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Anthony R. Zelle
tzelle@zelmcd.com

Direct: (617) 742-6520 ext. 219

Tony Zelle has represented insurance and business clients in litigation matters for more than 25 years. Since 2012, he has tried eight cases in Massachusetts state and federal courts and has argued appeals in the First Circuit, the Supreme Judicial Court and in the Rhode Island Supreme Court. He founded Zelle, McDonough & Cohen in 2005 to provide clients with the legal resources needed to succeed in difficult matters when stakes are high, without subjecting them to the impositions endemic to large hierarchic law firms. He has been recognized by Massachusetts Lawyers Weekly both for results deemed annually as "Top Ten Most Important Defense Verdicts" and for "Top Ten Jury verdicts."

He has developed a national reputation representing insurance companies in coverage and bad faith claims. Locally, he represented insurers involved in two of the most publicized matters in Boston over the past decade: the Archdiocese of Boston's sex abuse scandal and the "Big Dig" construction fiasco. From 2010 to 2012, he served as Chair of the Insurance Committee of the Defense Research Institute, the nation's largest association of defense lawyers. Previously chaired the Bad Faith and Extra-Contractual Claim Committee, and he tried and handled the appeals of a many of the leading bad faith cases in Massachusetts and Rhode Island.

He has also represents victims of investment fraud, including Ponzi schemes, against banks, security brokers and other professionals who aid and abet the defalcators. He has assisted clients in recovering nearly $200,000,000 in scams by Benistar and by Edward Okun misappropriating client escrow trust funds. He also handles trials and appeals in cases involving fraudulent insurance claims, one of which led to the demise of a large firm that engaged in a widespread workers compensation fraud.

After he was graduated from Boston College Law School, Tony began practicing with Robins Zelle Larson & Kaplan, where he became involved in the then nascent environmental coverage and toxic torts arenas. As novel insurance coverage issues were raised and the litigation became increasingly more complicated, he had the opportunity to assist the insurance defense bar in shaping the law. He was personally involved in many of the first cases addressing insurance coverage for environmental contamination and had the opportunity to establish the law through appeals he handled in Massachusetts, New York, Pennsylvania, Ohio and West Virginia.� In addition to insurance coverage litigation, in his formative first decade of practice, Tony gained substantial trial experience representing plaintiffs in subrogation matters and representing defendants in product liability, premises liability and general negligence claims.

Tony, and his firm, are AV rated by Martindale Hubbell. He is admitted to practice before the United States Supreme Court, the First, Second and Third Circuit Federal Circuit Courts of Appeal, the Federal District Courts of Massachusetts, Connecticut and California, and the State Bars of Massachusetts and Minnesota. In addition to his experience in trial courts throughout the United States, Mr. Zelle has appeared in the appellate courts of Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, West Virginia, and Ohio and the First, Second, and Third Circuit Courts of Appeal.

Recent Presentations and Publications

  • Compendium of Law: Bad Faith, Editor in Chief
    Defense Research Institute Library Series
    2004, 2006 Rev. Ed., 2010 Rev. Ed.
  • Excess v. Primary Insurance Litigation: What Duty is Owed and Who Pays What?
    The American Conference Institute's 20th National Advanced Forum on Bad Faith Litigation
    Orlando FL, February 18-19, 2010
  • Analyzing Economic Damages Claims After the Recession
    Defense Research Institute Insurance Coverage and Practice Symposium
    New York City, December 3-4, 2009
  • Insurance Bad Faith and Extra-Contractual Claims: Legal Developments and Practical Advice
    Conference Chair - Defense Research Institute
    Boston, MA, June 18-19, 2009
  • Bad Faith Litigation Workshop and Forum Selection Considerations in Bad Faith Litigation
    American Conference Institute's 20th National Advanced Forum on Bad Faith Litigation
    San Francisco, CA, April 29-30, 2009
  • Understanding Business Interruption Claims
    The 2008 National Forum for Property Loss Professionals, Sponsored by the Loss Executives Association (LEA)
    Atlanta, GA, November 6, 2008
    Chicago, IL, November 7, 2007
    New York, NY, November 8, 2006
  • Avoiding Disputes Claims Between Primary and Excess Insurers
    Property Loss Research Bureau/Liability Insurance Research Bureau National Claims Conference
    Boston, MA, April 13-16, 2008
  • Trial Themes in Bad Faith Cases: Shredding the Myths
    Defense Research Institute Insurance Bad Faith Defense Practice Seminar
    Washington, D.C., June 21-22, 2007
  • Tactical Considerations in the Selection, Preparation and Use of Experts in Bad Faith Litigation
    Property Loss/Liability Insurance Research Bureau National Claims Conference
    Orlando, FL, March 18-21, 2007
  • Avoiding Waiver and Estoppel Claims: Practical and Tactical Considerations for Claims Professionals
    Property Loss/Liability Insurance Research Bureau Regional Claims Conference
    Hartford, CT, June 20-21, 2006
  • Tactical Considerations For An Insurer In Extinguishing The Duty To Defend
    Property Loss/Liability Insurance Research Bureau Regional Claims Conference
    Nashville, TN, April 2-5� � �
  • Clergy Molestation Claims: Coverage Issues and Strategic Considerations
    Defense Research Institute Insurance Coverage and Practice Symposium
    Chicago, IL, December 8-9, 2005
  • Property Loss Forum and Workshop Presenting Complex and Contemporary Issues for the Experienced Property Loss Professional
    National Forum for Property Loss Professionals Sponsored by the Loss Executives Ass'n.
    Princeton, New Jersey, November 8-11, 2005
    Princeton, New Jersey, November 9-12, 2004
    Princeton, New Jersey, November 11-14, 2003
    Princeton, New Jersey, November 5-8, 2002
  • Bad Faith: What Are We Facing and How Can We Avoid It?
    DRI Insurance Law Committee National Teleconference Series
    May 10, 2005
  • Unreasonable Conduct: The State of the Union in Bad Faith Litigation
    DRI Insurance Coverage and Claims Institute - Insurance Law Committee
    April 15-16, 2004
  • Insurance Coverage and Claims Conference
    Bad Faith Program Chair
    Defense Research Institute
    Chicago, IL, May 15-16, 2003
  • Bad Faith: The Use and Abuse of Experts
    Defense Research Institute Insurance Coverage and Practice Symposium
    New York, NY, December 6-7, 2001


