Recent Publications - Robert Tugander


Insurance Update
February 14, 2018 | Robert Tugander | Insurance Coverage
We bring you our February Insurance Update.  In this month’s issue: The Eighth Circuit considers if the “particular part” exclusion bars coverage for damage to an electrical transformer; A Pennsylvania federal judge determines whether a homeowners’ policy covers the costs to clean up a heating oil spill in the home’s basement; A Florida federal judge …
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Insurance Update
January 18, 2018 | Robert Tugander | Insurance Coverage
It has been a frigid start to the new year, but insurance remains a hot topic with the courts.  In this month’s Insurance Update: The Florida Supreme Court decides whether a statutory presuit notice process is a “suit”; The Connecticut Supreme Court provides guidance on when a claim arises out of a business pursuit; The …
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Insurance Update
December 19, 2017 | Robert Tugander | Insurance Coverage
It’s a busy time of the year, and courts have been busy tackling the following insurance questions: Municipalities sued pharmaceutical companies for deceptively marketing opioids. Are the companies entitled to a defense from their insurers? Owners of a custom built home discovered mold contamination caused by poor construction.  Does the faulty workmanship exclusion bar their …
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Insurance Update
November 20, 2017 | Robert Tugander | Insurance Coverage
Exclusions are front and center in this month’s Insurance Update. We discuss the ubiquitous but seldom applicable war exclusion, the professional services exclusion, the intellectual property exclusion, and the workmanship and earth movement exclusions. Other topics in this month’s update include late notice and prejudice, a Missouri appellate court’s allocation ruling, and what happens when …
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Insurance Update
October 12, 2017 | Robert Tugander | Insurance Coverage
Our Insurance Update for October covers several topics. We begin with a pair of state high court decisions.  One addresses the elements of a bad faith action in Pennsylvania.  The other, from Nevada, serves as a reminder to insurers that cancellation notices must follow the letter of the law. We also discuss a pair of …
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Insurance Update
September 18, 2017 | Robert Tugander | Insurance Coverage
For many of us, September marks the end of summer, back to school, and the return of football. Sticking with that theme, our September Insurance Update includes two cases by parents whose children had a little too much time on their hands. Our update also includes two cases involving a common summertime activity – boating.  …
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Insurance Update
August 9, 2017 | Robert Tugander | Insurance Coverage
We bring you our Insurance Update for August. We lead off this month’s issue with a cybercrime case decided by a Michigan federal district court. The case arises out of a spoof email and the issue is whether the loss was directly caused by the use of a computer. A handful of cases involving similar …
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Insurance Update
July 14, 2017 | Insurance Coverage
Our July Insurance Update features three cases from state high courts. The Massachusetts Supreme Judicial Court, on certified question from the First Circuit, addresses whether the duty to defend (or pay defense costs) includes the costs to prosecute the insured’s counterclaims. The Texas Supreme Court considers whether the underlying proceeding was sufficiently adversarial when assessing …
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No Coverage for Suit Claiming Insured Attacked, Assaulted, Struck, and Stabbed Victim, Even If It Sought Damages for Negligence
June 21, 2017 | Robert Tugander | Insurance Coverage
A federal district court in Illinois has ruled that an insurer was not obligated to defend its insured in an action alleging that he had attacked, assaulted, struck, and stabbed someone, even if the complaint against him asserted that he had been negligent. The Case After Connie McElhaney sued Robert Heitbrink, alleging that he had …
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No Coverage for Fraudulent Transfer Claims Where Acts Preceded Policy’s Effective Date
June 21, 2017 | Robert Tugander | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit has ruled that an insurance policy’s prior acts exclusion precluded coverage for claims against a bankrupt company’s officers relating to alleged fraudulent transfers. The Case The U.S. Treasury Department’s Office of Thrift Supervision (“OTS”) began investigating BankUnited FSB in January 2008. By August, news reports were …
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No Coverage for Suit Alleging Restaurant Had Refused to Allow Customer to Bring in His Service Dog
June 21, 2017 | Robert Tugander | Insurance Coverage
A federal district court in West Virginia has ruled that an insurance policy did not cover claims that a restaurant had refused to allow a customer to bring his service dog into the restaurant. The Case Scott Ullom sued Grand China Buffet & Grill, Inc., and Qi Feng Chen in his capacity as “Director, Incorporator, …
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No Coverage Where Final Judgment Found That Insured Had Engaged in Intentional Fraud
June 21, 2017 | Robert Tugander | Insurance Coverage
A magistrate judge has recommended that a federal district court dismiss a coverage action brought by an insured where a final judgment had determined that the insured had engaged in intentional fraud in his securities transactions. The Case Daniel Imperato sued the insurance company that had issued a directors and officers liability insurance policy to …
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No Coverage for Damage from Insured’s Operations That Had Not Been “Unexpected”
June 21, 2017 | Robert Tugander | Insurance Coverage
A federal district court in Alabama has ruled that commercial environmental insurance policies did not cover claims for damage caused by the insured’s business operations where the damage had not been “unexpected.” The Case SmarterFuel Inc. and Smarter Fuel South, LLC, bought and picked up catfish waste from catfish farms and used cooking oil from …
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Home Builder’s Schematics Were Not Advertisements for Purposes of Advertising Injury Coverage
June 21, 2017 | Robert Tugander | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit has ruled that an insurance company had no duty to indemnify an insured home builder that allegedly infringed copyrighted house designs, finding that the builder’s schematics were not advertisements for purposes of the policy’s advertising injury provisions. The Case Home Design Services, Inc., sued Highland Holdings, …
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Insurers Had No Duty to Defend Insured in Spyware Action
June 21, 2017 | Robert Tugander | Insurance Coverage
The U.S. Court of Appeals for the Ninth Circuit has ruled that insurers were not obligated to defend their insured against claims that the insured had violated a person’s “right of privacy” where one complaint had not alleged publication of private material and the other fell within the Recording and Distribution exclusion. The Case Aspen …
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Insured Did Not Own Earnings Allegedly Stolen from Limited Partnership, Dooming Coverage Bid
June 21, 2017 | Robert Tugander | Insurance Coverage
The U.S. Court of Appeals for the Eighth Circuit has ruled that 3M Company was not entitled to insurance coverage for fraud losses it allegedly had suffered in a limited partnership. The Case 3M invested assets from its employee benefit plan in WG Trading Company LP, in a transaction that it structured as a limited …
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Professional Liability Exclusion Precluded Coverage for Suits against Inspection Company
June 21, 2017 | Robert Tugander | Insurance Coverage
A federal district court in South Carolina has ruled that a professional liability exclusion in insurance policies issued to an inspection services company precluded coverage for lawsuits alleging that the company had been negligent. The Case Eight state lawsuits against Morningstar Consultants, Inc. (“MCI”) alleged property damage to certain construction projects for which MCI allegedly …
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Rock “N” Roll’s Insurer Had No Duty to Defend Breach of Contract Claims, West Virginia Court Decides
May 15, 2017 | Insurance Coverage
A federal district court in West Virginia has ruled that a commercial general liability (“CGL”) insurance company had no obligation to defend its insured against claims for breach of contract. The Case Rock “N” Roll Coal Company, Inc., was sued for allegedly failing to make certain royalty payments under a lease. Rock “N” Roll filed …
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Policyholder’s Settlement with Underlying Plaintiff Was Not Enforceable against Its Insurer, Eighth Circuit Affirms
May 15, 2017 | Insurance Coverage
The U.S. Court of Appeals for the Eighth Circuit has affirmed a district court’s decision that a settlement agreement reached between a policyholder and the company that was suing it was not enforceable against the policyholder’s insurance carrier. The Case The Interlachen Property Owners Association sued Kuepers Construction, Inc., alleging design and construction defects in …
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Sixth Circuit Finds No “Advertising Injury” Coverage for Suit Alleging False Advertising
May 15, 2017
The U.S. Court of Appeals for the Sixth Circuit has ruled that an insurance company was not obligated to defend its insured against a claim that its advertisements had falsely described the insured’s own products where the claim did not allege that the insured had disparaged the competitor’s products.  The Case Vitamin Health, Inc. manufactures …
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Pennsylvania Trial Court Finds Coverage Triggered Prior to First Manifestation of Environmental Contamination
May 15, 2017
A trial court in Pennsylvania has rejected an insurance company’s argument that it had no obligation to cover a civil action seeking to hold its insured responsible for contamination at a site where the contamination had not been detected during the policy periods, ruling that coverage had been triggered prior to “first manifestation.” The Case …
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Third Circuit Applies Asbestos Exclusion in 30-Year-Old Excess Policies
May 15, 2017
The U.S. Court of Appeals for the Third Circuit has ruled that an exclusion for losses “arising out of asbestos” in 30-year-old excess insurance policies prevented a manufacturer from obtaining indemnification for thousands of negotiated settlements with personal injury plaintiffs. The Case General Refractories Company’s use of asbestos to manufacture various products brought about 31,440 …
