlement arose after Travelers refusal to acknowledge that it's underwriter was bound by his advice that a 1986 ISO Policy form covered patent infringement claims. The insured's reliance on this representation raised an issue of fact as to whether the insured was prejudiced by the insurer's advise that a patent infringement lawsuit might be covered under the policies "advertising injury" provisions after it received a cease and desist letter from a competitor that Travelers advice caused the insured to not obtain a 1976 ISO CGL policy form which would clearly cover the fact allegations in the cease and desist letter. See, Behringer Saws, Inc v. The Travelers Indemnity Co., Case No CI-01-00025, 2003 WL 21962949 (Pa. Com. Pl. June 30, 2003).

Adventist Health System West v. Aetna Casualty & Surety Co., Superior Ct. of CA, County of Los Angeles, No. BC 144292 (Filed 02/13/1996)
Coverage analysis of prior and pending litigation exclusion under Director's & Officers/Trustees Liability Insurance policy for claims asserted in class action lawsuits against HMO insured.

Pet-O-Seed Co. v. Liberty Mutual Ins., JAMS Case No. 960225028
(Arbitration Hearing March 7, 1996)
This case involved fee dispute issues. David A. Gauntlett rendered an opinion at the arbitration regarding the reasonableness of attorneys' fees incurred in defending a trademark action as well as the scope of independent counsel's rights in such litigation.


INTERNATIONAL INSURANCE COVERAGE

Michael Bolton (Bell, Boyd v. Insurer)
Underlying case: Michael Bolton, Individually and d/b/a Mr. Bolton's Music, Inc., Andrew Goldmark, Nonpareil Music, Warner-Chappell Music, LTD, Warner-Tamerlane Publishing Corp., WB Music Corp. and Sony Music Entertainment, Inc. adv. Three Boys Music Corporation, U.S.D.C., Central District of California, Western Division, Case No. 92-CV-1177 WMB (GHKx) (Complaint Filed: 02/24/92)
Mr. Bolton was sued for copyright infringement related to his writing and performing an allegedly infringing song. There was no claim alleged against him related to the production of the song. The potential for coverage of these claims under California law was the subject of testimony in an English lawsuit.

Great Spring Waters of America, Inc. and Nestec Ltd, v. Gerling-Konzern Allgemeine Versicherungs, Arbitration 04/26/01 
Coverage dispute re false advertising under "unfair competition" offense. The potential for coverage of these claims was the subject of testimony under Swiss law. 

 

FEE ARBITRATIONS PURSUANT TO CALIFORNIA CIVIL CODE § 2860

World Manufacturing, Inc. v. CNA, Superior Court of CA, County of Orange, Case No. CV 642648 (Filed November 21, 1990) Kwik Lok Corporation v. World Manufacturing, E D WA Case No. CV-90-3025
In a binding arbitration award, pursuant to California Civil Code § 2860, Judge R. William Schoettler found that the attorneys fees incurred by counsel for defense of the underlying action styled as Kwik-Lok Corp. v. World Manufacturing, Inc., U.S.D.C., E.D. Washington Case No. CV-90-3025-AAA, was appropriate at the rates of (a) $225.00 per hour for partners; (b) $150.00 per hour for associates; and (c) $75.00 per hour for paralegals, for unfair competition and trademark claims. This was 25% higher than the insurance company wanted to pay.

TelQuest International, Inc. v. Agins, Siegel & Bernstein, U.S.D.C. (D. N.J.) Case No. 98-683 (JCL) (Complaint filed February 13, 1998)
Claim of legal malpractice for failure to tender defense to client's carrier and failure to advise the client of the insurance ramifications of signing a consent judgment . New Jersey law applied.