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Mark E. Cohen
mcohen@zelmcd.com

Direct: (617) 742-6520 ext. 245

Mark is a founding partner in Zelle McDonough & Cohen.  Mark concentrates his practice in insurance coverage and bad faith.

Mark has a national and international insurance coverage practice.   For more than twenty years, Mark has specialized in representing insurers in connection with professional liability policies, including employment practices liability, directors and officers liability, and architects & engineers professional liability policies.  Mark has also drafted many insurance policies and endorsements for his insurance clients.

Mark has been named several times as one of the leading insurance lawyers in New England by Super Lawyers, including in 2010, 2011 and 2012.

Mark is admitted to practice in the Commonwealth of Massachusetts, the United States District Court for the District of Massachusetts, the United States Court of Appeals for the First, Third  and Sixth Circuits, and the United States District Court for the Eastern District of Michigan.

Mark attended Brandeis University and graduated with a Bachelor of Arts, cum laude with high honors in Political Science in 1976. He subsequently graduated from the Boston University School of Law, cum laude, in 1979. While in law school, Mark was a staff member and later Topics Editor of the American Journal of Law & Medicine. He was an Instructor in Legal Research and Writing at Boston University School of Law for three years.

Recent Presentations and Publications

Mark frequently speaks on insurance law related topics. Most recently, Mark presented on "The Greening of America: New Issues in Construction and Insurance Litigation" at Defense Research Institute's 2009 Annual Meeting; "Emerging Issues Involving Employment Practices Insurance" at DRI's Insurance Coverage and Practice Symposium in New York City in 2010; "Making Order Out of Chaos" at DRI's Professional Liability seminar in New York City in December 2011; "How to Pick a Mediator" at the Boston Bar Association in 2011; and "Hot Issues in Professional Liability Coverage" at the December 2012 Insurance Practice and Coverage Symposium in New York City.  Mark spoke at a webinar on "Professional Liability 101: Insurance Coverage" presented by the DRI's Professional Liability Committee in February 2013.

Mark is chairman of Defense Research Institute's professional liability subcommittee (of the Insurance Law Committee).

Mark also writes frequently about Professional Liability Coverage issues.  Most recently, Mark published articles in "Covered Events", the DRI Insurance Law Committee’s newsletter on "Passing the Bill: Do Claims Involving an Insured's Bills, Fees or Other Charges Allege a Professional Service," (2009);  "Stopping the End Around: Enforcing the Reporting Requirement in a Claims-Made Policy and the Continuous Coverage Theory" (2010);  "How Many Degrees of Separation?  Determining the Degree of 'Relatedness' Required for Multiple Claims to be Deemed 'Related' Under Related or Interrelated Acts Provisions in Claims-Made Policies"(2012) and "Fine-Tuning What Constitutes a Professional Service under Liability Policies" (2013) with Rina Carmel and Suzanne Whitehead.

Mark was a Regional Editor for the second and third editions of DRI's Bad Faith Compendium, a 50 state survey of bad faith law, published in 2006 and in 2011 and for DRI's Unfair Claims Practices Compendium, which was published in 2007.

Mark was the Editor in Chief of DRI's Professional Liability Compendium, a two volume, 55 jurisdiction survey on professional liability and claims-made coverage issues that was published in November 2012.  The Compendium summarizes approximately 1,750 cases.  In addition to serving as Editor in Chief, Mark wrote the Introduction to the Compendium; was the Regional Editor for New England and Canada; and was the state author for Massachusetts, the United States Virgin Islands, and Guam.

A review by Randy Maniloff in the December 19, 2012 edition of "Coverage Opinions" stated, "If you are involved in any way with professional liability insurance coverage, you need to have a copy of DRI's new ... compendium of professional liability coverage issues on your desk.  It's just that simple. ... Editor-in Chief Mark Cohen starts things off with a very thorough introduction.  It is an excellent overview of professional liability coverage.  ... As for the breadth of the coverage issues addressed, and their relevance to the day-to-day situations that those handling professional liability claims encounter, the Compendium nails it. ... There are no esoteric issues here that would only be of interest to a scholar.  The issues are the ones those handling claims, and advising on claims, see on a regular basis."  

Recent Representative Cases

July 2011 - The Third Circuit Court of Appeals affirmed the order of a Virgin Islands federal district court  judge granting summary judgment to Lexington Insurance Company.  The Third Circuit agreed with the District Court that Lexington did not breach its contract with an insured by filing an interpleader action rather than paying the policy limits to the insured over another insured's objection.  Mark Cohen represented Lexington and argued the appeal.  See HOVENSA LLC v. Lexington Ins. Co., 2011 WL 2631855 (3d Cir. July 6, 2011).

May 2011 - Mark Cohen and Donna Hess secured a defense verdict in an insurance coverage arbitration arising from the collapse of a Vertical Belt System at a coal mine in Illinois. The arbitration panel found that the products exclusion in the Architects and Engineers Professional Liability policy precluded coverage. The insured had sought more than $1 million in damages.

September 2009 -  Mark Cohen obtained summary judgment for Lexington Insurance Company in HOVENSA LLC v. Lexington Insurance Company, 2009 WL 2950366 (D.V.I. Sept. 9, 2005), a multi-million dollar breach  of contract claim brought by an insured against Lexington in federal court in the Virgin Islands.  The court found that Lexington properly filed an interpleader action when its insureds could not agree on settling the underlying cases and the filing of the interpleader action prevented the insureds from asserting claims against Lexington.  Mark also represented Lexington in the interpleader action.

