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Stephen M. Kelley
E-mail
 Stephen M. Kelley specializes in the resolution of complex
legal
disputes,
including insurance, construction and environmental matters.
Insurance
Law Experience
Mr. Kelley is a leading Michigan insurance attorney. Mr. Kelley
has represented carriers in insurance coverage disputes since 1981,
representing a majority of the nation's 10
largest carriers as well as
many other carriers over the years. Mr. Kelley has litigated many
insurance issues, frequently in the context
of environmental,
asbestos, and construction claims,
throughout the Midwest.
In 1995, Mr. Kelley as lead counsel tried a
large environmental
insurance case to conclusion in 1995,
defeating a $9.6 million claim.
Selected
Insurance-Related Memberships
Member, Insurance Committee, Defense
Research Institute
Member, Insurance Coverage Litigation
Committee, Tort Trial and Insurance Practice
Section,
American Bar Association
Member, Committee on Insurance Coverage
Litigation, Section of Litigation,
American
Bar Association
Recent Insurance
Presentations
Mr. Kelley presented on “Allocation and
Number of Occurrences” at the October 2005 Mealey’s seminar on Insurance
Coverage Disputes Concerning Construction Defects in Phoenix
and is scheduled to repeat that presentation in April 2006 in Chicago. Mr. Kelley also is scheduled to present
on “Reimbursement of Uncovered Defense Costs” at the ABA 2006 Insurance
Coverage Litigation Committee CLE Seminar in Tucson.
Selected Published Insurance Decisions
McKusick v Travelers Indemnity Co., 246 Mich.
App. 329; 632 N.W.2d 525 (2001),
leave denied, 661 N.W.2d 236 (Mich.
2003) (absolute pollution exclusion in
context
of chemical bodily injury claims) (garnishment action)
Hi-Tech Engineering, Inc. v Buiten, No. 228250 (Mich. Ct. App. 2002) (unpublished decision),
leave
denied, 661 N.W.2d 236 (Mich.
2003) (absolute pollution exclusion)
GenCorp Inc. v AIU Ins. Co., 104 F. Supp. 2d 740 (N.D. Ohio 2000) (trigger of coverage,
allocation)
GenCorp Inc. v AIU Ins. Co., 970 F. Supp. 1253 (N.D. Ohio 1997), aff'd, 178 F.3d
804
(6th
Cir. 1999) (retroactive primary absolute pollution exclusion)
Commercial Union Ins. Co. v Cannelton
Industries, Inc., 938 F. Supp. 458
(W.D.
Mich. 1996) (pollution exclusion, drafting history)
Kent County v Home Insurance Co., 217 Mich.
App. 250; 551 N.W.2d 424 (1996)
(amicus
counsel: insurance)
American Bumper & Mfg. Co. v
Hartford Fire Ins. Co., 452 Mich. 440; 550 N.W.2d 475
(1996)
(amicus counsel: insurance)
City of Bronson v American States
Ins. Co., 215 Mich.
App. 612; 546 N.W.2d 702 (1996)
(amicus
counsel: insurance)
Aetna Casualty & Surety Co. v Dow
Chemical Co., 883 F. Supp. 1101 (E.D. Mich. 1995)
(bad
faith, unjust enrichment)
Arco Industries Corp. v American
Motorists Ins. Co., 448 Mich. 395; 531 N.W.2d 168 (1995)
(amicus
counsel: insurance)
Anderson Development Co. v Travelers
Indemnity Co., 49 F.3d 1128 (6th Cir. 1995)
(insurance
for single party Superfund site)
Americhem Corp. v St. Paul Fire and
Marine Ins. Co., 942 F. Supp. 1143 (W.D. Mich. 1995)
(lost
insurance policies, post-deposition affidavits)
OSCO, Inc. v St. Paul Fire and
Marine Ins. Co., 656 N.E.2d 548 (Ind. Ct. App. 1995)
(environmental
insurance)
Sanborn Plastics Corp. v St. Paul
Fire and Marine Ins. Co., 84 Ohio App. 3d 302;
616
N.E.2d 988 (1993) (environmental insurance)
Michigan Millers Mutual Ins. Co. v
Bronson Plating Co., 197 Mich. App. 482;
496
N.W.2d 373 (1993) (environmental insurance)
Fireman's Fund Ins. Co.
v Ex-Cell-O Corp., 702 F. Supp. 1317 (E.D. Mich. Dec.
14, 1988)
(pollution
exclusion temporal element)
USF&G Co. v Thomas Solvent Co., 683 F. Supp. 1139 (W.D. Mich. 1988) (duty to defend,
"occurrence",
allocation of defense costs)
Construction Law Experience
Construction and construction law issues
have long been a part of Mr. Kelley's cases, beginning in 1981 with an
analysis of insurance obligations associated with condominium construction
defects. Most environmental and
insurance matters handled by Mr. Kelley also involved construction issues.
