Michael T. Sharkey Partner

Michael also regularly advises clients on the insurance issues that arise in connection with corporate transactions. These include the effect of the transaction on the parties’ existing and historic insurance coverage arrangements as well as insurance, such as representations and warranty coverage, that may be purchased in connection with the deal itself.

Additionally, he counsels clients on the drafting and interplay of insurance and indemnification provisions in contracts, including construction contracts, supplier and service agreements, and corporate transactions, with the goal of aligning the provisions with the parties’ intent during the drafting process – before a dispute arises.

Recent representative experience includes:

• Motors Liquidation Co. DIP Lenders Trust v. Allianz Ins. Co., C.A. No. N11C-12-022 FSS [CCLD] (Del. Super. Ct.):  Michael represents Motors Liquidation Company DIP Lenders Trust against more than 30 excess insurance companies in seeking coverage for underlying claims in excess of $1 billion for historical asbestos and environmental liabilities of pre-bankruptcy General Motors.
• Electronics Manufacturer:  Michael is retained to advise a major consumer electronics manufacturer on insurance law issues.  This has included advice on insurance coverage for claims alleging mass torts, data breaches, and trademark infringement.  He also has advised on drafting of insurance provisions in supplier contracts and on the effect of corporate transactions on rights to insurance proceeds.
• Financial Services Company:  Michael advises a financial services company on insurance coverage for the costs of responding to government investigations of its business practices.

Throughout his career, Michael has obtained numerous significant or precedent-setting rulings on key insurance coverage issues on behalf of policyholder clients. These include:

• Successfully briefed or argued precedent-setting decisions favorable to policyholders on the key issue of allocation of long-term losses in several jurisdictions.  See, e.g., Westport Ins. Corp. v. Appleton Paper Inc., 787 N.W.2d 894 (Wis. Ct. App. 2010); Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481 (Del. 2001); NorthWestern Energy v. AEGIS Ltd., Civ. 07-1174 (S.D. Cir. Ct. July 29, 2010); see also Plastics Eng’g Co. v. Liberty Mut. Ins. Co., 759 N.W.2d 613 (Wis. 2008) (amicus brief).
• Obtained favorable results for many clients facing insurance company attempts to void coverage based on alleged misrepresentations in the application.  Among other favorable rulings is the decision in National Railroad Passenger Corp. v. ERC Frankona Ruckversicherungs-AG, No. 03-2420 (JGP), 2005 WL 4708212 (D.D.C. 2005), which held that the insurance company must honor its obligations on the duty to indemnify while its action to void the policy is pending.  While previous decisions had applied this rule to the duty to defend, this is believed to be the first decision extending the rule to an insurance company’s duty to indemnify.  Michael also has written and spoken extensively on this topic.
• Successfully defeated efforts by insurance companies to shield their claims files and activities under the guise of attorney-client privilege or work product protection.  See, e.g., NorthWestern Energy v. AEGIS Ltd., Civ. 07-1174 (S.D. Cir. Ct. June 15, 2011); Cont’l Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d 761 (D. Md. 2008).