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Multiple Sales of Tabletop Torches Were Multiple Occurrences
April 21, 2017 | Complex Torts & Product Liability | Insurance Coverage
The U.S. District Court for the Southern District of Ohio has ruled that multiple sales of tabletop torches amounted to separate occurrences for purposes of triggering the torch seller’s excess insurance policy. The Case Several lawsuits were filed against Big Lots Stores, Inc., by plaintiffs in Illinois, New Jersey, Pennsylvania, and Texas alleging that they had …
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Losses Allegedly Caused by Debit Card Holders’ Use of Phones Rather Than Computers Were Not Covered by Policy’s Computer Fraud Provisions
April 21, 2017 | Insurance Coverage
The U.S. District Court for the Northern District of Georgia has ruled that a company that claimed it suffered losses resulting from the use of telephones to access its processing system could not recover from its insurer for “computer fraud.” The Case InComm Holdings, Inc., and Interactive Communications International, Inc. (together, “InComm”) provided a service …
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Absence of Allegations That Insured Disparaged Underlying Plaintiff Doomed Its Bid for Coverage of Lawsuit
April 21, 2017 | Insurance Coverage
A federal district court in Maryland has ruled that an insured was not entitled to “personal and advertising injury” coverage of a lawsuit that did not allege that it had disparaged the underlying plaintiff. The Case Sprint Solutions, Inc., and Sprint Communications Company (together, “Sprint”) sued Unwired Solutions, Inc., d/b/a Linq Services, Inc. (“Linq”) and …
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Pollution Exclusion Precluded Coverage for Suit Alleging Harm from Carbon Monoxide
April 21, 2017 | General Liability
The U.S. District Court for the District of Oregon has ruled that a pollution exclusion in a commercial general liability insurance policy excluded coverage for claims arising from alleged carbon monoxide poisoning. The Case Plaintiffs sued Victory Construction LLC, d/b/a Premier Pools and Spas of Oregon, alleging negligence in the installation and ventilation of a …
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Pollution Exclusion Precluded Coverage for Suits Alleging Violation of Environmental Laws
April 21, 2017 | Insurance Coverage
The U.S. District Court for the Northern District of Ohio has ruled that the absolute pollution exclusion precluded coverage for lawsuits against a construction company alleging that it had violated federal and state environmental laws by discharging dredged or fill materials into protected wetlands. The Case JTO, Inc., an Ohio-based construction company, was sued by …
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Exclusions Precluded Coverage for Construction Defect Lawsuit against General Contractor, Ninth Circuit Decides
April 21, 2017 | Insurance Coverage
The U.S. Court of Appeals for the Ninth Circuit has affirmed a decision by a federal district court in California that two policy exclusions precluded coverage for a construction defect lawsuit brought against the insured general contractor. The Case Archer Western Contractors, Ltd., was the general contractor for the San Diego County Water Authority’s emergency water …
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“Your Work” Exclusion Precluded Coverage for Breach of Warranty of Habitability Claim Against Subcontractor, Seventh Circuit Says
April 21, 2017 | General Liability | Insurance Coverage
The U.S. Court of Appeals for the Seventh Circuit has affirmed a decision by a federal district court in Illinois that the “your work” exclusion in a commercial general liability insurance policy precluded coverage for a lawsuit against the insured subcontractor stemming from its allegedly defective installation of windows. The Case Metro North Condominium Association …
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Neither Crime Nor Commercial Property Policy Covered Consultant’s Theft, Seventh Circuit Rules
April 21, 2017 | Insurance Coverage
The U.S. Court of Appeals for the Seventh Circuit has affirmed a decision by a federal district court in Indiana that theft by a company’s consultant was not covered by either a crime insurance policy or a commercial property insurance policy. The Case Telamon Corporation, an Indiana telecommunications firm, engaged Juanita Berry – through a …
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Connecticut Appeals Court Broadly Interprets “Occupational Disease” Exclusion
March 23, 2017 | Insurance Coverage
A Connecticut appeals court, in a coverage dispute stemming from thousands of underlying lawsuits alleging injuries from exposure to industrial talc that purportedly contained asbestos, has ruled that the occupational disease exclusion is not limited only to claims by the policyholder’s own employees. The Occupational Disease Exclusions Variations of the occupational disease exclusion were before the …
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New Jersey Joins Majority of Courts Holding That Anti-Assignment Clauses Do Not Apply After a Loss
March 23, 2017 | Insurance Coverage
The New Jersey Supreme Court, joining the majority of courts, has ruled that an anti-assignment clause in an “occurrence” insurance policy did not bar the assignment of a post-loss claim even if the claim had not been reduced to a money judgment. The Case Givaudan Fragrances Corporation faced liability as a result of environmental contamination …
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Washington’s Insurance Fair Conduct Act Did Not Permit Insureds to Sue Their Insurers for Regulatory Violations Alone, State’s Highest Court Says
March 23, 2017 | Insurance Coverage
The Supreme Court of Washington has ruled that the state’s Insurance Fair Conduct Act (“IFCA”) did not permit insureds to sue their own insurers for violation of regulations adopted under the IFCA in the absence of an unreasonable denial of coverage or benefits. The Case A driver injured in an accident sued his insurer under …
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Texas Supreme Court Enforces Insured-Versus-Insured Exclusion in D&O Liability Insurance Policy
March 23, 2017 | Insurance Coverage
The Texas Supreme Court has ruled that an insured-versus-insured exclusion in a directors and officers (“D&O”) liability insurance policy applied to preclude coverage of a lawsuit brought against a former director and treasurer of a condominium association by an assignee of the association. The Case After Robert Primo resigned as a director and treasurer of …
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Public Policy Did Not Prohibit Enforcement of Indoor Air Exclusion, Oklahoma Supreme Court Decides
March 23, 2017 | Insurance Coverage
The Oklahoma Supreme Court, in response to a question certified by the U.S. District Court for the Western District of Oklahoma, has ruled that the public policy of Oklahoma did not prohibit enforcement of an indoor air exclusion in a commercial lines insurance policy. The Case Several guests inside a hotel in Siloam Springs, Arkansas, …
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Excess Insurer Was Not Bound by Primary Insurer’s Interpretation of “Prior Acts” Exclusion, Maryland’s Top Court Rules
March 23, 2017 | Insurance Coverage
Maryland’s highest court, the Maryland Court of Appeals, has enforced a prior acts exclusion in a primary insurance policy and ruled that an excess insurer was not bound by the primary insurer’s interpretation of that language. The Case A class action lawsuit filed against Cristal USA, Inc., on April 12, 2010, alleged that Cristal had …
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Insurer’s “Generic” Reservation of Rights Letters Found Inadequate by South Carolina Supreme Court
February 21, 2017 | Insurance Coverage
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 …
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Indiana District Court: Claims-in-Process Exclusion Precluded Coverage for Pollution That Began Before Insureds Had Purchased Their Property
February 21, 2017 | Insurance Coverage
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 …
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Eleventh Circuit: Insurer Was Not Required to Pay Pre-Tender Defense Fees
February 21, 2017 | Insurance Coverage
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 …
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Tenth Circuit: Insurers’ Policies, Not Insureds’ Lease, Determined Insurers’ Relative Responsibilities for Loss
February 21, 2017 | Insurance Coverage
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 …
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Ninth Circuit: Insurers Had No Obligation to Defend Lawsuit Based on Previous Tender of Potential Administrative Proceeding
February 21, 2017 | Insurance Coverage
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 …
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Ninth Circuit: Insurer Had No Coverage Obligation for Insured’s Settlement in Absence of Insurer’s Prior Written Consent
February 21, 2017 | Insurance Coverage
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 …
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Eighth Circuit: Condensate Is a Pollutant within the Meaning of the Absolute Pollution Exclusion
February 21, 2017 | Insurance Coverage
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 …
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In Bar Fight Coverage Case, Maine’s Top Court Rules That Exclusions Precluded Coverage
January 24, 2017 | Insurance Coverage
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 …
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In Corporate Officer Coverage Case, Montana District Court Holds That Personal Profits Exclusion Barred Some Claims
January 24, 2017 | Insurance Coverage
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 …
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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 | Insurance Coverage
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 …
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In Construction Defect Coverage Case, California Appeals Court Decides That Flooring Failure Was Not an Occurrence
January 24, 2017 | Insurance Coverage
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 …
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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 | Insurance Coverage
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 …
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In Asbestos Coverage Case, Ohio Appeals Court Applies “Triggering Event” Theory to Determine Number of Occurrences
January 24, 2017 | Insurance Coverage
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 …
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In Asbestos Coverage Case, Sixth Circuit Adopts Pro Rata Allocation – and Upholds Restitution to Insurer
January 24, 2017 | Insurance Coverage
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 …
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A Lawsuit against a Lawyer: No Coverage Given Absence of Allegations of Professional Acts or Omissions
