Recent Publications

Employee Benefit Plan – From the Courts
February | 2017

Seventh Circuit, Joining Other Circuits, Rejects ERISA Plan’s “Coordination of Benefits” Lawsuit Against Health Insurers The plaintiff in this lawsuit, filed in a federal district court in Illinois, was the trustee of the Central States, Southeast and Southwest Areas Health and Welfare Fund, a self-funded plan under the Employee Retirement Income Security Act of 1974 …Continue

Insurer’s “Generic” Reservation of Rights Letters Found Inadequate by South Carolina Supreme Court
February 21 | 2017

The South Carolina Supreme Court has found that letters issued by a commercial general liability insurer to its insureds were inadequate to reserve its rights as they amounted to “generic denials of coverage coupled with furnishing the insured with a verbatim recitation of all or most of the policy provisions (through a cut-and-paste method).” The …Continue

Indiana District Court: Claims-in-Process Exclusion Precluded Coverage for Pollution That Began Before Insureds Had Purchased Their Property
February 21 | 2017

A federal district court in Indiana has ruled that a claims-in-process exclusion in a commercial general liability insurance policy precluded coverage for the insureds’ claim where pollution at the insureds’ property had begun before the insureds even had purchased the property. The Case Property in Lake Station, Indiana, was used as a dry cleaning facility …Continue

Eleventh Circuit: Insurer Was Not Required to Pay Pre-Tender Defense Fees
February 21 | 2017

The U.S. Court of Appeals for the Eleventh Circuit has ruled that a Florida claims handling statute did not preclude an insurer from declining to pay pre-tender defense fees and costs incurred by its insured prior to tendering its claim to the insurer. The Case After EmbroidMe.com, Inc., was sued in federal district court for …Continue

Tenth Circuit: Insurers’ Policies, Not Insureds’ Lease, Determined Insurers’ Relative Responsibilities for Loss
February 21 | 2017

The U.S. Court of Appeals for the Tenth Circuit has ruled that the two insurance policies covering a leased building damaged in a fire – and not the lease itself – determined the insurers’ relative responsibilities for the damage. The Case Philadelphia Indemnity Insurance Company and Lexington Insurance Company insured the same school building that was …Continue

Ninth Circuit: Insurers Had No Obligation to Defend Lawsuit Based on Previous Tender of Potential Administrative Proceeding
February 21 | 2017

The U.S. Court of Appeals for the Ninth Circuit has ruled that an insured’s failure to tender an environmental lawsuit to three insurance companies was fatal to its coverage claim, even though the insured previously had tendered a potential administrative proceeding to the carriers. The Case M.B.L., Inc., a defunct dry cleaning products company, sued …Continue

Ninth Circuit: Insurer Had No Coverage Obligation for Insured’s Settlement in Absence of Insurer’s Prior Written Consent
February 21 | 2017

The U.S. Court of Appeals for the Ninth Circuit has ruled that an insurer had no obligation to cover its insured’s agreement to settle a lawsuit where the insurer had not given its prior written consent to the settlement as required by the policy. The Case Assured Guaranty Municipal Corporation sued OneWest Bank, FSB, for …Continue

Eighth Circuit: Condensate Is a Pollutant within the Meaning of the Absolute Pollution Exclusion
February 21 | 2017

The U.S. Court of Appeals for the Eighth Circuit has ruled that an insurer did not have a duty to defend or indemnify an additional insured in connection with a lawsuit brought by a subcontractor’s employee who alleged that he had been injured in an explosion caused by condensate, concluding that the employee’s allegations fell …Continue

Online and Social Media Defamation in Today’s Age
February 21 | 2017

Twitter, Facebook, Instagram, and other forms of social media are becoming the dominant communication tools in today’s political and social discourse, often entirely supplanting traditional media’s role in public commentary. Social media’s emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards …Continue

Rutkin Publishes Article Entitled, “Insight – Too Good to Be True?”
February 17 | 2017

Alan Rutkin article entitled, “Insight – Too Good to Be True?,” has been published in the February 2017 issue of Best’s Review magazine. Click here to read the article. Best’s Review:  February 2017. Copyrighted A.M. Best Company, Inc. 2017.  All Rights Reserved, Reprinted with Permission.