Litigated construction matters have included
hospital construction, sewer and other underground construction, golf
course construction, commercial and residential mold and indoor air, and
real estate claims. Other
construction-related issues arising in Mr. Kelley's practice have involved
manufacturing plants, chemical blending and processing plants, plating
plants, wastewater treatment plants, gas stations, manufactured gas plants,
and religious institutional construction.
Mr. Kelley's recent presentations include on
the respective roles of construction contractors and construction managers
as a part of "Construction Contracting for Public Entities in
Michigan" sponsored by Lorman Education Services (July 2003).
Mr. Kelley represented a commercial client
as co-counsel in a protracted construction arbitration in 2000, resulting
in a $2 million recovery for the firm's subcontractor client.
Environmental Law Experience
Mr. Kelley also is well-experienced in a
variety of non-insurance environmental matters, including CERCLA and RCRA
litigation, compliance reporting and permitting issues, injunctive issues,
consent decrees, responding to administrative complaints, defending class
action efforts, real estate transactions, baseline environmental
assessments, and due care plans. Mr.
Kelley has been involved with more than 1,000 pollution sites in more than
40 states since 1985.
In 1996, Mr. Kelley as co-counsel
successfully defended a $1.5 million leaking underground storage tank claim
at trial and in 2000 successfully defended extended injunctive hearing
proceedings against a waste oil recycling company with respect to its
alleged air emissions, including class action neighborhood-wide odor
complaints.
Out of the courtroom, Mr. Kelley served for
three years as Chairman of the now 18,000-member Detroit Regional Chamber's
Environmental & Energy Policy Committee between 1992-1995, including
work on and testimony in support of the 1995 landmark changes to Michigan's
environmental code. Mr. Kelley served respectively as Vice Chair, Chair and
Co-Chair of the Surface-Water/Groundwater Committee of the State Bar of
Michigan Environmental Law Section between 1991-1995, and served on the
Environmental Policy Advisory Committee, the Environmental Regulation Task
Force, the Groundwater/Leaking Underground Storage Tank Task Force, and the
Joint Environmental Funding Task Force of the Southeastern Michigan Council
of Governments ("SEMCOG"). Mr. Kelley continues to be actively
involved in the work of the Detroit Regional Chamber and SEMCOG. In
addition, Mr. Kelley is a member of and served as Chairman of the Detroit Metropolitan
Bar Association Environmental Law Section between 1998-2000.
Mr. Kelley has regularly written on
environmental issues and is a member of several related American Bar
Association committees and sections. Recent publications include
co-authoring Trying Environmental Cases to Win: Bench or Jury?,
published both in 76 Mich. B.J. 708 (1997) and 16 Mich.Environmental L. J.
No. 1 (Spring 1997), Important Developments in Federal Environmental Law,
Vol. 12 Mich. Defense Quarterly No. 4 (Fall 1995), and Pushing Superfund
Reform into 1995, WARD'S Auto World, November 1994.
Selected Additional Environmental Law-Related Memberships
Member, Toxic Torts and Environmental Law
Committee, Tort Trial and Insurance
Practice
Section, American Bar Association
Member, Section of Environment, Energy and
Resources, American Bar Association
Published Environmental Decisions
RCO Engineering, Inc. v ACR
Industries, Inc., 246 Mich. App. 510; 633 N.W.2d 449 (2001),
leave
denied (2002) (UST environmental cost recovery action)
RCO Engineering, Inc. v ACR
Industries, Inc., 235 Mich. App. 48; 597 N.W.2d 534 (1999),
vacated
in part and remanded (Mich.
2000) (UST environmental cost recovery action)
Other Complex Litigation Experience
Mr. Kelley has litigated as counsel of record
not only in Michigan but also Ohio, Indiana, Illinois, Wisconsin,
West Virginia, Tennessee
and Pennsylvania. Mr. Kelley's involvement in complex
disputes has resulted in substantial experience in courtroom and
alternative dispute resolution settings, and substantial civil procedure
and appellate experience.
Selected Additional Litigation-Related Memberships
Member, Industrywide Litigation Committee,
Defense Research Institute
Member, Litigation Section, American Bar
Association
Selected Published ADR, Civil Procedure, and General
Litigation Decisions
Alternative Dispute Resolution
McKinstry v Valley
Obstetrics-Gynecology Clinic, P.C., 428 Mich. 167; 405
N.W.2d 88
(1987)
(burden of proof on arbitration agreement, ability of parent to bind
minor
child to medical arbitration)
Osborne v Arrington, 152 Mich.
App. 676; 394 N.W.2d 67 (1986) (revocation of medical
arbitration
agreement)
McKinstry v Valley
Obstetrics-Gynecology Clinic, P.C., 146 Mich. App.
