Robert M. Forni

Partner

Robert M. Forni is a partner in the San Francisco office of Lewis Brisbois and a member of the Insurance Coverage and Bad Faith Litigation Practices. 

Robert is an experienced litigation attorney with expertise in the Employee Retirement Income Security Act of 1974 (ERISA), insurance coverage and bad faith, who has litigated hundreds of actions involving employee benefit plans and successfully defended insurers in first-party actions involving common law claims for breach of contract, bad faith, negligence, and complex forms of litigation involving claims for disability insurance benefits, and breach of fiduciary duties. He has extensive knowledge of ER ISA, commercial and personal lines of insurance including disability, commercial general liability, commercial property, homeowners, and automobile. Additionally, Robert has obtained favorable results for clients in every phase of litigation, including at the pleading stage, by way of demurrer/motions to dismiss, motions for summary judgment, mediation, trial and appeal. He has a proven ability to negotiate settlements in contentious cases while preserving relationships. Robert is also a frequent speaker on topics of interest to insurers and employers.

ERISA

  • Represents insurers, employee welfare plans, plan sponsors, claims administrators, insurance agents and brokers in all phases of litigation, including trials and appeals, in actions arising under ERISA in state and federal court.
  • ERISA experience includes the defense of employee benefits determinations by self-funded and insured plans, breach of fiduciary duty claims, and statutory penalty claims at both the trial court and appellate court levels.
  • Lead counsel in District Court and United States Court of Appeals for the Ninth Circuit in connection with numerous claims for disability benefits against employee welfare benefit plans and insurer/claims administrator of benefit plans.
  • Prevailed in the Ninth Circuit Court of Appeals involving appeals of judgments in ERISA-governed benefits litigation and claims for attorney's fees under ERISA.
  • Represents employers and plan sponsors in actions by third-party medical providers arising under ERISA and state law.
  • Prevailed on ERISA bench trials defeating disputed claims for long-term disability benefits.
  • Successfully defended ERlSA plan fiduciaries against claims for breach of fiduciary duty, equitable relief, and the payment of benefits under employer-sponsored benefit plans.
  • Prevailed on summary judgment motions, preventing claimants from prosecuting ERISA claims in court before exhausting their administrative remedies.
  • Extensive experience representing, counseling, and providing strategic and proactive legal advice to insurers and employee welfare benefit plans in claims handling and all phases of litigation and appeals, including strategizing theories of liability and defenses, formulating litigation and settlement strategies, devising and implementing discovery, negotiating and drafting contracts as well as preparing and arguing complex motions and appellate briefs in state and federal court.
  • Conducts depositions and prepared sophisticated motions including motions for summary judgment, comprehensive declination and reservation of rights letters, mediation briefs, pleadings, and written discovery. Conducts and defends depositions of parties, lay witnesses, and experts. Prepares and argues dispositive motions. Negotiates settlements.
  • Prepares and drafts complex pleadings, discovery, mediation briefs, and trial papers, and argues complex motions.
  • Represents clients at bench trial, mediations, and arbitrations.

Insurance Coverage

  • Represents insurers, employee welfare plans, claims administrators, insurance agents and brokers in all phases of litigation, including trials and appeals, in actions arising from insurance coverage disputes in state and federal court.
  • Prepares comprehensive coverage opinions and provides advice/opinions throughout the claims process in complex insurance coverage matters.
  • Provides services as insurer-selected counsel for insureds, and independent representation of insureds as Cumis counsel.
  • Successfully moved to dismiss claims against insurers for breach of contract, breach of the implied covenant of good faith and fair dealing and punitive damages.
  • Prevailed on summary judgment on claims against insurers for breach of contract, breach of the implied covenant of good faith and fair dealing and punitive damages.
  • Prevailed on motions for protective orders, securing insurers confidential, proprietary, and commercially sensitive information and documents from public dissemination.
  • Successfully prosecuted declaratory relief actions involving complex coverage disputes.
  • Conducts depositions and prepared sophisticated motions including motions for summary judgment, comprehensive declination and reservation of rights letters, mediation briefs, pleadings, and written discovery.
  • Prepares pleadings, discovery, mediation briefs, trial papers, and argued complex motions.
  • Conducts and defends depositions of parties, lay witnesses, and experts. Negotiates settlements.
  • Prepares and argues dispositive motions.
  • Represented clients at bench trial, mediations, and arbitrations. Conducts and defends depositions of parties, witnesses, and experts. Drafts complex pleadings, discovery, mediation briefs, and trial papers.

