Jonathan Small

Jonathan E. Small

Counsel

Jonathan E. Small

Counsel

  • Overview

    Biography

    Jonathan Small represents clients in complex commercial litigation. He focuses his practice on insurance coverage and bad faith litigation, unfair business practices claims, professional liability, class actions, and appeals.

    Insurance Coverage and Bad Faith Litigation

    Jonathan litigates and advises clients on complex property insurance coverage issues and allegations of bad faith and unfair claim settlement practices arising out of large property losses. He is adept at working with expert witnesses in connection with these cases, including forensic accountants, architects, structural engineers, mechanical engineers, electrical engineers, cost estimators, and appraisers. He contributes to the firm's Property Insurance Coverage Insights blog.

    Jonathan also litigates and advises clients on complex liability insurance coverage issues and allegations of bad faith and unfair claim settlement practices. He has won pretrial dismissals of numerous liability insurance and bad faith lawsuits, including two precedent setting cases affirmed on appeal to the First Circuit Court of Appeals.

    Unfair Business Practices and Professional Liability

    Jonathan has significant experience representing clients in cases involving allegations of unfair business acts or practices and professional liability. He has a record of successful outcomes in these cases, including a dismissal affirmed on appeal to the Massachusetts Appeals Court in a case alleging that a lawyer improperly disclosed privileged information.

    Appeals

    Jonathan maintains an active appellate practice, primarily focused on insurance and unfair business practices cases. He has successfully briefed two precedent-setting liability insurance and bad faith cases in the First Circuit Court of Appeals. He has also argued and won appeals in Massachusetts and Connecticut appellate courts in cases involving unfair business practices, class actions, and defamation claims. He is a regular contributor to the firm’s Massachusetts Appellate Blog.

    Class Actions

    Jonathan has represented insurers and other business clients in class action lawsuits in a number of substantive areas, including property insurance coverage, liability insurance coverage, and federal telecommunications statutes. In those cases, he has conducted class-related discovery and defeated attempts at class certification at the trial and appellate levels.

    Pro Bono

    Jonathan maintains an active pro bono practice. He represents victims of domestic abuse through the firm’s Domestic Violence Restraining Order program. He also represents immigrant children in deportation proceedings and coordinates the firm’s trainings and referrals on these cases from Kids In Need of Defense and the Center for Children’s Advocacy.

    Prior to joining Robinson+Cole, Jonathan was a litigator in a Boston law firm where he represented real estate developers, real estate investment trusts, large law firms, and other sophisticated business clients in complex commercial litigation.
     

  • Experience
    • Experience

      Experience

        Appeals

      • Won precedent-setting commercial excess liability insurance and unfair claims settlement practices case in the U.S. Court of Appeals for the First Circuit. The case involved an assigned claim for $5 million under a commercial excess liability policy plus extra-contractual damages arising out of a wrongful death suit. On appeal, the First Circuit held that there was no coverage under the excess policy and no Mass. Gen. L. ch. 93A liability because the insured defendant’s legal obligation to pay damages to the plaintiff was not triggered by the settlement agreement reached in the underlying action.

      • Won precedent-setting homeowners liability insurance and unfair claims settlement practices case in the U.S. Court of Appeals for the First Circuit. The case involved an insurer’s refusal to indemnify a pre-suit settlement of $500,000 by the insured homeowner on claims involving professional and sexual misconduct. On appeal, the First Circuit held that the insurer had no duty to defend where no lawsuit had been filed against the insured, the demand letter under Mass. Gen. L. ch. 93A did not trigger a duty to defend, and there was no duty to settle where the insured asserted a novel theory of liability.

      • Won professional liability and unfair business practices case in the Massachusetts Appeals Court. The case arose out of two underlying actions involving a tort judgment in excess of $400,000 and a subsequent legal malpractice action. The plaintiff claimed that his former attorney, in concert with his malpractice counsel and insurer, improperly disclosed confidential information learned in the underlying case. On appeal, the Court held that the  Mass. Gen. L. ch. 93A claim against the professional liability insurer failed, as a matter of law, because the disclosure of confidential information in the underlying malpractice action was justified. The decision was significant in its articulation of the standard for evaluating the “case-within-a-case” proof in a legal malpractice suit arising out of an underlying litigation.