November 2008- Mark Cohen represented National Union Fire Insurance Company in connection with the successful appeal of a defense verdict obtained in a bad faith case in the District of Massachusetts by Tony Zelle and Peter Barrett.  National Union Fire Ins. Co. of Pittsburgh, Pa. v. West Lake Academy, 548 F.3d 8 (1st Cir. 2008). Among the issues on appeal was whether evidence of the claimant's settlement with another insurer was admissible in the bad faith trial.

September 2008- Mark Cohen, R.J. Maselek and Donna Hess obtained a defense verdict for Lexington Insurance Company in Lifestyles v. Lexington Insurance Company, a case arbitrated before the American Arbitration Association. At issue was whether coverage was provided under an Employment Practices Liability Insurance policy and whether the insurer was estopped from raising coverage defenses.

September 2007- Mark Cohen and R.J. Maselek obtained a defense verdict for Lexington Insurance Company in Glassalum v. Lexington Insurance Company, a case arbitrated before the American Arbitration Association. At issue was whether a "Claim," as defined by an Architects & Engineers professional liability policy, had been made against the insured, Glassalum, by a project owner, and the applicability of an insured versus insured exclusion in the policy. The case arose out of alleged defects in the curtain wall of a large office building constructed in New Jersey. The insured had sought approximately $8 million in damages.

Reported Decisions

  • Cady v. Plymouth-Carver Regional School District, 17 Mass. App. Ct. 211 (1983)
  • Haemonetics Corp. v. Brophy & Phillips Co.. Inc., 23 Mass. App. Ct. 254 (1986)
  • U.S. Fire Ins. Co. v. Child Develop. Programs of Cape Ann, 1988 WL 15533 (D. Mass.)
  • American Red Cross v. The Travelers Indem. Co., 816 F. Supp. 755 (D.D.C. 1993)
  • Lareau v. Page, 840 F. Supp 920 (D. Mass. 1993)
  • K.R. Barrett v. Chin, 843 F. Supp. 783 (D. Mass. 1994)
  • Cheschi v. Boston Edison Co., 38 Mass. App. Ct. 133 (1995)
  • Loftis v. Liberty Mut. Ins. Co., 1995 WL 491340 (Mass. Super. Ct.)
  • Albert Einstein Medical Center v. Lexington Ins. Co., 1996 WL 600338 (E.D. Pa. 1996)
  • American National Red Cross v. Travelers Indem. Co. of R.I., 924 F. Supp. 304 (D.D.C. 1996)
  • Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 783 (1996)
  • Day v. Fallon Community Health Plan. Inc., 917 F. Supp. 72 (D. Mass. 1996)
  • Doe v. Liberty Mut. Ins. Co., 423 Mass. 366 (1996)
  • Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779 (1996)
  • McMahon v. Digital Equipment Corp., 944 F. Supp. 70 (D. Mass. 1996)
  • McMahon v. Digital Equipment Corp., 998 F. Supp. 62 (D. Mass. 1998)
  • McMahon v. Digital Equipment Corp., 162 F.3d 28 (1st Cir. 1998)
  • Executive Risk Specialty Ins. Company v. Lexington Ins. Co., 106 F. Supp. 2d 181 (D. Mass. 2000)
  • Dworman v. St. Paul Fire & Marine Ins. Co., 2006 WL 1047117 (Mass. Super.)
  • Armbrust Int'l, Ltd. v. Travelers Cas. & Sur. Co. of Am., 2006 U.S. Dist. LEXIS 25640 (D.R.I.)
  • L.A. Weight Loss v. Lexington Ins. Co., 2006 Phila. Com. Pl. LEXIS 127
  • Lexington Ins. Co. v. Jacobs Industrial Maintenance Co., 2007 U.S. Dist. LEXIS 14753 (D.V.I.)
  • Lexington Ins. Co. v. Virginia Sur. Co., 486 F. Supp. 2d 173 (D. Mass. 2007)
  • National Union Fire Ins. Co. of Pittsburgh, Pa. v. West Lake Academy, 548 F.3d 8 (1st Cir. 2008)
  • HOVENSA LLC v. Lexington Insurance Company, 2009 WL 2950366 (D.V.I. Sept. 9, 2005)
  • HOVENSA LLC v. Lexington Insurance Company, 2011 WL 2631855 (3rd Cir. July 6, 2011) 

Mark loves baseball.  He is the Secretary of and a member of the Board of Directors of the Wellesley, Massachusetts Little League.  He is also Wellesley Little League's Senior Leagues Commissioner, the "Player-Agent" for the Wellesley Little League's "Williamsport Teams," including the 2012 Massachusetts State Little League Champions, Wellesley South, and he has coached in the league's Major's Division since 2001.


Anthony R. Zelle
Brian P. McDonough
Mark E. Cohen
Barbara A. O'Donnell
Peter J. Barrett, Jr.
Rina Carmel
Thomas W. Evans
Robert J. Maselek, Jr.
Diane Bucci
Donna E. Hess
Suzanne Whitehead
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