Bad Faith

  • Prosecutes and defends complex tort and contract actions for breach of contract, bad faith, fraud, declaratory relief, unfair competition, conspiracy, breach of fiduciary duty, specific performance, and reformation on behalf of insurers and corporate clients.
  • Prepares and argues complex motions, trial briefs and motions, and appellate briefs, as well as conducting and defending depositions of parties and expert witnesses and negotiating multi-party settlements.
  • Represents commercial, homeowners, automobile, and workers compensation carriers in first and third-party actions alleging bad faith, breach of contract, construction defect, fraud, and unfair competition claims.
  • Prepares sophisticated pleadings, mediation briefs, discovery, and complex motions including motions for summary judgment, discovery motions, and motions in limine.
  • Appears at mediations and Early Neutral Evaluations.
  • Advises insurance carriers on first and third-party actions alleging bad faith, breach of contract, construction defect, advertising injury, fraud, and invasion of privacy claims.
  • Conducts depositions and prepares sophisticated motions including motions for summary judgment, comprehensive declination and reservation of rights letters, mediation briefs, pleadings, and written discovery.
  • Prepares pleadings, discovery, mediation briefs, trial papers, and argued complex motions.
  • Conducts and defends depositions of parties, lay witnesses, and experts. Negotiates settlements.

Other

  • Represented commercial vessel owners and cruise line operators in complex commercial and maritime litigation in federal and state court including contract, civil rights, products liability, construction, and personal injury claims arising under the ADA, Jones Act, and General Maritime Law.
  • Represented commercial property owners/landlords in actions arising from breach of contract, bad faith, elder abuse, nuisance, and trespass claims.
  • Defended insureds in actions arising from real property, bodily injury, sexual harassment, asbestos, elder abuse, unfair competition, products liability, premises liability, and medical malpractice claims.

Publications

  • "When Success Warrants Failure: Defeating Fee Motions Under ERISA on Procedural and Substantive Grounds," For the Defense, ORI, January 2019, Vol. 61, No. 1
  • "The Exhaustion Doctrine: Asserting and Surmounting the Prohibition Against Stale Claims Under ERISA," Mealey's Litigation Report: ERISA, December 2017, Vol. 16, No. 8.
  • "The Exhaustion Doctrine: A Limited Defense to Stale Claims under ERISA," ERISA Report, DRI, December 7, 2017, Vol. 12, Issue 3
  • "Off the Clock and on the Hook: A Primer on Employer Liability for the Acts of Employees Committed Away from Work," Employee Relations Law Journal, January 2009
  • "Healthy San Francisco's Tradeoffs," The Recorder, November 19, 2008
  • ''Policy Interpretation in the Disability Insurance Claim," co-author, American Conference Institute, 11th National Advanced Forum on Litigating Disability Insurance Claims, Boston, Massachusetts, June 11, 2008

