Nancy K. TordaiNancy K. Tordai
Phone: 847-423-0353
nancytordai@petersnye.com

 

 

Ms. Tordai is an experienced trial and appellate attorney. In her more than thirty years of practice, she has represented clients in state and federal trial, intermediate appellate, and supreme courts nationwide. She has represented her clients in domestic and international arbitrationses, served as an arbitrator, and appeared before the International Trade Commission. She regularly represents domestic and foreign insurers and reinsurers in the defense of complex insurance coverage disputes and bad faith claims involving a wide variety of professional liability, errors and omissions, general liability, trust and fiduciary liability, employment liability, and fidelity bond insurance products. She has secured published decisions favorable to insurers on several issues of first impression, making her uniquely positioned to provide strategic advice to clients on a broad range of insurance coverage issues. She has also obtained favorable results as trial and appellate counsel in complex civil litigation involving business disputes, loan recovery, bankruptcy, employment disputes, medical negligence, legal malpractice, accounting negligence, unfair trade practices, trademark infringement, personal injury, civil rights, product liability, ERISA violations, and contract disputes.

Representative Experience

Secured judgment for Cincinnati Insurance Company in a multi-million dollar insurance coverage claim following trial in the Bankruptcy Court for the District of Montana, and defeated the insured’s appeals of that verdict to the Montana District Court and the U.S. Court of Appeals for the Ninth Circuit in a contentious insurance coverage dispute that involved one of the largest bankruptcies in the State of Montana.  Through the litigation the Plaintiffs sought to recover a $9,699,455 stipulated judgment from Cincinnati, an amount which exceeded the Policy limit. The litigation involved the issue of (1) whether a Proof of Claim filed in a bankruptcy estate constitutes a “claim” for a “wrongful act” that was made during the policy period of a Directors and Officers Liability Policy; (2) whether the notice of the Proof of Claim submitted by an entity who was not a Policy insured triggered the insurer’s duty to defend the Proof of Claim; (3) whether Cincinnati was liable for a $9,699,455 stipulated judgment due to its alleged breach of the duty to defend; (4) whether Cincinnati violated the automatic stay of the bankruptcy case of a former officer of the insured, Edra Blixseth, rendering it liable for the stipulated judgment; and (5) whether Cincinnati had violated the Montana Unfair Claims Practices Act. Ms. Tordai secured judgment for Cincinnati from the Bankruptcy Court and defeated the Plaintiff’s appeal to the Montana District Court and the Plaintiff’s second appeal to the U.S. Ninth Circuit Court of Appeals. Ms. Tordai also defeated the Plaintiff’s motions to the 9th Circuit for rehearing/rehearing en banc and to recall the 9th Circuit appellate mandate. Ms. Tordai also secured an award of costs for her client. The Bankruptcy and Appellate Court judgments are reported at: Richard Samson and Ross Richardson v. Cincinnati Insurance Company, 470 B.R. 871, 2012 WL 845472, 2012 Bankr. LEXIS 1029 (Bkrtcy. D.Mont. March 12, 2012); Richardson, et al. v. Cincinnati Insurance Company, No. CV-12-17-BU-SHE (D. Mont.); Richardson v. Cincinnati Ins. Co. (In re Blixseth), 593 Fed. Appx. 641, 2015 U.S.App. LEXIS 2088 (9th Cir. Feb. 10, 2015).

Represented Cincinnati Insurance Company against Cracker Barrel Old County Store’s attempt to secure coverage of a lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”).  Secured an order granting summary judgment for Cincinnati Insurance Company in the U.S. District Court for the Middle District of Tennessee, and an order from the U.S. Appellate Court for the Sixth Circuit Court of Appeals affirming summary judgment.  The appellate court held that the EEOC lawsuit predated the inception of the claims made employment practices liability insurance policy because it arose out of charges of discrimination that pre-dated the inception of the policy.  The decision is reported at Cracker Barrel v. Cincinnati Ins. Co. 2012 U.S. App. LEXIS 19161, 2012 WL 3932814, 2012 Fed. App. 01001N (6th Cir.) (September, 10, 2012).

