Liquidation of Delta America Re

While in Kentucky, Mr. Jernigan served as lead counsel for the liquidator of Delta America Re, an insolvent reinsurance company, suing to recover several hundred million dollars in premium balances and reinsurance premiums due.  This representation involved litigation in the state and federal trial courts and appellate courts of Kentucky and New York in actions against insurance companies, brokers and intermediaries located in such diverse locations as Singapore, Tokyo, London, Moscow, Bermuda and the Cayman Islands.  These efforts resulted in significant monies being recovered on behalf of the estate for the benefit of its creditors.

Representation of Corporate Defendants

Over the course of his career, Mr. Jernigan is experienced in the defense of major cases involving primarily corporate defendants.  Those cases have ranged from contract disputes to product liability claims involving the statewide representation of, among others, American Motors and Chrysler Corporation in the defense of Jeep rollover litigation; Sturm Ruger & Co., Inc. in the defense of product liability claims involving certain of its firearms; Johns Manville Corp. in defense of asbestos related claims; Black & Decker Corporation in the defense of various product liability claims involving guiding issues; and Procter & Gamble in defense of toxic shock claims.

Representation of Energy Industry Companies

Mr. Jernigan has represented a large number of companies in the energy industry in the defense of personal injury actions, contract disputes, major property damage claims and disputes with the State of West Virginia, including, among others, Massey Energy Company, Allegheny Energy, Peabody Energy, Consol Energy, Bluestone Coal Corporation, and Foundation Coal as well as the former Island Creek Coal, Cannelton Coal Corp., Westmoreland Coal Corp. and Pittston Coal.

Successful suit by minority shareholder against majority owners of family business enterprise

Client: A Minority Shareholder

To assist our client, a minority shareholder who was being denied her share of the profits in a lucrative family business, we filed suit against the majority owners alleging breach of fiduciary duty. After filing suit and obtaining access to certain business and financial records, we employed forensic accountants and valuation experts to calculate the value of the client’s losses and ownership share. As discovery demonstrated the unfairness of the majority’s actions, we obtained a successful settlement of the lawsuit for our client through mediation efforts.

Obtained Favorable Ruling in Malpractice Lawsuit

Client: A law office

Our clients previously represented plaintiffs in a Court of Claims lawsuit against the West Virginia Department of Highways. At issue was a culvert plaintiffs alleged caused flooding on their property. The lawyers obtained an $85,000 settlement for the plaintiffs in exchange for a release by plaintiffs of their claim and release of any future claims arising from the alleged defective culvert. Five thousand dollars of the settlement was earmarked for plaintiffs to use to hire a contractor of their choice to clean out the culvert, which they never undertook. Plaintiffs, however, alleged they were not informed the settlement included a release of future claims and sued their lawyers for malpractice. We represented the lawyers in the legal malpractice lawsuit.

In the malpractice lawsuit, plaintiffs alleged but for the release of their future claims, they would have been able to sue the Department of Highways repeatedly with respect to the culvert. At trial, via cross-examination of the plaintiffs, we proved the terms of the settlement were explained to plaintiffs prior to the settlement being consummated. We ultimately obtained judgment as a matter of law in favor of our clients at the close of the plaintiffs’ case-in-chief.

Received Favorable Ruling for Trucking Company at Trial

Client: A trucking company

We represented an international trucking company and its driver at trial over an accident that occurred when the driver stopped his tractor-trailer on a rural road in order to make a home delivery. The tractor-trailer was stopped approximately 290 feet past a blind curve, with its flashers on. Plaintiff was driving around the curve and drove straight into the rear of the trailer, without hitting her brakes until the instant before the collision. Plaintiff alleged the driver and company were negligent because the tractor-trailer was stopped in the road and the driver did not provide sufficient advanced warning to oncoming traffic.  At trial we convinced the jury that the Plaintiff was 40 percent at fault for causing the accident because she had adequate time and distance to see the tractor-trailer and either stop or safely go around it. This resulted in a very favorable verdict for our clients.