Published Decisions

  • DeLancey v. Liberty Life Assurance Co. of Bos., No. SACV1502022CJCKESX, 2017 WL 132832 (C.D. Cal. Jan. 13, 2017). Plaintiff worked as an IT Security Analyst until he was hospitalized for a suspected transient ischemia attack. Four months later, plaintiff submitted a claim for long-term disability ("LTD") benefits under his employer's welfare benefit plan to the plan's claim administrator. The administrator denied plaintiff's claim and affirmed its decision in response to plaintiff's appeal. Plaintiff then filed suit under ERISA, challenging the administrator's benefit determination. After a bench trial, the district court found that the administrator did not abuse its discretion in denying plaintiff's claim for LTD benefits.
  • Alberts v. Liberty Life Assurance Co. of Bos., No. C 14-01587 RS, 2014 WL 2465121 (N.D. Cal. June 2, 2014). Plaintiff was employed as a police officer for the University of California, which sponsored a supplemental disability insurance plan insured by defendant insurer. Plaintiff injured her wrist during training exercises, for which she received short-term disability benefits under the same plan. After the insurer determined she was ineligible to receive LTD benefits, plaintiff filed suit, alleging claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The district court granted the insurer's motion to dismiss plaintiff's claim for punitive damages for breach of contract, and her bad faith claim on the grounds that it was time-barred under the applicable statute of limitations.
  • Namo Co., LLC v. Peerless Ins. Co., No. Al32370, 2014 WL 2933237 (Cal. Ct. App. June 30, 2014). A commercial landlord was in the process of replacing a roof when a rainstorm occurred, damaging tenant improvements contained within the leased premises. The tenants' insurer paid the tenants for the damage to the tenant improvements. After the tenants failed to repair or replace the damaged improvements, the landlord submitted a property claim to its insurer for the cost of repairing them. The landlord's insurer denied the claim on the ground the landlord lacked an insurable interest in the tenant improvements. The landlord subsequently sued its insurer for breach of contract and bad faith, claiming, among other things, the damages to the tenant improvements were covered under the landlord's policy. The Court of Appeal affirmed the trial court's grant of summary judgment in favor of the landlord's insurer, holding the damages to the tenant improvements were not covered under the landlord's policy because the tenants' insurer fully compensated the tenants for the same loss.
  • Carr v. Liberty Life Assur. Co., 390 F. App'x 694 (9th Cir. 2010). Plan administrator moved to confirm arbitration award in action concerning plan participant's disability benefits under ERISA. The district court granted the administrator's motion. Plan participant appealed. The Court of Appeals held that the participant was judicially estopped from objecting to arbitration award. The Court therefore affirmed the district court's judgment compelling binding arbitration and dismissed as untimely the participant's appeal of the district court's orders compelling binding arbitration and denying leave to file a second amended complaint under ERISA.
  • Cremin v. McKesson Corp. Employees' Long-Term Disability Benefit Plan, 349 F. App'x 188 (9th Cir. 2009). Claimant filed suit against employee benefit plan and plan administrator pursuant to ERISA, challenging the termination of his LTD benefits. The district court entered judgment for defendants. Claimant appealed. The Court of Appeals held that I) claimant was not entitled to new administrative appeal of plan administrator's decision on remand by district court, and 2) the district court's finding that plan administrator had discretionary authority to interpret plan and make benefits decisions was not abuse of discretion. The Court of Appeals therefore affirmed the judgment for defendants.
  • Monaco v. Liberty Life Assur. Co., No. C 06-7021 PJH, 2008 WL 1766768 (N.D. Cal. Apr. 15, 2008). Plaintiff alleged four causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing against defendants Liberty Life Assurance Company of Boston and Liberty Mutual Insurance Company, based on Liberty Life's denial of two separate claims for disability benefits under a group disability policy issued by Liberty Life to the University of California .. Plaintiff's first and second causes of action for breach of contract and bad faith arose from the denial of her initial claim for benefits. Plaintiff's third and fourth causes of action for breach of contract and bad faith arose from the denial of her second claim for benefits. Defendants moved for partial summary judgment as to the first two causes of action, contending they were time-barred. Plaintiff contended that her claims were not controlled by the applicable statute of limitation, but rather by the contractual limitation period stated in the policy. Plaintiff also contended that she was not bound by the contractual limitations period, because Liberty Life had not advised her of it before she filed suit. The District Court granted for the summary judgment as to the first and second causes of action, holding that they were time-barred under the applicable statute of limitations.
  • Monaco v. Liberty Life Assur. Co., No. C06-07021 MJJ, 2007 WL 420139 (N.D. Cal. Feb. 6, 2007). Plaintiff alleged four causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing against defendants Liberty Life Assurance Company of Boston and Liberty Mutual Insurance Company, based on Liberty Life's denial of two separate claims for disability benefits under a group disability policy issued by Liberty Life to the University of California. The court granted defendants' motion to dismiss the claims against Liberty Mutual. The court found that plaintiffs allegations were insufficient to state a claim for relief against Liberty Mutual on the grounds that it was not a party to the insurance contract, the complaint failed to state facts sufficient to hold Liberty Mutual liable as the alter-ego of Liberty Life, and plaintiff could not recover from Liberty Mutual as Liberty Life's alleged agent, employee, joint venture or partner.
  • Liberty Mut. Fire Ins. Co. v. Amargo, No. C 04-02005 SI, 2005 WL 289979 (N.D. Cal. Feb. 4, 2005). Defendant submitted his UIM and med-pay claim to the plaintiff insurer following an accident in which he was injured while occupying a rental car driven by his daughter during a vacation in Florida. Defendant claimed that the rental car qualified as a "covered auto" under plaintiffs policy, because it was a temporary substitute for a car that his daughter normally used in California, which had sustained damage to one of its struts weeks before the accident. The car was not under repair, lost, destroyed, or inoperable before the accident. Plaintiff filed suit, seeking a declaratory judgment that the rental car was not a "covered auto" under its policy, and thus plaintiff owed no duty to provide UIM benefits to defendant. The district court held that, under the terms of the policy, the rental car was not a temporary substitute for the daughter's car, because it had not been withdrawn from normal use due to breakdown, repair, servicing, loss, or destruction; and the two cars were used for different purposes. The court further held that defendant was not entitled to UIM coverage under California Insurance Code § 11580.2, because the rental car was not insured under the terms of the policy.

