Amber Heard is accusing one of her insurance companies of unlawfully abandoning her as she appeals an order that she pay Johnny Depp $10 million for defaming him.
A two-count counterclaim seeking punitive damages, filed Monday in U.S. District Court in Los Angeles, accuses New York Marine and General Insurance Co.’s of breaching its contract with Heard by “refusing to fully and properly defend Ms. Heard in the Depp lawsuit,” including by suggesting it could deny her coverage because she intentionally defamed Depp. It also says the company shirked its responsibility to Heard by currently refusing to agree to cover any money Heard “may be legally obligated to pay in judgment in, or settlement of, the Depp lawsuit.”
“New York Marine sold Ms. Heard an insurance policy in which it promised to defend and indemnify Ms. Heard against, among other things, lawsuits alleging that she defamed others. When Ms. Heard was sued by Johnny Depp for defamation, she timely notified New York Marine and asked New York Marine to defend her,” the 13-page counterclaim reads. “While New York Marine promised to do so, it did not provide the full and capable defense to which Ms. Heard was entitled, it failed to pay the attorneys’ fees and costs that it was obligated to pay for Ms. Heard’s defense, and it acted in other ways that prejudiced Ms. Heard and her defense.”
It says the company has left Heard “to incur hundreds of thousands of dollars in defense costs not paid by any insurer.” It also offers a provocative allegation, suggesting that New York Marine may have been out to sabotage Heard’s defense after it in October 2019 reserved its right to deny her coverage because she “behaved intentionally.” Her current attorneys say that created “a conflict of interest with Ms. Heard” and entitled her to new counsel at New York Marine’s expense, but the company refused to comply and instead stuck with Cameron/McEvoy PLLC, based in Fairfax, Virginia, before it withdrew in November 2020.
“New York Marine’s conduct is despicable and has been done with a conscious disregard of Ms. Heard’s rights, constituting oppression, fraud, and/or malice,” according to the counterclaim.
New York Marine’s attorneys at McCormick, Barstow, Sheppard, Wayte & Carruth LLP in Fresno, California, could not be reached for comment on Tuesday.
The counterclaim was filed in a 28-page document with Heard’s answer to New York Marine’s lawsuit against her. That lawsuit seeks a court order that the company is not obligated to pay for Heard’s defense because she did not go to trial with the law firm selected by the company. Both filings reiterate her lawyers’ argument that the litigation is prejudicial to her ongoing appeal of a $10.35 million judgment in Depp’s lawsuit over a December 2018 op-ed Heard wrote for the Washington Post. The op-ed did not specifically name Depp but described abuse a Virginia jury eventually determined was meant to be attributed to Depp.
Heard filed a counterclaim in that case, too, accusing Depp and his lawyers of defamation. Jurors awarded $2 million for defamation by one of Depp’s lawyers, Adam Waldman, over a claim that Heard had lied when describing a fight that ended her marriage with Depp. But the overall June 1 verdict was hailed as a substantial and decisive victory for Depp, as jurors awarded him $10 million in compensatory damage and $5 million in punitive damages. Judge Penney Azcarate of Virginia’s 19th Judicial Circuit reduced Depp’s total to about $10.35 million in accordance with Virginia state law.
The verdict followed a six-week trial that erupted into an Internet sensation as millions flocked to live streams led by the Law&Crime Network. As both Heard and Depp appeal, the new, less-lurid insurance case is a complicated consolidation of two federal lawsuits involving two companies that insured Heard during trial. It began with Travelers Commercial Insurance Co. in July 2021 suing New York Marine, which is part of ProSight Specialty Group, for allegedly failing to pay its legally obligated half of Heard’s defense costs.
New York Marine then sued Travelers and Heard in July 2022 over the attorney issue, saying the lawyers retained by Heard and funded by Travelers “refused to cooperate with Cameron McEvoy and deliberately obstructed and prevented Cameron McEvoy’s active involvement in the defense of the insured.” U.S. District Judge George H. Wu, a 2007 George W. Bush appointee in the Central District of California, consolidated the cases pre-trial at the request of Traveler’s lawyers, who called New York Marine’s claims “provocative” and its theory “aggressive.”
The 13-page answer by Heard’s lawyers at Pasich LLP in Los Angeles is a required part of litigation, filed Monday after Wu granted their request to extend an original Oct. 31 deadline. It responds to New York Marine’s four-claim amended complaint, filed July 11, in standard form, with paragraph-by-paragraph denials accompanied by innocuous admissions such as descriptions of her insurance policy and that the firm on Nov. 2, 2020 “withdrew as one of the counsel representing Ms. Heard in the Depp lawsuit.” It also offers the defense that New York Marine’s four claims “fail to state facts sufficient to constitute claims against Ms. Heard” and that the company has “unclean hands” regarding the policy.
Further, it argues New York Marine acted in bad faith and therefore should mean it is “barred from any recovery against Ms. Heard.” This appears to refer to New York Marine’s suggestion that Heard intentionally defamed Depp, yet its insistence that Cameron McEvoy, a boutique firm led by Edward W. Cameron and Timothy J. McEvoy, represent her at trial instead of independent counsel. The firm ended up backing out six months before trial; Heard was ultimately represented by Elaine Bredehoft, Adam Nadelhaft, and Ben Rottenborn of Charlson Bredehoft Cohen Brown & Nadelhaft P.C. in Reston, Virginia.
But Heard’s current Pasich LLP lawyers say before the firm backed out, New Marine “persisted in its position . . . despite requests from Ms. Heard to reconsider.” This made “it impossible for Ms. Heard to fully accept this ‘defense’ led by New York Marine without prejudicing her defense in the Depp lawsuit.” And after Cameron McEvoy withdrew, Heard believed New York Marine was reimbursing Travelers for some of the defense costs but, as Travelers outlines in its lawsuit, the company “has never done so.”
“Thus, at no point has New York Marine fully honored its duty to defend Ms. Heard in the Depp lawsuit,” according to the counterclaim, which includes two claims: breach of contract and tortious breach of the implied covenant of good faith and fair dealing.
Heard’s attorneys, who include Kirk Pasich and Kayla Robinson, have previously argued the federal case is interfering with Heard’s ongoing appeal in the Depp lawsuit in Virginia state court, in which Depp’s lawyers filed a 44-page brief on Nov. 2.
A seven-page scheduling report filed Oct. 31 said the litigation shouldn’t proceed because of the appeal, including depositions scheduled for Nov. 15. It also argued U.S. District Court has no jurisdiction over Heard because she “was not a resident of the United States when New York Marine filed its lawsuit and is not now a resident of the United States.”
But the filing was merely a a joint scheduling report that said New York Marine may soon seek a protective order to halt the depositions, which it said were scheduled for mid-November. As of Nov. 22, nothing has been filed.
Heard is seeking damages “in an amount to be proven at trial” while saying New York Marine’s actions “are inconsistent with the reasonable expectations of Ms. Heard, are contrary to established insurance industry custom and practice, are contrary to legal requirements, are contrary to the express terms of the Policy, and constitute bad faith.” She’s also seeking punitive damages “in an amount sufficient to punish and to make an example of New York Marine and to deter similar conduct in the future.”
A status conference in the case is scheduled Dec. 1 via telephone before Judge Wu in Los Angeles. A joint status report is due Nov. 29.
Read the full filing here.
(Images: Both photos via Jim Watson/Pool/AFP via Getty Images.)
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