      • Won defamation and CUTPA/CUIPA case in the Connecticut Appellate Court. The case involved allegations by a former insured in connection with the insurer’s denial of coverage for a fire loss and the insurer’s subsequent testimony at the insured’s divorce proceedings concerning the basis for the denial. On appeal, the Court held that the insurer’s testimony and conduct at the hearing was protected by the absolute immunity afforded witnesses in judicial proceedings. Thus, the plaintiff’s defamation and related claims arising out of that conduct and testimony were barred. 

        • Property Coverage and Bad Faith

      • Won summary judgment in commercial property insurance and unfair claims settlement practices case in the U.S. District Court for the District of Massachusetts. The case involved extensive tornado damage to the insured’s hotel. The court granted summary judgment because the additional payments sought by the plaintiff were excluded from coverage and the plaintiff’s evidence in support of its bad faith allegations failed to support a Mass. Gen. L. ch. 93A claim as a matter of law.

      • Won dismissal of a commercial property and unfair claims settlement practices case in U.S. District Court for the District of Massachusetts. The case involved damage to a commercial property caused by a kitchen fire. The court granted the motion to dismiss because the plaintiff’s claims arising out of the policy were barred by a two-year suit limitations provision and the plaintiff’s Mass. Gen. L. ch. 93A claim was insufficient, as a matter of law, because it involved an ordinary contract dispute and a good faith disagreement about the meaning of the policy.

      • Represented insurance company in a 7-day Massachusetts reference proceeding. The case involved claims for building damage and business income losses arising out of a multi-million dollar roof collapse at a commercial building in Massachusetts. The reference included the testimony of numerous expert witnesses, including forensic accountants on the business income loss, structural engineers on the structural integrity of the roof, and mechanical engineers and electricians on the nature of the electrical and mechanical systems in the building.

        • Liability Coverage and Bad Faith

      • Obtained judgment of no liability after a bench trial in an inter-insurer coverage dispute in the U.S. District Court for the District of Massachusetts. The case involved multiple layers of commercial general liability and commercial automobile insurance policies implicated in a construction accident. The insurers disputed whether the accident arose primarily out of the use of an automobile or the conditions of the construction site.

      • Won dismissal of a professional liability and unfair business practices case in Massachusetts Superior Court. The case arose out of two underlying actions involving a tort judgment in excess of $400,000 and a subsequent legal malpractice action. The plaintiff claimed that his former attorney, in concert with his malpractice counsel and insurer, improperly disclosed confidential information learned in the underlying case. The court dismissed the claim against the professional liability insurer because it owed no duty to its insured’s adversary in the malpractice action.

      • Won dismissal of a commercial excess liability insurance and unfair claims settlement practices case in the United States District Court for the District of Massachusetts. The case involved an assigned claim for $5 million under a commercial excess liability policy arising out of a wrongful death suit. The court dismissed the claims because the settlement agreement reached in the underlying action released the insured defendants from liability and stipulated to a dismissal of the action.

      • Won dismissal of a homeowners liability insurance and unfair claims settlement practices case in the United States District Court for the District of Massachusetts. The case involved an insurer’s refusal to indemnify a pre-suit settlement of $500,000 by the insured homeowner on claims involving professional and sexual misconduct. The court dismissed the claims because the insurer had no duty to defend or indemnify in connection with the pre-suit settlement and the claims against the insured did not create any duty to settle.

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    • Professional Associations

      Professional Associations

      American Bar Association

      Boston Bar Association

      Connecticut Bar Association
    • Honors + Awards

      Honors + Awards

      Listed as a Rising Star in the 2018 Connecticut Super Lawyers list.

      Robinson+Cole Pro Bono Service Award Recipient, 2018

  • NEWS + PRESS
    • Publications

      Publications

      "When is a Breach of Contract really a Breach of Contract?" co-authored with Joseph A. Barra, published in BSCES News, a publication of the Boston Society of Civil Engineers Section/ASCE (March 2018)
      • » more info

        • When is a Breach of Contract really a Breach of Contract?

