Direct: (617) 742-6520 ext. 245
Mark is a founding partner of McDonough Cohen & Maselek LLP. Mark concentrates his practice in professional liability insurance coverage.
Mark has a national and international insurance coverage practice. For over thirty years he has specialized in representing insurers in connection with coverage issues involving professional liability policies. Mark is also frequently called upon to draft insurance policies and endorsements for his insurance clients. Among the insurance policies Mark has drafted are Miscellaneous Professional Liability, Directors and Officers Liability, Employment Practices Liability, Architects and Engineers Professional
Liability, Contractor’s Professional Liability, Lawyer’s Professional Liability, Accountants Professional Liability and Technology Errors and Omissions policies. Mark has represented Architects and Engineers and Contractors Professional Liability insurers in connection with many large construction projects worldwide. For example, over the past several years Mark has provided coverage advice concerning claims involving mines in Costa Rica, Vietnam, New Zealand, Bolivia and Utah; highway projects in Washington, Oregon and Canada; energy facilities in Arizona and California; refineries in Texas, Montana and Russia; industrial plants in Pennsylvania, Indiana and Egypt; the Panama Canal; nuclear waste sites in Washington and New York; a transit system in Puerto Rico; hospitals in California and Massachusetts; a military base in Africa; a shopping center in Germany; and waste water treatment plants in Washington and New Hampshire. Damages in eight, nine or ten figures have been alleged in many of the matters in which Mark has been involved.
Mark has been listed numerous times as one of the leading insurance lawyers in New England by Super Lawyers, including every year since 2010.
Mark is admitted to practice in the Commonwealth of Massachusetts, the United States District Court for the District of Massachusetts, the United States Courts of Appeals for the First, Third and Sixth Circuits, and the United States District Court for the Eastern District of Michigan.
Mark graduated from Brandeis University in 1976 with a Bachelor of Arts (cum laude) with high honors in Political Science. He subsequently graduated from the Boston University School of Law (cum laude) in 1979. While in law school, Mark was a staff member and later Topics Editor of the American Journal of Law & Medicine. He was an Instructor in Legal Research and Writing at Boston University School of Law for three years.
Mark loves baseball. He is the Secretary of and has been a member of the Board of Directors of the Wellesley, Massachusetts Little League since 2004. He is also the “Player-Agent” for the Wellesley Little League’s “Williamsport Teams,” including the 2012 and 2016 Massachusetts State Little League Champions, Wellesley South, and he has coached in the league’s Major’s Division since 2001, with his team winning the Town championship in 2015.
Mark frequently speaks on topics related to insurance law. Most recently, Mark presented on “The Greening of America: New Issues in Construction and Insurance Litigation” at the Defense Research Institute’s 2009 Annual Meeting in Chicago; “Emerging Issues Involving Employment Practices Insurance” at DRI’s Insurance Coverage and Practice Symposium in New York City in 2010; “Making Order Out of Chaos” at DRI’s Professional Liability seminar in New York City in December 2011; “How to Pick a Mediator” at the Boston Bar Association in 2011; “Hot Issues in Professional Liability Coverage” at the December 2012 Insurance Practice and Coverage Symposium in New York City; and “Professional Services Liability: Analyzing Claims” at PLRB’s Regional Adjusters Conferences in Bellingham, Washington, Minneapolis, Minnesota and Providence, Rhode Island in 2014. Mark also spoke at a webinar on “Professional Liability 101: Insurance Coverage” presented by the DRI’s Professional Liability Committee in February 2013.
Mark was a Regional Editor for the second, third and fourth editions of DRI’s Bad Faith Compendium, a 50 state survey of bad faith law, published in 2006, 2011 and 2015 and for DRI’s Unfair Claims Practices Compendium, which was published in 2007. In 2015, Mark also wrote the Virgin Islands section of the DRI’s Duty to Defend Compendium.
Mark was the Editor in Chief of DRI’s Professional Liability Compendium, a two-volume, 55-jurisdiction survey on professional liability and claims-made coverage issues that was published in November 2012. The Compendium summarizes approximately 1,750 cases. In addition to serving as Editor in Chief, Mark wrote the Introduction to the Compendium; was the Regional Editor for New England and Canada; and was the state author for Massachusetts, the United States Virgin Islands, and Guam.
A review by Randy Maniloff in the December 19, 2012 edition of “Coverage Opinions” stated, “If you are involved in any way with professional liability insurance coverage, you need to have a copy of DRI’s new … compendium of professional liability coverage issues on your desk. It’s just that simple. … Editor-in Chief Mark Cohen starts things off with a very thorough introduction. It is an excellent overview of professional liability coverage. … As for the breadth of the coverage issues addressed, and their relevance to the day-to-day situations that those handling professional liability claims encounter, the Compendium nails it. … There are no esoteric issues here that would only be of interest to a scholar. The issues are the ones those handling claims, and advising on claims, see on a regular basis.”
Recent Representative Cases
June 2014 – A Minnesota federal district court judge found in favor of Mark’s client in connection with a motion to dismiss a case Lexington brought as a primary professional liability insurer against an excess general liability insurer seeking contribution. The case subsequently settled on terms favorable to Mark’s client. Lexington Ins. Co. v AXIS Surplus Lines Ins. Co., 2014 WL 2508730 (D. Minn. June 4, 2014).
