July 21, 2021
J.D. Dickenson, Jonathan Toren, and Ryan Kelly discuss how continually shifting climate change risk realities have the potential to impact claims handling and litigation management in the insurance industry.
July 16, 2021
Gary Gassman is featured in the July edition of Chicago Lawyer discussing championing diversity and inclusion initiatives in his many roles within Cozen O'Connor and the American Bar Association (ABA).
July 06, 2021
Alycen A. Moss and Elliot Kerzner discuss the Eighth Circuit's decision in Oral Surgeons, P.C. v. The Cincinnati Insurance Company.
June 30, 2021
Typically, comprehensive cyber
insurance policies, rather than commercial crime policies, respond to claims of
data breach and other cybercrimes. With the rise in hacking and ransomware
attacks worldwide, businesses that may have chosen not to purchase cyber
insurance may find themselves without...
June 24, 2021
Liability policies commonly contain exclusions precluding coverage
when the insured knew or should have known that wrongful acts occurring prior
to a policy’s effective date could later result in a claim. In Alps Property & Casualty Insurance
Company v. Kalicki Collier, LLP, No....
May 10, 2021
In Berkley Specialty Ins. Co. v. Masterforce Constr. Corp., No.
4:19-CV-01162, 2021 U.S. Dist. LEXIS 14006 (M.D. Pa. Jan. 26, 2021) (Brann,
J.), the Court recently concluded that, under Pennsylvania law, all reasonably
foreseeable damages to third-party property caused by faulty workmanship do...
April 01, 2021
Mark A. Talise discusses the California Supreme Court decision in Villanueva v. Fidelity National Title Company and how it could impact all insurance providers in California.
March 29, 2021
Michael Melendez and Rebekah Shapiro discuss a recent California Appeals Court decision in Planet Bingo LLC v. Burlington Ins. Co., and what it means for liability insurers.
March 19, 2021
When a named insured is only 1%
responsible for an accident, what percentage of indemnity coverage is owed to
an additional insured? A recent New York federal court says 100%. In New York,
additional insured coverage may very well extend to the additional insured’s
own independent negligence, so...
March 05, 2021
Alycen Moss and Elliot Kerzner published an article in Best's Review titled, "Protests, Riots Raise Questions of Civil Authority Coverage" discussing property damage from the riots following the death of George Floyd in May 2020.
February 17, 2021
In July of 2020, the United States Court of Appeals for the Fifth Circuit revisited and affirmed its prediction that Texas courts will not allow extrinsic evidence to determine an insurer’s duty to defend where such evidence engages the truth or falsity of facts alleged in the pleadings. Notably,...
February 16, 2021
Garry Gassman is profiled in a feature article with the LGBT Bar Association, touching on his global insurance practice, his ABA Tort Trial & Insurance Practice Section role as well as his position as co-leader of the firm's LGBTQ+ attorney resource group.
January 13, 2021
One way a CGL insurer can narrow otherwise broad bodily injury and property damage coverage is by activity. Activities that face similar risk can be grouped using an activity classification code, which can be incorporated into the policy through a class limitation endorsement.
For instance, a...
January 11, 2021
Melissa Brill, Laura Dowgin, and Farrell Miller discuss the decision in American W. Home Ins. Co. v. Gjonaj Realty & Mgt. Co. and what insurers in New York need to do if they want to recover its defense fees when there is ultimately no duty to indemnify.
October 27, 2020
A recent decision by a Massachusetts Appellate Court reinforces that every word in an insurance policy has meaning, and that one word can make all the difference.
In Phoenix Baystate Constr. Co., Inc. v. First
Ins. Co., 145 N.E.3d 911, 2020 WL 2516670 (Mass. App. May 18,...
October 26, 2020
Chris Kende published an article in Seatrade Cruise News titled, "Class action waiver in cruise ticket held enforceable in COVID-19 lawsuit." In this article, Chris analyzes a recent court decision related to COVID-19 on cruise ships.
September 24, 2020
As a general rule, an insurer’s duty to defend arises under Florida law when the allegations of the complaint against the insured “fairly and potentially bring the suit within policy coverage.” Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 442-43 (Fla. 2005). This general rule is often...
September 14, 2020
On August 18, 2020, the Supreme Court of Pennsylvania held, in a 4-3 decision, that insurer, Truck Insurance Exchange, was entitled to withhold general contractor overhead and profit expenses from its actual cash value payments to its insureds where the insureds did not undertake the repairs of the damaged property and, therefore, never incurred the GCOP costs.
September 11, 2020
Commercial general liability policies often include additional insured endorsements that extend coverage to entities that are not named insureds but who are covered under the policy for specific liability, often liability caused by the named insured’s acts or omissions. Blanket additional insured...
September 02, 2020
Joseph A. Ziemianski, Melissa Brill, Alycen A. Moss, Stephen P. Pate, and Paul C. Ferland discuss what insurers can expect based on prior hurricanes.
September 01, 2020
Laura Dowgin contributed an article to Best's Review titled, "Risk Transfer Mechanisms" which discusses the difference between additional insured and contract indemnitee.
August 27, 2020
Chris Kende authored an article in Seatrade Cruise News titled, "Several Additional COVID-19 Legal Wins for Princess Cruises" discussing recent court decisions related to COVID-19 on cruise ships.
August 12, 2020
In Builders Mut. Ins. Co. v. Island Pointe, LLC, No. 27970, 2020 S.C. LEXIS 68 (May 13, 2020), the South Carolina Supreme Court clarified that insurers are not required and, absent unusual circumstances, should not be granted the right to intervene in construction defect cases to obtain an...
June 08, 2020
Alycen Moss and Danielle Le Jeune contributed an article to the 2020 GDLA Law Journal discussing the importance of the attorney-client privilege.
June 03, 2020
Tracy Eggleston and Denise Bessellieu discuss the state Supreme Court's decision in Builders Mut. Ins. Co. v. Island Pointe, LLC, and what insurers need to know.
May 12, 2020
Jordan Hess discusses Washington's expansion of insurers’ duty to defend and the courts’ expectation that insurers “put the insured’s needs before its own” when interpreting legal ambiguities respecting their policies.
May 06, 2020
Debbie Minkoff and Stephen Kempa discuss the Pennsylvania Supreme Court's ruling in Erie Insurance Exchange v. Moore.
May 01, 2020
Commercial general liability
policies often include additional insured endorsements that afford coverage to
entities that are not named insureds, but who are covered under the policy for
specific liability. For example, many general contractors in New York require
their subcontractors to provide...
May 01, 2020
Chris Kende is quoted in a CNN article titled, "What's in Store for the Cruise Industry" discussing the impact of COVID-19 on the cruise industry.
April 23, 2020
In Hershey Creamery Company v. Liberty
Mutual Fire Insurance Company and Liberty Insurance Corporation, 386
F.Supp.3d 447 (M.D. Penn. 2019), the court found that a self-serve milkshake
machine and related display could constitute an “advertisement” for purposes of
insurance coverage. Further, the...
April 22, 2020
Karl A. Schulz and Stephen P. Pate discuss three recent cases decided by the Texas Suprme Court that revived policyholder suits that were in limbo when Barbara Technologies and Ortiz were decided.
April 20, 2020
Stephen Pate contributed an article to Texas Bar Blog titled, "Law in a Time of Pandemic: How Texas Courts and Lawyers Responded to the Pandemic of 1918-1920." In this article, Stephen discusses the coronavirus pandemic and how courts responded in a similar way during the 'Spanish Flu' pandemic in 1918-1920.
April 16, 2020
Illinois’ Biometric Information
Privacy Act (“BIPA”) restricts businesses that collect biometric information
(e.g., DNA, fingerprints, facial and iris recognition) from disseminating that
information. Although BIPA had been in effect for more than a decade, the Illinois
Supreme Court’s ruling in...
April 10, 2020
Choice of law can frequently be determinative of whether
an insurer has liability on a claim. One
example of this is with respect to policy provisions requiring the insured to
provide prompt notice of a claim to the insurer. California’s notice-prejudice rule, which
applies to both first and...
March 25, 2020
Alissa Christopher and Greg Hudson discuss Richards v. State Farm Lloyds and whether the absence of a clause requiring a carrier to defend claims that are “groundless, false or fraudulent” means that the “eight-corners” rule does not apply when determining the existence of a duty to defend.
March 24, 2020
Rafael Rivera discusses the Sciabacucchi decision and how it may impact state SCAs and limit attendant D&O-related costs.
March 16, 2020
Joe Ziemianski, Melissa Brill, Alycen Moss, Stephen Pate, and Paul Ferland discuss how courts have analyzed and applied first-party property policies for these types of non-physical losses, potential coverage under a civil authority provision, and pollution/contamination exclusions.
March 03, 2020
Rafael Rivera published an article to Best’s Review titled, “Litigation Uptick.” In this article, Rafael discusses why insurers are seeing an uptick in litigation.