Professional Presentations

  • ABA Joint Committee on Employee Benefits and the American College of Employee Benefits Counsel, 28th Annual National Institute on ERISA Litigation, "Advanced Mediation Techniques in ERTSA Benefits Cases," October 18, 2019, Chicago, IL
  • ABA Joint Committee on Employee Benefits and the American College of Employee Benefits Counsel, "Advanced ERISA Disability Mediation Techniques," Webinar, June 20, 2019
  • The Knowledge Group, "ERISA Litigation in 2019 and Beyond," Webinar, April 17, 2019
  • "Standards for Investigating and Settling Insurance Claims under California Fair Claims Settlement Practices Regulations," Sacramento Claims Association, September 10, 2015, Sacramento, CA
  • American Conference Institute's 31st National Advanced Forum on Bad Faith Claims & Litigation, Moderator, "View from the Bench: Judicial Insight on the Latest Claims, Theories and Discovery Issues," July 28, 2015, Chicago, IL
  • "Top Ten Cases Affecting Third Party Liability Claims," Sacramento Claims Assoc., February 12, 2015, Sacramento, CA
  • American Conference Institute’s 29th National Advanced Forum on Bad Faith Litigation, "Understanding the Scope and Limits of Duty to Defend, Duty to Settle, and Initiating Settlement Negotiations, “November 19, 2014, Orlando, FL
  • American Conference Institute's 28th National Advanced Forum on Bad Faith Claims & Litigation, Moderator, "View from the Bench: Judicial Insight on the Latest Claims, Theories and Discovery Issues," July 30, 2014, San Francisco, CA
  • American Conference Institute’s 27th National Advanced Forum on Bad Faith Litigation, "Understanding the Scope and Limits of Duty to Defend, Duty to Settle, and Initiating Settlement Negotiations," April 1, 2014, Philadelphia, PA
  • American Conference Institute's 25th National Advanced Forum on Bad Faith Litigation, "Discovery in Bad Faith Litigation: Defining Permissible Limits Within the Scope of Discovery," July 30, 2013, San Francisco, CA

Admissions

  • State Bar Admissions
    • California
  • United States District Courts
    • United States District Court for the Central District of California
    • United States District Court for the Eastern District of California
    • United States District Court for the Northern District of California
    • United States District Court for the Southern District of California
  • United States Courts of Appeals
    • United States Court of Appeals for the Ninth Circuit
  • United States Supreme Court

Admissions

California

US Supreme Court

US Court of Appeals 9th Circuit

US Dist, Northern Dist of CA

US Dist, Southern Dist of CA

US Dist, Central Dist of CA

US Dist, Eastern Dist of CA

Associations

  • Member, ORI, 2008 - present
  • Member, American Bar Association, 2012 - present
  • Member, Association of Defense Counsel of Northern California and Nevada, 2010 - present

Education

Santa Clara University School of Law

Juris Doctor, May 1995

  • Honors: Associate Editor, Santa Clara Law Review, vol. 35

University of Pennsylvania

Bachelor of Arts in History, Minor in English, May 1992

  • Honors: Graduated cum laude, with honors in European history

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