Recent Publications - Michael A. Kotula


Excess, Surplus Lines, and Reinsurance Committee: Among Experienced and Diverse Professionals, Find Great Friends
March 31, 2015 | Insurance Coverage
Michael Kotula, a partner in the Firm’s Insurance Coverage & Litigation Practice Group, wrote an article entitled, “Excess, Surplus Lines, and Reinsurance Committee: Among Experienced and Diverse Professionals, Find Great Friends,” for the Spring 2015 issue of the Tort Trial & Insurance Practice Law Section Journal (Vol. 44-3). Click here to read article.   This information or any portion …
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Kotula co-authors article for ABA’s Tort Trial & Insurance Practice Law Journal
December 31, 2014 | Insurance Coverage
Michael Kotula, a Partner in the Insurance Coverage & Litigation Practice Group, was a contributor to Recent Developments in Excess Insurance & Reinsurance, which has been published in the 2015 Annual Survey of the American Bar Association Tort Trial & Insurance Practice Law Journal. Please click the link below to view the Article. Adobe Reader is required to …
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Umbrella Insurers Must Pay Insured’s Expenses Although Primary Insurance Was Exhausted by Claims the Umbrella Policies Did Not Cover
July 31, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit, reversing a district court’s decision, has ruled that umbrella insurance carriers were obligated for removal of debris (“ROD”) expenses under their umbrella policies even where the underlying insurance had been exhausted by claims the umbrella policies did not cover.  The Case W&T Offshore, Inc., an energy …
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Insurer Need Not Demonstrate Prejudice from Late Notice Under a Claims Made Policy, New Jersey Appeals Court Rules
July 31, 2014 | Insurance Coverage
An appellate court in New Jersey, affirming a trial court’s decision, has ruled that an insurance company that had issued a “claims made” policy and that had not received notice of a claim “as soon as reasonably practicable” did not have to demonstrate that it had been prejudiced by the late notice to be able …
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Policies’ Prior Publication Exclusion Bars Coverage of Trademark Infringement Action, Ninth Circuit Decides
July 31, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Ninth Circuit, affirming a California district court’s decision, has ruled that the prior publication exclusion in general liability insurance policies barred an insurance company’s obligation to defend its insured in an action alleging trademark infringement, unfair competition and unfair business practices under federal and California law. The Case …
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California Supreme Court Limits Scope of Insurer’s Duty to Defend Insured against a Possible Claim of Disparagement
July 31, 2014 | Insurance Coverage
The California Supreme Court has ruled that a claim of disparagement requires a plaintiff to show a false or misleading statement that specifically referred to the plaintiff’s product or business and that clearly derogated that product or business.  The Case Gary-Michael Dahl, the manufacturer of the “Multi-Cart,” sued Swift Distribution, Inc., doing business as Ultimate …
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Duty to Defend Under Model Toxic Control Act Is Triggered When Government Agency Communicates an “Explicit or Implicit” Threat of Consequences
July 31, 2014 | Insurance Coverage
An appellate court in Washington has ruled that the duty of an insurer to defend its insured in connection with potential liability under the state’s Model Toxics Control Act (“MTCA”), which imposes strict liability on the owner or operator of contaminated property, is triggered if a government agency communicates an explicit or implicit threat of …
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California Appeals Court Finds No Coverage Where Allegedly Defective Parts Were Incorporated Into a Whole Construction Project
July 31, 2014 | Insurance Coverage
A California appellate court, affirming a trial court’s decision, has ruled that there was no coverage under a commercial general liability insurance policy for claims against a subcontractor that incorporated allegedly defective materials into a construction project, where the only damage was to the project itself. The Case Regional Steel Corporation subcontracted with JSM Florentine, …
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South Dakota Supreme Court Upholds Enforceability of Continuing Injury Exclusion
April 30, 2014 | Insurance Coverage
The South Dakota Supreme Court has upheld the enforceability of an exclusion in a commercial general liability (“CGL”) insurance policy barring coverage for an unknown progressive or continuous injury or damage that occurred before the inception date of a successor insurance policy. The Case Steven Thomas & Sons, LLC, was hired in 2002 by Swift …
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Cost-Advancement Order Issued in DJ Action Is Appealable, First Circuit Holds
April 30, 2014 | Insurance Coverage