December 16, 2016 | Insurance Coverage
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 …
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A Broker’s Embezzlement: Wrongful Act Exclusion Barred Coverage
December 16, 2016 | Insurance Coverage
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 …
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A Box Truck Crash: Exclusion in Definition of “Auto” Precluded Coverage
December 16, 2016 | Insurance Coverage
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 …
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A Fire, or Two: Insureds’ Material Misrepresentations Voided Policy
December 16, 2016 | Insurance Coverage
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 …
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A Case of Murder: No Coverage for Negligence Claims against Co-Insureds
December 16, 2016 | Insurance Coverage
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 …
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Artificial Knee Joint Settlements: No Written Consent, No Excess Coverage
December 16, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Sixth Circuit, reversing a decision by a federal district court in Michigan, has ruled that a company that settled product liability suits without the written consent of its excess liability insurance company was not entitled to recover the amount of the settlements from its excess carrier. The Case …
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The U.S. District Court for the Northern District of Alabama Finds No Coverage for Suit Alleging Insured’s Computer Network Was Hacked, Damaging Credit Unions
November 16, 2016 | Insurance Coverage
A federal district court in Alabama has ruled that a grocery store was not entitled to coverage of a lawsuit brought by credit unions alleging that they had been damaged when the store’s computer network was hacked. The Case Three credit unions sued Camp’s Grocery, Inc., which operated a grocery store in Hokes Bluff, Alabama, …
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Circuit Says: Parent Company’s Policy Did Not Cover Refinery’s Owner Where Policy Did Not List Owner as an Insured
November 16, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit has affirmed a decision by the U.S. District Court for the Western District of Texas that the owner of a refinery was not covered under its parent company’s insurance policy where the refinery owner was not listed as an insured and it could not demonstrate that …
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Circuit Says: Insurer That Investigated Claim and Filed Declaratory Judgment Action Had Not Acted in Bad Faith
November 16, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Third Circuit has affirmed a decision by the U.S. District Court for the Middle District of Pennsylvania granting summary judgment in favor of an insurance carrier in a bad faith case. The Case A man working for Stephen Bodnar died when a trench they were digging collapsed. Danielle …
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Circuit Says: Exclusion Precluded Coverage of Vineyard Owner’s Claims against Insureds
November 16, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Ninth Circuit has affirmed a decision by the U.S. District Court for the Northern District of California that an insurer was not obligated to defend its insureds in an action brought by a vineyard owner against them. The Case The owner of a vineyard sued Jack Neal & …
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Circuit Says: Email Use Alone Did Not Activate Computer Fraud Coverage
November 16, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit has ruled that an insurance company was not required to cover its insured’s loss under the computer fraud provision of a crime protection insurance policy where the only computer use was an email to the insured asking it to change a vendor’s bank account information. The …
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Washington: “Watercraft” Exclusion Precluded Coverage of Claim That Fish Oil Had Been Contaminated While Being Pumped Off a Vessel, Ninth Circuit Finds
October 19, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Ninth Circuit, applying Washington law, has ruled that a “watercraft” exclusion precluded coverage for a claim that fish oil had been contaminated with petroleum residue when it had been pumped off one of the insured’s vessels. The Case Trident Seafoods Corporation sought partial indemnification from ACE American Insurance …
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Florida: “Entrustment” Exclusion Applied to Property Leased by Landlord to Tenant, Appeals Court Says
October 19, 2016 | Insurance Coverage
An appellate court in Florida, affirming a trial court’s decision, has ruled that an insurance policy’s “entrustment” exclusion applied to property leased by an insured landlord to its tenant. The Case Grover Commercial Enterprises leased property it owned in Coconut Grove, Florida, to Carma, LLC. Carma operate a restaurant on the property known as “The …
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Arizona: Excess Insurers Had No Defense or Indemnity Obligations Where Settlement Did Not Exceed SIR, District Court Concludes
October 19, 2016 | Insurance Coverage
A federal district court in Arizona has granted summary judgment in favor of insurers that had issued excess and umbrella policies to a city because the city’s settlement of an asbestos personal injury action did not exceed the amount of its self-insured retention (“SIR”). The Case From 1981 to 1985, various insurance companies issued excess …
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Pennsylvania: Assault and Battery Exclusion Precluded Coverage of Negligence Claims Stemming from Alleged Shooting, Appeals Court Affirms
October 19, 2016 | Insurance Coverage
An appellate court in Pennsylvania, affirming a trial court’s decision, has ruled that an insurance policy’s assault and battery exclusion barred coverage of negligence claims against a bar stemming from an alleged shooting. The Case Jalil Walters and his wife, Rasheeda Carter, filed a negligence action against OK Café, Inc., which operated the Jazzland Bar …
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Louisiana: Supreme Court Decides That Duty to Defend Should Be Prorated by Time on the Risk
October 19, 2016 | Insurance Coverage
The Louisiana Supreme Court has ruled, in a “long latency disease” case, that defense costs under occurrence-based insurance policies should be prorated among insurers and the insured where there were periods of non-coverage. The Case Plaintiffs alleged that they had suffered hearing loss from exposure to unreasonably loud noise in the course of their work …
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Kentucky: Supreme Court Affirms Dismissal of Third-Party Bad Faith Claim
October 19, 2016 | Insurance Coverage
The Kentucky Supreme Court, affirming a lower court decision, has ruled that a third-party bad faith claim against an insurance company had been properly rejected where the plaintiff had not produced evidence that the insurer had acted with reckless indifference to the plaintiff’s right to recover. The Case Samantha Hollaway alleged that she was in …
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Connecticut: Supreme Court Rules That Workers’ Comp Insurer Can Assert Equitable Subrogation Claim against Third-Party Tortfeasors
October 19, 2016 | Insurance Coverage
The Connecticut Supreme Court has ruled that a workers’ compensation insurer could maintain an equitable subrogation claim against third-party tortfeasors to recover benefits it paid on behalf of an insured employer to an injured employee. The Case An employee of a company doing business as Connecticut Reliable Welding, LLC, was working at a construction site …
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RINs Were Not Property Covered by Policies, Illinois District Court Concludes
September 21, 2016 | Insurance Coverage
A federal district court in Illinois has ruled that “renewable identification numbers” (“RINs”) were not property covered by various insurance policies issued to a company that had purchased biodiesel fuel with RINs. The Case Superior Fuels, Inc., alleged in the lawsuit that it filed against e-Biofuels, LLC, that it had purchased biodiesel fuel from e-Biofuels …
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Employment-Related Practices Exclusion Precluded Coverage, Indiana District Court Says
September 21, 2016 | Insurance Coverage
A federal district court in Indiana has ruled that an employment-related practices exclusion in a commercial general liability (“CGL”) insurance policy precluded coverage of claims brought by the insured company’s former chief executive officer (“CEO”) against officers and directors of the company. The Case After Global Caravan Technologies, Inc. (“GCT”) was formed and began operating, …
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Total Pollution Exclusion Precluded Coverage, Ohio District Court Decides
September 21, 2016 | Insurance Coverage
A federal district court in Ohio has ruled that a total pollution exclusion in a commercial general liability (“CGL”) insurance policy precluded coverage for the costs of cleaning up Lake Erie after roofing tar had escaped from a roof and flowed into the lake. The Case Ronald L. Myers and his sole proprietorship, Myers Recycling …
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Products Exclusions Precluded Coverage, Eleventh Circuit Finds
September 21, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit has ruled that products exclusions in commercial general liability (“CGL”) insurance policies precluded coverage for claims against an insured pharmaceutical company that its products had led to widespread prescription drug abuse in West Virginia. The Case The State of West Virginia sued Anda, Inc., and other …
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Precious Metals Exclusion Precluded Coverage, Fifth Circuit Affirms
September 21, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit has ruled that the precious metals exclusion in an all-risk commercial property insurance policy precluded coverage for the insured’s claim that thieves had stolen its air conditioning units’ condensers. The Case Celebration Church, Inc., discovered that thieves had opened seven air conditioning units installed on the …
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Trademark Exclusion Precluded Coverage, Sixth Circuit Rules
September 21, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Sixth Circuit has ruled that a trademark exclusion in a commercial general liability (“CGL”) insurance policy precluded coverage for a trademark infringement lawsuit where that suit did not allege any potentially covered claims of disparagement and trade dress infringement. The Case Eden Foods, Inc., sued S. Bertram, Inc., …
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Late Notice Dooms Lawyer’s Bid for Malpractice Coverage, Sixth Circuit Declares