Successfully Defended a Claims Administrator

Client: Claims administrator

A third-party claims administrator (TPA) for Workers’ Compensation claims was sued by a former employee of a company for whom the TPA administered claims. The employee alleged the TPA had fraudulently denied her workers’ compensation claim and committed workers’ compensation discrimination. The TPA was originally represented by other counsel, who filed and lost a motion to dismiss. We then filed a writ of prohibition with the West Virginia Supreme Court, seeking dismissal of the employee’s lawsuit based upon the statute of limitations and statutory immunity provided to third-party administrators with respect to workers’ compensation discrimination lawsuits. We prevailed on these arguments before the supreme court, which resulted in the dismissal of all claims against our client.

Successfully Obtained Dismissal Order

Client: An attorney

A real estate lawyer conducted the closing for the sale of a house to plaintiff. Approximately 10 years after the closing, plaintiff filed a lawsuit alleging the lawyer negligently failed to provide him with clear title to the property. The basis of plaintiff’s lawsuit was the opinion of another lawyer (whom plaintiff had initially contracted to work on an unrelated matter) who opined the title work was not correct and therefore plaintiff did not have clear title to his house. Plaintiff, however, still owned his house and had never had any challenges to his title to the property. We successfully caused the dismissal of all claims against our client at the trial court level because plaintiff did have clear title to the property. Plaintiff objected to the dismissal order but did not do so in a timely manner. The trial court then denied plaintiff’s objections to the dismissal order, and he appealed to the Supreme Court of Appeals of West Virginia. The West Virginia Supreme Court affirmed the trial court’s decision, resulting in a full and final dismissal of all claims against our client.

Successful Representation of Insurance Company in Massive Flooding Claims

Client: Insurance Company

We represented an insurance company in connection with massive flooding claims following a significant rain event.  After working to resolve the underlying claims, we successfully litigated another insurer’s attempt to force our client to pay 100 percent of the costs relating to the loss, which ultimately involved a favorable appellate decision. 

International Arbitration Representations of US and Foreign Clients

Client: Multiple Clients

Mr. Bilaniuk’s international arbitration experience includes a range of disputes with U.S. or foreign clients.

  • Represented a Fortune 500 company as claimant in an ICC arbitration against a foreign government over a breach of contract dispute for commercial services that resulted in a favorable settlement.
  • Represented a Middle Eastern company in an ICC arbitration against a Forbes Global 2000 European company for breach of contract.

Successful Representation of Vehicle Distributor at Trial

We represented a vehicle distributor in a lawsuit filed in the United States District Court for the Central District of California. The plaintiffs, a married couple, claimed the vehicle they leased from our client had multiple defects that substantially impaired its use, value, and safety. The plaintiffs asserted a claim for breach of express warranty under California’s Song-Beverly Consumer Warranty Act, commonly known as the “lemon law,” as well as a claim for breach of the implied warranty of merchantability. They sought restitution from the vehicle distributor of all payments they had made under the lease, as well as the amounts they still owed. The plaintiffs were also asking for civil damages of up to two times any compensatory damages award. At the close of the plaintiffs’ case, the court granted our motion for judgment as a matter of law on the implied warranty claim and the request for civil damages, and the jury ultimately found in favor of our client on the plaintiffs’ Song-Beverly express warranty claim, awarding them nothing. 

Commercial Litigation Involving Software Supplier to a Vehicle Distributor

We represented an international motor vehicle distributor in a commercial litigation dispute with one of its software suppliers. We successfully defended the company in AAA arbitration proceedings in Des Moines, Iowa, resulting in a favorable resolution for our client.

Successful Representation of Client in Premises Liability Case

Client: Local Catholic Parish

We successfully obtained a complete dismissal of a lawsuit brought against our client, a local Catholic parish, in a premises liability case.  In this case, the plaintiff tripped and fell in a landscaping area near the church entrance.  She alleged the parish was negligent for the installation and maintenance of certain landscaping features and demanded damages for her significant injuries.