International Dioxin Developments
February 16 | 2017

Decision on Cork Harbour Incinerator Expected by March 22 The authorities reviewing a proposal for a €160 million municipal and hazardous waste incinerator in Cork Harbour, Ireland, are expected to issue a decision by March 22. Background Indaver, which is a waste management company, submitted an application to An Bord Pleanála, the Cork County governing …Continue

Dioxin: Legislative Developments
February 16 | 2017

New Hampshire Bill Would Require Sediment Analysis at Construction Sites A New Hampshire state representative, Wayne Burton, has introduced a bill that would require construction projects that disturb sediments of estuarine waters to analyze the characteristics of the sediments and submit a chemical analysis of the sediments to the state’s Department of Environmental Services (“DES”) …Continue

The Science of Dioxin
February 16 | 2017

“Little Health Risk” from PCDD/Fs in Food in China, Paper Finds The Journal of Environmental Sciences has published a scientific paper that found “little health risk” from polychlorinated dibenzo-p-dioxins and dibenzofurans (“PCDD/Fs”) in food in China. Background The paper, entitled “Patterns and dietary intake of polychlorinated dibenzo-p-dioxins and polychlorinated dibenzofurans in food products in China,” …Continue

Dioxin Developments
February 16 | 2017

Court Ruling Moves California Closer to Requiring Warning Label on Glyphosate A tentative ruling by a California judge has moved state regulators closer to requiring a warning label on glyphosate, the main ingredient in the Monsanto product, Roundup. Background In 1986, California voters adopted Proposition 65, more formally known as the Safe Drinking Water and …Continue

CMS and OMIG Provide Guidance on Combating Opioid Epidemic
February 15 | 2017

The Healthcare Fraud Prevention Partnership (“HFPP”), in conjunction with the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services (“CMS”), has recently issued a White Paper that outlines recommended actions to reduce opioid misuse and opioid-use disorders (“OUDs”) in the United States. It has been estimated that prescription opioid …Continue

HHS Finalizes Amendments to Confidentiality Rules for Alcohol and Drug Abuse Patients
February 15 | 2017

For the first time in thirty years, the Substance Abuse and Mental Health Services Administration (“SAMHSA”), a branch of the U.S. Department of Health and Human Services (“HHS”), issued a final rule amending 42 CFR Part 2 (commonly referred to as “Part 2”) which governs the confidentiality of alcohol and drug abuse patient records. The …Continue

New York Insurance Coverage Law Update
January | 2017

“Contractual Privity” Not Required For Project Consultant To Be “Additional Insured,” New York Trial Court Rules Rockefeller Group Development Corp-oration, as an agent for 1221 Avenue Holdings LLC, contracted with A. Best Contracting Co., Inc. (“Abestco”) to have Abestco perform construction work at 1221 Avenue of the Americas in Manhattan. The contract allegedly required that …Continue

Trump’s Travel Ban: What It Means for Businesses
January 31 | 2017

On January 27, 2017, President Donald J. Trump signed an executive order that temporarily restricts visitors from seven countries deemed to harbor terrorists. The order suspends for 90 days the immigrant and nonimmigrant entry into the United States by foreign nationals from Iran, Iraq, Sudan, Syria, Libya, Somalia and Yemen.  The Department of Homeland Security …Continue

International Dioxin Developments
January 25 | 2017

Dioxin Clean-Up to Begin at New Zealand’s Kopeopeo Canal Authorities in a New Zealand town have awarded a contract to a consortium led by Auckland-based EnviroWaste Services Limited to remove sediment containing dioxin from a 5.1 kilometer section of the Kopeopeo Canal. Background The Kopeopeo Canal was built during the 1920s to convey drainage and …Continue

The Science of Dioxin
January 25 | 2017

Researchers Say They Have Mapped PHCZs in the Great Lakes Researchers from the School of Public Health, the Department of Civil and Materials Engineering, and the Department of Earth and Environmental Sciences at the University of Illinois at Chicago and from the Department of Veterinary Biomedical Sciences and Toxicology Centre at the University of Saskatchewan have published …Continue

