Barbara A. O'Donnell

Barbara O’Donnell has more than 15 years of experience in matters of insurance coverage, insurance bad faith, insurance agent/broker liability, employment, and professional liability law. Ms. O’Donnell’s practice is regional, and she has handled matters in several state and federal courts and before administrative and arbitration tribunals.

Ms. O’Donnell’s insurance coverage practice includes the resolution and litigation of a broad range of liability coverage issues under commercial, professional, directors and officers, products liability, employment practices, and other standard form and manuscript policies. She regularly advises insurers in complex coverage disputes involving allocation issues, advertising injury coverages, additional and other insured questions, and the trigger of coverage in progressive losses.

Ms. O’Donnell’s employment law practice focuses on advising companies about effective ways to minimize liability exposure under the expanding array of state and federal laws governing employee/employer relations. When an employer needs to pursue judicial remedies, whether to defend against employee claims or to enforce noncompete or other contractual obligations, Ms. O’Donnell’s extensive litigation background and trial skills allow her to vigorously and persuasively present the employer's position. She is also skilled at negotiating and drafting agreements to minimize disputes, including nonsolicitation, separation, nondisclosure, and settlement agreements.

Ms. O’Donnell frequently writes and speaks on insurance coverage and employment law topics. She authored the opening chapter on “Insurance Policy Interpretation and Construction” in a recently published West Group/American Bar Association (ABA) treatise entitled The Law and Practice of Insurance Coverage Litigation.

Ms. O’Donnell’s article entitled “The First Wave of Decisions Interpreting Employment Practices Liability Policies” appeared in the Fall 2005 issue of The Brief, a quarterly ABA, Tort and Insurance Practice Section (TIPS), publication. Ms. O’Donnell has served for several years as the articles editor for the CGL Reporter, a biannual publication by International Risk Management Institute, and also currently serves as the editor of TortSource, a quarterly ABA/TIPS publication.

Ms. O’Donnell received her B.A., with distinction, from the University of Virginia and her J.D., cum laude, from Boston College Law School.  She is admitted to practice in the Commonwealth of Massachusetts and in the United States Court of Appeals for the First Circuit.

PROFESSIONAL & TRADE ASSOCIATIONS

- American Bar Association, 1992 to present, Insurance Coverage Litigation Committee, chair, 1996 to 1997; editorial board for Tort and Insurance Law Journal, chair; Scholarship Fund Board, chair; TIPS Task Force on Outreach to State and Local Bars, current member
- Professional Liability Underwriters Society, 1997 to present
- Women's Bar Association, 1997 to present, Senior Women's Group, member
- The Boston Club, 1998 to present, Distinguished Leaders Series, cochair; Program Committee, member

EXPERIENCE

- Advised employment practices liability insurer concerning application of prior notice and other coverage defenses against Equal Employment Opportunity Commission demand that insured contribute to multimillion dollar relief fund to avoid threatened class action on behalf of alleged victims of widespread sexual harassment.

- Litigated director and officers insurer’s grounds to challenge court order requiring review and production of thousands of “other insured” claims files, at cost certain to exceed $1 million, in declaratory judgment coverage dispute that included claims of bad- faith settlement practices.

- Advised educators’ professional liability insurer in disputes ranging from allocation of defense and indemnity costs among multiple parties to application of prior knowledge exclusion to multimillion dollar claims by investors group following insured's declaration of insolvency.

- Defended insurer named in dispute arising out of insured’s incorporation of contaminated ingredients into nationally distributed product that was recalled shortly after commencement of multimillion dollar advertising campaign. Successfully negotiated limited payment and dismissal of action based on analysis of impaired property and recall exclusions.

- Demonstrated employers’ need for emergency relief to prevent departing employees from violating nonsolicit and noncompete agreements by soliciting customers and accounts on behalf of new employers. Prompt action to obtain emergency judicial relief enforcing restrictive covenants significantly increased ability to negotiate early resolution protecting employer's goodwill and customers.

- Preparing and negotiating executive compensation, relocation, separation, and related agreements for clients ranging from financial institutions, research and development entities, sales organizations, senior executives, and medical professionals.

- Successfully avoided probable cause findings leading to the dismissal of sexual harassment, racial discrimination, and retaliation claims against wide range of employers, including nonprofit agencies, national retail chains, and staffing agencies.