After discovery, we filed a motion for summary judgment on behalf of our client, arguing that under Ohio’s open and obvious doctrine, the parish owed no duty to the plaintiff as a matter of law.  Instead, as we established through photographs, documents we obtained through discovery, and deposition testimony from the plaintiff herself, the area where she fell would have been observable to a reasonable person if she had simply looked down.  After summary judgment briefing and oral argument, the trial court agreed. The judge granted our motion from the bench and dismissed the case with prejudice.

The favorable result for our client reinforces venerable premises liability law in Ohio and provides another precedent for property owners in the future.

Lach v. Man O’War, LLC - Breach of Fiduciary Duties

We represented our client, who was a limited partner in a shopping center limited partnership. Our client did not consent when the general partners changed from limited liability partnership to limited liability corporation, which changed some of the rights associated with a limited partner. The Kentucky Supreme Court ruled that this change in the form of the entity without obtaining the consent of the limited partner was breach of fiduciary duties by the general partners.

Charging Order Against Three LLCs Reversed

Client: Defendant in Collection Efforts

After a judgment had already been entered, the defendant hired Dinsmore to represent him in connection with the plaintiffs’ collection efforts. The plaintiffs claimed our client was a member of three limited liability companies, and they asked the trial court to charge his alleged membership interests.  We opposed the plaintiffs’ motion for charging order because our client was not an owner of any of the LLCs, as evidenced by their operating agreements.  Nevertheless, the trial court granted the plaintiffs’ request.  The First District Court of Appeals reversed, finding the trial court “lacked competent evidence of [our client’s] membership” in the companies.  The First District held: “when determining if an individual is a member of a limited liability company for the purpose of R.C. 1705.19, the trial court must consider records maintained by the company for the purpose of its corporate governance that name those owners entitled to receive distributions and share in the profits and losses of the company.”  Because “the only records of the limited liability companies before the trial court established” that our client was not a member of the LLCs, the trial court erred in granting the plaintiffs’ motion for charging order. 

Stanfield v. On Target Consulting, 1st Dist. Ham. App. No. C-160890, 2017-Ohio-8830.

National Health Care Litigation Counsel for Large Multi-State Provider

Serve as national litigation counsel to a large, multi-state provider, overseeing litigation and serving as lead counsel nationwide. By taking consistent positions on discovery and other issues in every case, clients are better positioned to avoid litigation potholes and arrive at more favorable outcomes.

Bowman v. Charleston Area Medical Center

Ms. Rice represented a hospital in a class action filed by four uninsured patients who alleged that a hospital's charging of uninsured patients at full charges, while charging Medicare, Medicaid, and insured patients at less than full charges, was unlawful.

Progressive Minerals, Inc. v. Muhammad Haroon Rashid, et al., Civ. Action No. 5:07 CV 108, 2009 U.S. Dist. LEXIS 90437 (N.D. WV 2009)

The Court found in the favor of the firm's client, Progressive Minerals, Inc., in a tort action alleging that the defendants defrauded the client in a mineral transaction in West Virginia.

Obtained a $1 Million-Plus Settlement for Our Client

We obtained a settlement in excess of $1 million for our client in a large, complex action against a public owner for concurrent delay, interference, changed conditions, unenforceable liquidated damages and breach of contract in relation to the construction of a waste water treatment facility. The case involved significant understanding of the project’s technical components, exchange of documents, multiple experts and culminated in a day-long mediation.

Successfully Defended a Physician’s Practice from a Former Physician Seeking Termination Benefits

We represented a physician’s practice at trial in a matter involving a physician who had been denied termination benefits that had been provided to other shareholders in the practice. While the physician was a shareholder, their contract did not include a provision for termination benefits. The physician filed suit, and a jury found in favor of our client. The physician appealed the decision, and the West Virginia Supreme Court of Appeals affirmed the jury verdict, resulting in substantial financial savings for our client.