307; 380 N.W.2d 93
(1986)
(ability of parent to bind minor child to medical arbitration)
Harte v Sinai Hospital of Detroit, 144 Mich.
App. 659; 375 N.W.2d 782 (1985)
(ability
of parent to bind minor child to medical arbitration)
Nemzin v Sinai Hospital, 143 Mich.
App. 798; 372 N.W.2d 667 (1985) (medical arbitration
agreement
included claims of ordinary negligence)
Morris v Metriyakool, 418 Mich.
423; 344 N.W.2d 736 (1984) (constitutionality of medical
arbitration;
trial by jury)
Manuel v Pierce, 121 Mich.
App. 364; 328 N.W.2d 633 (1983) (constitutionality of Medical
Malpractice
Arbitration Act)
Other Significant Litigation
Commercial Union Ins. Co. v Cannelton
Industries, Inc., 154 F.R.D. 164 (W.D. Mich. 1994)
(diversity
jurisdiction, realignment of parties)
Cannelton Industries, Inc. v Aetna
Casualty & Surety Co. of America, 194 W. Va. 186;
460
S.E.2d 1 (1994), rehearing granted (1995), aff'd (1995)
(forum non conveniens;
service-of-suit
clause)
Commercial Union Ins. Co. v Cannelton
Industries, Inc., 828 F. Supp. 504
(W.D.
Mich. 1993) (discretionary stay pending state court litigation)
St. Paul Surplus Lines Ins. Co. v
Cannelton Industries, Inc., 828 F. Supp. 498
(W.D.
Mich. 1993) (limited personal jurisdiction)
Scott v Henry Ford Hospital, 199 Mich.
App. 241; 501 N.W.2d 259 (1993)
(physician-patient
privilege, release of medical records)
St. Paul Fire & Marine Ins. Co. v
Summit-Warren Industries Co., 143 F.R.D. 129
(N.D.
Ohio
1992) (intervention by lessor in declaratory action)
USF&G Co. v Thomas Solvent Co., 132 F.R.D. 660 (W.D. Mich. 1990), aff'd,
955
F.2d 1085 (6th Cir. 1992) (realignment of parties, diversity jurisdiction)
Fireman's Fund Ins. Co.
v Ex-Cell-O Corp., 720 F. Supp. 597 (E.D. Mich. Sept.
12, 1989)
(exclusion
of extrinsic evidence based on parol evidence rule)
Saldana v Kelsey-Hayes Co., 178 Mich.
App. 230; 443 N.W.2d 382 (1989), lv denied,
(6/27/1990) (4-3)
(invasion of privacy)
Fassihi v St. Mary's Hospital of
Livonia, 121 Mich.
App. 11; 328 N.W.2d 132 (1983)
(discovery
of income tax records, use of prior deposition testimony)
Other Background Information
Mr. Kelley graduated from the University of
Detroit School of Law after graduating from the University of Michigan.
During law school Mr. Kelley was an editor of and published in the law
review and headed the student government.
In 1985 Mr. Kelley received the inaugural
Distinguished Brief Award from The Cooley Law Review as lead author
of the best recent winning Michigan Supreme Court brief.
Mr. Kelley is a member of the State Bar of
Michigan and the American, Federal and Detroit Metropolitan bar
associations and many of their respective sections and committees. Mr. Kelley is admitted to practice before
all Michigan courts; the United States District Court for the Eastern and
Western Districts of Michigan, the Northern District of Ohio, the Northern
District of Illinois, the Northern and Southern Districts of Indiana, the
Northern District of Oklahoma; the United States Court of Appeals for the
Third, Sixth, Seventh, Eighth, Ninth and Tenth circuits; the United States
Supreme Court; and has been admitted pro hac vice in state courts in
Indiana, Illinois, Ohio, Pennsylvania, West Virginia, and Wisconsin and in
the Eastern and Western Districts of Tennessee, the District of Hawaii, and
the Central District of California.
Mr. Kelley also is a member of the Defense
Research Institute, a Life Fellow of the Michigan State Bar Foundation, the
American Judicature Society, and AV rated by Martindale-Hubbell, the highest
attorney rating available.
Mr. Kelley recently completed two terms as
President of the University
of Detroit Mercy Law Alumni Association
(2000-2002) and is active in other educational and community activities.
Mr. Kelley founded what is now Kelley, Casey
& Moyer, P.C., in 1993 after 12 years with what was then Kitch,
Saurbier, Drutchas, Wagner & Kenney, P.C. The current firm regularly serves as Michigan amicus
counsel for the Complex Insurance Claims Litigation Association
(CICLA).
Mr. Kelley also is president of InsuranceMaps.com., Inc., a subsidiary of
Kelley, Casey & Moyer, P.C., and of Baseline Environmental Assessments,
Inc.
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