Suing Excess Insurers Before Exhaustion: The Policyholder’s Whole-Tower Action After Fox Paine

Marc S. Mayerson, Principal | The Mayerson Firm PLLC

Marc S. Mayerson is the Principal of The Mayerson Firm PLLC in Washington, D.C., where he represents policyholders — businesses, nonprofits, directors, executives, and fiduciaries — in complex insurance coverage disputes. His practice reaches excess coverage and exhaustion, multi-layer insurance towers, directors and officers liability, and insurer bad faith, as well as asbestos, environmental cleanup, toxic tort, product liability, securities, ERISA fiduciary, employment practices, fidelity and dishonesty, first-party property, and business interruption claims. He also serves as an arbitrator, mediator, and expert in insurance matters.

• Education & Credentials

Mr. Mayerson earned his Juris Doctor, magna cum laude, from Harvard Law School in 1986, where he was a member of the Harvard Law Review. He received his Bachelor of Arts from the University of Michigan in 1983 with Highest Distinction and High Honors, and was elected to Phi Beta Kappa. Following law school he served as a judicial clerk to the Honorable Stephen R. Reinhardt of the United States Court of Appeals for the Ninth Circuit.

• Recognition & Leadership

Mr. Mayerson is an elected Fellow of the American College of Coverage Counsel. He has been listed in Chambers USA, The Best Lawyers in America, and Super Lawyers, was named a Leading Lawyer in insurance by Legal Times, and is recognized in the Experts’ Guide to the World’s Leading Insurance and Reinsurance Lawyers.

• Professional Involvement

Mr. Mayerson co-edits the New Appleman Insurance Law Practice Guide, the most widely used practice guide in the field. He has written on the duty to defend, notice requirements, integrated risk programs, environmental recovery, contaminated food losses, cyber risk, and insurance bad faith, and previously authored the insurance law blog Insurance Scrawl. He has taught insurance law at Georgetown University Law Center and the George Washington University Law School, testified before a United States Senate subcommittee on insurance issues affecting charities and nonprofits, and provided expert testimony to the ERISA Advisory Council on fiduciary fidelity bonds.

• Experience

Mr. Mayerson’s coverage practice centers on recovery under excess and umbrella layers, including disputes over exhaustion, attachment, and allocation across multi-layer insurance towers, and on directors and officers coverage for executives and fiduciaries. He serves as an AAA-certified commercial arbitrator and insurance coverage neutral, was certified as a Storm Sandy insurance mediator, and sits as an arbitrator on the District of Columbia Bar Attorney-Client Arbitration Board.

Benjamin W. Massarsky, Partner | Miller Friel, PLLC

Benjamin W. Massarsky is a Partner at Miller Friel, PLLC, where he represents corporate policyholders in complex insurance disputes in federal and state court. His coverage work spans commercial general liability, property, directors and officers, errors and omissions, political risk, builder’s risk, and music tour non-appearance policies, for clients in manufacturing, real estate, technology, and entertainment.

• Education & Credentials

Mr. Massarsky earned his Juris Doctor, magna cum laude, from the American University Washington College of Law, where he was elected to the Order of the Coif, and his Bachelor of Arts in History and Government from Cornell University. He is admitted to practice in New York, Washington, D.C., and Maryland, and before the United States District Court for the District of Columbia and the United States Courts of Appeals for the Seventh and Ninth Circuits.

• Recognition & Leadership

Mr. Massarsky was named to Law360’s Rising Stars of 2024, recognizing top attorneys under forty in Insurance Law. Thomson Reuters named him a Washington, D.C. Super Lawyers Rising Star for 2024 and 2025, and a Washington, D.C. Super Lawyer for 2026.

• Professional Involvement

Mr. Massarsky is quoted frequently in Law360 on insurance coverage developments and has published on coverage questions arising from the Astroworld litigation, Suez Canal losses, and Paycheck Protection Program considerations. He presents continuing legal education programs on insurance coverage, bad faith litigation, and the Trafficking Victims Protection Act. His pro bono practice includes representing special education students and drafting petitions for writs of certiorari to the United States Supreme Court on behalf of criminal defendants.

• Experience

Mr. Massarsky secured a $112 million verdict on behalf of the firm’s client after a two-week federal jury trial in May 2023, among the largest bad faith insurance coverage awards in thirty years. His practice centers on prosecuting coverage and bad faith claims for corporate insureds across layered insurance programs in federal and state courts nationwide.

Natalie E. Cook, Associate | BatesCarey LLP

Natalie E. Cook is an Associate at BatesCarey LLP, where her practice centers on complex insurance coverage disputes. She works on commercial general liability matters, coverage litigation, and transportation coverage questions. She came to private practice from a judicial clerkship in the Chancery Division of the Circuit Court of Cook County, and earlier served as a judicial extern in the United States District Court for the Southern District of Indiana.

• Education & Credentials

Ms. Cook earned her Juris Doctor, cum laude, from the Indiana University Maurer School of Law in 2023, and her Bachelor of Arts in Political Science and Economics, with honors, from Grinnell College in 2020. She is admitted to practice in Illinois.

• Recognition & Leadership

Ms. Cook served as Managing Editor of the Indiana Law Journal and as Research Director of the Incarcerated Individuals Legal Assistance Project, a student-run pro bono organization.

• Professional Involvement

Ms. Cook is a member of the Chicago Bar Association.

• Experience

Ms. Cook’s practice addresses complex insurance coverage disputes, including commercial general liability and transportation matters. In the Chancery Division of the Circuit Court of Cook County she managed a caseload and drafted judicial opinions on equitable matters. She also interned with the Wireline Competition Bureau of the Federal Communications Commission.

SESSION 1 – Pleading the Whole-Tower Coverage Action Before Underlying Limits Are Exhausted | 12:00pm – 1:00pm

This session examines the California Supreme Court’s July 2026 decision in Fox Paine & Co. v. Twin City Fire Insurance Co. and its landmark holding that policyholders may sue excess insurers across an entire layered tower before underlying limits are exhausted. Attorneys will learn the new ‘reasonable likelihood’ pleading standard, how to structure a whole-tower complaint, and how the decision eliminates the serial-litigation staircase that previously forced insureds into successive policy-by-policy lawsuits. Attendees will leave with a practical framework for drafting declaratory relief claims against upper-layer excess carriers and for mapping policy language across layered programs to satisfy demurrer-proof factual pleading requirements.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Proving Excess Insurer Bad Faith Before the Policy Attaches | 1:10pm – 2:10pm

This session examines how policyholder counsel can identify, plead, and prove bad faith claims against excess insurers before underlying limits are exhausted. Drawing on the California Supreme Court’s landmark Fox Paine decision and the emerging national landscape, attorneys will learn the specific pre-attachment conduct that triggers implied covenant liability, how to document and build the damages case, and how jurisdiction-by-jurisdiction variation shapes litigation strategy. Attendees will leave with a concrete proof framework applicable to multi-layer tower disputes.