March 03, 2020
Terry A. Sutton and Jordan A. Hess discuss what insurers doing business in Washington need to know prior to August 1, 2020, implementation of WAC 284-30-770.
January 17, 2020
Dina Richman was featured in the Los Angeles Daily Journal Article “Water Therapy: LA litigator Dina Richman dances with manta rays, frolics with sea lion pups and marvels at humpbacks under the sea" regarding her passion for scuba diving.
December 01, 2019
Alissa Christopher and Ashley Gomez-Rodon contributed an article to the DRI publication, For the Defense, discussing how changes in technology and the emergence of web-based advertising have forced insurers to examine what constitutes "advertising" under commercial general liability Coverage B.
November 18, 2019
Joe Ziemianski and Bryan Vezey discuss what primary and excess insurers in Louisiana and Texas need to know following the decision in Aggreko, L.L.C. v. Chartis Specialty Ins. Co.
October 31, 2019
In response to rising costs stemming from the opioid epidemic, cities, counties, and states have filed lawsuits against opioid manufacturers, distributors, and retailers in an effort to recoup those costs. Terri Sutton discusses this epidemic as a follow up to her winter 2018 Insights article "General Liability Insurance and the Opioid Epidemic," as she examines the additional coverage issues related to these lawsuits.
October 15, 2019
Jordan Hess discusses the Wasthington Supreme Court's decision in T-Mobile USA v. Selective Insurance, and why it might not have that great an impact on the insurance industry in Washington.
October 09, 2019
Stephen Miller and Ryan Kelly published an article to The Legal Intelligencer discussing when playing politics can become political, specifically in Kelly v. United States.
October 08, 2019
Terri Sutton and Jordan Hess discuss the state Supreme Court decision in Keodalah v. Allstate Insurance Company, et al.
October 01, 2019
Gary Gassman was recently featured in the Claims and Litigation Management (CLM) magazine as part of the publication's "Voices" series — where attorneys offer their insights into commercial litigation trends and practices.
September 30, 2019
Maura Winters discusses the legislative landscape of indemnity statutes across the country so you can to determine whether the indemnification provision in your construction contract is enforceable.
September 04, 2019
Samuel Stalker contributed an article to Best's Review titled, "Defining War." In this article, Sam discusses how interpreting war exclusions in cases involving cyber warfare will require nuance, as well as deference to the evolving landscape of government conflict.
September 03, 2019
Dina Richman discusses the Pitzer College v. Indian Harbor Insurance Company decision and how it impacts enforcement of choice of law provisions when it comes to notice-prejudice and consent clause issues.
August 26, 2019
Rafael Rivera discusses Gleason v. Markel American Insurance Company and the importance of the wording of securities exclusions in D&O policies.
July 30, 2019
Rafael Rivera, Jr discusses the Circuit Court's decision in Crowley and how it may impact whether government investigations trigger coverage under D&O policies and, if so, at what point during an investigation.
July 22, 2019
Joe Ziemianski, Irene Yesowitch, and Sam Stalker discuss the Circuit Court's decision in Universal Cable Prods., LLC v. Atlantic Specialty Ins. Co. and what it means for insurers in and out of California.
July 17, 2019
Donnie M. Apodaca, II, Stephen Pate, and Alicia G. Curran discuss two recent the Supreme Court of Texas’s decisions and considerations for insurers before they invoke appraisal and pay the appraisal awards.
July 15, 2019
Nadia Bugaighis published an article in CPCU's CLEW News discussing a common insurance policy exclusion involving "that particular part" language.
July 08, 2019
Christopher S. Clemenson and John Daly discuss the instructions from the Colorado Supreme Court and how it may create a number of new disputes between insurers and their insureds during, and after, the appraisal process.
June 20, 2019
Teri Mae Rutledge discusses how Hilburn v. Enerpipe affects insurers in Kansas who now must underwrite insurance policies that consider noneconomic damages unlimited in personal injury cases.
June 19, 2019
John David Dickenson and Chad A. Pasternack discuss the Florida Legislatures new law that protects policyholders and levels the playing field for insurers that play by the rules.
June 17, 2019
Debbie Minkoff was featured in The Legal Intelligencer for being recognized as a 2019 Best Law Firm Mentor.
June 01, 2019
Alycen Moss and Susie Lloyd contributed an article to Best's Review titled, Climate-Related Cats.
May 29, 2019
Stephen Pate discusses why there is a controversy and how Texas—and some other states—are likely to deal with the ALI’s Restatement of the Law on Liability Insurance.
May 10, 2019
Peter Berg discusses the decision in Draggin' Y Cattle Co., Inc. v. Junkermier, Clark, Campanella, Stevens, P.C. and how it impacts settlements in Montana.
March 01, 2019
Christopher Kende (Insurance, New York) contributed an article to the March edition of the New York City Bar’s Aeronautics Committee Newsletter discussing a federal court case in which an individual was awarded $2.2 million in damages after suffering from PTSD, major depressive disorder and decompression sickness as a result of a decompression incident onboard an aircraft manufactured by Boeing.
February 25, 2019
Nadia Bugaighis discusses the decision in MTI and why insurers should carefully consider jurisdiction and choice of law when determining how to apply the j(5) and j(6) property damage exclusions.
February 14, 2019
In response to the rising costs associated with the opioid epidemic, Terri Sutton discusses the varied success of coverage defenses that have been litigated as well as what we can expect to see in the months and years to come.
February 05, 2019
Kristie M. Abel discusses how Abbey/Land demonstrates that an insurer can successfully contest such a judgment, however, the insurer needs to meet a high burden in order to prevail.
February 01, 2019
Laura Dowgin discusses the decision in D.K. Prop., Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA and notes that while it resulted in a favorable outcome for the policyholder there has been no shift in New York bad faith law.
December 03, 2018
Andrew Tobin and Marli Wildchut discuss a recent marine insurance case wherein London based but U.S. controlled insurers were ordered by an English court to pay a cargo insurance claim concerning Iran, under a policy governed by English Law, because the standard London Market sanctions exclusion clause did not provide them with a defense.
October 11, 2018
Sam Stalker and Teri Mae Rutledge discuss an Ohio Supreme Court ruling that deviates from the recent trend, holding that the “nuanced” interpretation of the policies in those other decisions did not supersede the plain requirement for coverage of property damage caused by an occurrence.
September 01, 2018
Alycen Moss, of Cozen O'Connor's Global Insurance department, published an article titled, Complicated Cats, for Best's Review.
June 05, 2018
Teri Mae Rutledge discusses the California Supreme Court's decision in Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction Co., Inc.
June 01, 2018
Stephen Pate, of Cozen O'Connor's Global Insurance Department, authored an article on his predictions on the course of Hurricane Harvey litigation entitled, "The Imperfect Storm: Harvey Litigation Will Be Governed by Hailstorm Bill's Rules, While 'Menchaca' Looms in the Background."
June 01, 2018
Michael Rafalko, of Cozen O'Connor's Global Insurance department, authored an article titled, LTC Debate, for the June issue of Best's Review.
May 21, 2018
Paul Ferland authored a piece titled, "Policy Language Can Curtail Long-Tail Insurance Claims" in Law360. This piece discusses long-tail insurance claims, and how they have proved particularly vexing to insurers and insureds alike, specifically with regard to allocation of liability.
April 20, 2018
Greg Hudson discusses the Texas Supreme Court's decision in Menchaca v. USAA Texas Lloyds Company. The court articulates five rules when extracontractual causes of action are available even when there has been no breach of the insurance policy and clarifies the procedural steps a court should follow in determining which rule applies.
April 10, 2018
Laura B. Dowgin discusses the big win for insurers in the New York Court of Appeals as this decision instructs New York courts to look at the terms of the insurance contract at issue, and where no coverage was given, and no premium received, the risk of liability is placed on the policyholder.
April 03, 2018
Michael D. Handler and Jordan A. Hess discuss the Washington Court of Appeals reversal of a trial court’s dismissal of the bad faith claim against a claims adjuster, holding that individual insurance adjusters could be liable for violating the CPA if they caused financial injury by engaging in unfair or deceptive acts or practices that impact the public interest.
March 30, 2018
Anu Prasad, an associate in the firm's Global Insurance Department, co-authored the chapter "Recent Developments in Insurance Coverage" in Volume 52-3 of the Tort Trial & Insurance Practice Law Journal.
March 01, 2018
Priority of rights of recovery of subrogating insured and its insured when making joint or separate claims against responsible third-party - Jurisdictions Comparative Chart - 5 pgs total, revised 6/2008. Table properties: INSURED WHOLE, PRO RATA, INSURER WHOLE, UNDECIDED, CITATION.
