Brian A. Kelly

Representative Matters

• Truck Insurance Exchange v. Kaiser Cement, et al. Lead trial and appellate counsel representing excess insurers, including London Market Insurers. This case has involved multiple appeals on significant coverage issues, including the number of occurrence issue, horizontal exhaustion, and equitable contribution among insurers at different levels. A multi-phased trial rejected a primary insurer’s arguments that excess insurers that had settled with Kaiser were also required to equitably contribute to a primary insurer’s contractual obligation to defend and indemnify Kaiser Cement and its affiliate, Kaiser Gypsum, in asbestos bodily injury lawsuits. Following California Supreme Court review of one of the three phases of the coverage trial, the Court reversed legal precedent and held that Kaiser had the right to access its coverage vertically; however, because the decision did not resolve Truck’s equitable claim, the matter has now been remanded to the trial court to consider Truck’s equitable claim. In addition, working with a Duane Morris bankruptcy team, participated in a 524(g) bankruptcy petition filed by Kaiser Gypsum in North Carolina, which was the subject of a recent U.S. Supreme Court decision that confirmed insurer standing under the bankruptcy code.

• Sempra Energy v. Associated Electric & Gas Insurance Services, et al. Represent The Continental Insurance Co. in a complex coverage action currently pending in the Central District of California. The coverage action relates to a multi-billion settlement of tens of thousands of plaintiffs who filed lawsuits following a leak of natural gas from October 2015 through February 2016 at the SoCalGas Aliso Canyon facility in what has been described as the largest natural gas well leak in U.S. history.

• Kaiser Cement & Gypsum Corp. v. Insurance Co. of the State of Pennsylvania (2013) 215 Cal.App.4th 210. Appellate counsel on issues relating to horizontal exhaustion of primary insurance and stacking of primary limits.
• Walnut Creek Manor LLC v. Mayhew Center LLC, et al. (2009). Successfully prosecuted CERCLA and related state claims regarding industrial solvent contamination; obtained a substantial jury verdict in favor of client.
• London Market Insurers v. Superior Court, (2007) 146 Cal. App 4th 648 (as lead trial and appellate counsel for London Market Insurers successfully argued key "number of occurrence" issue in asbestos insurance coverage matter involving more than one hundred million dollars of alleged liability)
• Pacific Rivers Council v. United States Forest Service, 2005 WL 2671404 (E.D. Ca. 2005) (represented industry association in NEPA and NFMA challenges by environmental groups and the state of California) to 2004 Sierra Framework.
• Personal Watercraft Coalition v. Board of Supervisors, (2002) 100 Cal.App.4th 129. (represented industry association and manufacturers in challenge to county use prohibition of personal watercraft)
• J.H. Baxter & Co. v. Central National Ins. Co. (2001) 20 P.3d 967 (prevailed in forum battle in complex coverage case)
• Lake Tahoe Watercraft Recreation Association v. Tahoe Regional Planning Agency, 24 F. Supp.2d 1062 (1998) (challenge to bi-state agency's emission regulation regarding watercraft and two-stroke engine technology)
• Aerojet-General Corporation v. American Excess Ins. Co., (2002) 97 Cal.App. 4th 387 (application of res judicata to prior judgment in favor of clients)
• Aerojet-General Corporation v. Transport Ind. Co., (1998) 17 Cal.4th 38 (served as trial and appellate counsel in upholding defense verdict on multimillion-dollar coverage dispute following a several-month jury trial)

Areas of Practice

• Trial
• Insurance Coverage and Risk Management
• Environmental
• Commercial Litigation
• Insurance and Reinsurance

Admissions

• California

Education

• Loyola University School of Law, J.D., 1984
• California State University, B.A., 1980

Experience

• Duane Morris LLP
  - Partner, 2006-present
• Hancock Rothert & Bunshoft LLP
  - Partner, 1993-2005
  - Associate, 1986-1992
• Courtenay, Forstall, Grace & Hebert
  - Associate, 1984-1986

Professional Activities

• Bar Association of San Francisco
• American Bar Association

Honors and Awards

• Listed in Best Lawyers in America, 2021-2024
• Referenced in Legal 500 U.S.- Leading Lawyers for Insurance: Advice to Insurers 2015
• Named a 2014 Top Rated Lawyer in Insurance Law by Martindale-Hubbell
• AV Preeminent® Peer Review Rated by Martindale-Hubbell®

Selected Publications

• Co-author, "Reshaping the Insurance Market for the Better-Berkshire Hathaway and Innovations in Reinsurance Through Loss Portfolio Transfers," Insurance Coverage Litigation Committee Seminar, March 2015
• Contributor, Duane Morris Insurance Law Blog
• Featured in "Q&A with Duane Morris' Brian Kelly," Law360, May 7, 2013
• Co-author, "Is the World Becoming a Riskier or Safer Place?" Property Casualty360, August 11, 2011

Selected Speaking Engagements

• "Young Lawyer Track—'Bending the Cost Curve' in Long-Tail Liability Coverage: The Berkshire Hathaway Strategy," 2015 Insurance Coverage Litigation Committee CLE Seminar, Tucson, AZ, March 4-7, 2015
• "Expert Depositions," Practising Law Institute's Taking and Defending Depositions 2011, San Francisco, June 8, 2011
• "Complex Litigation," University of California, Berkeley School of Law, International Executive Legal Education Program, Berkeley, Summer 2010
• "Expert Depositions," Practising Law Institute's Taking and Defending Depositions 2010, San Francisco, June 9, 2010
• "Real World Consequences of Number of Occurrence Determinations," Mealey's 5th Annual Advanced Insurance Coverage Conference, Philadelphia, January 22-23, 2007