Dioxin: Legislative Developments
January 25 | 2017

Proposed Constitutional Amendment on Natural-Resources Damages Set for Vote in New Jersey The New Jersey legislature has approved a resolution that allows voters to vote on a constitutional amendment that, if adopted, would limit the ability of the state to use funds received in settlement of certain environmental actions for general budgetary purposes. The resolution …Continue

Dioxin Developments
January 25 | 2017

Upstate New York County Legislators Support National Firefighter Cancer Registry Legislators in the upstate New York county of Onondaga have voiced their support for a registry that would track cancer cases among firefighters. Supporters of a federal bill, The Firefighter Cancer Registry Act, have estimated that as many as three out of five career firefighters …Continue

E-Visas Help Foreign Brands Build U.S. Business
January 24 | 2017

The combination of globalization and the trend toward clean living has revolutionized the natural products industry, creating opportunities and presenting challenges. Opportunities include the availability of products and human capital from around the world. Bringing those resources into the United States, however, presents challenges. Companies that meet those challenges will have a competitive advantage. NatureCare, …Continue

In Bar Fight Coverage Case, Maine’s Top Court Rules That Exclusions Precluded Coverage
January 24 | 2017

The Supreme Judicial Court of Maine, affirming a trial court’s decision, has ruled that assault and battery exclusions in an insurance policy issued to a bar precluded coverage for a negligence lawsuit against the bar stemming from an alleged fight. The Case Barnie’s Bar & Grill, Inc., was sued by a plaintiff who alleged that …Continue

In Corporate Officer Coverage Case, Montana District Court Holds That Personal Profits Exclusion Barred Some Claims
January 24 | 2017

A federal district court in Montana has ruled that a personal profits exclusion in a directors, officers, and managers liability and corporate indemnification (“D&O”) policy had been triggered by a special master’s finding that the insured officer had committed conversion – but only with respect to that claim. The Case After an officer of Global …Continue

In Construction Defect Coverage Case, Oregon Supreme Court Finds Duty to Defend Where Complaint’s Allegations, “Reasonably Interpreted,” Could Lead to Insured’s Liability
January 24 | 2017

The Oregon Supreme Court, affirming a lower court’s decision, has ruled that an insurer had a duty to defend an additional insured against a complaint that contained allegations that, reasonably interpreted, could result in the insured being held liable for damages covered by the policy. The Case West Hills Development Company was the general contractor …Continue

In Construction Defect Coverage Case, California Appeals Court Decides That Flooring Failure Was Not an Occurrence
January 24 | 2017

An appellate court in California, affirming a trial court’s decision, has ruled that an insurer had no duty to indemnify its insured, a licensed general contractor, in a construction defect case where the contractor’s action that led to the defect had been deliberate. The Case D.B.O. Development No. 28 entered into a construction contract with …Continue

In Construction Injury Coverage Case, California Appeals Court Affirms Ruling That General Contractor Was Not an Additional Insured on Subcontractor’s Excess Policy
January 24 | 2017

An appellate court in California has affirmed a trial court’s decision that a general contractor was not an additional insured on a subcontractor’s excess insurance policy. The Case Advent, Inc., was hired as the general contractor for the Aspen Family Village project in Milpitas, California. Advent subcontracted with Pacific Structures, Inc. In turn, Pacific subcontracted …Continue

In Asbestos Coverage Case, Ohio Appeals Court Applies “Triggering Event” Theory to Determine Number of Occurrences
January 24 | 2017

An appellate court in Ohio, applying the “triggering event” theory, has ruled that each individual claimant’s exposure to asbestos was an “occurrence” for purposes of insurance policies issued to a valve manufacturing company. The Case Some of the valves manufactured by the William Powell Company before 1987 contained asbestos. In 2001, Powell began receiving personal …Continue

In Asbestos Coverage Case, Sixth Circuit Adopts Pro Rata Allocation – and Upholds Restitution to Insurer
January 24 | 2017

