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 Cal., County of Santa Clara, Case No. 739500 (Render opinion on whether failure to tender copyright infringement claim to CGL insurers of client was legal malpractice under California law.).

Dinesol Plastics Inc. v. Cincinnati Insurance Co., Ct. Com. Pl., Mahoning County, Ohio, Case No. 2605 CV 04648 (As updated February 5, 2008) (Opinion re coverage in mixed action asserting potentially covered fact allegations of trade secret misappropriation and interference with prospective economic advantage, evidencing fact allegations of disparagement and invasion of privacy).

C.R. Bard, Inc. v. Medmarc, Superior Ct. of Vt., Washington County (New Jersey law), Case No. 245-5-05 (Opinion February 5, 2008) (Disparagement coverage implicated where comparative false advertising claims about competing product's efficacy denigrated its competitor's offering.).

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

JTH Tax v. Travelers Indem. Co. of Conn., No. CV-04-3986 (ABC) (JTLx) (C.D. Cal. Jan. 28, 2005) (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).

Behringer Saws, Inc. v. Travelers Indem. Co. of Ill., No. C1-01-00025, 2003 WL 21962949 (Pa. Com. Pl. June 30, 2003) (A significant settlement arose after Travelers' refusal to acknowledge that its 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 advice that a patent infringement lawsuit might be covered under the policy's "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.).

Farmer Publications Inc. (Clare Twedt) v. Tutton Ins. Co., Superior Ct. of Cal., County of Orange, Case No. 774812 (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 Cal., County of San Bernardino, Case No. VCV 002299 (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 (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.).

TelQuest International, Inc. v. Agins, Siegel & Bernstein, U.S.D.C. (D. N.J.) Case No. 98-683 (JCL) (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.).

CruiseAmerica v. Baker & Hostetler, Superior Ct. of Cal., County of Los Angeles, Case No. BC 174721 (Analyzing whether there was a singular occurrence for purposes of assessing the aggregate coverage available to an insured under a professional Errors & Omissions policy.).

Jose Luis Hernandez v. So. Cal. Physicians Ins., Superior Ct. of Cal., County of Los Angeles, Case No. SC033 931 (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 (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.

Advanced Polymer Technology, Inc. adv. Heritage Mutual Ins. Co., U.S.D.C., (S.D. Ind.) Case No. IP 96-0542-C-B/S (David A. Gauntlett offered testimony at trial on the history of the first publication exclusion.).

New York New York Hotel & Casino, LLC v. General Star Indemnity Co., U.S.D.C. (D. Nev.) Case No. S-98-00383-HDM (RLH) (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 Cal., County of Los Angeles, Case No. BC 174721 (Bad faith action in which insured demanded payment of reasonable attorneys' fees incurred in a covered trademark action.).

Great Spring Waters of America, Inc. and Nestec, Ltd. v. Gerling-Konzern Allgemeine Versicherungs (Coverage potential for false advertising claim that water was "spring water.").

Adventist Health System West v. Aetna Casualty & Surety Co., Superior Ct. of Cal., County of Los Angeles, No. BC 144292 (Coverage analysis of prior and pending litigation exclusion under Directors & Officers/Trustees Liability insurance policy for claims asserted in class action lawsuits against HMO insured.).

Pet-O-Seed Co. v. Liberty Mutual Ins., JAMS Litigation No. 960225028 (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.).

FEE ARBITRATIONS PURSUANT TO CALIFORNIA CIVIL CODE § 2860

World Manufacturing, Inc. v. CNA, Superior Ct. of Cal., County of Orange, Case No. CV 642648 (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.).