Successfully Enforced a Multi-Million Dollar International Arbitral Award

Client: Fortune 500 Government Contractor

Mr. Bilaniuk successfully enforced an international arbitral award for a Fortune 500 government contractor in U.S. court against a European government after multiple years of litigation, including a stay of enforcement and briefing on enforcement of an annulled international arbitral award, after the underlying award had been set aside in a European court. He coordinated with counsel in the defendant’s country in the successful appeal to the country’s supreme court to have the arbitral award reinstated. In the end, after defendant’s appeal, the client’s award totaled roughly $60 million.

Won Favorable Monetary Settlement in Ad Hoc International Arbitration

Client: A Major US Defense Contractor

Mr. Bilaniuk represented a U.S. defense company in an ad hoc arbitration against a Middle Eastern government for breach of contract, employing a strategy that resulted in a favorable settlement of the client’s claims. 

Foreign Plaintiff v. U.S. Corporation

I lead a team which successfully assisted a foreign plaintiff in obtaining financial information from U.S. entities for use in a foreign proceeding. To do so, our team obtained a federal court order under 28 U.S.C. § 1782 requiring certain U.S. businesses and banks to provide discovery for use in the foreign proceeding.

Stepping to the Plate for “America’s Game”

Client: USA Baseball

Baseball is about as “American” as you can get, and USA Baseball has been the national governing body for amateur baseball since 1978, including representing the United States as a member of the U.S. Olympic Committee and internationally as a member of the World Baseball Softball Confederation.  

“Our first interaction with Dinsmore was in the area of IP and trademark protection, but as our organization and needs have changed, our counsel has not,” said Paul Seiler, Executive Director/CEO of USA Baseball.

“That’s due to the fact Dinsmore is a full service team that provides for all of our legal needs, from contract work to real estate guidance to sponsor relations. This allows USA Baseball to be connected across all of our business units with a common and knowledgeable firm that understands who we are, in all facets of our operations,” he added.  

Dinsmore serves as USA Baseball’s outside general counsel and handles all legal issues for the organization, including intellectual property, data protection, corporate, litigation, employment and finance.  Among recent work, Dinsmore provided legal support to USA Baseball’s efforts to develop and implement a performance standard for non-wood bats used in youth baseball.  This work began several years ago and, ultimately, reached a variety of legal areas including intellectual property, corporate, licensing, insurance and agreement work.  The performance standard was announced on August 7, 2015, and on January 1, 2018, USA Baseball’s National Member Organizations will require non-wood youth bats meet the performance standard, which will be indicated by the USA Baseball trademark on bats that have passed performance testing.  

“One of our former board members had a saying, ‘You do business with your friends.’  And while perhaps not always literal or possible in business, in this case it is,” Seiler said.  “Our decision to have Dinsmore represent USA Baseball is based on the relationship we have, as well as for the quality counsel provided on a daily basis.”  

As the national governing body of amateur baseball, USA Baseball engages with nearly every major national amateur baseball organization in America, which equates to millions of amateur players in ballparks and playgrounds across the country. The organization also promotes and develops the game on a grassroots level nationally and internationally.  Dinsmore attorneys have assisted the organization with finance and real estate work related to further development of USA Baseball’s National Training Complex in Cary, North Carolina.

“The great thing about our relationship with Dinsmore is that we know our best interests are always being looked out for.  We never feel like we are just a client.  For that matter, I don’t think we even use that word (client) when referencing our partnership,” Seiler said.  “Dinsmore is an impactful brand in the legal world, yet it would be hard to argue that we have a more personal relationship with anyone we do business with.”

Outside General Counsel to a Growing Brand

Client: MadTree Brewing

When Kenny McNutt, Brady Duncan and Jeff Hunt had a dream to open their own craft brewery, they sought legal guidance from Dinsmore. By the time Cincinnati’s MadTree Brewing opened in 2013, our attorneys had already played a significant role in its development – from helping to raise the original capital to structuring and executing loan financing. 