The U.S. Court of Appeals for the Sixth Circuit, in a case involving asbestos liabilities, has affirmed a Michigan district court’s decision that pro rata allocation was the appropriate method to use to allocate damages and costs under an insured’s policies and has affirmed the district court’s decision requiring the insured to pay approximately $2.4 …Continue

New York Passes New Law to Allow Outpatient Clinics and ASCs to Provide Off-Site Services
January 24 | 2017

New York Governor, Andrew Cuomo, has signed a new legislation that may pave the way for outpatient clinics and diagnostic and treatment centers, which includes ambulatory surgery centers (“ASCs”), to provide primary care services to their patients off-site under limited circumstances. The new law, codified in the Public Health Law § 2803(11), requires that the …Continue

OIG Releases Work Plan for 2017
January 24 | 2017

The Department of Health and Human Services, Office of Inspector General (“OIG”) has released its Work Plan for Fiscal Year 2017 (the “Plan”). The Plan, available through the OIG website, summarizes new and ongoing audits, investigations and evaluations that OIG will prioritize in the upcoming year. Some of the new initiatives that OIG intends to …Continue

OIG Adds New Safe Harbor Protections in 2017
January 24 | 2017

In December 2016, the Office of Inspector General (“OIG”) for the U.S. Department of Health and Human Services amended existing safe harbors and issued a number of new safe harbors to   protect certain business practices and arrangements of doctors, hospitals, and pharmacies from sanctions under the anti-kickback statute (42 U.S.C. § 1320a-7b(b)). Additionally, OIG amended …Continue

The Future of the Affordable Care Act
January | 2017

Since its enactment six years ago, the Patient Protection and Affordable Care Act (the ACA) has faced numerous challenges from Republicans attempting to repeal the law. Though previous efforts, through both legislation and litigation, have been unsuccessful, the election of Donald Trump and a Republican-controlled Congress likely portends at least a partial repeal of the …Continue

Employee Benefit Plan Review – From the Courts
January | 2017

Florida Court Upholds Denial of Long-Term Disability Benefits to Employee Who Worked Fewer Hours  The plaintiff in this case was a financial sales professional with AXA Equitable Insurance Company who said that he experienced neck and back pains stemming from motor vehicle and snowboarding injuries that he had suffered in 2003. The plaintiff regularly worked 70 to …Continue

Courts Consider Whether Employers Have a Duty to Safeguard Employee Personal Information
January 19 | 2017

Employers regularly collect and maintain confidential personal information about their employees, including birth dates, social security numbers, addresses, tax information, and bank information.  A data breach may put this employee information at risk.  In two recent decisions, courts have had to consider the scope of employers’ duties to their employees to protect confidential personal information …Continue

N.Y. Announces Revisions and Delayed Implementation of Cyber Regulations
January 12 | 2017

In September 2016, New York Governor Andrew Cuomo announced a new regulation that would require banks and insurers to implement cyber security programs. Specifically, the proposed regulation required covered entities, defined as any entity operating under a license or other authorization required by New York’s banking, insurance or financial services law, to establish and maintain …Continue

Insurers Using Technology to Fight Insurance Fraud
January 5 | 2017

Insurance fraud has been estimated by some to be as large as an $80-billion-per-year problem. See, e.g., Coalition Against Insurance Fraud, “By the numbers: fraud statistics.”1 To fight insurance fraud, insurance companies, working hand-in-hand with their lawyers, have begun to adopt new kinds of technology. These tools—ranging from social media to data analytics—are being used …Continue

New York Insurance Coverage Law Update
December | 2016

Sagging Roof Was Not A Collapse, Court Confirms The owner of a building in the Bronx sought coverage under its property policy for a damaged roof, claiming it “collapsed,” a covered cause of loss under the policy.  The court granted the insurer’s motion for summary judgment, finding that “no part of the premises fell to …Continue

Employee Benefit Plan Review – From the Courts
December | 2016

Implied-in-Fact CBA Excluded Time Spent Donning and Doffing Work Clothing from Compensable Time, Eighth Circuit Decides Since at least 1967, hourly employees working at the battery manufacturing facility in Joplin, Missouri, operated by EaglePicher Technologies, LLC, were represented by a union, presently known as the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial …Continue