August 18, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Sixth Circuit, affirming a district court’s decision, has ruled that an insurance company was not obligated to defend an attorney against a lawsuit filed during the pendency of her policy where, years earlier, she “knew or could have foreseen” that the lawsuit would be filed but had not …
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“Professional Services” Exclusion Precluded Coverage to Engineering Firm, New Jersey Appeals Court Affirms
August 18, 2016 | Insurance Coverage
An appellate court in New Jersey, affirming a trial court’s decision, has ruled that a “professional services” exclusion in a commercial general liability (“CGL”) insurance policy issued to an engineering firm precluded coverage for claims against the firm asserting professional negligence. The Case EIC Group, LLC, an engineering firm, was sued by New Jersey property …
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“Drilling Rig” Exclusion Precluded Coverage for Claim Alleging Employee Was Injured While Working on a Drillship, Fifth Circuit Says
August 18, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit has ruled that, based on a “drilling rig” exclusion, an excess insurer on a marine insurance policy was not required to reimburse its insured for payments in a personal injury settlement. The Case An employee of Offshore Energy Services alleged that he was injured while working …
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“Earth Movement” Exclusion Precluded Coverage for Single Falling Boulder, Montana Supreme Court Rules
August 18, 2016 | Insurance Coverage
The Montana Supreme Court has ruled that a policy’s “earth movement” exclusion precluded coverage for a claim that a boulder fell down a hill and damaged an insured cabin. The Case A large boulder dislodged from a hillside several hundred feet from a vacation cabin near Sheridan, Montana. The boulder fell down the hillside and …
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“Authorized Entry” Exclusion Precluded Coverage for Hacking Loss
August 18, 2016 | Insurance Coverage
A federal district court in Washington has ruled that an insured company was not entitled to coverage for losses caused when a hacker directed one of the insured’s employees to change a vendor’s bank account information on its computer system. The Case Aqua Star (USA) Corp., a seafood importer, purchased frozen shrimp from Zhanjiang Longwei …
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Policy Covered Subcontractor’s Faulty Work, New Jersey Supreme Court Decides
August 18, 2016 | Insurance Coverage
The New Jersey Supreme Court has ruled that rain water damage allegedly caused by a subcontractor’s faulty workmanship constituted “property damage” and an “occurrence” under a property developer’s commercial general liability (“CGL”) insurance policy. The Case A condominium association in New Jersey sued its developer and general contractor for damage to the interior structure, residential units, …
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Supreme Court of California Rules That Post-Verdict Award of Attorneys’ Fees to Insured May Be Included When Calculating Punitive-Compensatory Damages Ratio
July 19, 2016 | Insurance Coverage
The Supreme Court of California has ruled that a trial court’s post-verdict award of attorneys’ fees to an insured may be included in the amount of compensatory damages awarded to the insured for purposes of determining the punitive-compensatory damages ratio. The Case A man who spent weeks confined to a hospital bed at the Department …
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Supreme Court of Texas Rules That Coverage Was Precluded by Policies’ “Leased-In Worker” Exclusion
July 19, 2016 | Insurance Coverage
The Supreme Court of Texas has ruled that a “leased-in worker” exclusion in commercial general liability insurance policies precluded coverage of a claim brought by parents whose son had died in an accident on a drilling rig. The Case After an accident on a drilling rig, a deceased worker’s parents sued the company that owned …
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Supreme Court of Washington Rules That Policy Unambiguously Excluded Coverage for Water Damage Immediately Upon Vacancy
July 19, 2016 | Insurance Coverage
The Supreme Court of Washington has ruled that an insurance policy unambiguously excluded coverage for water damage to the insured building immediately when the building became vacant. The Case Kut Suen Lui and May Far Lui owned a building containing tenant space, but the building’s last tenant left the building in the first week of …
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Supreme Court of Colorado Rules That Extrinsic Evidence Could Not Create Ambiguity in Policy
July 19, 2016 | Insurance Coverage
The Supreme Court of Colorado has ruled that extrinsic evidence could not create an ambiguity in an insurance policy but only could be used as an aid to ascertaining the intent of the parties once an ambiguity was found. The Case After Jennifer Hansen was injured in a motor vehicle accident, she presented an underinsured …
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Supreme Court of Wisconsin Holds That “Four-Corners Rule” Does Not Permit Consideration of Extrinsic Evidence
July 19, 2016 | Insurance Coverage
The Supreme Court of Wisconsin has ruled that there is no exception to the “four-corners” rule that permits courts to consider extrinsic evidence after an insurer had decided that it had no duty to defend the insured. The Case Water Well Solutions Service Group Inc. was hired by the City of Waukesha to replace a …
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Supreme Court of Wisconsin Holds That “Four-Corners Rule” Includes Consideration of Exclusions
July 19, 2016 | Insurance Coverage
The Supreme Court of Wisconsin has ruled that the “four-corners rule” includes consideration of exclusions in an insurance policy. The Case From 2007 to 2009, a number of lawsuits involving Titan Global Holdings, Inc., and the trustee of two trusts that owned a controlling interest in Titan were filed throughout the country. The trustee provided …
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Allegations of Developer’s Intentional Conduct Doomed Coverage Bid
June 21, 2016 | Insurance Coverage
An appellate court in Illinois, affirming a trial court’s decision, has ruled that an insurance company did not have to defend or indemnify a developer in connection with a lawsuit alleging that the developer had failed to properly install a roof system, or to correct the defect in the roof system, where the complaint did …
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Reservation of Rights Letters Preserved Coverage Defenses
June 21, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Third Circuit, affirming a decision by the U.S. District Court for the Western District of Pennsylvania, has ruled that insurers had preserved their coverage defenses by mailing reservation of rights letters to their policyholders. Background After discovering the discharge of sewage and other waste on their property, Randy …
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Criminal Acts Exclusion Precluded Coverage for Homeowner Who Shot Boy
June 21, 2016 | Insurance Coverage
An appellate court in Kentucky, affirming a trial court’s decision, has ruled that the criminal acts exclusion in a homeowner’s insurance policy precluded coverage for claims that the insured homeowner shot a boy in front of his home after brandishing a loaded shotgun. Background A homeowner shot a 12-year-old boy in front of his home …
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Wear and Tear Exclusion Precluded Coverage for Partial Roof Collapse
June 21, 2016 | Insurance Coverage
The wear and tear exclusion in a homeowner’s insurance policy precluded coverage for a partial roof collapse to the insureds’ home, the U.S. Court of Appeals for the Tenth Circuit has ruled. Background A home owned by Eugene and Diane Gallegos in Colorado suffered a partial roof collapse caused, at least in part, by the …
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Parachute Jumping Exclusion Precluded Coverage of Lawsuit against Airport
June 21, 2016 | Insurance Coverage
The U.S. District Court for the District of New Jersey has ruled that a parachute jumping exclusion in an airport liability insurance policy precluded coverage for a lawsuit brought by a man injured in a skydive at the airport. Background A man injured in a skydive sued Skydive Sussex, LLC, and Sussex Airport, Inc., which …
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No Coverage for Damage to Insured’s Own Work Product, Michigan Appeals Court Rules
May 11, 2016 | Insurance Coverage
An appellate court in Michigan has affirmed a trial court’s decision rejecting insurance coverage for claims alleging a defective installation of solar energy equipment. Background Nova Consultants, Inc., contracted with Mid-Michigan Solar, LLC, to install two solar photovoltaic systems. Nova alleged that Mid-Michigan Solar failed to properly install the support posts or piles and the …
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No Coverage Where Insured Failed to Provide “Prompt” Notice, Fifth Circuit Decides
May 11, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit, affirming a district court’s decision, has ruled that an insurance company was not obligated to cover a property damage claim where the insured had failed to provide “prompt” notice as required by the policy. Background In July 2009, a hailstorm in Dallas, Texas, allegedly caused damage …
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No Coverage Where Bank Failed to Provide Timely Notice, Fourth Circuit Decides
May 11, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Fourth Circuit, affirming a decision by the U.S. District Court for the District of Maryland, has ruled that an insurance company had no obligation to defend a bank that had not provided notice of a lawsuit “as soon as practicable,” as required by its insurance policy. Background On …
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Colorado Supreme Court Refuses to Extend Notice-Prejudice Rule to No-Voluntary-Payments Clause
May 11, 2016 | Insurance Coverage
The Colorado Supreme Court, reversing an intermediate appellate court’s decision, has refused to extend the “notice-prejudice rule” to a case involving the insured’s breach of an insurance policy’s no-voluntary-payments clause. Background After an accident at a construction site in July 2007, the project’s general contractor sought damages from Stresscon Corporation, a subcontractor. Stresscon reached a …
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Montana Supreme Court Clarifies Meaning of “Accident”
May 11, 2016 | Insurance Coverage
The Montana Supreme Court, reversing a trial court’s decision, has clarified the definition of “accident” under Montana law and has ruled that it could include intentional acts if the damages “were not objectively intended or expected by the insured.” Background Jerry and Karen Slack alleged that they hired contractor Jeffrey Fisher and his company, Fisher …
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Massachusetts High Court Rejects Insured’s “Selective Tender”
April 14, 2016 | Insurance Coverage