February 28, 2018
Stephen Pate, of Cozen O'Connor's Global Insurance department, authored an article titled, "Reconstruction Politics and the Galveston Seven: The Struggle to Appoint a Judge in the Eastern District of Texas, 1869-72, Part I" which appears in the Winter 2018 issue of the Texas Supreme Court Historical Society Journal.
February 16, 2018
Christopher Kende discusses the New York State Court of Appeals ruling in Forman v. Henkin and how this decision is good for defendants.
January 08, 2018
Melissa Brill and Alexander Selarnick discuss the Seventh Circuit's decision in W. Side Salvage, Inc. v. RSUI Indem. Co.
December 07, 2017
Julia Molander and Laura Dowgin discuss the implications of the Carlson decision for out-of-state insurers that insure corporations that do business in New York, where the corporation is not a resident of New York but has “a substantial business presence” in the state.
December 01, 2017
Irene Yesowitch, of Cozen O'Connor's Global Insurance department, wrote an article titled, "A Pandora's Box?" which appeared in Best's Review.
November 27, 2017
Paul Ferland authored a piece titled, "Considering Alternatives To Reverse Bad Faith Claims" in Law360 discussing reverse bad faith claims.
November 16, 2017
Paul Ferland co-authored a piece titled, "Hurdles To Consider When Securing A Personnel File" in Law360 discussing a personnel file, and why it is an overlooked avenue to explore.
November 07, 2017
Christopher Kende, of Cozen O'Connor's Global Insurance department, wrote an article titled "Recent Case Law Defining 'Bodily Injury' under the Montreal Convention" for Best Lawyers.
October 26, 2017
Melissa Brill and Laura Dowgin discuss the decision in Air Master & Cooling, Inc. v. Selective Ins. Co. of Am., and its impact on progressive property damage claims in New Jersey.
October 20, 2017
Paul Ferland co-authored a piece titled, "Undertaking Property Repair Or Replacement As An Insurer" in Law360 discussing the risks, potential benefits and legal issues involved in an insurer’s decision to undertake repair or replacement, rather than pay the value of damage or take property at an agreed-upon value.
September 06, 2017
Michael Melendez discusses the first published opinion of a California appellate court that directly addresses whether the ongoing operations limitation in additional insured endorsements precludes completed operations coverage.
September 04, 2017
Stephen Pate, of Cozen O'Connor's Global Insurance Department, wrote an article titled, "No Longer Stuck in the Weeds: Marijuana Insurance Moves into the Mainstream" for Business Insurance.
August 29, 2017
Paul Ferland co-authored a piece titled, "Colo. Appraisal Dispute Seems To Discount True Impartiality" in Law360 discussing the recent decision of the Colorado Court of Appeals in Owners Insurance Co. v. Dakota Station II Condominium Assoc., 2017 WL 3184568 (Colo.App. 2017).
July 24, 2017
Melissa Brill and Alexander Selarnick discuss the Second Circuit adoption of the New York Court of Appeals’ previous holding that the “all sums” provision in the insuring agreement permits an insured to access the limits of all policies in any triggered year, when the insurance policies contain “prior insurance” or “non-cumulation” clauses.
June 29, 2017
Jonathan Toren discusses a recent Washington Court of Appeals decision on three important issues for insurers relating to bad faith actions.
June 07, 2017
Melissa Brill and Laura Dowgin discuss a Court of Appeals decision that expressly rejects that there is no material difference between the phrases “arising out of” and “caused, in whole or in part by” in additional insured endorsements.
June 05, 2017
The decision is noteworthy because the court joined a limited number of other courts that have held that when an insured fails to provide notice “as soon as practicable” as required under a “claims made” insurance policy, the insurer may avoid coverage
May 02, 2017
Michael D. Handler and Thomas M. Jones discuss three recent rulings that are consistent with the trend of courts around the country concluding carbon monoxide is a pollutant under a liability insurance policy.
May 01, 2017
Elan Kandel and Alexander Selarnick, of Cozen O'Connor's Global Insurance department, co-authored an article for Risk Management titled "Insuring Against Social Engineering Attacks."
April 11, 2017
Alicia G. Curran and Ron Tigner discuss the Texas Supreme Court's decision setting forth five “distinct but interrelated rules” that govern the relationship between contractual and extracontractual claims in the first party insurance context.
April 03, 2017
Michael Melendez discusses the Teleflex decision that provides persuasive authority that excess insurers in California must seriously consider settlement demands exceeding primary limits in electing whether to accept the settlement, reject it and assume the insured’s defense, or reject it and decline the insured’s defense.
April 01, 2017
Joe Ziemianski and Andrea Cortland, of Cozen O'Connor's Global Insurance department, co-authored an article for FDCC Insights titled, "Ultimate Game-Changer? Concussion-Related Injuries and Litigation."
March 08, 2017
Terri Sutton discusses manufacturers of medical devices in Washington's new duty to warn hospitals that purchase their devices, and that product manufacturers of “unavoidably unsafe products” may face strict liability for failure to warn claims.
March 01, 2017
Terri Sutton discusses the Oregon Supreme Court's ruling in Long v. Farmers Insurance Company of Oregon that “when an insured files an action against an insurer to recover sums owing on an insurance policy and the insurer subsequently pays the insured more than the amount of any tender made within six months from the insured’s proof of loss, the insured obtains a ‘recovery’ that entitles the insured to an award of reasonable attorney fees.”
March 01, 2017
Greg Hudson discusses the Texas Supreme Court decision that the language of the insured v. insured exclusion also includes any claim where a party has stepped into the shoes of an insured.
February 08, 2017
Jonathan Toren discusses a recent Eighth Circuit ruling that an Insured vs. Insured exclusion applied to an insured director’s entire lawsuit, even though other non-insured shareholders were also plaintiffs in the suit.
January 18, 2017
Terri Sutton discusses the Washington Supreme Court decision in Volk v. DeMeerleer, which it expanded the duty of physicians to protect third-parties who might be victims of violence.
January 18, 2017
Tracy L. Eggleston and Patrick M. Aul discuss the South Carolina Supreme Court’s recent decision that adopts strict requirements for effective reservation of rights letters.
December 16, 2016
William F. Knowles and Katie M. Sluss discuss a decision by the Division I Washington Court of Appeals that granted partial relief to an insurer and held that if an insured is legally insulated from any exposure to a tort victim, the presumption of harm in a bad faith claim against the insurer is rebutted and there is no coverage by estoppel.
December 07, 2016
Karl A. Schulz discusses the Fifth Circuit's clarification of a typical but potentially tricky question involving property claims in De Jongh v. State Farm Lloyds.
December 06, 2016
J.D. Dickenson and Elizabeth Fata discuss the recent Florida Supreme Court decision in Sebo v, American Home Assurance Company, which favors the Third Districts reasoning and the concurrent cause doctrine in property loss cases.
December 01, 2016
Deborah Minkoff and Abby Sher Author chapter 1A: Self-Insured Retentions Versus Large or Matching Deductibles in the 2016 New Appleman on Insurance Law Library Edition.
October 21, 2016
William Knowles and Jonathan Toren discuss the latest Washington Supreme Court decision regarding the attorney-client privilege and whether it protects a corporation’s attorney’s communications with former employees of the corporation.
October 17, 2016
Patrick Aul discusses what insurers in both North and South Carolina should be mindful of when handling Hurricane Matthew related claims.
October 12, 2016
Angelo G. Savino and Alexander Selarnick discuss the Seventh Circuit's decision in Allen v. GreatBanc Trust Co and its ramifications for ERISA plan fiduciaries and their insurers.
October 07, 2016
Hurricane Matthew is the first major hurricane to strike Florida since Hurricane Wilma in 2005. As the insurance industry prepares for Florida property loss claims due to Hurricane Matthew, we highlight five claims-handling points based on the primary Florida statutory and administrative code provisions most relevant to property insurers with respect to first-party property loss claims, as well as on Florida’s statutory framework for a first-party bad faith claim.
September 30, 2016
Richard Mason of the Global Insurance Department authors this Insight Regulatory/Law column on the Restatement of the Law of Liability Insurance.
September 28, 2016
Julia A. Molander and William F. Knowles discuss the FountainCourt Homeowners Association v. American Family Mutual Ins. Co. decision holds that eviscerated the seminal case of Wyoming Sawmills v. Transportation Ins. Co.
September 23, 2016
Melissa Brill and Laura Dowgin discuss a recent New York Supreme Court, Appellate Division, First Department decision that found an additional insured endorsement provided additional insured coverage only to the entity in direct contractual privity with the named insured.
August 09, 2016
On August 4, 2016, the New Jersey Supreme Court joined a long list of states’ high courts when it affirmed a ruling that consequential damages resulting from a subcontractor’s faulty work constituted “property damage” caused by an “occurrence” under the property developer/general contractor’s commercial general liability policies.
June 23, 2016
Chris Clemenson and John Daly discuss a Colorado Supreme Court decision holding that extrinsic evidence can only be used to interpret ambiguous policy language, not unambiguous policy language.