February 2014 – Mark obtained a defense verdict in an insurance coverage arbitration involving an employment practices liability insurance policy. The arbitration hearing took place in Chicago and the arbitration involved multiple underlying wage and hour class actions filed in California. The arbitration panel unanimously found in favor of Mark’s client – even the insured’s own party-appointed arbitrator found for the insurer. Earlier, Mark had won a motion to compel arbitration in a lawsuit the insured filed in federal court in California.
July 2011 – The Third Circuit Court of Appeals affirmed the order of a Virgin Islands federal district court judge granting summary judgment to Mark’s client. The Third Circuit agreed with the District Court that Mark’s client did not breach its contract with an insured by filing an interpleader action rather than paying the policy limits to the insured over another insured’s objection. Mark had represented the insurer in connection with both the numerous underlying cases and the coverage lawsuit and argued the appeal. See HOVENSA LLC v. Lexington Ins. Co., 2011 WL 2631855 (3d Cir. July 6, 2011).
May 2011 – Mark and Donna Hess secured a defense verdict in an insurance coverage arbitration arising from the collapse of a Vertical Belt System at a coal mine in Illinois. The arbitration panel found that the products exclusion in the Architects and Engineers Professional Liability policy precluded coverage.
November 2008 – Mark represented National Union Fire Insurance Company in connection with the successful appeal of a defense verdict obtained in a bad faith case tried in the District of Massachusetts by Tony Zelle. National Union Fire Ins. Co. of Pittsburgh, Pa. v. West Lake Academy, 548 F.3d 8 (1st Cir. 2008). Among the issues on appeal was whether evidence of the claimant’s settlement with another insurer was admissible in the bad faith trial.
September 2008 – Mark Cohen, R.J. Maselek and Donna Hess obtained a defense verdict for Lexington Insurance Company in Lifestyles v. Lexington Insurance Company, a case arbitrated before the American Arbitration Association. At issue was whether coverage was provided under an Employment Practices Liability Insurance policy and whether the insurer was estopped from raising coverage defenses.
Cady v. Plymouth-Carver Regional School District, 17 Mass. App. Ct. 211 (1983)
Haemonetics Corp. v. Brophy & Phillips Co.. Inc., 23 Mass. App. Ct. 254 (1986)
U.S. Fire Ins. Co. v. Child Develop. Programs of Cape Ann, 1988 WL 15533 (D. Mass.)
American Red Cross v. The Travelers Indem. Co., 816 F. Supp. 755 (D.D.C. 1993)
Lareau v. Page, 840 F. Supp 920 (D. Mass. 1993)
K.R. Barrett v. Chin, 843 F. Supp. 783 (D. Mass. 1994)
Cheschi v. Boston Edison Co., 38 Mass. App. Ct. 133 (1995)
Loftis v. Liberty Mut. Ins. Co., 1995 WL 491340 (Mass. Super. Ct.)
Albert Einstein Medical Center v. Lexington Ins. Co., 1996 WL 600338 (E.D. Pa. 1996)
American National Red Cross v. Travelers Indem. Co. of R.I., 924 F. Supp. 304 (D.D.C. 1996)
Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 783 (1996)
Day v. Fallon Community Health Plan. Inc., 917 F. Supp. 72 (D. Mass. 1996)
Doe v. Liberty Mut. Ins. Co., 423 Mass. 366 (1996)
Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779 (1996)
McMahon v. Digital Equipment Corp., 944 F. Supp. 70 (D. Mass. 1996)
McMahon v. Digital Equipment Corp., 998 F. Supp. 62 (D. Mass. 1998)
McMahon v. Digital Equipment Corp., 162 F.3d 28 (1st Cir. 1998)
Executive Risk Specialty Ins. Company v. Lexington Ins. Co., 106 F. Supp. 2d 181 (D. Mass. 2000)
Dworman v. St. Paul Fire & Marine Ins. Co., 2006 WL 1047117 (Mass. Super.)
Armbrust Int’l, Ltd. v. Travelers Cas. & Sur. Co. of Am., 2006 U.S. Dist. LEXIS 25640 (D.R.I.)
L.A. Weight Loss v. Lexington Ins. Co., 2006 Phila. Com. Pl. LEXIS 127
Lexington Ins. Co. v. Jacobs Industrial Maintenance Co., 2007 U.S. Dist. LEXIS 14753 (D.V.I.)
Lexington Ins. Co. v. Virginia Sur. Co., 486 F. Supp. 2d 173 (D. Mass. 2007)
National Union Fire Ins. Co. of Pittsburgh, Pa. v. West Lake Academy, 548 F.3d 8 (1st Cir. 2008)
HOVENSA LLC v. Lexington Insurance Company, 2009 WL 2950366 (D.V.I. Sept. 9, 2005)
HOVENSA LLC v. Lexington Insurance Company, 2011 WL 2631855 (3rd Cir. July 6, 2011)
Lexington Ins. Co. v. AXIS Surplus Lines Ins. Co., 2014 WL 2508730 (D. Minn. June 4, 2014)