Katherine Posner Led Team to Judgment for the Defense

Katherine B. Posner reports that she led her team at Condon & Forsyth LLP to judgment for the defense dismissing in their entirety the consolidated cases of Fleet Business Credit and Highland Capital Management v. Global Aerospace, et al., as the result of a bench trial before federal District Judge Barbara S. Jones in the Southern District of New York. In a 36-page opinion issued on July 6, 2011, Judge Jones held that the additional insured financiers of several Boeing 747 aircraft and spare engines owned or leased by the bankrupt Tower Air failed to prove that they sustained fortuitous losses covered under a policy of all risk aircraft and spares insurance. The court rejected plaintiffs’ contentions that the undocumented removal of parts from the subject aircraft and engines requires the inference that such removals were not authorized by the named insured. Noting that the insurers did not have the burden of proving how the parts went missing, the court found that the weight of the credible evidence proved that Tower, the named insured, intentionally removed the missing parts to service other aircraft.

Kathy believes this opinion, together with the opinion and order granting partial summary judgment on the issue of what constitutes a fortuitous loss under all risk insurance policies, will be of great value to insurers’ counsel defending against some of the “creative” theories utilized by financiers attempting to recoup losses sustained when equipment lessees and secured borrowers default on their financial obligations.