June 13, 2016
Melissa O’Loughlin White discusses a unanimous decision by the Washington Supreme Court that rejected the policyholder’s arguments that certain provisions in a “Vacancy or Unoccupancy” endorsement were ambiguous and must be construed in favor of coverage.
June 08, 2016
Andrew Tobin and Marli Wildschut discuss the Chinese legal system. It is based on the civil law system that is structurally similar to Germany and France and there are some significant differences to English and U.S. law. London and other international insurers should be aware that Chinese law imposes greater obligations upon them than might typically be expected.
June 01, 2016
Jonathan Toren co-authored two chapters with Frank Cordell of the 2016-2017 edition, which offers a comprehensive understanding of the key types of cases and considerations inherent in insurance litigation in Washington.
May 30, 2016
Julia Molander and Yevgenia Wiener of the Global Insurance Department discuss driverless vehicles, which will require a new liability paradigm.
May 09, 2016
Melissa F. Brill and Laura B. Dowgin discuss the May 3, 2016, decision by the New York Court of Appeals that answered two certified questions posed by the Delaware Supreme Court regarding the appropriate allocation method for long-tail claims among successive excess carriers.
May 03, 2016
The Court of Appeal in AIG Europe Ltd v OC320301 LLP has ordered a retrial of the question of whether actions brought by 214 investors in two failed holiday property schemes in Turkey and Morocco against the former International Law Partnership can be treated as a single claim by its professional indemnity insurer.
April 26, 2016
Christopher S. Clemenson and John Daly discuss Monday's decision by the Colorado Supreme Court in Travelers Prop. Cas. Co. v. Stresscon Co. holding that an insurer does not need to show prejudice to enforce a “no-voluntary-payments” provision.
April 20, 2016
Rick Mackowsky and Stacey Farrell discuss a recent case wherein the U.S. District Court for the Southern District of Florida applied Florida law and denied the insured’s motion for summary judgment seeking to compel appraisal of losses sustained at two of her insured buildings.
April 18, 2016
Rick Mackowsky discusses the Minnesota Court of Appeals' decision that pre-award interest is not recoverable on an appraisal award made pursuant to the terms of an insurance policy, absent an underlying breach of contract or actionable wrongdoing.
April 18, 2016
Stacey Farrell discusses a recent Alaska Supreme Court Case that concluded insurers cannot seek reimbursement for defense costs incurred defending uncovered claims.
April 11, 2016
Ron Tigner and Gregory Hudson discuss the growing trend of jurisdictions no longer recognizing any distinction between the recoverability of loss of use damages between partial and total destruction of personal property.
March 07, 2016
Angelo Savino and Nicholas Bamman discuss a federal court decision in Louisiana providing a rare analysis of the interplay between a duty to defend in a D&O policy and the allocation clause in that same policy.
March 02, 2016
Richard C. Mason and Kristie M. Abel discuss a recent decision by the Supreme Court of New Jersey that declared an insurance company was not required to show it suffered prejudice before disclaiming coverage on the basis of the insured's failure to give timely notice of the claim under a Directors and Officers claims made policy.
January 13, 2016
Gregory Hudson and Adam Gutmann discuss the Supreme Court of Texas's decision that installation of a faulty component does not cause physical injury to the machinery onto which it is installed, even when removal of the faulty component causes damage during the repair process.
December 04, 2015
Martin Resource held that an insured’s settlement contributions could not satisfy the exhaustion requirement, based on the particular policy language at issue. This is contrary to the Srivastava opinion, which indicated an insured’s contributions might satisfy the exhaustion requirement, in that a layer of coverage is exhausted once the loss exceeds the limit.
December 01, 2015
Christopher Kende authored this article in the French Maritime Law Review which discuses a recent Supreme Court case which dealt with the definition of a "vessel" under maritime law.
December 01, 2015
the Supreme Court of Oregon overturned 42 years of precedent, holding that Stubblefield v. St. Paul Fire & Marine erred when it decided that a covenant not to execute given in exchange for an assignment of rights, by itself, creates a release that dissolves an insured’s liability and, by extension, the insurer’s liability as well.
October 13, 2015
An insured is entitled to select its own counsel where an insurer’s coverage reservation creates an actual conflict of interest between the insurer and the insured. The court further held that the insurer must pay the independent counsel a “reasonable” rate.
August 14, 2015
On August 10, 2015, the California Supreme Court issued a unanimous decision that could have broad implications regarding an insurer’s right to seek reimbursement of unreasonable fees and costs directly from so-called Cumis counsel. In Hartford Casualty Insurance Company v. J.R. Marketing, LLC, ___ Cal.4th ___ (2015), the Court held that an insurer—operating under an order that expressly provided that the insurer would be able to recover payments of excessive fees—can seek reimbursement directly from Cumis counsel.
July 30, 2015
The Hawaii Supreme Court, providing three separate reasons, held that the excess insurer could bring a cause of action for equitable subrogation.
July 02, 2015
Looking to the fact allegations in the complaint against the insureds, the court found that but for the individual actions as trustees there would be no claim against any insured entity.
July 01, 2015
Joseph Ziemianski, Andrea Cortland, and other industry professionals, co-wrote this article in The Federation of Defense and Corporate Counsel Quarterly which discusses litigation related to concussions in sports.
June 01, 2015
Alycen Moss and Lynnette Espy-Williams discuss the statutory requirements regarding rescission, the contestable period, rescission methods, waiver considerations, the most common defenses to rescission, and a closing note on a likely claims from the insured – bad faith.
June 01, 2015
Jennifer Kennedy-Coggins and V. Morgan Carroll discuss the Fair and Accurate Credit Transactions Act and will examine the potential coverage available for FACTA violations under Georgia Law.
May 28, 2015
In Tibble v. Edison International, the Supreme Court ruled that trustees of ERISA plans owe a continuing duty to monitor trust investments on a regular basis and remove those that become imprudent.
May 14, 2015
The Georgia Supreme Court unanimously held that when an insured fails to seek its insurer’s consent to settle a claim, the insured cannot pursue litigation against its insurer to recover settlement amounts paid by the insured without its insurer’s consent or for bad faith refusal to settle.
April 30, 2015
Throughout the past decade, the federal False Claims Act has imposed billions of dollars in penalties upon corporations.
April 23, 2015
On April 20, 2015, the Georgia Supreme Court unanimously held that when an insured fails to seek its insurer’s consent to settle a claim, the insured cannot pursue litigation against its insurer to recover settlement amounts paid by the insured without its insurer’s consent or for bad faith refusal to settle.
February 27, 2015
In In re Deepwater Horizon, Cause No. 13-0670, Slip Op., Feb. 13, 2015, the Texas Supreme Court held that an allocation of liability found in an “insured contract” would determine the coverage provided to an additional insured in a general liability policy. Specifically, the court held that the additional insured had coverage under the general liability policy of the named insured only to the extent the named insured was required to obtain coverage for the additional insured.
February 19, 2015
In Colorado, under the notice-prejudice rule, an insured who gives late notice of a claim to his or her liability insurer does not lose coverage benefits unless the insurer proves that the late notice prejudiced its interests. Friedland v. Travelers Indem. Co., 105 P.3d 639, 643 (Colo. 2005). On February 17, 2015, in response to certified question of law from the 10th Circuit Court of Appeals, the Colorado Supreme Court held that the notice-prejudice rule does not apply to date-certain notice requirements in claims-made policies. Craft v. Philadelphia Indem. Ins. Co., Case No. 14SA43. Rather, date-certain notice requirements will be enforced as written.
February 11, 2015
Adam Stein of the Global Insurance Department discusses private equity funds in the article titled Deep Cover in Best's Review. Limited partner investors in private equity funds and other “passive” institutional investors are being sued in growing numbers, a trend that can be expected to continue as courts in many jurisdictions continue to entertain such suits.
February 02, 2015
On January 9, 2015, the U.S. Court of Appeals for the 8th Circuit handed down Philadelphia Consolidated Holdings Corp. v. LSI-Lowery Systems, Inc., which decided whether a technology company’s claim was covered under its professional liability policy. In LSI-Lowery, the court decided three issues of current importance for “claims made” policies. First, emails showing an expectation the insured would be sued meant that a “claim” had been made even though damages were not expressly demanded. Second, when it was made, the claim involved a “wrongful act,” even though it related to breach of a contract (an excluded circumstance). Third, a regulation mandating a finding of prejudice in order to prevail on “late notice” did not apply because there was no coverage under the policy in the first instance.
February 01, 2015
Richard Mason of the Global Insurance Department discusses the recently enacted laws and how they can lead to fresh claims. Victims of sexual abuse are taking advantage of state reviver statutes to file claims that were previously time-barred, leading to unexpected exposures for religious and educational institutions, among others.