        "When is a Breach of Contract really a Breach of Contract?" co-authored by Jonathan E. Small and Joseph A. Barra, published in BSCES News, a publication of the Boston Society of Civil Engineers Section/ASCE (March 2018)

        The article examines the recent G4S Technology LLC v. Mass. Technology Park Corp. case, a dispute that arose out of a $45 million public works project to bring a 1,200-mile fiber optic network into western Massachusetts, as it pertains to the 112-year-old Massachusetts’ Forfeiture Rule. The article notes that “[I]f G4S is successful in convincing the High Court to soften the current Forfeiture Rule for contract actions based upon intentional conduct, it may likewise be argued that by extension, the consequences of a design professional’s unintentional conduct should similarly be softened to reflect a 21st century viewpoint.”

      • View article

    • Presentations

      Presentations

      "Choice of Law Principles in Disputes Arising Under Insurance Contracts," co-presented with J. Tyler Butts, webinar (12/11/2018)
      • » more info

        • Choice of Law Principles in Disputes Arising Under Insurance Contracts

        "Choice of Law Principles in Disputes Arising Under Insurance Contracts," co-presented by Jonathan E. Small and J. Tyler Butts, webinar (12/11/2018)

        The program addressed how courts apply choice of law principles in insurance coverage cases, including those involving property and liability claims. Choice of law issues arise when the facts underlying a dispute implicate the laws of more than one jurisdiction, and a court must determine which jurisdiction’s substantive laws should govern the interpretation of the insurance contract. Increasingly, courts have adopted flexible approaches to choice of law questions, such as the standard set forth in the Restatement (Second) Conflict of Laws and its various incarnations. However, a move toward a uniform contract approach could be in the offing.


      "Common Coverage Issues Arising from Catastrophes," presented during the 2018 Eastern Regional Adjusters Conference, hosted by the Property & Liability Resource Bureau, in Hartford, Connecticut (10/30/2018)
      • » more info

        • Common Coverage Issues Arising from Catastrophes

        "Common Coverage Issues Arising from Catastrophes," presented by Jonathan E. Small, presented during the 2018 Eastern Regional Adjusters Conference, hosted by the Property & Liability Resource Bureau, in Hartford, Connecticut (10/30/2018)

        Jonathan's program covered how to anticipate the challenging coverage issues associated with major catastrophes, including hurricanes, tornados, wildfires, and floods, etc.; identify tools to help accurately resolve these coverage and adjustment challenges; and reviewed strategies organizations can take in responding to coverage challenges associated with future catastrophic events.


      "Flood, Wind, and Concurrent Causation," at HarrisMartin's Hurricanes Irma & Maria Conference in Miami Beach, Florida (11/14/2017)

      "Unique Insurance and Class Action Litigation Following Irma and Maria," at HarrisMartin's Hurricanes Irma & Maria Conference in Miami Beach, Florida (11/14/2017)

    • News

      R+C in the News

      • December 18, 2018

        Tyler Butts and Jonathan Small Co-Present Webinar on Choice of Law Principles

        • » more info

          Tyler Butts and Jonathan Small Co-Present Webinar on Choice of Law Principles

          Insurance + Reinsurance Group lawyers J. Tyler Butts and Jonathan E. Small co-presented a lunchtime webinar entitled “Choice of Law Principles in Disputes Arising Under Insurance Contracts” on December 11, 2018. The program addressed how courts apply choice of law principles in insurance coverage cases, including those involving property and liability claims. Choice of law issues arise when the facts underlying a dispute implicate the laws of more than one jurisdiction, and a court must determine which jurisdiction’s substantive laws should govern the interpretation of the insurance contract. Increasingly, courts have adopted flexible approaches to choice of law questions, such as the standard set forth in the Restatement (Second) Conflict of Laws and its various incarnations. However, a move toward a uniform contract approach could be in the offing.