The Supreme Judicial Court of Massachusetts has ruled, in response to a certified question from the U.S. Court of Appeals for the First Circuit, that, where two workers’ compensation insurance policies provided coverage for the same loss, an insured could not elect which of its insurers was to defend and indemnify the claim by intentionally …
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Inclusion of Allegedly Defective Ingredient in Supplement Tablets Was Not “Property Damage,” Wisconsin Supreme Court Rules
April 14, 2016 | Insurance Coverage
The Wisconsin Supreme Court has ruled that because incorporation of an allegedly defective ingredient into supplement tablets did not damage other property and did not result in loss of use of property, there was no “property damage.” The Case Wisconsin Pharmacal Company supplied a daily probiotic feminine supplement to a major retailer. The supplement was …
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Pollution Exclusion Applied to Sewage Odors, South Carolina Appeals Court Decides
April 14, 2016 | Insurance Coverage
An appellate court in South Carolina has ruled that a pollution exclusion precluded coverage for a homeowner’s lawsuit against a public service district seeking to recover damages he alleged had been caused by offensive sewage odors. The Case A South Carolina homeowner filed a complaint against the East Richland County Public Service District for inverse …
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Georgia Supreme Court Rules That Lead-Based Paint Is a “Pollutant”
April 14, 2016 | Insurance Coverage
The Georgia Supreme Court has ruled that personal injury claims allegedly arising from lead poisoning due to lead-based paint ingestion were excluded from coverage pursuant to an absolute pollution exclusion in a commercial general liability (“CGL”) insurance policy covering residential rental property. The Case A landlord was sued for injuries the plaintiff’s daughter allegedly sustained …
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In Asbestos Coverage Dispute, Court Applies Pro Rata Allocation and Decides That Insured Is Responsible for Insolvent Insurer’s Share
April 14, 2016 | Insurance Coverage
The U.S. District Court for the Southern District of New York, applying Georgia law in an asbestos coverage dispute, has adopted a “pro rata” approach to determining the responsibility of insurance carriers for indemnity and defense costs and has ruled that the insured – not the insurers – was responsible for an insolvent insurer’s obligations. …
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North Carolina Court Adopts Pro Rata Allocation and Rejects Any Excess Policy Defense Obligation
March 21, 2016 | Insurance Coverage
A North Carolina state court, deciding issues of first impression under North Carolina law, has ruled that a pro rata time-on-the-risk allocation method applied to coverage claims for defense and indemnity costs in connection with numerous underlying benzene-related disease claims and asbestos claims. The court held that the “pro rata allocation most reasonably interprets the …
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Two Courts Reach Different Conclusions about Applicability of Pollution Exclusions to Sewer Gas and Carbon Monoxide
March 21, 2016 | Insurance Coverage
Federal district courts in Arizona and Florida have reached different conclusions about the applicability of pollution exclusions to gases, with one finding that the exclusion did not apply to sewer gas and the other finding that it barred a carbon monoxide claim. The Sewer Gas Case The first case arose after Quik Flush Plumbing installed …
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SIR Is “Other Insurance,” Wisconsin Supreme Court Rules
March 21, 2016 | Insurance Coverage
The Wisconsin Supreme Court, affirming a decision by a Wisconsin appellate court, has ruled that an insured’s self-insured retention (“SIR”) qualified as “other applicable liability insurance” under an insurance policy’s “other insurance” clause. The Case Claimant allegedly was injured when the insured’s employee loaded materials onto his trailer using a forklift. Claimant sued the insured for …
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Insured’s Late Notice Dooms One Insurer’s Claim against Another
March 21, 2016 | Insurance Coverage
An appellate court in Illinois, affirming a trial court’s decision, has ruled that an insurer could not recover a settlement payment from another insurer, where the insured failed to timely notify the insurer of the underlying action. The Case Kevin Smith filed a negligence action alleging that he was injured at a construction site while …
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Insurer Need Not Show Prejudice from Insured’s Late Notice, New Jersey Supreme Court Holds
March 21, 2016 | Insurance Coverage
The New Jersey Supreme Court has ruled that an insurance company need not show that it was prejudiced by a sophisticated insured’s failure to comply with the notice provision in a “claims made” insurance policy. The Case Templo Fuente De Vida Corp. and Fuente Properties, Inc. (“plaintiffs”) retained a finance company to secure funding for …
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New Hampshire Supreme Court Rules that Excess Insurer’s Duty to Defend Was Triggered Only When Primary Insurer’s Coverage Was Exhausted
February 16, 2016 | Insurance Coverage
In response to questions certified by the U.S. Court of Appeals for the First Circuit, the New Hampshire Supreme Court ruled that an excess insurer’s duty to defend under New Hampshire law was triggered only when the primary insurer’s coverage was exhausted. The Case Old Republic Insurance Company and Stratford Insurance Company each provided insurance coverage …
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New Hampshire Supreme Court Rules that Excess Insurer’s Duty to Defend Was Triggered Only When Primary Insurer’s Coverage Was Exhausted
February 16, 2016 | Insurance Coverage
In response to questions certified by the U.S. Court of Appeals for the First Circuit, the New Hampshire Supreme Court ruled that an excess insurer’s duty to defend under New Hampshire law was triggered only when the primary insurer’s coverage was exhausted. The Case Old Republic Insurance Company and Stratford Insurance Company each provided insurance coverage …
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Ninth Circuit Finds No Duty to Defend Patent Infringement Claim, Adding that Amendment to Assert a Disparagement Claim Was Too Speculative
February 16, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Ninth Circuit, affirming a decision by the U.S. District Court for the Northern District of California, has ruled that an insurer was not obligated to defend its insured in a patent dispute – and that an amendment to the claims against the insured to assert a disparagement claim …
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Alabama Supreme Court Enforces “Mysterious Disappearance” Exclusion in Case of a Missing Sailboat
February 16, 2016 | Insurance Coverage
The Alabama Supreme Court, reversing a trial court’s decision, has ruled that the “mysterious disappearance” exclusion in an “all risk” insurance policy precluded coverage for a missing sailboat. The Case After Michael Britt purchased a Beneteau brand sailboat in 2004, he insured it with St. Paul Fire & Marine Insurance Company pursuant to an “all …
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Eighth Circuit Affirms Decision Applying Policies’ Anti-Stacking Provisions
February 16, 2016 | Insurance Coverage
The U.S. Court of Appeals for the Eighth Circuit, affirming a decision by the U.S. District Court for the Western District of Missouri, has enforced the anti-stacking provisions in two insurance policies issued by one insurance company. The Case Thomas Campbell was attempting to remove a tree from property being developed for a residential subdivision. …
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N.J. Appeals Court Refuses to Allocate Payments Due from Insolvent Insurers to Solvent Primary and Excess Carriers
February 16, 2016 | Insurance Coverage
A New Jersey appeals court, affirming a trial court’s decision in an environmental contamination coverage case, has rejected the insured’s argument that payments due from its insolvent insurers should be reallocated among its solvent primary and excess insurers. The Case Beginning in 1970, Ward Sand and Materials Company accepted municipal waste from Pennsauken Township, New …
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Pollution Exclusion Bars Coverage for “Defective Drywall” Claims, North Carolina District Court Determines
January 26, 2016 | Insurance Coverage
A federal district court in North Carolina has ruled that a pollution exclusion clause barred coverage for claims alleging that drywall manufactured, sold, used, or distributed by the insured company emitted high levels of sulfur into the air inside homes. The Case Lawsuits against New NGC, Inc., asserted injuries and damages arising from exposure to …
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Property Is Not “Physically Injured” Merely by Installation of a Defective Product, Texas Supreme Court Holds
January 1, 2016 | Insurance Coverage
The Texas Supreme Court, on certified questions from the U.S. Court of Appeals for the Fifth Circuit, has ruled that property was not physically injured for purposes of the “your product” and “impaired property” exclusions in a standard-form commercial general liability (“CGL”) insurance policy merely by the installation of a defective product into the property. …
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Pollution Exclusion Precludes Coverage of Claim for Damages Allegedly Cause by Spraying of Pesticide in Home, Vermont’s Top Court Decides
January 1, 2016 | Insurance Coverage
The Vermont Supreme Court has ruled that a pollution exclusion in a homeowners’ insurance policy precluded coverage for the homeowners’ claim for property damages they alleged had been caused by the spraying of a pesticide in their home in an effort to exterminate bed bugs. The Case Neil and Patricia Whitney noticed bed bugs in …
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Ninth Circuit Rules that Insurers Had No Duty to Defend Claim that Insured Violated Statutory Privacy Rights
January 1, 2016 | Insurance Coverage
An appellate court in Ohio has ruled that an insurance company was entitled to recover defense costs it had paid on behalf of its insured after a trial court ruled that it had a duty to defend where that decision was later overturned on appeal. The Case Numerous tort claims were filed against Chiquita Brands …
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Insurer Can Recover Defense Costs It Paid Before Appeals Court Found It Had No Duty to Defend
January 1, 2016 | Insurance Coverage
An appellate court in Ohio has ruled that an insurance company was entitled to recover defense costs it had paid on behalf of its insured after a trial court ruled that it had a duty to defend where that decision was later overturned on appeal. The Case Numerous tort claims were filed against Chiquita Brands …