The U.S. Court of Appeals for the First Circuit has ruled that an insurance carrier may appeal an order issued in a declaratory judgment action requiring that it advance defense costs to its insureds. The Case After Westernbank of Puerto Rico was closed and the Federal Deposit Insurance Corporation (“FDIC”) was appointed receiver, the FDIC …
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Four Siblings’ Claims Against One Financial Advisor Were “Interrelated,” Circuit Finds
April 30, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Eighth Circuit has ruled that claims brought by four siblings against a single financial advisor were “interrelated wrongful acts” and not separate claims for purposes of the advisor’s professional liability insurance policy. The Case After each of four siblings – all members of the Shakopee Mdewakanton Sioux Community …
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Eleventh Circuit: Exclusion Bars Coverage for Junk Fax Suit
April 30, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit has ruled that an exclusion in a commercial general liability insurance policy for violations of any statute that addresses transmitting any material or information (the “Exclusion”) barred coverage of a “junk fax” lawsuit against the insured for allegedly violating the federal Telephone Consumer Protection Act (the …
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Class Action Relates Back to Earlier-Filed Suit, Florida Appeals Court Decides
April 30, 2014 | Insurance Coverage
A Florida appellate court has ruled that a class action filed against an insured mortgage broker after the expiration of its claims-made professional liability insurance policy related back to a claim filed during the policy period. Therefore, the appellate court ruled, the class action claim was covered by the policy.  The Case In October 2007, …
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Insured Has Burden of Demonstrating that Settlements of Asbestos-Related Claims Were Reasonable
April 30, 2014 | Insurance Coverage
A federal district court in Maryland has ruled that an insured had the burden of demonstrating that settlements of asbestos-related claims were reasonable. The Case After thousands of asbestos-related claims were filed against Porter Hayden Company, it entered bankruptcy. The bankruptcy court confirmed Porter Hayden’s plan of reorganization, which established the Porter Hayden Bodily Injury …
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Alabama Supreme Court Finds Coverage for Construction Defect Claims Even Though the Insured’s Own Work Allegedly Was Defective
March 31, 2014 | Insurance Coverage
The Alabama Supreme Court, withdrawing an earlier opinion, has found coverage for construction defect claims even though the insured’s own work allegedly was defective. The Case Thomas and Pat Johnson contracted with Jim Carr Homebuilder, LLC (“JCH”), a licensed homebuilder, for the construction of a new house on Lay Lake in Wilsonville, Alabama. After they took …
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In “Pollution Buy Back Endorsement” Case, Circuit Looks Beyond Complaint’s Allegations
March 31, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit, applying Florida law in a case involving a “pollution buy back endorsement,” has found an exception to the general rule that the duty to defend was determined solely from the allegations of the complaint. The Case Two seamen sued Composite Structures, Inc. d/b/a Marlow Marine Sales, …
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Pennsylvania Does Not Recognize Multiple Trigger Theory in Property Damage Cases, Appeals Court Decides
March 31, 2014 | Insurance Coverage
A Pennsylvania appellate court has ruled that Pennsylvania law does not recognize a multiple trigger theory in property damage cases.  The Case                                                                        After gasoline allegedly leaked from a gas station owned by Thomas F. Wagner and Thomas F. Wagner, Inc. (together, “Wagner”), onto neighboring properties, a number of neighbors sued Wagner and Titeflex Corporation, which …
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Eleventh Circuit Finds Coverage for Legionnaire’s Outbreak Where Allegations Asserted Negligent Design of Plumbing and Filtration Systems
March 31, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit, reversing a district court’s decision, has found coverage for an outbreak of Legionnaire’s disease at a hotel despite the insurance policy’s absolute pollution and fungi or bacteria exclusions because of allegations that the insured had negligently designed the hotel’s plumbing and filtration systems, which the circuit …
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Absolute Pollution Exclusion Bars Coverage for Carbon Monoxide Poisoning, Eighth Circuit Rules
March 31, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Eighth Circuit, applying Nebraska law, has ruled that an absolute pollution exclusion barred coverage for indoor air exposure to carbon monoxide. The Case John Green, the pastor of Clay Center Christian Church, resided at the church’s parsonage with his wife, Cheryl. After the parsonage’s heating system allegedly malfunctioned …
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Circuit Reverses Summary Judgment in Favor of Insurer Where It Failed to Prove Prejudice from Late Notice