Representative Matters

National Union Fire Ins. Co. of Pittsburgh, Pa. v. West Lake Academy

Won bad faith/extra-contractual liability claim arising out of insurer's alleged wrongful failure to settle under policy with eroding limits. The defense verdict was upheld by the First Circuit Court of Appeals in an appeal handled by Mark Cohen.  See National Union Fire Ins. Co. of Pittsburgh, Pa. v. West Lake Academy, 548 F.3d 8 (1st Cir. 2008);

Benistar
Merrill
Won an $8.6 million jury verdict against Merrill Lynch and a $12.5 million arbitration award against UBS PaineWebber.

Quirk
A class-action lawsuit pending in the U.S. Federal District Court for the Northern District of California in which he serves as co-lead counsel for a class of 300-plus business-owners located throughout the country who lost more than $150 million to a Ponzi scheme perpetrated in connection with business property exchanges under Section 1031 of the Internal Revenue Service Code. To date, this suit has recovered more than $88 million in settlements from business entities claimed to have aided and abetted the perpetrator (now serving a 150 year criminal sentence).  Similar claims continue to be prosecuted against additional defendants.

Tilton v. National Union Fire Ins. Co. of Pittsburgh, PA
Obtained summary judgment for an insurer in a bad faith claim involving novel issues of the rights of third-party claimants to sue a carrier that issued a fronting policy to its insured. The court determined that the claim was time-barred and no statutory duty to settle ever arose because the insured did not tender the claim to the insurer before the underlying case was resolved. See Tilton v. National Union Fire Ins. Co. of Pittsburgh, PA, 2008 WL 781921(D. Mass Mar. 20, 2008);

Albrite Carpets, Inc. v. Travelers Prop. Cas. Co. of Am.
Obtained summary judgment for a property insurer for a claim involving alleged property damage and business interruption losses by a business claiming damage during the Mother's Day Flood of May 2006.  Albrite Carpets, Inc. v. Travelers Prop. Cas. Co. of Am., C.A. No. 08-cv-10723 (D, Mass. Nov. 2, 2009);

St. Paul Fire and Marine Ins. Co. v. Ellis & Ellis
Mr. Zelle successfully tried this civil fraud case against a law firm whose principal was subsequently indicted and convicted for insurance fraud.

After investigating a suspicious workers compensation claim and discovering that the defendant law firm was representing the same client under different names for the same injury against different insurers, Mr. Zelle brought suit against the law firm alleging fraud, violations of G.L. c. 93A and civil RICO claims. He obtained a prejudgment attachment of funds sufficient to recoup the insurance funds paid by St. Paul Fire and Marine. After the case was tried in federal court for three weeks the court directed a verdict for the defendants based on a misinterpretation of the evidentiary standard. The First Circuit Court of Appeals reversed the trial court and a full recovery of the defrauded funds was obtained from the pre-judgment attachment.

Reported Decision: St. Paul Fire and Marine Ins. Co. v. Ellis & Ellis, 262 F.3d 53, 64 (1st Cir. 2001).

Forest Insurance Company v. American Motorist Ins. Co.
Mr. Zelle successfully tried this bad faith failure to settle case on behalf of a primary insurer sued by a captive excess carrier.

The bad faith claim arose out of a multi-million dollar verdict in a truck rollover case against International Paper Company. American Motorists and its related claim handling company, National Loss Control Co., were sued by Forest Ins. Company. Forest was a captive insurer set up by the paper industry. Forest provided the excess liability coverage to International Paper Co. over a fronting policy and a first layer excess policy issued by American Motorists. The fronting policy entitled International Paper to control settlement. American Motorists' excess policy provided it with the right to settle, but did not impose a duty to settle claims in excess of the fronting policy. Although American Motorists requested International Paper to tender the limits of the fronting policy, International Paper refused.