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“Respirable Dust” Exclusion Precludes Coverage for Class Action Complaint Seeking Damages for “Pet Coke” Dust
January 1, 2016
A federal district court in Indiana has ruled that an insurance policy’s “Respirable Dust” exclusion precluded coverage for a class action complaint seeking damages for injuries allegedly caused by petroleum coke (“pet coke”) dust. The Case In 2013, a consolidated class action complaint was filed against George J. Beemsterboer, Inc., and other defendants in the …
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Third Circuit Affirms District Court’s Rejection of Insured’s Bad Faith and Breach of Contract Claims in Stromboli Case
December 1, 2015 | Insurance Coverage
The U.S. Court of Appeals for the Third Circuit has affirmed a decision by the U.S. District Court for the Eastern District of Pennsylvania rejecting an insured’s bad faith and breach of contract claims against its excess and umbrella insurer in connection with an underlying lawsuit involving the sale of stromboli. The Case Leonetti’s, a …
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Oregon Supreme Court Overrules 42-Year-Old Precedent and Holds that Parties’ Settlement Did Not Release Insurer
December 1, 2015 | Insurance Coverage
The Oregon Supreme Court has overruled a 1973 decision and concluded that a covenant not to execute obtained in exchange for an assignment of rights did not, by itself, extinguish an insured’s or its insurer’s liability. The Case The Brownstone Homes Condominium Association alleged that it discovered various defects in the construction of its condominium complex.   …
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Neighbors’ Suit Alleging Insureds Had Committed Intentional Wrongs Was Not Covered by Homeowners’ Policy, District Court Rules
December 1, 2015 | Insurance Coverage
A federal district court in Massachusetts has ruled that an insurance company did not have a duty to defend its policyholders in a lawsuit against them alleging the commission of three intentional wrongs arising from a dispute among neighbors. The Case Kenneth and Donna Kaplan, residents of Hull, Massachusetts, were sued in a Massachusetts state …
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Insured’s Loss of Its Own Policies Did Not Excuse Its Late Notice, West Virginia’s Highest Court Decides
December 1, 2015 | Insurance Coverage
West Virginia’s highest court, the Supreme Court of Appeals of West Virginia, has reversed an $8 million judgment against an insurance company, ruling that the late notice provided by the insured precluded coverage under the policies – and that the insured’s loss of its own insurance policies did not excuse its duty to provide timely …
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Policy’s Exclusion Bars Coverage for TCPA Claim and for Claims for Conversion and Deceptive Practices, Illinois Appeals Court Affirms
November 1, 2015 | Insurance Coverage
An appellate court in Illinois, affirming a trial court’s decision, has ruled that a policy exclusion precluded coverage for claims against an insured for violation of the federal Telephone Consumer Protection Act of 1991 (TCPA), conversion, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (the “Illinois Act”). The Case Wellington Homes, …
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Insured’s Breach of Cooperation Clause Doomed Coverage, Vermont Supreme Court Declares
November 1, 2015 | Insurance Coverage
The Vermont Supreme Court, affirming a trial court’s decision, has ruled that an insured had breached his insurance policy’s cooperation clause and that, as a result, his insurance carrier had no obligation to defend or indemnify him in connection with an underlying personal injury claim. The Case Charles Chandler asserted that his then-girlfriend, now-wife, Faye …
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Exclusions Bar Coverage of Homeowners’ Claims against Contractor, West Virginia’s Highest Court Rules
November 1, 2015 | Insurance Coverage
The West Virginia Supreme Court of Appeals has ruled that exclusions in a commercial general liability (CGL) insurance policy issued to a contractor precluded coverage of claims brought by two homeowners against the contractor. The Case In July 2009, Fred Hlad signed a contract to build a house for Travis and Teresa Nelson. The agreement …
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“Prior Publication” Exclusion Precludes Coverage for Continuing Course of Tortious Conduct, Third Circuit Holds
November 1, 2015 | Insurance Coverage
The U.S. Court of Appeals for the Third Circuit, affirming a decision by the U.S. District Court for the Eastern District of Pennsylvania, has ruled that a “prior publication” exclusion prevented an insured from obtaining insurance coverage for a continuing course of tortious conduct. The Case On February 28, 2012, the Navajo Nation and its …
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Exclusions Bar Coverage of Homeowners’ Claims against Contractor, West Virginia’s Highest Court Rules
October 31, 2015 | Insurance Coverage
The West Virginia Supreme Court of Appeals has ruled that exclusions in a commercial general liability (CGL) insurance policy issued to a contractor precluded coverage of claims brought by two homeowners against the contractor. The Case In July 2009, Fred Hlad signed a contract to build a house for Travis and Teresa Nelson. The agreement …
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Policy’s Exclusion Bars Coverage for TCPA Claim and for Claims for Conversion and Deceptive Practices, Illinois Appeals Court Affirms
October 31, 2015
An appellate court in Illinois, affirming a trial court’s decision, has ruled that a policy exclusion precluded coverage for claims against an insured for violation of the federal Telephone Consumer Protection Act of 1991 (TCPA), conversion, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (the “Illinois Act”). The Case Wellington Homes, …
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“Prior Publication” Exclusion Precludes Coverage for Continuing Course of Tortious Conduct, Third Circuit Holds
October 31, 2015
The U.S. Court of Appeals for the Third Circuit, affirming a decision by the U.S. District Court for the Eastern District of Pennsylvania, has ruled that a “prior publication” exclusion prevented an insured from obtaining insurance coverage for a continuing course of tortious conduct. The Case On February 28, 2012, the Navajo Nation and its …
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Parties May Not Reform Settlement Agreement to Revive Claim against Insurer, Oregon Supreme Court Decides
October 31, 2015
The Oregon Supreme Court, in response to a question certified to it by the U.S. Court of Appeals for the Ninth Circuit, has ruled that parties to a settlement agreement that contained an unconditional release of the insured could not amend the agreement to revive a claim against an insurer. The Case A homeowner’s association …
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Insured’s Breach of Cooperation Clause Doomed Coverage, Vermont Supreme Court Declares
October 31, 2015
The Vermont Supreme Court, affirming a trial court’s decision, has ruled that an insured had breached his insurance policy’s cooperation clause and that, as a result, his insurance carrier had no obligation to defend or indemnify him in connection with an underlying personal injury claim. The Case Charles Chandler asserted that his then-girlfriend, now-wife, Faye …
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Insured’s Settlement Prejudiced Insurer as a Matter of Law, Nebraska Supreme Court Holds
September 30, 2015
The Supreme Court of Nebraska, in a case of first impression, has ruled that an insurance company must show prejudice to prevail on a defense based on an insured’s violation of the voluntary payment provision in a commercial general liability insurance policy – and that prejudice was shown as a matter of law where the …
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Court Rules that Tribes’ Natural Resource Damage Claims Were Brought on Behalf of the Government for Pollution Exclusion Purposes
September 30, 2015
A federal district court in Oregon has ruled that natural resource damage (“NRD”) claims asserted by a council that included Indian Tribes as members were brought on behalf of federal or state government authorities for purposes of a pollution exclusion. The Case In December 2000, the U.S. Environmental Protection Agency (the “EPA”) listed a stretch …
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Homeowner’s Policy Did Not Cover Claim That Insured Had Negligently Misrepresented His Home’s Condition, Connecticut Appeals Court Affirms
September 30, 2015
An appellate court in Connecticut, affirming a trial court’s decision, has ruled that a homeowner’s insurance policy did not cover claims that the homeowner had misrepresented his home’s condition to a couple that purchased his home, concluding that the claim was for purely economic loss and not property damage. The Case Meghan and James Wishneski …
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New Jersey District Court Enforces Policies’ No-Assignment Provisions
September 30, 2015
A federal district court in New Jersey has ruled that “no-assignment clauses” in insurance policies precluded a company’s claim that it was insured under the policies as the successor-in-interest to an additional insured. The Case On July 22, 2005, Shelby Ownbey, an employee of Advantage Buildings & Exteriors, was seriously injured when he fell approximately …
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Breach of Contract Claim against Insured Based on Alleged Defective Product Was Not a Covered “Occurrence,” Pennsylvania District Court Decides
September 30, 2015
A Pennsylvania federal district court has ruled that a breach of contract lawsuit against an insured was not a covered “occurrence.” The Case Norpaco, Inc. sued Tray-Pak Corporation in a state court in Connecticut, alleging that Tray-Pak had sold it defective polyethylene terephthalate (“PET”) trays for Norpaco’s use. The complaint against Tray-Pak alleged breach of …
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Insurer May Seek Reimbursement of Overbilled Amounts Directly from Cumis Counsel, California Supreme Court Rules
August 31, 2015
The California Supreme Court has ruled that an insurance company may seek reimbursement of overbilled amounts directly from Cumis counsel. Background In California, if any claims in a complaint against an insured under a commercial general liability (“CGL”) insurance policy are potentially covered by the policy, the insurer must provide its insured with a defense to all …
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California Supreme Court Overrules Henkel and Decides that Statute Bars “Consent to Assignment” Clauses
August 31, 2015
The California Supreme Court has overruled its 2003 decision in Henkel Corp. v. Hartford Accident & Indemnity Co. and ruled that a state law tracing back to 1872 had changed its determination regarding the enforceability of “consent to assignment” clauses in insurance policies. Background Henkel concerned an insured’s assignment of rights under a liability policy. The …
