Rostyslaw J. Smyk
Ross Smyk focuses his practice on insurance coverage, insurance
bad faith, and insurance-related commercial litigation. In
almost 25 years of insurance coverage practice, Ross has provided
coverage opinions and litigated coverage disputes in a number of
jurisdictions on a wide variety of insurance coverage issues,
including issues arising under Commercial General Liability,
Commercial Umbrella, Professional Liability, Errors Omissions, and
Commercial Auto policies. His opinions have addressed not
only threshold questions such as the definitions of "occurrence"
and "property damage," but also complex disputes arising under 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 coverage
questions arising under "claims made" policies including:
application of related acts provisions, prior notice language, and
timely reporting issues.
Ross's opinion work has often resulted in his representing his
clients' interests at mediations where favorable and cost-effective
resolutions of complex matters were reached. In coverage
litigation matters, Ross has been able to secure judgment as a
matter of law on behalf of his clients on numerous occasions,
achieving an exemplary won/lost record in the process.
In his insurance-related commercial litigation work, Ross has
represented both corporate and private clients in a wide variety of
matters, including broker liability claims and claims arising out
of insurer liquidation. His case results include:
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Brown & LaCounte v. Westport Ins. Corp.U.S.
Court of Appeals for the Seventh District. Federal Court of
Appeals held that insurer had no duty to defend claim brought by
Native American tribal government for reimbursement of legal fees
paid to insured over several years. At Ross' urging the
District Court entered summary judgment in favor of Ross'
insurer-client based upon the policy's "illegal profit"
exclusion. On appeal, 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 allegations of the underlying
complaint that the tribal government's payment of legal fees to the
insured was against federal law.
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Gregory Alan Scott v.Atlas Financial Services,
Inc. U.S. Court of Appeals for the Fifth
Circuit. Federal Court of Appeals summarily affirmed District
Court's summary judgment in favor of grandparent holding company
after panel defense counsel sued the holding company for breach of
contract. Plaintiff alleged that his contract was not with
the subsidiary insurance companies, but rather the grandparent
holding company. Ross successfully argued that the plaintiff
could not prove any of the elements of a contract between himself
and the grandparent holding company. Ross also successfully
secured an outright dismissal of plaintiff's tort claims against
the holding company for failure to state a claim, as well as a
dismissal of plaintiff's claims against the corporate officers in
their individual capacities for want of personal jurisdiction.
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Maynard v. Westport Ins. Co., U.S. Court of
Appeals for the Fourth Circuit. Federal Court of Appeals
summarily affirmed District Court's grant of summary judgment to
Ross's insurance company client. The court rejected as a
matter of law the judgment creditor's arguments that Ross' client
had waived its defenses to coverage and/or should be estopped from
asserting them. Ross defeated the judgment creditor's
arguments that summary judgment was inappropriate because there
existed factual questions as to consistency of insurer's positions
throughout underlying tort litigation.
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K&B Plastics Industries v. Lincoln General Insurance
Co. Superior Court of New Jersey, Union
County. Superior Court ruled that a shipper of goods was not
entitled to coverage as a matter of law pursuant to omnibus clause
of Business Auto Policy's liability 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.
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Wesco Insurance Company v. Regas. U.S.
District Court for the Northern District of Illinois. Ross
secured a summary judgment in favor of an insurer seeking a
declaration that it had no coverage obligation under a claims made
policy where subject claim was "related" to a prior claim that had
already been reported to the insured's prior professional liability
insurance carrier.
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TIG Ins. Co. v. Corbett, Circuit Court of Cook
County, Illinois. Circuit Court agreed with Ross's argument
that an insured's having obtained written Release of liability from
former client did not preclude application of "prior knowledge"
language in professional liability policy.
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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' opinion work and litigation efforts have often turned
potentially expensive and protracted disputed into efficient and
cost-effective resolutions and settlements, often through
mediation. Examples include: esolutions and settlements,
often through mediation. Examples of such settlements
include:
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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.
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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.
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Low seven-figure settlement of complex construction defect case
in unfavorable northwest US jurisdiction under a Commercial 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.
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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
Ross is an ordained Deacon n the Ukrainian Greek-Catholic
Church, and Chairs the Catechetical Commission of its Chicago
Eparchy.
Contact:
300 South Wacker Dr., Suite 3250
Chicago, Illinois 60606
Phone: 312-466-7263
Email: Ross.Smyk@ruberry-law.com
Practice Areas:
- Insurance Coverage
Analysis and Counseling
- Insurance Coverage
Litigation
- Insurance Bad Faith
- Commercial
Litigation
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 Fifth 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 Southern District of Illinois
- U.S. District Court for the District of Colorado
- U.S. District Court for the Southern District of Indiana
- U.S. District Court for the Eastern District of Michigan
- U.S. District Court for the Western District of Michigan
- U.S. District Court for the Northern District of Texas
- U.S. District Court for the Western District of Texas
- U.S. District Court for the Eastern District of Wisconsin
- U.S. District Court for the Western District of Wisconsin