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.

Katherine J. Henry, Partner | Bradley Arant Boult Cummings LLP

Katherine J. Henry is a Partner at Bradley Arant Boult Cummings LLP in Washington, D.C., where she chairs the firm’s Policyholder Insurance Coverage team. She represents policyholders in policy placement and renewals, claims management, and coverage litigation in the United States and abroad, advising Fortune 10 and other companies on complex insurance programs, including manuscript and specialty policies and multinational towers of $500 million to $1 billion.

• Education & Credentials

Ms. Henry earned her J.D. from the University of Chicago Law School in 1989, where she was an Associate Editor of the University of Chicago Law Review and Hinton Moot Court Champion, and her B.A., magna cum laude, from Oklahoma Baptist University. She served as a judicial clerk to the Honorable Irving L. Goldberg of the United States Court of Appeals for the Fifth Circuit and in the Office of the Solicitor General of the United States. She is licensed in the District of Columbia and Pennsylvania and admitted before the U.S. Courts of Appeals for the Fourth, Eleventh, D.C., and Federal Circuits.

• Recognition & Leadership

Ms. Henry is ranked by Chambers USA for Insurance: Policyholder in the District of Columbia and listed in The Best Lawyers in America for Insurance Law (2023–2027) and Litigation – Insurance (2027). She was recognized by Washington, D.C. Super Lawyers for Insurance Coverage and is a past President of the National Association of Women Lawyers.

• Professional Involvement

Ms. Henry is a member of the American Law Institute, the American Bar Association, the Chartered Institute of Arbitrators, and the District of Columbia Bar. She is a frequent author and speaker on insurance coverage issues, was named a JD Supra Readers’ Choice Top Author for insurance, and was recognized on the 2024 Capital Pro Bono Honor Roll.

• Experience

Ms. Henry has handled nearly every major property and casualty line, including directors and officers, cyber, environmental, products liability, property and business interruption, and wrap-up programs, in disputes spanning state and federal courts, arbitration, mediation, and state insurance commissioner proceedings. Her representative matters include contingent business interruption litigation for a Fortune 10 company arising from the 2011 Thailand flooding, asbestos and environmental coverage litigation for General Motors, and Clendenin Brothers, Inc. v. United States Fire Insurance Co., in which Maryland’s highest court held that a total pollution exclusion did not relieve the insurer of its duty to defend.

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.