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Absent Assignment of Rights from Insured, Plaintiffs Could Not Assert Bad Faith Claim against Insurer, New Jersey Supreme Court Rules
August 31, 2015
The New Jersey Supreme Court has ruled that, absent an assignment of rights from the insured, plaintiffs could not assert a bad faith claim against insurers that provided homeowners’ insurance coverage to the insured. The Case John and Pamela Ross alleged that their residence was damaged by the migration of home heating oil from a …
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Claim Was Made Against Insured Before Policy’s Effective Date, Eighth Circuit Decides
August 31, 2015
The U.S. Court of Appeals for the Eighth Circuit has ruled that a claim had been made against the insured under a commercial general liability (“CGL”) insurance policy before the policy’s effective date. The Case No later than early 2008, Burlington Graphics Systems reported to Ritrama, Inc., that recreational vehicle (“RV”) owners were experiencing issues with …
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Excess Insurer Did Not Have Duty to Initiate Settlement Negotiations with Third Party Claimant, Tenth Circuit Holds
August 31, 2015
The U.S. Court of Appeals for the Tenth Circuit has ruled that an excess liability insurer had no duty to initiate settlement negotiations with a third party claimant. Background Under Oklahoma law, a primary insurer owes its insured a duty to initiate settlement negotiations with a third party claimant if the insured’s liability to the …
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Maryland Appeals Court Rules that CGL Policy Did Not Provide Liability Coverage for Mis-Delivered Home Heating Oil
August 31, 2015
An appellate court in Maryland has ruled that a commercial general liability (“CGL”) insurance policy issued to a company in the home heating oil business did not provide liability coverage for a claim for property damage resulting from a mis-delivery of home heating oil by a fuel truck driver. The Case The insured sought coverage …
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“Occurrence” Took Place When Wrongfully Convicted Defendant First Had Been Charged, Indiana Court Decides
August 31, 2015
A federal district court in Indiana, in a case in which a city sought insurance coverage for claims brought by a person who had been wrongfully convicted of a crime, has ruled that the “occurrence” had taken place when the wrongfully convicted defendant first had been charged. The Case In November 1996, Christopher Parish was …
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Insurer Did Not Violate Connecticut Unfair Trade Practices Act by Requiring Auto Body Shops to Use Agreed-Upon Labor Rates
August 18, 2015
A unanimous Connecticut Supreme Court has ruled that an automobile insurance company did not violate the Connecticut Unfair Trade Practices Act (“CUTPA”) by requiring its appraisers to use low labor rates when estimating the cost of auto body repairs for the company’s insureds. The Case Artie’s Auto Body, Inc., A & R Body Specialty, Skrip’s Auto …
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Insurer Need Not Demonstrate Prejudice from Late Notice, Texas Appeals Court Decides
August 18, 2015
An appellate court in Texas, affirming a trial court’s decision, has ruled that an insurance company that had issued a claims-made pollution liability and environmental damage policy to a the owner and operator of a gas station did not have to prove that it had been prejudiced by the insured’s late notice of a claim …
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No Duty to Indemnify for “Junk Fax” Class Action Suit Where Claims Could Not Reach $1,000 Deductible
August 18, 2015
The U.S. Court of Appeals for the Eighth Circuit, affirming a decision by the U.S. District Court for the Western District of Missouri, has ruled that an insurance company had no duty to indemnify its insured in a putative “junk fax” class action lawsuit where the policy had a $1,000 deductible and claims by individual …
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Insured Must Reimburse Insurers for Defense Costs Advanced under Marine Liability Insurance Policies, District Court Decides
August 18, 2015
The U.S. District Court for the Southern District of New York has ruled that claims brought against a Panamanian state-owned company were not covered by the company’s marine liability insurance policies. The Case Petroterminal de Panama, S.A. (“PTP”), a Panamanian state-owned company that owns and operates oil storage and transfer facilities in Panama, including marine …
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In the Courts
July 31, 2015
“Suit” Includes EPA’s CERCLA Enforcement Proceedings, Texas Supreme Court Holds In response to a question certified to it by the U.S. Court of Appeals for the Fifth Circuit, the Texas Supreme Court has ruled that the term “suit” in a general liability insurance policy included superfund cleanup proceedings conducted by the Environmental Protection Agency (“EPA”) under …
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Two Decisions Apply Colorado Supreme Court’s “Late Notice” Ruling
June 30, 2015
Several months ago, the Colorado Supreme Court, in response to questions certified by the U.S. Court of Appeals for the Tenth Circuit, ruled that the “notice-prejudice rule” did not apply to a date-certain notice requirement in a claims-made insurance policy. See, Notice-Prejudice Rule Did Not Apply to Date-Certain Notice Requirement in Claims-Made Insurance Policy, Colorado …
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Corporate Officers and Directors Denied Coverage for Allegedly Wrongful Acts Committed When Acting as Trustees
June 30, 2015
The U.S. Court of Appeals for the Eleventh Circuit, affirming a decision by the U.S. District Court for the Northern District of Georgia, has ruled that an exclusion in a director’s and officer’s (“D&O”) insurance policy barred coverage for an underlying complaint that alleged that wrongful acts of officers and directors of a family-owned corporation …
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Minor Daughter of Divorced Parents Was Resident of Father’s Home, Rhode Island Supreme Court Rules
June 30, 2015
The Rhode Island Supreme Court has ruled that the minor daughter of divorced parents, who lived with her mother but who regularly stayed at her father’s home for overnight visits twice per week, was a resident of the father’s home for the purpose of determining coverage under the provisions of his homeowner’s insurance policy. The …
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Malicious Prosecution Claim Arose When Person Was Arrested, Not 25 Years Later When He was Exonerated, Illinois Appeals Court Rules
June 30, 2015
An appellate court in Illinois, reversing a trial court’s decision, has ruled that an insurance company was not obligated to defend a county and several of its former officials who were sued for malicious prosecution by a wrongfully convicted criminal defendant because his claim arose when he first was arrested, not years later when he …
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Eleventh Circuit Upholds Three Year Limitations Period in ERISA Disability Policy
June 30, 2015
The U.S. Court of Appeals for the Eleventh Circuit has upheld a district court’s decision in favor of a disability insurance carrier, finding that a lawsuit seeking long term disability benefits had been filed after the policy’s three year limitations period. The Case Harriet Wilson sued Standard Insurance Company under the Employee Retirement Income Security …
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“Suit” Includes EPA’s CERCLA Enforcement Proceedings, Texas Supreme Court Holds
June 30, 2015
In response to a question certified to it by the U.S. Court of Appeals for the Fifth Circuit, the Texas Supreme Court has ruled that the term “suit” in a general liability insurance policy included superfund cleanup proceedings conducted by the Environmental Protection Agency (“EPA”) under the federal Comprehensive Environmental Response, Compensation, and Liability Act of …
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In Denying Petitions to Transfer, Indiana Supreme Court May Signal Move to Pro Rata Allocation
May 31, 2015
The Indiana Supreme Court has denied petitions to transfer a case from an intermediate court of appeals in Indiana to the Indiana Supreme Court, certifying the appeals court decision as final. In doing so, the Indiana Supreme Court may be signaling a move away from “all sums” and toward pro rata allocation in environmental contamination …
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New York’s Highest Court Is Asked to Answer Allocation and Exhaustion Questions by Delaware Supreme Court
May 31, 2015
The Delaware Supreme Court has certified questions to New York’s highest court, the New York Court of Appeals, about allocation and exhaustion of policy limits in a case involving allegations of asbestos injury over multiple years where the insured had multiple insurers. The Case Viking Pump, Inc. sought coverage from its insurance carriers for thousands …
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First Circuit Asks Massachusetts Top Court to Decide “Selective Tender” Issue
May 31, 2015
The U.S. Court of Appeals for the First Circuit has certified a question of Massachusetts law to the Supreme Judicial Court of Massachusetts in a case involving an insured with two insurance policies covering the same loss but where the insured tendered a claim to only one of the insurers. The Case An employee of …
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Policies Did Not Cover Loss of Computer Tapes in Absence of “Publication” of their Information, Connecticut Supreme Court Holds
May 31, 2015
The Connecticut Supreme Court, affirming an intermediate appellate court’s decision, has ruled that a commercial general liability insurance policy and an umbrella liability policy did not cover claims for damages stemming from the insureds’ loss of computer tapes containing confidential employee information in the absence of evidence that the information had been “published.” The Case …
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New Jersey Supreme Court Rules in Favor of Attorneys’ Fees for Successful Claimant in D.J. Action – Even in Absence of Any Indemnity Obligation
May 31, 2015
The New Jersey Supreme Court has ruled that a claimant who prevailed against an insurance carrier in a declaratory judgment action seeking coverage and defense of the underlying liability action, but who did not prevail in the liability action itself, was a “prevailing party” entitled to recover counsel fees under New Jersey law. The Case The claimant …
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Pollution Exclusion Bars Coverage for “Defective Drywall” Claims, North Carolina District Court Determines
May 31, 2015
A federal district court in North Carolina has ruled that a pollution exclusion clause barred coverage for claims alleging that drywall manufactured, sold, used, or distributed by the insured company emitted high levels of sulfur into the air inside homes. The Case Lawsuits against New NGC, Inc., asserted injuries and damages arising from exposure to …