      • November 27, 2018

        Tyler Butts, Jessica Hamilton, and Jonathan Small Present During 2018 Eastern Regional Adjusters Conference

        • » more info

          Tyler Butts, Jessica Hamilton, and Jonathan Small Present During 2018 Eastern Regional Adjusters Conference

          Insurance + Reinsurance Group lawyers J. Tyler Butts, Jessica A.R. Hamilton, and Jonathan E. Small were among the speakers who presented during the 2018 Eastern Regional Adjusters Conference in Hartford, Connecticut on October 30, 2018. The conference was hosted by the Property & Liability Resource Bureau as part of the organization's Regional Adjusters Conferences, which were held in three different cities around the country. Tyler and Jessica co-presented a program on "Assignment of Benefits," while Jonathan presented on "Common Coverage Issues Arising from Catastrophes."

      • October 18, 2018

        51 Robinson+Cole Lawyers Recognized by Super Lawyers®

        • » more info

          51 Robinson+Cole Lawyers Recognized by Super Lawyers®

          A total of 51 Robinson+Cole attorneys were named Super Lawyers® in the states of Connecticut, Massachusetts, New York, and Rhode Island for 2018. In addition, 32 attorneys at the firm were recognized as “Rising Stars.” The Super Lawyers designation is based on regional balloting by attorneys, third-party research, and a peer review process encompassing myriad practice areas. An explanation of the Super Lawyers methodology can be found here. View the list of recognized attorneys and their areas of practice.

        • View article
      • June 25, 2018

        Joe Barra and Jon Small Co-author Article on Breach of Contract Published in BSCES News

        • » more info

          Joe Barra and Jon Small Co-author Article on Breach of Contract Published in BSCES News

          Construction Group lawyer Joseph A. Barra and Insurance + Reinsurance Group lawyer Jonathan E. Small co-authored the article “When is a Breach of Contract really a Breach of Contract?,” published in the March 2018 issue of BSCES News, a monthly publication of the Boston Society of Civil Engineers Section/ASCE. The article examines the recent G4S Technology LLC v. Mass. Technology Park Corp. case, a dispute that arose out of a $45 million public works project to bring a 1,200-mile fiber optic network into western Massachusetts, as it pertains to the 112-year-old Massachusetts’ Forfeiture Rule. The article notes that “[I]f G4S is successful in convincing the High Court to soften the current Forfeiture Rule for contract actions based upon intentional conduct, it may likewise be argued that by extension, the consequences of a design professional’s unintentional conduct should similarly be softened to reflect a 21st century viewpoint.” Read the full article.

        • View article
      • June 1, 2018

        Jess Hamilton and Jon Small Recognized by the Center for Children’s Advocacy

        • » more info

          Jess Hamilton and Jon Small Recognized by the Center for Children’s Advocacy

          The Center for Children’s Advocacy (CCA) recognized Insurance + Reinsurance Group lawyers Jessica A.R. Hamilton and Jonathan E. Small for providing pro bono representation to Connecticut’s immigrant children during the organization’s Spring for Kids! Champion of Children Awards Gala at Infinity Music Hall in Hartford, Connecticut on May 8, 2018. Ms. Hamilton and Mr. Small were among the lawyers recognized for not only participating in CCA's special immigrant juvenile status (SIJ) training, which trains attorneys for pro bono representation of undocumented children who have been abused, neglected or abandoned, but for also representing at least one child upon completion of the training. Read more and view a photo in the press release.

        • View article
      • November 21, 2017

        Robinson+Cole Lawyers Participate at HarrisMartin's Hurricanes Irma & Maria Conference

        • » more info

          Robinson+Cole Lawyers Participate at HarrisMartin's Hurricanes Irma & Maria Conference

          Insurance + Reinsurance Group lawyers presented at HarrisMartin's Hurricanes Irma & Maria Conference in Miami Beach, Florida, on November 14, 2017. Managing Partner Stephen E. Goldman was co-chair of the event. Gregory P. Varga provided a forecast of the unique insurance coverage and loss measurement issues that are anticipated to arise from business interruption claims filed in the aftermath of Hurricanes Irma and Maria. Jonathan E. Small spoke on "Flood, Wind, and Concurrent Causation" and "Unique Insurance and Class Action Litigation Following Irma and Maria." Laura Farach led panel discussions on complex code upgrade coverage issues and litigation involving allegations of unfair claim settlement practices.

      • November 12, 2015

        Robinson+Cole Hosts Domestic Violence Restraining Order Program for Lawyers

      R+C News Releases