“Dinsmore gives peace of mind and guides us through murky waters,” said McNutt. “They’re reputable, and I always know I get the best answer for the information available at the time.”

Today, Dinsmore serves as MadTree’s outside general counsel, advising on contracts, real estate, trademark, employment matters, securities and other legal needs as they arise.

“They have every facet we need, and they’re super easy to work with,” added McNutt.  “I recommend them whenever anyone asks. They’re trustworthy, really, really good and well worth the peace of mind.”

MadTree was the first modern craft brewery to can its beer in Ohio, and, within four short years, the brewery had grown so significantly they opened an $18 million facility to accommodate larger crowds and increased demand for production. Dinsmore attorneys were with them every step of the way.

Richard Loreto and Larry Buffa v. The Procter & Gamble Company

Serving as co-counsel in attempted consolidated actions alleging false advertising rules under the consumer protection laws of various states involving Vicks NyQuil. The matter is currently on appeal before the Sixth Circuit.

A Long History as Trusted Counsel

Client: The Procter & Gamble Company
Dinsmore has a long history as trusted legal counsel to P&G.

As one of the world’s largest and most trusted companies, Procter & Gamble has no shortage of legal needs. Whether seeking counsel on corporate strategy, navigating real estate transactions or protecting their shareholders’ assets, P&G relies on its legal counsel to keep its business running efficiently. That’s why, for nearly 100 years, the consumer products giant has turned to Dinsmore.

“Dinsmore knows our business and understands our culture,” said Debbie Majoras, Chief Legal Officer for P&G.  “They remain a trusted ally for us because they are committed to our goals, our company’s success and meeting our legal needs. They bring tremendous value and we enjoy working with them.”

Dinsmore works closely with P&G’s in-house lawyers to provide an array of services, from advising on all manners of contracts and agreements to corporate and securities counseling to handling real estate matters throughout the country. Dinsmore has also represented P&G in a variety of litigation matters over many years, including handling sophisticated product liability, class action, intellectual property and other complex commercial matters.

“Dinsmore is efficient and responsive, and we can count on great partnership and top quality work when we come to them,” said Majoras. “We truly value the special relationship we have built with them."

Dinsmore Meets All Legal Needs for Significant Craft Brewer’s Business

Client: Rivertown Brewing Company

Since 2012, Rivertown has relied exclusively on Dinsmore’s counsel to ensure their craft beer taps flow for years to come. Running a growing brewing company means constantly dealing with new questions about whether a beer name is available to disputes over what name a beer company may use in commerce. Dinsmore provides all legal counsel supporting Rivertown Brewing Company’s manufacture, distribution, and in-house sales, including distribution contract negotiations, manufacturing equipment contracts, local political lobbying, review of services contracts, employment advice, trademark and intellectual property work, litigation concerning distribution contracts, intellectual property litigation, and general corporate matters.

Obtained Writ of Prohibition from the West Virginia Supreme Court dismissing all claims

We represented an insurance agent accused of starting a sexual relationship with the plaintiff’s ex-wife in order to convince her to purchase an annuity. The plaintiff alleged claims of negligence, breach of fiduciary duty and other torts. The West Virginia Supreme Court found that all of the plaintiff’s claims were based upon the fact that our client allegedly had an affair with the plaintiff’s ex-wife, and so were in reality all claims for alienation of affections. This resulted in the dismissal of all claims against our client.

Obtained Writ of Prohibition from the West Virginia Supreme Court that caused the dismissal of a potential class action

We obtained a Writ of Prohibition from the West Virginia Supreme Court ordering the plaintiff to submit to arbitration based upon an arbitration agreement contained in the plaintiff’s mortgage. This resulted in dismissal of the plaintiff’s claims, which were brought as a putative class action under the West Virginia Consumer Credit and Protection Act.