March 31, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Tenth Circuit, reversing a trial court’s decision, has decided that an insurance carrier was not entitled to summary judgment in a coverage case for late notice where it had not demonstrated that it had been prejudiced. The Case In January 2008, employees of the Lyons Salt Company detected …
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Insured Can Use Third Party Payments to Satisfy SIR Provision, Florida Supreme Court Holds
February 28, 2014 | Insurance Coverage
The Florida Supreme Court, answering a question certified by the U.S. Court of Appeals for the Eleventh Circuit, has ruled that an insured general contractor could use payments to it from a third party subcontractor under a contractual indemnity obligation to satisfy its own insurance policy’s self-insured retention (“SIR”) provision. The circuit court also decided …
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Circuit Affirms District Court’s Ruling that Archdiocese Was Not Entitled to Coverage for Claims It Settled for Which It Was Not Legally Liable
February 28, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Eighth Circuit, affirming a district court’s decision, has ruled that the Archdiocese of St. Louis was not entitled to coverage under its insurance policy for a settlement of claims for which it was not legally liable. The Case After the Archdiocese of St. Louis and Archbishop Robert J. …
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CAFA’s $5 Million Amount-in-Controversy Requirement Can Be Met Where Plaintiff Seeks Only Declaratory Relief, Eleventh Circuit Rules
February 28, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit, reversing a district court’s decision, has determined that the $5 million amount-in-controversy requirement under the federal Class Action Fairness Act (“CAFA”) for federal subject matter jurisdiction can be satisfied where a plaintiff seeks only declaratory relief. The Case After Florencio Sanchez was injured in an automobile …
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Circuit Court Finds that Additional Insured Endorsement Limiting Coverage to Ongoing Operations Did Not Afford Coverage for Construction Defect Claim
February 28, 2014 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit, reversing a district court’s decision, has ruled that an additional insured endorsement that limited coverage to ongoing operations did not afford coverage for a construction defect claim, arising out of completed operations, asserted against a general contractor who was an additional insured on a subcontractor’s commercial …
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Texas Supreme Court Decides that Contractual Liability Exclusion Did Not Bar Coverage of Construction Defect Claims against General Contractor
February 28, 2014 | Insurance Coverage
The Texas Supreme Court, answering a question certified to it by the U.S. Court of Appeals for the Fifth Circuit, has ruled that a general contractor that entered into a contract in which it agreed to perform its construction work in a good and workmanlike manner, without more specific provisions enlarging this obligation, did not …
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Excess Insurer Not Obligated to Indemnify Insured for Defense Costs to Which It Had Not Consented
February 28, 2014 | Insurance Coverage
A Delaware trial court has ruled that an excess insurance carrier did not have a duty to indemnify its insured for defense costs to which it had not consented. The court also found that there was no requirement that the insurer had to act reasonably when withholding consent. The Case Mine Safety Appliances Company (“MSA”) …
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Settlements With Underlying Insurance and Forfeiture of Excess Insurance
December 31, 2012 | Insurance Coverage
Michael Kotula, a partner in the firm’s Insurance Coverage & Litigation Practice Group, authored an article entitled Settlements With Underlying Insurance and Forfeiture of Excess Insurance as well as excess insurance case notes in the ABA TIPS Excess, Surplus Lines and Reinsurance General Committee Winter 2013 quarterly newsletter.  Michael is the Chair-Elect and Newsletter Editor of the …
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Recent Developments In Excess Insurance, Surplus Lines Insurance, and Reinsurance
September 30, 2012 | Insurance Coverage
Michael Kotula, a partner in the firm’s Insurance Coverage & Litigation Practice Group, co-authored a survey article on Excess, Surplus Lines and Reinsurance in the ABA TIPS Law Journal, writing the excess insurance part of the survey, explaining significant court decisions in 2012 involving excess insurance. Please click the link below to view Recent Developments In Excess …
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Recent Developments In Excess Insurance, Surplus Lines Insurance…
June 30, 2010 | Insurance Coverage
Please click the link below to view the Recent Developments In Excess Insurance, Surplus Lines Insurance, and Reinsurance Law. Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download and install. Recent Developments In Excess Insurance, Surplus Lines Insurance, and Reinsurance Law* *Co-written with …
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