Successfully defeated an insured’s attempt to implicate two policy limits in connection with a single wrongful employment termination lawsuit by securing summary judgment for the insurer and defeating the insured’s appeal of that order.  As the appellate court held in Superior Beverage Group v. Cincinnati Insurance Company, 2012 Pa. Super. LEXIS 527, 2012 WL 3057340 (Pa. Superior Court, April 13, 2012), an amended complaint that added new causes of action of race discrimination to the prior age discrimination causes of action, is not a new “claim” under a claims made employment practices liability insurance policy.

Obtained an order granting judgment on the pleadings for Cincinnati Insurance Company in Area 15 Regional Planning Commission v. Cincinnati Insurance, 2011 U.S. Dist. LEXIS 66776 (S.D. Iowa, June 6, 2011), where the Court held that an administrative agency’s demand letter is not a claim.

Secured an arbitration order in favor of the insurer holding that several claims were related such that the single limit of liability rather than the aggregate limit of liability of a brokers errors and omissions liability policy applied.

Obtained summary judgment on behalf of Selective Insurance Company as reported in  Selective Ins. Co. v. City of Paris, et al.,  681 F.Supp.2d 975 (C.D. Ill. 2010), where the Court held that Selective, which had issued Police Professional Liability and Umbrella Liability Coverage for the 1999 to 2007 policy period, had no duty to defend or indemnify the City of Paris against two lawsuits which arose out of the wrongful arrest, prosecution, conviction and imprisonment in 1987 of Gordon Randy Steidl and Herbert Whitlock for two murders they were accused of committing in 1986. Steidl and Whitlock were incarcerated until their release in 2004 and 2008, respectively. The Court held that the malicious prosecution, false arrest, and false imprisonment did not occur during Selective’s policy period.

Secured a unanimous arbitration order in favor of the insurer finding that claims made  after the policy expired by the administrators of the insured with respect to the insureds’ United Kingdom liquidation proceedings did not relate to securities litigation that had been filed against the insured during the policy period.

Secured the dismissal of a suit against an insurer seeking coverage for an underlying claim arising out of a going-private tender offer by convincing the court to enforce a policy endorsement which had amended the service agent for service of process, as reported in the published decision Amway Asia Pacific, Ltd. v. Underwriters at Lloyd’s, London, 2008 WL 4740410 (W.D.Mich. 2008).

Negotiated a favorable settlement on behalf of the errors and omissions insurer of a 1031 Exchange which had allegedly diverted and converted more than $82 million of its clients’ funds.

Obtained summary judgment on behalf of the insurer in Underwriters at Lloyd’s London v. LaMattina & Associates, et al., State of New York Supreme Court (Index No. 600906/06) where the court rescinded a Title Agents/Abstractors/Escrow Agents Professional Liability policy due to a forged application and the failure to disclosure criminal conduct of which certain insureds had pled guilty, and found that coverage is excluded for claims made by lenders against escrow closing agent and disbursement and settlement company due to commingling and conversion exclusions and breach of the cooperation clause by the entity who allowed a default judgment be taken against it.

Obtained an order granting summary judgment to a directors and officers liability insurer due to the failure of the insured, who had sought coverage for securities class action litigation, to comply with the policy’s notice requirement, which was affirmed on appeal as reported in the published decision National Union v. Underwriters at Lloyd’s, 971 So.2d 885, 32 Fla. L. Weekly D2827 (Fla.App. 2007).

Secured the denial of a summary judgment motion, and obtained affirmance of that denial on appeal, in an accounting negligence case on the ground that a tort and breach of contract claim against an accountant for negligent valuation of ESOP stock is not preempted by ERISA, as reported in the published decision Kloots v. American Express Tax & Business Services, 2007 WL 1451827 (6th Cir. 2007).

