Our Attorneys

Rostyslaw J. Smyk

Ross Smyk has been practicing in the area of insurance coverage law for over 25 years.  During that time, Ross has successfully rendered thousands of coverage opinions to insurance carriers and has represented insurers in dozens of coverage and bad faith suits nationwide.  Ross has opined on and litigated issues arising under a broad spectrum of commercial liability insurance policies, including: Commercial General Liability, Commercial Umbrella, Professional Liability, Errors & Omissions, Directors & Officers, Employment Practices Liability, and Commercial Auto policies.  His opinions have addressed not only threshold issues such as the definitions of "occurrence" and "property damage," but also complex questions regarding the work product exclusions, trigger of coverage, allocation of loss among insurers, horizontal exhaustion, targeted tender, applicability of "additional insured" coverage, and breaches of conditions precedent to coverage.  Ross also has extensive experience with issues arising under "claims made" policies including: application of related acts provisions, prior knowledge language, and "claim first made and reported" issues.  In coverage litigation matters, Ross has been able to secure judgment as a matter of law on behalf of insurers on numerous occasions, achieving an exemplary won/lost record in the process.  His case results include:

  • Brown & LaCounte v. Westport Ins. Corp. U.S. Court of Appeals for the Seventh District.  Lawyers Professional Liability insurer had no duty to defend claim based upon "illegal profit" exclusion.  Ross successfully defeated arguments by the insured that the "in fact" language in the exclusion did not foreclose the possibility of an indemnity obligation.  Rather, the Federal Court of Appeals adopted Ross's argument that no duty to defend could exist based upon the facts plead in the underlying action.
  • K&B Plastics Industries v. Lincoln General Insurance Co.  Superior Court of New Jersey, Union County.  Business Auto Policy's omnibus insured clause did not entitle a shipper of goods to coverage. The shipper argued that coverage should apply under the "complete operation" doctrine.  Ross defeated these arguments by convincing the Court that the putative insured had not met its burden of proving that the goods were packaged as an inherent part of the "loading or unloading" process.
  • AmTrust International Underwriters v. Enslein, U.S. District Court, Western District of Missouri.  Directors and Officers Liability insurer had no duty to defend multi-million dollar claim by bankruptcy trustee alleging that directors deliberately caused named insured to become insolvent.  Ross and his colleague defeated the bankruptcy trustee's argument that policy declarations page suggested that coverage could beyond "claims made" policy period.
  • Wesco Insurance Company v. AAA Cab Co., U.S. District Court for the District of Arizona.  Commerical Auto insurer had no duty to defend or indemnify underlying action for death of elderly dialysis patient after driver left patient outside of patient's home in the Arizona heat.  Court held that the "bodily injury" was not caused by the use of an auto despite allegations that the use of auto contributed to the death because the driver was supposed to take patient to his nursing facility and not his residence.
  • Wesco Insurance Company v. Regas.  U.S. District Court for the Northern District of Illinois.  Lawyers Professional Liability insurer had no coverage obligation under a claims made policy where subject claim was "related" to a prior claim reported to the insured's prior insurance carrier.
  • Maynard v. Westport Ins. Co., U.S. District Court for the District of Maryland.  Insurer neither waived, nor was estopped to assert, its defenses to coverage as a matter of law.  Ross defeated judgment creditor's arguments that factual questions as to consistency of insurer's positions throughout underlying tort litigation gave rise to a triable issue.
  • TIG Ins. Co. v. Corbett, Circuit Court of Cook County, Illinois.  Professional Liability Insurer had no coverage obligation based upon "prior knowledge" language in policy despite insured's having obtained written release of liability from former client.
  • Westport Ins. Corp. v. Law Offices of Marvin Lundy, U.S. District Court for the Eastern District of Pennsylvania.  Despite insured's challenge to Federal Court Diversity Jurisdiction and arguments in favor of Colorado River abstention, Ross was able to secure a summary judgment of "no coverage" on behalf of client insurer.

Ross's opinion work and coverage litigation has, on many occasions, turned coverage positions into cost-effective resolutions and settlements, often through mediation.  Examples of such settlements include:

  • Insured agreed to dismiss insurer from state court suit in notoriously anti-insurer jurisdiction challenging cancellation of policy after Ross filed Motion for More Definite Statement on behalf of insurer.
  • Five-figure settlement of a multi-million dollar insurer vs. insurer reimbursement action wherein the underlying claim alleged the abuse and neglect of several siblings and the death of another.  Ross successfully combined an exclusion in a Social Work Liability Coverage policy with aggressive prosecution of a declaratory judgment action into a settlement that was less than the estimated cost of litigating the coverage issues through summary judgment.
  • Low seven-figure settlement of complex construction defect case in unfavorable northwest US jurisdiction under a Commerical General Liability "Wrap Policy" wherein named insured general contractor's tactic was to compel insurer to incur millions in defense costs by suing all of the enrolled subcontractors.
  • Settlement of construction defect coverage suit against insurer in southeastern US jurisdiction for less than one half of insured's claim through combination of coverage arguments and pressure on home warranty company.

 

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Contact:

10 S. LaSalle Street, Suite 1800

Chicago, Illinois 60603

Phone: 312-466-7263

Email: Ross.Smyk@ruberry-law.com

Practice Areas:

  • Insurance coverage counseling
  • Insurance coverage litigation
  • Insurance coverage analysis
  • Insurance bad faith

Education:

  • J.D., Rutgers University, 1997
  • B.A., University of Illinois, 1993
  • Certificate in Theology, St. Paul University, 2010

Recognition:

Ross is recognized as a Super Lawyer® in the area of Insurance Coverage.

Admissions:

  • State of Illinois
  • U.S. Court of Appeals for the Third Circuit
  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. Court of Appeals for the Seventh Circuit
  • U.S. District Court for the Northern District of Illinois
  • U.S. District Court for the Central District of Illinois
  • U.S. District Court for the Western District of Wisconsin
  • U.S. District Court for the Southern District of Indiana
  • U.S. District Court for the Western District of Michigan
  • U.S. District Court for the Eastern District of Michigan
  • U.S. District Court for the District of Colorado
  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Western District of Texas