December 23, 2014
On December 15, 2014, the Supreme Court of Pennsylvania held that bad faith claims brought pursuant to 42 Pa. C.S. § 8371 may be assigned by an insured to an injured third party under Pennsylvania law. See Allstate Prop. & Cas. Ins. Co. v. Wolfe, No. 39 MAP 2014 (Pa. Dec. 15, 2014).
December 22, 2014
The Pennsylvania Supreme Court in Pennsylvania Nat’l Mut. Cas. Ins. Co. v. St. John, et al., 2014 WL 7088712 (December 15, 2014), has affirmed that a first manifestation trigger applies to property damage claims under a CGL policy, triggering the single policy in effect when damage first manifests. St. John also confirmed that the multiple or continuous trigger adopted in J.H. France Refractories v. Allstate Ins. Co., 534 Pa. 29 (1993), which triggers all policies on a risk from exposure through manifestation, is unique to claims involving asbestos or other similarly latent diseases.
November 18, 2014
In Santacruz v. Allstate Texas Lloyds, Inc., 2014 WL 5870429 (Nov. 13, 2014), the 5th Circuit allowed a policyholder to pursue a claim for common law and statutory bad faith even though the policyholder repaired the alleged damage before the insurer was able to observe that damage.
November 10, 2014
In Shamoun & Norman, LLP v. Ironshore Indemnity, Inc., Cause No. 3:14-1340, In the U.S. District Court, Northern District of Texas, the federal district court construed a professional liability policy issued by Ironshore to require a defense of the law firm policyholder in a fee dispute, despite an absence of allegations that the insured law firm negligently provided any legal service.
November 06, 2014
On October 10, 2014, the 3rd Circuit Court of Appeals decided Camico Mutual Ins. Co. v. Heffler, Radetich & Saitta, LLP, where it enforced a policy clause providing for repayment to the insurer of defense costs, and confirmed that a 2010 Pennsylvania Supreme Court decision had not invalidated such clauses. The court also determined the insured’s employee was performing “professional services” as defined in the policy notwithstanding the employee’s fraudulent conduct.
October 20, 2014
The Washington Supreme Court addressed two issues of first impression regarding legal malpractice claims in Schmidt v. Coogan, No. 88460-9, (October 9, 2014) and held: (1) that “uncollectibility” is an affirmative defense to a claim of legal malpractice, and (2) emotional distress damages are not available in a legal malpractice claim based upon a lawyer’s failure to timely file a lawsuit.
September 30, 2014
In interpreting the scope of the pollution exclusion, one question seems to appear in case after case — what exactly does the pollution exclusion exclude? In State Farm Fire & Casualty Company v. Dantzler, 289 Neb. 1 (2014), the Supreme Court of Nebraska added to the body of law on that question while summarizing the various interpretations from other jurisdictions.
September 08, 2014
In Greene v. Farmers Insurance Exchange, the Texas Supreme Court clarified the scope and application of § 862.054 of the Texas Insurance Code, the “anti-technicality” statute, holding that the clause would only operate in situations where the policyholder affirmatively violated an obligation created under the policy. The court further held that public policy did not change this result, despite the concurring opinion of two justices that argued that the court’s opinion created confusion as to whether and when public policy would dictate a different result. Specifically, the concurrence argued that the majority opinion failed to distinguish the instant case from prior cases involving a “nonmaterial breach” by a policyholder.
August 18, 2014
On July 31, 2014, the New York Supreme Court, Appellate Division, First Department chipped away at the privilege protections available to insurers. In National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. TransCanada Energy USA, Inc., 119 A.D.3d 492 (1st Dept. July 31, 2014), the First Department affirmed a 2013 New York County Supreme Court ruling that documents prepared in the ordinary course of an insurer’s investigation as to whether to pay a claim are not privileged — even if these documents are prepared by an attorney.
August 07, 2014
In a recent decision in the case of Pyramid Technologies, Inc. v. Hartford Casualty Ins. Co., 752 F.3d 807 (9th Cir., May 19, 2014), the 9th Circuit, relying on California law, upheld a grant of summary judgment dismissing the insured’s business interruption claim as speculative. In addition, by a split decision, it reversed in part and remanded in part the trial court’s exclusion of the testimony from the insured’s expert witnesses under Daubert standards. Finally, and most importantly, the Court of Appeals reversed a grant of summary judgment concerning the insurer’s “genuine dispute” defense, holding that bad faith was an issue for the jury under the facts of the case.
August 05, 2014
A recent 3rd Circuit decision, ArcelorMittal Plate, LLC v. Joulé Technical Services, Inc., 558 Fed.Appx. 205 (3d Cir. 2014) reiterates that under New Jersey law, an insurer does not act in bad faith when denying a claim that is “fairly debatable.” Although the court disagreed with the insurer’s application of the policy’s employer’s liability exclusion to preclude coverage, it also held that there was no basis to impose bad faith liability on the insurer.
August 04, 2014
On July 21, 2014, the Pennsylvania Supreme Court recently held, as a matter of first impression, that the Continuance of Coverage Provision of the Pennsylvania insurance insolvency statute, 40 P.S. § 221.21, precludes coverage for all “risks in effect” under an insurance policy, even when the policy was cancelled prior to liquidation.
July 30, 2014
In an article published in Law360, Angelo Savino and Julie Albright of the Global Insurance Department discuss unfinished business claims. In a departure from Jewel v. Boxer, the decisions in the cases of Thelen LLP and Heller Ehrman LLP reflect a shift in the manner by which courts treat trustees’ claims for post-dissolution fees, say Angelo Savino and Julie Moeller Albright of Cozen O'Connor.
July 17, 2014
The New York Court of Appeals recently confirmed that the heightened timeliness of disclaimer requirement in New York Insurance Law § 3420(d)(2) does not apply to claims arising from property damage, in KeySpan Gas East Corp. v. Munich Reinsurance America, Inc., et al., 2014 N.Y. Slip Op. 4113 (N.Y. June 10, 2014). Unanimously reversing the appellate division, the KeySpan court found that this standard for waiver of coverage defenses extends only when an insured seeks coverage under a New York liability policy for bodily injuries or death sustained in New York. Because this dispute arose from property damage claims, the insurers, which previously reserved their rights, had no duty under the statute to disclaim “as soon as reasonably possible.”
July 10, 2014
Over the past year, directors and officers have been anticipating the Supreme Court’s ruling in Halliburton Co. et al. v. Erica John Fund, Inc., No. 13-317. In its recent 9-0 decision, the Supreme Court retained the fraud-on-the-market presumption of reliance adopted more than 25 years ago in Basic, Inc. v. Levinson, yet also held that defendants may rebut the presumption at the class certification stage. 573 U S. ___ (Slip Op. June 23, 2014) (Roberts, C.J.). This ruling signals that securities fraud class actions will continue unabated for the foreseeable future. Justice Ginsburg concurred in a separate opinion, joined by Justice Breyer and Justice Sotomayor. Justice Thomas also concurred in a separate opinion, joined by Justice Alito and Justice Scalia.
July 10, 2014
On June 25, 2014, the Supreme Court of the United States, in Fifth Third Bancorp v. Dudenhoffer, declared that no “presumption of prudence” applied to fiduciaries of “employee stock ownership plans” (ESOPs). In rejecting the defense-friendly standard, the high court noted that ESOP fiduciaries are subject to the same duty of prudence as any other ERISA fiduciary except that ESOP fiduciaries are not liable for losses that stem from a failure to diversify. The decision is also noteworthy in that it set forth guidelines for lower courts to follow at the motion to dismiss stage that will impact how plaintiffs are able to satisfy pleading requirements in cases against ESOP fiduciaries.
June 17, 2014
Gregory Hudson, of the Global Insurance department writes an article titled" Guilty D&O May Lose Defense Costos, Indemnification Too," in Law360.
In Protection Strategies Inc. v. Starr Indemnity & Liability Co., the U.S. District Court for the Eastern District of Virginia allowed an insurer to recoup over $670,000 in costs paid for its insured first to respond to government subpoenas and then for the insured and its key employees to defend themselves against claims for governmental fraud and conspiracy.
June 16, 2014
Andrew Tobin and Paul Dowsey of the Global Insurance Department, write about effective claims controls in facultative reinsurance in an article titled "Taking Charge" in Best's Review. Facultative business can give rise to conflicts between reinsurers and cedents in the handling of claims, particularly if the cedent is concerned with reputational risk and has no meaningful exposure.
June 12, 2014
On June 2, 2014, the Washington State Court of Appeals issued a published opinion regarding what constitutes a “suit” in the context of environmental liability claims under the Model Toxics Control Act (MTCA). The court held there must be “an explicit or implicit threat” from a government agency of “immediate and severe consequences by reason of the contamination” in order to trigger the duty to defend, and that no such threat was present. Gull Industries, Inc. v. State Farm Fire & Cas. Co., et al., No. 69569-0-I. The opinion is significant in light of existing Washington law that states that an insurer may be required to indemnify an owner or operator of contaminated property even if no agency has taken or overtly threatened formal legal action.