Mr. Zelle tried this case in the federal court for Southern District of New York and obtained a verdict in favor of American Motorists and National Loss Control. The court's decision remains one of the leading cases in New York defining the obligations owed by a primary insurer to and excess carrier.

Roman Catholic Archdiocese of Boston v. Lumbermens Mutual Casualty Co.
Mr. Zelle and Mr. McDonough led a team of lawyers who settled the bad faith and coverage claims brought against Lumbermens by the Archdiocese of Boston. The Archdiocese sought more than $200,000,000 in damages relating to the sexual abuse claims which spanned four decades.

Massachusetts Lumber Co. v. Merrill Lynch Pierce Fenner & Smith

Following a three week trial, a jury awarded Mr. Zelle's clients more than $8.6 million and also found the defendants liable for punitive damages based on their collusion in a scheme which used escrow funds to trade stock options.

Modern Cont'l. Construction Co. v. Zurich Am. Ins. Co. and ACE Am. Ins. Co.
Zelle McDonough & Cohen represents the builders risks insurers on property coverage and bad faith claims involving the "Big Dig," the nation's largest federally funded construction project.

New England Metal Treating v. Charter Oak Fire Ins. Co.
Mr. McDonough obtained summary judgment dismissal of action alleging that bad faith claims handling in connection with adjustment of fire losses forced insured out of business.

Akamai Technologies, Inc. v. QBE Reinsurance Corp.
Zelle McDonough & Cohen represents a reinsurer and its managing general agent in a dispute arising out of a health insurance excess of loss treaty.

Baystate Medical Center v. TIG Ins. Co.
Zelle McDonough & Cohen obtained summary judgment for the re-insurer which issued a workers compensation stop-loss treaty to Baystate Medical Center.

Shantigar Foundation v. Bear Mountain Builders
After a fire destroyed an antique barn restored by the Shantigar Foundation, Mr. Zelle tried this case against the responsible contractors and subsequently handled the appeal before the Supreme Judicial Court on an issue of first impression.

Crestview Country Club, Inc. v. St. Paul Guardian Ins. Co.
Mr. Zelle won summary judgment in this property coverage case that involved the construction of the "direct physical loss" requirement and a sublimit applicable to golf course grounds.

R.W. Granger & Sons, Inc. v. United States Fidelity and Guaranty Co.
Mr. Zelle argued the appeal in this surety bad faith case to the Massachusetts Supreme Judicial Court.

Subaru of New England v. General Ship Corp.
Contamination of thousands of new automobiles by sulfuric acid emissions from a power plant and paint overspray led to an insurance coverage dispute involving complex business interruption measurement issues and an equally complex subrogation claim.

Stanley Works v. New England Security Co.
Mr. Zelle obtained a jury verdict for Stanley Works in a negligent hiring, training and supervision case which he preserved on appeal before the Rhode Island Supreme Court.

Ann & Hope, Inc. v. Taylor and Taylor Trucking Co.
After prevailing at trial, Mr. Zelle won an appeal to the Rhode Island Supreme Court challenging the constitutionality of a "benefit of bailee" clause in the context of a property insurance transit policy.

Employers Ins. of Wausau v. George
Mr. Zelle successfully represented Wausau in the trial court and on appeal in this seminal environmental coverage case

Lucia & Sons v. Fireman's Fund Ins. Co.
Mr. Zelle obtained a favorable settlement for this property insurer sued for breach of contract and bad faith.

Industrial Risk Insurers v. Hartford Steam Boiler Ins. Co.
A catastrophic failure of a graphite condensation tank led to this dispute involving the all-risk property coverage and the boiler and machine coverage, which Mr. Zelle handled through arbitration.

Mass. Electric Co. v. AIG
Following a twelve million dollar jury award, Mr. Zelle negotiated a resolution involving the primary and excess liability insurers and successfully defended the primary carrier and its counsel in the ensuing claim by the excess insurer based on legal malpractice and the insurer's negligent claim handling conduct.

St. Paul Fire and Marine Ins. Co. v. Darlak Motor Inns, Inc.
Mr. Zelle won summary judgment in this property coverage case and prevailed on the appeal presented to the Third Circuit Court of Appeals.

Corrine Lucia, et al. v. St. Paul Fire & Marine Ins. Co.
Mr. Zelle won summary judgment in this bad faith case and prevailed on the appeal presented to the First Circuit Court of Appeals.

Victor Calloway v. St. Paul Fire & Marine Ins. Co.
Mr. Zelle won summary judgment in this property coverage case and prevailed on the appeals presented to the Massachusetts Appellate Division and Appeals Court., 2006


Anthony R. Zelle
Brian P. McDonough
Mark E. Cohen
Robert J. Maselek, Jr.
Suzanne Whitehead
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