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No Coverage for Neighbor’s Claims that Arose from Homeowner’s Non-Accidental Conduct, California Appeals Court Rules
April 30, 2015
An appellate court in California, affirming a trial court’s decision, has ruled that an insurance company was not obligated to defend a homeowner against claims brought by her neighbor that arose out of the homeowner’s non-accidental conduct. The Case A homeowner was sued by her neighbor when she erected an encroaching fence and pruned nine …
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Mere Insinuation of Negligence in Civil Complaint Did Not Transform Intentional Torts into Something “Accidental,” Ohio District Court Decides
April 30, 2015
A federal district court in Ohio has granted summary judgment in favor of an insurance carrier, reasoning that the mere “insinuation” of negligence in a civil complaint could not transform what essentially were intentional torts into something “accidental” that might be covered by a homeowner’s insurance policy. The Case After Andreas Sekic struck his brother-in-law …
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Missouri Federal Court Holds that “Accident” Did Not Include Claims for Breach of Contract, Unjust Enrichment, or Fraud
April 30, 2015
A federal court in Missouri has ruled that claims of breach of contract, unjust enrichment, and fraud against a company and its owner did not involve any undesigned, sudden, or unforeseen event that could be considered an “accident” or “occurrence” for purposes of finding coverage under a business owner’s liability insurance policy. The Case PJP …
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Pennsylvania District Court Dismisses Homeowners’ Bad Faith Claim
April 30, 2015
A federal district court in Pennsylvania has dismissed a bad faith claim brought by homeowners against their insurance company, finding that they had not alleged “concrete facts” to show that the insurer’s actions in investigating or declining to pay their claim had been “frivolous or unfounded” or had been “dishonest or motivated by self-interest or ill …
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Homeowner’s Bad Faith Claim Barred by Statute of Limitations, Arizona Court Concludes
April 30, 2015
William U. Thompson claimed that his home was burglarized between July 24, 2009 and July 31, 2009. He reported the burglary to the police department in Scottsdale, Arizona, estimating the value of his stolen items to be approximately $40,000. In August 2009, Thompson submitted a claim to his homeowner’s insurance company, Property & Casualty Insurance Company …
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Natural Gas Leak Was a “Pollution Condition” under Contractors’ Pollution Liability Policy, Wisconsin Supreme Court Decides
March 31, 2015 | Insurance Coverage
The Wisconsin Supreme Court, reversing a decision by an intermediate appellate court, has ruled that a natural gas leak was a “pollution condition” under a contractors’ pollution liability insurance policy. The Case Dorner, Inc., a construction company, contracted with the Wisconsin Department of Transportation to perform road construction, including underground excavation. While Dorner’s employees were …
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Insurer Was Not Estopped from Denying Coverage Even Though It Had Been Defending Insureds for over Three Years
March 31, 2015 | Insurance Coverage
A federal district court in Pennsylvania has ruled that an insurer that issued timely reservation of rights letters was not estopped from denying coverage even though it had been defending the insureds for over three years.  The Case Randy and Erin Shearer sued a number of homeowners in a Pennsylvania state court alleging that, after …
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Coverage for Malicious Prosecution Claim Was Triggered at Beginning of Prosecution, Not When Accused Was Released, Illinois Appeals Court Holds
March 31, 2015 | Insurance Coverage
An appellate court in Illinois has ruled that coverage for a malicious prosecution claim under the language of law enforcement liability insurance policies issued to a city and its police officers was triggered at the commencement of the alleged malicious prosecution, not at termination of the prosecution in favor of the accused. The Case                                                                                    Juan …
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Intellectual Property Exclusion Barred Coverage of Claims that Insured Manufactured and Distributed Products under Trademarks It Did Not Own
March 31, 2015 | Insurance Coverage
An appellate court in California has affirmed a trial court’s ruling that an intellectual property exclusion in an insurance policy precluded coverage of claims by the estate of R. Buckminster Fuller that the insured had violated its trademarks through the manufacture and distribution of a number of products.  The Case The Fuller estate sued Maxfield …
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“Designated Products” Exclusion Precluded Coverage of Claims in Personal Injury Lawsuit over a Tree Stand
March 31, 2015 | Insurance Coverage
A federal district court in Pennsylvania has ruled that a “designated products” exclusion in a commercial general liability insurance policy precluded coverage of claims brought against the insured for a product manufactured by a company before the insured had acquired certain of the manufacturer’s assets.  The Case Daniel Webb alleged that he was injured during …
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In Deepwater Horizon Case, Texas Supreme Court Rules that BP Was Not Entitled to Coverage as an Additional Insured
February 28, 2015 | Insurance Coverage
The Texas Supreme Court, in response to questions certified by the U.S. Court of Appeals for the Fifth Circuit, has ruled that the BP oil company was not entitled to coverage as an additional insured under primary and excess insurance policies obtained by the owner of the Deepwater Horizon drilling rig, Transocean, in connection with …
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Notice-Prejudice Rule Did Not Apply to Date-Certain Notice Requirement in Claims-Made Insurance Policy, Colorado Supreme Court Rules
February 28, 2015
The Colorado Supreme Court, in response to questions certified by the U.S. Court of Appeals for the Tenth Circuit, has ruled that the “notice-prejudice rule” did not apply to a date-certain notice requirement in a claims-made insurance policy. The Case The insurer issued a policy that provided directors and officers liability coverage. The policy required …
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Insured’s Failure to “Immediately” Forward Asbestos Lawsuits to Insurer Dooms Its Coverage Bid, FIfth Circuit Affirms
February 28, 2015 | Insurance Coverage
The U.S. Court of Appeals for the Fifth Circuit, affirming a district court’s decision, has ruled that an insurance carrier was not obligated to defend its insured where the insured had not “immediately” forwarded asbestos lawsuits to the insurer – and the insurer did not have to demonstrate that it had been prejudiced by the …
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Insurer May Rescind Law Firm’s Policy Based on One Partner’s Misrepresentation on Renewal Application, Illinois Supreme Court Holds
February 28, 2015 | Insurance Coverage
The Illinois Supreme Court, reversing an appellate court’s decision, has ruled that an insurance company could rescind the professional liability insurance policy it had issued to a law firm based on one partner’s misrepresentation on a renewal application, rejecting another partner’s contention that the “innocent insured doctrine” prevented rescission as to him.   The Case Illinois …
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Pollution Exclusion Barred Coverage of Defense Costs Insurer Incurred in Defending Suit Brought by Its Insured
February 28, 2015 | Insurance Coverage
A federal district court in Pennsylvania has ruled that an insurance company was not obligated to compensate its insured, another insurance company, for defense costs it incurred in defending itself in a coverage case brought by its insured, which had been required to undertake certain environmental cleanup work.  The Case Port LA Distribution Center, L.P. …
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Insured’s Failure to Cooperate Dooms Action against Insurer, Tenth Circuit Rules
January 31, 2015 | Insurance Coverage
The U.S. Court of Appeals for the Tenth Circuit has affirmed a district court’s decision granting summary judgment in favor of an insurance carrier where the insured had not cooperated with the insurer as required by his policy. The Case A father insured his automobiles with Sagamore Insurance Company under a policy containing a named-driver …
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Insured Failed to Rebut Presumption that Insurer Was Prejudiced by Late Notice, Eleventh Circuit Concludes
January 31, 2015 | Insurance Coverage
The U.S. Court of Appeals for the Eleventh Circuit, affirming a district court’s decision, has ruled that an insured had not rebutted the presumption that its insurance carrier had been prejudiced by its late notice of claim. The Case Four years and sevenmonths after Hurricane Wilma struck the Florida coast, The Yacht Club on the …
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Environmental Investigation Costs Were Not Considered Damages under Florida Law, Court Holds
January 31, 2015 | Insurance Coverage
An appellate court in Illinois has ruled that environmental investigation costs were not considered damages under Florida law for insurance coverage purposes. The Case After boron contamination was detected at a plant in Florida owned by Premark International, LLC, and at nearby property, the company agreed with the Florida Department of Environmental Protection (“FDEP”) that …
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Emails Constituted a “Demand for Money” and Amounted to a Claim Prior to Policy’s Coverage Date, Eighth Circuit Declares
January 31, 2015 | Insurance Coverage
The U.S. Court of Appeals for the Eighth Circuit, affirming a district court’s decision, has ruled that email communications made prior to the initial date of coverage under a claims-made insurance policy constituted a demand for money and, therefore, amounted to a claim.    The Case LSi-Lowery Systems, Inc., sold businesssoftware to Hodell-Natco Industries, Inc., that …
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District Attorney’s Allegedly Defamatory Campaign Statements Were Not an “Occurrence,” California Court Decides
January 31, 2015 | Insurance Coverage
A federal district court in California has ruled that a homeowner’s insurance policy did not provide coverage for a defamation action against the insured ? a district attorney who was running for re-election ? for intentional statements that she had made or had authorized during her campaign. The Case After Meredith Lintott’s campaign for re-election …
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