June 02, 2014
International Law Digest containing the limitation periods in general, funding actions in Spain, privilege, bringing court proceedings, the role of experts, interim remedies, disclosure and costs.
June 02, 2014
Plaintiff John Z. Huang represented Yongping Zhou in a deportation suit. Mid-suit, Zhou terminated the representation and retained another attorney. Throughout the course of the litigation, Zhou hired several more attorneys and ultimately succeeded in vacating his domestic violence conviction after spending two years in an Immigration and Naturalization Service detention center. Zhou then sued Huang for legal malpractice.
May 19, 2014
Samantha Evans discusses The Potential Liabilities and Insurance Coverage Implications of Solar Panels in Claims Journal. Samantha writes, “Solar panels are quickly becoming a fixture in our everyday lives. Whether driving down a country road or the busiest highway, you will see solar panels dotting the roofs of commercial buildings and residential homes alike. Comprised of photovoltaic cells, solar panels harness and convert the sun’s energy into usable electricity otherwise generated by the use of oil, coal and “dirtier” fossil fuels. Solar panels offer an attractive, alternative “green” source of energy for eco-conscious individuals and businesses.” To read the whole article, click here.
May 08, 2014
Litigation over challenges to corporate mergers has swelled in recent years, exposing directors, officers and their D&O insurers to large amounts of defense costs and potentially great liability. The Delaware Chancery Court recently issued an opinion analyzing and explaining the various standards by which courts review challenges to director decision-making in the merger context, which provides a thorough summary for all interested parties.
May 06, 2014
Last week, the Washington Court of Appeals held that “in an insurance bad faith case, the amount of a reasonable covenant judgment sets a floor, not a ceiling, on the damages the jury may award.” Miller v. Safeco Ins. Co., No. 68594-5-1. The claim arose out of an automobile accident in 2000, when Patrick Kenny, the at-fault driver, rear-ended a cement truck, severely injuring his three passengers.
May 05, 2014
In Protection Strategies, Inc. v. Starr Indemnity & Liability Co., the U.S. District Court for the Eastern District of Virginia allowed an insurer to recoup more than $670,000 in costs paid for the insured first to respond to government subpoenas and then for the insured and its key employees to defend themselves against claims for governmental fraud and conspiracy.
May 01, 2014
William Knowles and Kathleen Grohman, of the Global Insurance Department in Seattle, co-authored an article on 3D printing in Claims Management Magazine. The article focuses on 3D printing and “why this emerging technology isn’t smelling so sweet to insurers.”
April 29, 2014
In Betzdolt v. Auto Club Group Insurance Company, a Michigan resident was allowed to proceed with a bad faith claim against her insurer in Florida, even though the insurer did not sell policies in Florida, did not deliver policies in Florida, and was not authorized to write insurance policies in Florida. Betzdolt arises in the context of a third-party liability case (car accident) in which the Michigan resident was being defended by the Michigan insurer in Florida.
April 09, 2014
Claims Made and Reported Requirements, Retro Dates, Prior Knowledge and Prior/Pending Exclusions
April 01, 2014
Angelo G. Savino, a shareholder in the Global Insurance Department, authored an article titled Event Horizon featured in the April 2014 issue of [Best’s Review]. In the article Angelo discusses the Haliburton v. Erica P. John Fund Supreme Court case and other factors that could have major impact on the D&O space in 2014.
April 01, 2014
In BSC Holding, Inc. et al. v. Lexington Ins. Co., — Fed.Appx. –, 2014 WL 929194 (10th Cir., March 11, 2014), the Tenth Circuit recently underscored how difficult it can be for an insurer to demonstrate prejudice as a result of late notice.
March 28, 2014
Melissa Brill of the Global Insurance department discusses K2 and the Court of Appeals decision to reject the notion of coverage in this article published by Property Casualty360.
March 14, 2014
Construction companies operating in multiple jurisdictions are finding that standardized language used in typical liability policies is subject to considerably different interpretations from one state to another.
March 13, 2014
On February 21, 2014, a New York state trial court judge ruled that Zurich American Insurance Company has no duty to defend the Sony Corporation in lawsuits relating to a 2011 cyberattack on its PlayStation network. This decision is among the first in the country to address coverage issues for large scale data security breaches. Judge Jeffrey Oing rendered an immediate decision after hearing oral argument, recognizing the issue’s importance and the likelihood of an appeal.
March 10, 2014
Melissa Brill of the Global Insurance Department discusses TCPAS Class Actions in Law360. "A recent shift in Second Circuit law may lead to a rise in class actions under the Telephone Consumer Protection Act. After a 2012 U.S. Supreme Court case shed light on the proper interpretation of a section of the TCPA, the Second Circuit paved the way for TCPA class actions in New York federal courts."
March 03, 2014
Jonathan Toren of the Global Insurance Department is co-author of Chapter 14, “Deductibles and Self-Insured Retentions,” in The Reference Handbook on the Commercial General Liability Policy, Second Edition. In the commercial insurance industry, the commercial general liability (CGL) policy is the most common form of liability insurance purchased by both public and private sectors throughout the United States and, as a result, is arguably the most litigated insurance product in the marketplace. This book is a survey of the current developments and issues that can arise from a liability policy.
February 28, 2014
The New York Court of Appeals rarely hears reargument of its decisions, let alone reverses itself. On February 18, 2014, the Court of Appeals did just that.
February 27, 2014
In Validus Reinsurance, Ltd. v. United States, No. 13-0109 (ABJ), 2014 WL 462886 (D.D.C. 2014), the U.S. District Court for the District of Columbia found that a foreign reinsurer was not subject to excise tax under Internal Revenue Code Section 4371 when purchasing retrocessional coverage for the assumed reinsurance of U.S. risks. While foreign reinsurance contracts are subject to excise tax, the court held that Section 4371’s plain language did not encompass retrocessional reinsurance transactions.
February 24, 2014
In a cutting-edge decision, the federal 6th Circuit Court of Appeals has ruled that an exclusion barring coverage for an insured’s liability for “disgorgement” of “remuneration” or “advantage” is limited to “acquiring” funds as opposed to “retaining” funds. William Beaumont Hospital v. Federal Ins. Co., No. 13-1468, 2014 WL 185388 (6th Cir. Jan. 16, 2014). The Beaumont decision is the first of its kind and, if followed by other courts, narrowly circumscribes the scope of disgorgement exclusions that are typically included in errors and omissions and directors and officers liability policies.
February 11, 2014
On January 28, 2014, the Supreme Court of Connecticut, in Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, addressed three issues that define the extent of coverage available under a medical professional liability policy. The court concluded that each claimant triggered a separate limit; an aggregate limit for professional lines claims applied; and a retention for each medical incident applied.
January 27, 2014
In Ewing Construction Co. Inc. v. Amerisure Ins. Co., No. 12-0661, 2014 WL 185035 (Tex. Jan. 17, 2014), the Texas Supreme Court held that a general contractor who agrees to perform construction work in a “good and workmanlike manner” does not “assume liability” for damages arising out of the contractor’s defective work so as to trigger the contractual liability exclusion in a commercial general liability policy. This holding substantially clarifies the Texas Supreme Court’s prior holding in Gilbert Texas Construction LP v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010).
January 23, 2014
A recent shift in 2nd Circuit law may lead to a rise in class action litigation under the Telephone Consumer Protection Act (TCPA). See Bank v. Independence Energy Grp. LLC, 736 F.3d 660 (2d Cir. 2013). After a 2012 Supreme Court case shed light on the proper interpretation of a section of the TCPA, the U.S. Court of Appeals for the 2nd Circuit took up the question on December 3, 2013 and paved the way for TCPA class action suits in New York federal courts.
January 07, 2014
In an article titled “K2: Will NY Court of Appeals Reaffirm Coverage by Estoppel?” Melissa Brill (Global Insurance, New York Downtown) discusses what will happen if the New York Court of Appeals upholds its recent “coverage by estoppel” decision on reargument. The article examines the meaning of the court’s decision, the Jan. 7 reargument, and the positions that the parties, and amici curiae, have taken in their briefing for that reargument. To read the article, click here.
December 30, 2013
The Cozen O’Connor London of is pleased to provide you with our 2013 Year In Review, a newsletter discussing select cases in insurance coverage, subrogation, dispute resolution and commercial matters.
December 19, 2013
On December 3, 2013, the intermediate Pennsylvania Court of Appeals decided Indalex, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, concluded that an “occurrence” under a commercial umbrella liability policy may arise in the context of defectively manufactured components used in a home, which resulted in alleged property damage and bodily injury. This holding is the first appellate level decision in Pennsylvania in recent years to find an insured occurrence in the context of claims by homeowners.
