Robin L. Cohen

After years as a powerhouse litigator for plaintiffs in insurance recovery cases, Robin L. Cohen was tired of working for other firms. So, during a walk on a beach in the Hamptons, she and three longtime like-minded colleagues decided to strike out on their own.

Cohen was already a superstar who had recovered more than $10 billion in assets for clients over a 30-year career. The beach walk led to an even greater boost to her image as she launched the 28-lawyer Manhattan-based boutique known as Cohen Ziffer Frenchman & McKenna.

It was the spring of 2020. Covid was setting in. “I’d been running and running for years. Covid let you stop and think. We decided to take the plunge after concluding that we didn’t really need the infrastructure of the big firms we were at and that we were largely subsidizing those firms anyway,” said Cohen, who had chaired the insurance recovery practices at McKool Smith and Kasowitz, Benson, Torres LLP.

With her on the new letterhead are Adam Ziffer; Kenneth “Ken” H. Frenchman, the managing partner; and Keith McKenna.

What the new partnership didn’t immediately foresee, however, was that COVID-19 presented more than a pause to the economy that offered time for reflection. There swiftly followed the enormous challenge to the insurance industry that business interruption policies would present — and the sudden need by policyholders everywhere to try to enforce coverage for business losses caused by the pandemic.

“Now all at once, you had all these Covid cases. We were talking to five or six big new clients every day. They were coming in faster and faster,” Cohen said.

The fallout continues and the largely unresolved question remains: whether the presence of the virus on an insured’s premises constitutes direct physical loss or damage to property. In late December, Cohen had just gotten word that the California Supreme Court had granted grant-and-hold status to one of her cases, in which her client, a real estate investment company with hotel and residential properties in 22 states, seeks to enforce its $250 million business interruption policy. JRK Property Holdings Inc. v. Colony Insurance Co. et al., S282657 (Ca. S. Ct., rev. granted Dec. 20, 2023).

The answer will depend on the outcome of a prior case at the state high court on the same issue. In that matter, Cohen has filed an amicus brief on behalf of policyholders. The case has been fully briefed and awaits oral argument. It arrived at the court as a question certified by a 9th U.S. Circuit Court of Appeals. Another Planet Entertainment v. Vigilant Insurance Co., S277893 (Ca. S. Ct., certified question request granted March 1, 2023).

“Our view is that the insurance industry has gotten a windfall by denying coverage in these cases,” Cohen said.

—John Roemer