Self-Proclaimed Publisher of Fake News Sites Loses Circuit Appeal
December 21 | 2016

Fake news has been in the news a great deal recently, with some wondering how to address it. The recent decision by the U.S. Court of Appeals for the Second Circuit in Federal Trade Commission v. LeadClick Media , 838 F.3d 158 (2d Cir. 2016), may provide a way, at least in some instances. In …Continue

International Dioxin Developments
December 20 | 2016

Vietnam’s Environmental Standards Under Review Regulators in Vietnam are examining the country’s environmental standards and expect to complete their review by the end of 2017, according to published reports. Background Dr. Tran The Loan, the former head of the pollution control agency under the Ministry of Environment and Natural Resources’ General Department of Environment, told …Continue

The Science of Dioxin
December 20 | 2016

Atlantic Killifish Rapidly Adapted to Pollution, Researchers Say A paper published in the journal Science has concluded that Atlantic killifish populations have rapidly adapted to normally lethal levels of pollution in four urban estuaries. Background The paper, entitled, “The genomic landscape of rapid repeated evolutionary adaptation to toxic pollution in wild fish,” is credited to …Continue

Dioxin: State Developments
December 20 | 2016

$53 Million in Passaic River Settlement Proceeds Awarded for Local Projects New Jersey is awarding more than $53 million in grants to communities within the watershed of the lower Passaic River and the Newark Bay complex in an effort to improve public access and restore wetlands ecosystems. Natural Resource Damage Settlement The grants are the …Continue

Dioxin Developments
December 20 | 2016

State of Washington Is First State to Sue Monsanto Over PCB Damages and Cleanup Costs The state of Washington has filed the first environmental lawsuit by a state against Monsanto Company seeking damages and cleanup costs associated with the polychlorinated biphenyls (“PCBs”) produced by the company. The Allegations The complaint, filed in a Washington state court, contends …Continue

A Lawsuit against a Lawyer: No Coverage Given Absence of Allegations of Professional Acts or Omissions
December 16 | 2016

The U.S. Court of Appeals for the Fifth Circuit, reversing a Louisiana district court’s decision, has ruled that a professional liability insurance policy did not cover a lawsuit against a lawyer where it did not allege that the lawyer had engaged in any professional acts or omissions that gave rise to the plaintiffs’ claims. The …Continue

A Broker’s Embezzlement: Wrongful Act Exclusion Barred Coverage
December 16 | 2016

The U.S. Court of Appeals for the Sixth Circuit, affirming a decision by a federal district court in Michigan, has ruled that a “Wrongful Act” exclusion in an errors-and-omissions (“E&O”) policy precluded coverage for losses stemming from an employee’s embezzlement scheme. The Case A representative for a licensed securities broker-dealer embezzled client funds by depositing …Continue

A Box Truck Crash: Exclusion in Definition of “Auto” Precluded Coverage
December 16 | 2016

The U.S. Court of Appeals for the Eighth Circuit has upheld a district court’s decision that a personal auto insurance policy did not provide coverage for an accident involving a box truck, which was excluded from the definition of covered “auto.” The Case A woman struck by a rented box truck obtained a $225,000 consent …Continue

A Fire, or Two: Insureds’ Material Misrepresentations Voided Policy
December 16 | 2016

The U.S. Court of Appeals for the Eighth Circuit has affirmed a district court’s decision concluding that a homeowners’ insurance policy was void under its terms because the insured homeowners had made material misrepresentations during the claims process. The Case On October 10, 2012, either one or two fires occurred at the home owned by …Continue

A Case of Murder: No Coverage for Negligence Claims against Co-Insureds
December 16 | 2016

The West Virginia Supreme Court, adopting the majority view, has ruled that intentional acts exclusions in homeowners’ insurance policies precluded coverage for negligence claims against two insureds whose daughters had committed murder. The Case The parents of a teenage girl murdered by two of her friends sued the killers and their mothers. The plaintiffs asserted …Continue

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