December 19, 2013
A Pennsylvania state judge denied Highmark Life Insurance Co.'s bid to vacate a $3.6 million arbitration award in favor of Elite Underwriting Services LLC, saying that the exclusion of testimony by the parties' reinsurance broker did not warrant a vacatur.
December 16, 2013
As a matter of first impression under Pennsylvania law, the court in Shannon v. New York Central Mutual Insurance Company, No: 13-cv-1432 (M.D. Pa. Nov. 20, 2013) denied a motion to strike an insurer’s defense of “bad faith set-up,” asserted in response to a bad faith claim based on the insurer’s alleged failure to settle a claim.
December 16, 2013
In 1911, Oliver Wendell Holmes, writing for the majority of the United States Supreme Court, unequivocally (if unknowingly) established the legal distinction between the secondary life market and what has become known as stranger originated life insurance (“STOLI”). The common law in both England and the United States long-abhorred insurance without an interest as a “mischievous kind of gaming” and so developed the insurable interest doctrine i.e., that an owner of a policy must have an interest in that insured. However, the application of the doctrine to specific cases involving the purchase of life insurance produced varied results throughout the Eighteenth and Nineteenth Centuries. In Grigsby v. Russell, Justice Holmes established that a life insurance policy, once purchased in good faith, could subsequently be assigned or otherwise alienated by its rightful owner. Grigsby brought clear, manageable legal principles to nearly two centuries of inconsistent jurisprudence on the insurable interest doctrine, principles that were subsequently adopted by statute in all of the jurisdictions of the United States.
December 10, 2013
A Legal and Forensic Accounting Case Study of Business Interruption Loss is a webcast presented by Richard Mackowsky, Senior Counsel of Cozen O’Connor’s Global Insurance Department and John Damico, CPA and Partner with Matson, Driscoll & Damico Forensic Accountants on December 10, 2013. The presentation discussed complex and cutting edge business interruption issues generated by catastrophes and the lessons learned including how to handle claims for wide area damage.
November 14, 2013
In Stewart Title Guar. Co. v. Sterling Savings Bank, et al., Wash. No. 87087-0 (October 3, 2013), the Washington Supreme Court held that a nonclient insurer may not pursue a malpractice claim against appointed defense counsel for failure to assert defenses favorable to the insurer, unless the insurer could show it was an intended beneficiary of the legal services provided by appointed defense counsel. The court reasoned that neither an alignment of interest between an insurer and policyholder nor appointed counsel’s duty to inform the carrier regarding case activity, equated to a duty of care owed by appointed defense counsel to the appointing insurer. The court declined to reach the parties’ equitable subrogation arguments that formed the basis of the actual legal malpractice claim.
October 31, 2013
On October 16, 2013, the U.S. District Court for the District of New Jersey, in Aleynikov v. The Goldman Sachs Group, Inc., found that a former vice president and computer programmer was an “officer” of Goldman Sachs & Co., Inc. (GSCo), and therefore eligible for advancement of legal fees and expenses for his ongoing defense in a New York state criminal case, even though the criminal action concerned the theft of confidential GSCo property. The decision provides an interesting lesson in the differences between indemnification and advancement and who may be considered an officer for purposes of awarding indemnity and advancement.
October 24, 2013
In Brechbill v. State Farm Fire & Cas. Co., No. 1111117, ___ So. 3d ___, 2013 WL 5394444, 2013 Ala. LEXIS 126 (Ala. Sept. 27, 2013), the Alabama Supreme Court held that there is only one, as opposed to two, causes of action for bad faith. More important, the Alabama Supreme Court held that a bad faith claim, no matter how plead, will not survive when an insurer can show a debatable reason for the denial.
October 09, 2013
In Klutschkowski v. Peacehealth, et al., No. 160615518 (Ore., Sept. 26, 2013), the Oregon State Supreme Court unanimously held that an Oregon statute capping non-economic damages at $500,000 was unconstitutional as applied to a case asserting common law claims for injuries sustained by an infant during labor and delivery.
October 08, 2013
The Property Adjuster’s Toolbox is a three-part webinar series presented by members of the firm’s Global Insurance Department. The presentations discuss the nuts and bolts of investigating and adjusting a claim under a first-party property insurance policy.
September 12, 2013
In a highly awaited decision, the California Supreme Court in Zhang v. Sup. Ct. of San Bernardino County considered whether insurance practices that violate the California Unfair Insurance Practices Act can give rise to a first-party cause of action under the California Unfair Competition Law.
September 05, 2013
Due to changes effective January 1, 2013, the Florida Motor Vehicle No-Fault Law now codified the insured’s obligation to submit to an examination under oath. At first it may seem odd that the Florida legislature had to go to such great lengths to incorporate, and explicitly condition, the receipt of no-fault benefits on the insured’s submission to an examination under oath. However, a brief look at the recent trends leading to this change demonstrates why the Florida legislature rewrote insurance contract law in the no-fault context.
September 05, 2013
The South Dakota Supreme Court in Bertelsen v. Allstate Insurance Co. (1) held that an insurer cannot avoid bad faith liability by claiming it did not know about controlling claims handling statutes, and (2) reaffirmed that an insurer cannot rely upon claimants to provide a copy of the applicable laws (i.e., a copy of the claims handling statutes), especially in the absence of a request.
August 27, 2013
Proposed changes to the Federal Rules of Civil Procedure may impact the management, scope and sanctions related to e-discovery in federal courts. The changes are aimed at encouraging early and active case management, ensuring e-discovery remains proportional to the action, and advancing cooperation among parties. If approved, these amendments to the civil rules will become effective on December 1, 2015.
August 26, 2013
Melissa Brill of the Global Insurance Department writes this article titled NY Insurers Breaching Duty to Defend May Lose Defenses to Indemnification in Property Casualty360 that focuses on the K2 decision,
July 31, 2013
On July 12, 2013, the Georgia Supreme Court expanded covered damages in construction defect cases by broadening the definition of “occurrence,” yet left in place the insurer’s right to deny coverage based upon the lack of “property damage” and the business risk exclusions. Taylor Morrison Services, Inc. v. HDI-Gerling America Insurance Company, No. S13Q0462, 2013 WL 3481555 (Ga. July 12, 2013). Specifically, the Court held that damage to the insured’s property or work may constitute an “occurrence.”
July 25, 2013
On July 16, 2013, the Pennsylvania Court of Common Pleas (Philadelphia County) granted summary judgment to ACE American Insurance Company, upholding its denial of an insurance claim arising from False Claims Act litigation against AmerisourceBergen Co. Richard Mason of Cozen O’Connor was lead counsel for ACE American Insurance Company.
July 19, 2013
On July 10, 2013, a majority of a three-judge panel of the Superior Court of Pennsylvania cut a new path for insureds and insurers with respect to defense under reservations of rights. See The Babcock & Wilcox Company, et al. v. American Nuclear Insurers, et al., 2013 PA Super. 174, 2013 PA Super. LEXIS 1630. According to the majority, when an insurer tenders a defense subject to a reservation, an insured may reject the insurer’s defense and bind the insurer to a settlement that the insurer did not consent, so long as the settlement is fair and reasonable.
July 08, 2013
In the recent decision of Schifino v. Geico General Ins. Co. et al., 2013 WL 2404115 (W.D.Pa. 2013), and for the second time in less than a year, the district court for the Western District of Pennsylvania precluded a plaintiff from offering expert testimony supporting an insurer’s alleged bad faith. The district court reasoned that expert testimony addressing the reasonableness of an insurer’s claims handling in denying a claim was unnecessary as a matter of evidence and interfered with the fact finding role of the jury.
June 19, 2013
In a recent case before the U.S. District Court for the Central District of Illinois, the court held that jail employees were not entitled to coverage for sexual molestation of an inmate under the law enforcement coverage part of the jail’s liability insurance policy. In so holding, the court declined to apply an expansive interpretation to the policy’s “arising out of” language.
June 17, 2013
On June 10, 2013, the governor of Oregon signed into law Senate Bill 814, creating sweeping reforms on environmental claims-handling regulations and available remedies for insureds facing liability for cleanup of contaminated property located in the state. The legislation is effective immediately.
June 14, 2013
The New York Court of Appeals, New York’s highest state court, recently held – in what appears to be a new position in New York – that an insurer that breached its duty to defend could not later rely on otherwise applicable exclusions to deny coverage for indemnification.
June 14, 2013
The U.S. Court of Appeals for the 2nd Circuit recently eliminated the foundation for policyholders’ arguments in favor of “functional exhaustion.” In Ali v. Federal Insurance Co., No. 11-5000-cv (2d Cir. June 4, 2013), the 2nd Circuit held that functional exhaustion as permitted in the 1928 decision in Zeig v. Massachusetts Bonding & Ins. Co., 23 F.2d 665 (2d Cir. 1928) does not apply to excess liability policies.