Represented one of the excess directors and officers insurers of Enron in an interpleader action filed in the United States District Court for the Southern District of Texas and secured an order discharging the insurers of any further liability over the objection of some of the individual director and officer insureds.

Secured summary judgment for a directors and officers liability insurer on a claim seeking coverage for a criminal indictment involving theft of government property through the enforcement of the dishonesty and personal profiting exclusions, as reported in the published decision Ary v. Cincinnati Insurance Company, 2006 WL 1360095 (D.Kan. 2006).

Through a proof of claim filed in the bankruptcy proceedings of the insured, Riverstone Networks, which alleged that a directors and officers liability policy issued by Underwriters at Lloyd’s should be rescinded due to misrepresentations of the insured’s financial information, secured recovery of a portion of the insurance policy proceeds paid, under a reservation of rights, to settle underlying securities class action litigation.

Obtained summary judgment, which was upheld on appeal, for an insurer on a claim seeking coverage for a patient abuse investigation under a directors and officers policy on the basis of capacity and because the claim pre-dated the policy, as reported in the published decision Stevens, et al. v. Cincinnati Insurance Company and Winifred Law Opportunity Center Corporation, 2002 WL 984631 (Iowa App. 2002).

Obtained an order granting summary judgment to the insurer due to the insured’s breach of the cooperation clause of a directors and officers liability policy, as reported in the published decision Youell v. Grimes, 217 F.Supp. 2d 1167 (D. Kan. 2002).

Secured summary judgment for the insurer in a case involving the interpretation of the definition of “Employee” contained in the Crime General Provisions Form of a Commercial Crime Policy, as reported in the published decision T.S.I. Holdings, Inc., and New Progress, Inc. v. John C. Buckingham and Cincinnati Insurance Company, 885 F.Supp. 1457 (D.Kan. 1995).

Secured the dismissal of the directors and officers insurance carrier from the Fruit of the Loom securities litigation on procedural grounds.

Secured the voluntary dismissal with prejudice of litigation filed against an errors and omissions insurer by a seller of deferred annuities which funded 401(k) plans, by successfully arguing and obtaining an order compelling the production of discovery by the insured of documents it had withheld as privileged.

Represented one of the excess general liability insurers in the DuPont and Reichhold Chemical environmental insurance coverage litigation.

Obtained summary judgment for the insurer in a case involving the interpretation of the out-of-state financial responsibility and compulsory insurance clauses in an automobile insurance policy, which was affirmed on appeal in De los Reyes v. Travelers Insurance Company, 135 Ill. 2d 353 (1990).

Secured an order dismissing with prejudice a prisoner’s Section 1983 civil rights violation claim, which was affirmed on appeal in Kendall v. Manny, 835 F.2d 874 (4th Cir. 1987).

Bar Admissions

1982 State of Illinois

Court Admissions

United States Supreme Court
United States Appellate Court for the Fifth Circuit
United States Appellate Court for the Sixth Circuit
United States Appellate Court for the Seventh Circuit
United States Appellate Court for the Ninth Circuit
United States Appellate Court for the Tenth Circuit
United States District Court for the Northern District of Illinois
Trial Bar of the United States District Court for the Northern District of Illinois
United States District Court for the Central District of Illinois
United States District Court for the Western District of Michigan
United States District Court for the Eastern District of Wisconsin

Memberships

American Bar Association, Section of Litigation, Tort and Insurance Practice Section, Fidelity and Surety Law, Insurance Coverage Litigation, Professionals’ Officers’ and Directors’ Liability, and Trial Techniques Committees

Co-Chair of the Excess and Umbrella Subcommittee of the Insurance Coverage Litigation Committee of the ABA Section of Litigation

Professional Liability Underwriting Society

Education

Loyola University of Chicago Law School (J.D., 1982)
Editor, Women’s Law Reporter, 1981-1982
University of Chicago (B.A. (Political Science), with honors, 1979)