- Represented D&O insurer in coverage litigation concerning a dispute over the availability of coverage for three underlying actions brought against a religious institution and certain officers and directors to recover for alleged breaches of fiduciary obligations and accounting improprieties, including claims brought by the Massachusetts Attorney General’s Office for the alleged misuse of charitable assets. The coverage litigation included disputes over the application of the policy’s insured versus insured exclusion to claims brought “on behalf of” the named insured, as well as disagreement over whether a civil investigative demand by the Attorney General’s Office satisfied the policy’s definition of a claim. In November 2005, the matter was resolved through mediation while cross- motions for summary judgment remained pending.

- Represented health care organization and directors and officers liability insurer in action filed in Rhode Island U.S.D.C. for declaratory judgment regarding the ability to deny coverage for amounts paid to settle claims of Medicare upcoding under the False Claims Act on the grounds that the settlement constituted noncovered restitutionary relief, multiple damages, and/or fines and penalties. In May 2006, the matter was resolved through mediation on favorable terms for the insurer.

- Represent D&O insurer for third- party defendant in action brought to recover for services allegedly rendered in connection with a failed corporate acquisition. The third party complaint seeks to hold individual insured under D&O policy liable for alleged breaches of fiduciary obligations owed to board of directors of named insured. The coverage disputes included the application of the insured versus insured exclusion in the D&O policy, apportionment disputes between the individual insured and a noninsured entity represented by joint defense counsel, and the assertion of extra- contractual claims under the applicable insurance claims handling statute. The coverage disputes and underlying litigation were settled in a multiparty mediation in June 2006.

- Republic Franklin Ins. Co. v. United Educators, Massachusetts Appeals Court No. 2004-P-1730. Successfully defended educators liability E&O insurer against action brought by general liability insurer seeking contribution toward settlement and defense costs paid on behalf of private educational institution in action brought by student alleging wrongful discharge, breach of contract, and hazing. In May 2006, the Massachusetts Appeals Court affirmed summary judgment holding that our client’s “other insurance” clause contained escape and excess provisions that relieved it of any obligation to contribute toward defense and settlement costs.

- In a coverage dispute arising out of the criminal indictment of a health care organization’s CFO for alleging conspiracy to evade federal and state certificate of need regulations and HIPAA, represented the D&O insurer in coverage litigation and complex settlement negotiations concerning the enforceability of a sublimit in a regulatory claim endorsement (which reduced the available limits from $10 million to $250,000) and the application of the policy’s related claims provisions.

- Represented follow form excess D&O insurer in declaratory judgment proceedings in Massachusetts federal district court upholding the primary and excess insurers’ coverage disclaimers for three underlying lawsuits based on the policies’ insured versus insured exclusions and prior wrongful act provisions.

- Represent EPL insurer in coverage proceedings concerning insurability of large punitive damages award entered against employer charged with sexual harassment and retaliation under statutory public policy prohibition against insuring deliberate wrongdoing.

- Advise insurer regarding application of EPL and D&O provisions of hospital’s professional liability policy to lengthy peer review proceedings under the hospital’s Health Care Quality Immunity Act policy and related administrative agency and state court wrongful discharge and age discrimination claims brought by former physician.

- Represent insurer in judicial and ADR proceedings concerning the application of separate directors and officers and representations and warranty policies to claims arising out of the alleged breach of a written stock purchase and sale agreement concerning a complex corporate transaction.

PUBLICATIONS & PRESENTATIONS

ARTICLES

- “E- Discovery” (Fall 2006), published in TortSource, Number 1, Vol. 9

- “The First Wave of Decisions Interpreting Employment Practices Liability Policies” (Fall 2005), published in ABA TIPS The Brief

- ‘Employment Practices Liability Coverage: The Underlying Exposures and Effective Ways to Obtain Meaningful Insurance Coverages” (fall 2001), published in The Brief, a quarterly American Bar Association/Tort and Insurance Practice Section publication

- “Environmental Insurance Coverage: Limiting the Owned Property Exclusion” (1998), published in Boston Bar Journal

- “An Overview of Insurance Agent/Broker Liability: Claims by Policyholders, Insurers, and Third Parties” (12/1995), published in Massachusetts Law Review

- “Preparing the Facts: Taking Discovery and Preparing Affidavits to Support or Oppose Motions for Summary Judgment” (11/1995), published in Best of MCLE Journal

BOOKS

- Insurance Policy Interpretation and Construction (2000), opening chapter in West Group/ABA treatise entitled The Law and Practice of Insurance Coverage Litigation

bodonnell@zelmcd.com