June 12, 2013
On certification from the U.S. District Court for the Northern District of Alabama, the Supreme Court of Connecticut recently issued an opinion holding that an insurer’s bad faith conduct in the investigation of a third-party liability insurance claim does not provide a basis for recovery under Connecticut law. Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 2013 Conn. LEXIS 187 (Conn. June 11, 2013).
June 10, 2013
Richard Mason, of the Global Insurance Department, discusses attorney-client privilege in Best's Review.
May 22, 2013
On May 7, 2013, a divided panel of the NY Court of Appeals issued an important opinion, in Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, Pa., 2013 N.Y. Slip. Op. 03264 (May 7, 2013). The court affirmed, by a plurality, the Appellate Division’s ruling that at least one occurrence per year of abuse transpired under the policy wording at issue.
May 08, 2013
Jason Beckerman and Ryan Kearney of the New York Downtown office published an article in The New York Law Journal titled, “Accountability in Elevated Construction Accidents,” which discusses the traction to reform New York’s well-known scaffolding statute embodied in Labor Law § 240(1). Over the past two decades the law has evolved into a windfall for a small group of plaintiff’s attorneys, while simultaneously causing construction insurance premiums to skyrocket. With increased insurance costs real estate development in and around New York City has become limited, causing major developers to look to other states for development sites.
May 06, 2013
Regulators, food distributors and, of course, lawyers are scrambling to determine the legal and reputational consequences of the still-growing horse meat scandal that recently hit Europe.
May 01, 2013
Angelo Savino, chair of the professional liability practice in Global Insurance, published an article in Best's Review addressing the issue of claims having decreased but D&O insurers face a potentially volatile underwriting landscape. To read the complete article click here.
May 01, 2013
In DRI’s For The Defense, Jonathan Toren of the Global Insurance Department is co-author of this article, “Retained Limits, Deductibles, and Self-Insurance. “ The last few years have been challenging for insurers and policyholders alike. As the economy has faltered and competitive pressures have increased, many companies have tried to restructure their insurance programs to reduce premium outlays. Insurers, meantime, have looked for ways to manage their limits more conservatively.
April 26, 2013
On Feb. 15, 2013, a Pennsylvania federal district court held that the shipment of defective drywall from China to the United States constituted one “occurrence” for purposes of insurance coverage, and the occurrence took place when the damage caused by the drywall manifested itself in the residences or buildings of the underlying plaintiffs.
April 24, 2013
Earlier this month the 7th Circuit affirmed a district court order that held an insurer properly denied coverage to the insured law firm based on its failure to comply with the reporting requirements under its claims-made professional liability policy.
April 23, 2013
Angelo Savino, chair of the professional liability practice in Global Insurance, was quoted in Law 360’s article, “News Corp.’s $139M Deal May Make for Pricier D&O Coverage.” The article by Bibeka Shrestha discusses the record-breaking settlement by News Corp which has its insurers picking up the tab for the $139 million settlement that ends shareholder derivative litigation over its phone hacking scandal, likely sending other carriers scrambling to rethink the pricing and design of their directors and officers policies. Click here to read the full article and Angelo’s comments.
April 11, 2013
In Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court held that a class-action plaintiff may not avoid the effect of the federal Class Action Fairness Act (CAFA) by “stipulating” he will not seek damages in excess of $5,000,000. CAFA provides that the federal “district courts shall have original jurisdiction” over a civil “class action” if, among other things, the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U.S.C. §§ 1332(d)(2), (5). The statute further states that to “determine whether the matter in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.” § 1332(d)(6).
April 05, 2013
Policyholders in New York and New Jersey presently have no private right of action against insurance companies for alleged violations of each state’s respective statutory claim handling guidelines – New York’s Unfair Claim Settlement Practices Act, N.Y. Ins. Law § 2601, and New Jersey’s Unfair Claim Settlement Practices Act, N.J. Admin. Code tit. 11, §§ 2-17.6 and 2-17.7. Although the New York and New Jersey statutes each prohibit insurers from engaging in unfair claim settlement practices, neither allows insureds the right to enforce the laws or seek damages for a violation by filing a lawsuit against the insurer. Rather, the Insurance Department for each state are vested with the exclusive power of enforcement, and then only when an insurer engages in a pattern of violations demonstrating that the mishandling of claims is a general business practice. That may soon change, however.
March 26, 2013
Last week, in Tyler v. Michaels Stores, Inc., the Supreme Judicial Court of Massachusetts responded to certified questions presented by the district court and interpreted a Massachusetts statute to reflect the state’s interest in protecting consumer privacy. No. SJC-11145, 2013 Mass. LEXIS 40 (Mass. Mar. 11, 2013). In particular, the court held that a consumer’s zip code constitutes personal identification information, and that a consumer can bring an action under the relevant statute absent a claim of identify fraud.
March 20, 2013
In a recent unanimous decision, the U.S. Supreme Court held that the Securities Exchange Commission (SEC) has five years from the date when an alleged fraud begins – not from the date when the SEC uncovers the fraud – to bring an action seeking penalties. It is likely this decision will have a large-scale impact, including an impact on D&O insurers, by spurring the SEC to complete its investigations and bring enforcement actions sooner rather than later.
March 20, 2013
In Syracuse University v. National Union Fire Insurance of Pittsburgh, PA, No. 2012EF 63 (Sup. Ct., Onondaga County, January 29, 2013), the New York Supreme Court, County of Onondaga, held that an insured’s costs incurred in responding to subpoenas issued by state and federal agencies, were covered (as defense costs) as “Claims” made under a not-for-profit individual and organization insurance policy issued by National Union. The case arose out of allegations that a Syracuse assistant basketball coach, Bernie Fine, had sexually abused two former participants in Syracuse University’s basketball program over a period of years while serving in his capacity as the University’s assistant basketball coach.1 The court held that issuance of the subpoenas constituted a “Claim” as defined in the policy.
March 19, 2013
In D.R. Horton, Inc.—Denver v. Mountain States Mutual Casualty Co., No. 12-cv-01080 (February 25, 2013), another U.S. District Court judge for the District of Colorado determined a liability insured seeking defense costs from its insurer may qualify as a “first-party claimant” for purposes of Colorado’s Unfair Claim Settlement Practices Act, potentially entitling the insured to recover unpaid defense costs, attorneys’ fees in prosecuting the recovery action and two times the unpaid defense costs as a penalty.
March 18, 2013
The Washington Supreme Court joined a minority of jurisdictions that hold that insurers may not unilaterally reserve the right to seek reimbursement for defense costs paid in defending non-covered claims through a reservation of rights letter. In National Surety Corp. v. Immunex Corp., the Washington Supreme Court, in a five to four decision, held that insurers defending under a reservation of rights may not seek reimbursement for defense costs from the insured, even if there is a determination that the insured is not entitled to coverage under the policy No. 86535-3 (March 7, 2013). In so holding, the court recognized that, upon a showing of actual and substantial prejudice resulting from an insured’s delayed tender, an insurer could minimize or avoid liability for defense costs.
March 15, 2013
When an insured sues an insurer for bad faith, how much of the claims file maintained by the insurer is discoverable? In a 5-4 decision, the Washington Supreme Court recently weakened insurers’ ability to protect confidential communications with their attorneys in first-party claims where the insured has alleged bad faith. Cedell v. Farmers Insurance Company of Washington, No. 85366-5 (February 22, 2013). The court held that, in the context of a first-party claim for bad faith claim handling and processing, courts must apply a presumption that there is no applicable attorney-client privilege. The court further held that an insurer would be entitled to overcome the presumption by showing that its counsel was providing legal advice as to the insurer’s potential liability and was not acting in the insurer’s “quasi-fiduciary” function. Upon this showing, the insurer is entitled to an in camera review where the trial court will determine if the privilege applies, subject to the insured’s assertions that the privilege does not apply due to an exception, including the civil fraud exception.
March 08, 2013
In Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085 (Slip Op. Feb. 27, 2013), the U.S. Supreme Court, in a 6-3 majority opinion (Ginsburg, J.), affirmed the U.S. Court of Appeals for the 9th Circuit’s ruling that a securities class action plaintiff need not prove materiality of alleged misrepresentations or misleading omissions as a prerequisite to class certification under Fed. R. Civ. P. 23. Justices Kennedy, Scalia, and Thomas dissented. Justice Alito concurred with the majority but added a separate and important note (discussed below). The Court’s decision lowers the bar for investors seeking to obtain class certification, which has significant implications for D&O insurers, companies, their Directors and Officers (Ds and Os), and securities fraud plaintiffs alike. The Court’s ruling in Amgen also settles a split among the 2nd, 3rd, 7th, and 9th Circuits. Although the ruling is clearly favorable to securities fraud class action plaintiffs, the four concurring and dissenting justices appear willing to entertain arguments over the continued validity of the fraud-on-the-market presumption, which could drastically alter the landscape for securities class actions.