Recent Publications - Insurance Coverage


Everybody Hurts Sometimes: But Is Insurance Available to Compensate That Pain?
May 11, 2018 | Michael C. Cannata | Frank M. Misiti | Insurance Coverage
From efforts to curtail cyber-bullying, to the creation of safe spaces, protecting individuals from mental injury is now mission critical. Every day, lawsuits are filed by individuals seeking damages for conduct that has resulted in mental injury. Not surprisingly, the targets of these lawsuits have turned to their insurers to defend and indemnify them against …
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Insurance Update
May 7, 2018 | Robert Tugander | Insurance Coverage
We are pleased to bring you our May Insurance Update. Here are the headlines: Eleventh Circuit Rejects Insured’s Bid for Advertising Injury Coverage of Two Lawsuits Exclusion Barred Coverage of Losses Resulting from Fraudulent Email Scheme, Ninth Circuit Concludes Insurer That Issued Umbrella Excess Policies Did Not Have to Defend Insured, Wisconsin Appellate Court Decides …
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Insurance Update
April 16, 2018 | Robert Tugander | Insurance Coverage
Like the weather so far this spring, our April Insurance Update offers a “mixed bag” of insurance decisions.  In our update, you’ll find answers to the following questions: When does the completed-operations hazard apply to asbestos bodily injury claims? A campground caretaker shoots a camper.  Is there an “occurrence” from the owner’s standpoint? A vintage …
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New York Insurance Coverage Law Update
March 29, 2018 | Alan C. Eagle | Insurance Coverage
Second Circuit Rules Professional Services Exclusion In D&O Policy Barred Coverage For Facebook Investors’ Claims Against NASDAQ After conducting the initial public offering for Facebook, Inc., the NASDAQ public stock exchange was sued. NASDAQ settled for $26.5 million. An insurer that issued a directors and officers policy to NASDAQ contended that the claims against NASDAQ …
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Linker Authors Article in Mealey’s Litigation Report
March 15, 2018 | Ian S. Linker | Insurance Coverage
Ian Linker was published in Mealey’s Litigation Reports: ERISA and Disability, in a commentary piece entitled, “Preemption Is Preemption. Or Is It? A Recent Fifth Circuit Decision Sheds Light on the Differences between Conflict and Complete ERISA Preemption.” Click here to read article. …
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Linker Publishes Article in FC&S Legal
March 13, 2018 | Ian S. Linker | Insurance Coverage
Ian Linker has published an article in FC&S Legal entitled, “To Thine Own Plan Be True: Burdens of Proof and Standards of Review Under Attack in ERISA – Benefits Litigation.” Click here to read article. …
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Insurance Update
March 9, 2018 | Robert Tugander | Insurance Coverage
Luck, both good and bad, is a theme persistent throughout the month of March.  There’s St. Patrick’s Day and the luck of the Irish.  There’s the cautionary warning “Beware the Ides of March.”  And for college basketball fans, it’s the key ingredient to winning the March Madness office pool. And it just so happens that …
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Employee Benefit Plan Review – From the Courts
March 2, 2018 | Ian S. Linker | Employment & Labor | Insurance Fraud
Fifth Circuit Holds ERISA Preempts Plaintiff’s Claims under State Law, and Plaintiff’s Claim for Equitable Relief Fails as a Matter of Law The plaintiff in this case sought to recover life insurance benefits under  an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA). Her deceased husband had been …
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Employee Relations Law Journal – From the Courts
March 2, 2018 | Norman L. Tolle | Employment & Labor | Insurance Coverage
Disability Policy Had to Provide Same Benefits for Mental Illness as for Physical Injury, Montana Federal Court Decides The plaintiff in this case worked as a claims adjuster for Farmers Group, Inc. After she became disabled due to her bipolar disorder, she applied for long-term disability benefits under the company’s group disability income plan, issued …
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New York Insurance Coverage Law Update
February 28, 2018 | Alan C. Eagle | Insurance Coverage
Auto Policy Covers Suit Alleging Passenger Tripped After Bus Arrived At Location, First Department Says  After a bus arrived at its destination, the driver unloaded the luggage. A passenger allegedly tripped while looking for her suitcase and sued the bus company. The Appellate Division, First Department, held that the bus company was entitled to a …
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Rutkin Publishes A.M. Best Article entitled, “Cyber Health”
February 16, 2018 | Alan S. Rutkin | Insurance Coverage
Alan Rutkin’s article entitled, “Cyber Health,” has been published in the February 2018 issue of Best’s Review magazine. The article shows how most cyber coverage cases concern one or more of the following issues:  authority, causation, act and injury – ACAI. Click here to read the article. Best’s Review:  February 2018. Copyrighted A.M. Best Company, …
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Linker Published in Mealey’s Litigation Report: ERISA
February 14, 2018 | Ian S. Linker | Insurance Coverage
Ian Linker was published in Mealey’s Litigation Report: ERISA in a commentary piece entitled, “To Fee, Or Not To Fee. That Is The Question: In Certain Cases, Arbitrating ERISA Benefits Cases May Enable Plan Fiduciaries To Avoid Paying Plaintiffs’ Attorney’s Fees.” To read the article click here. …
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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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Employee Benefit Plan Review – From the Courts
February 7, 2018 | Ian S. Linker | Insurance Coverage
California Federal District Court Determines “Document in Force” As an employee of NetApp, the plaintiff participated in the company’s long-term disability (LTD) plan, an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA). NetApp was both the plan sponsor and plan administrator. The plaintiff’s job title with NetApp was …
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New York Insurance Coverage Law Update
January 28, 2018 | Alan C. Eagle | Insurance Coverage
General Contractor Obtains Additional Insured Coverage Under Policy Issued To Subcontractor That Was “Proximate Cause” Of Damage A fire occurred on the Throgs Neck Bridge while the roadway deck was being replaced. The general contractor sought additional insured coverage under an insurance policy issued to its subcontractor and maintained that the fire damage was “caused, …
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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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Employee Benefit Plan Review – From the Courts
January 5, 2018 | Norman L. Tolle | Insurance Coverage | Employment & Labor
Release Did Not Bar Injured Worker from Bringing FMLA Claims Against Former Employer, Third Circuit Rules The plaintiff in this case alleged that he was injured on or about August 12, 2014 while working as an employee of Boscov’s Inc. at a farmers’ market in Reading, Pennsylvania. The plaintiff immediately filed a worker’s compensation claim, …
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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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New York Insurance Coverage Update
December 19, 2017 | Alan C. Eagle | Insurance Coverage
New York Federal Court Upholds Insurer’s Decision To Void Policy For Material Misrepresentation In Application An application submitted by the insured’s broker for insurance on an apartment building in the Bronx indicated that the building was not vacant and was not undergoing any major renovations. The policy was issued and the building was subsequently vandalized. …
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Employee Benefit Plan Review – From the Courts
December 7, 2017 | Norman L. Tolle | Insurance Coverage | Employment & Labor
Plaintiffs’ Claimed Violation of California’s “Day of Rest” Law Fails The plaintiffs in this case, former California employees of Nordstrom, Inc., a retail department store, sued the company, alleging that it had violated the provision of the California Labor Code granting employees a right to one “day’s rest” in seven. One of the plaintiffs alleged that, while …
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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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Appellate Term Split on Payment of Disputed No-Fault Claims
November 2, 2017 | Evan H. Krinick | Insurance Coverage
Unless resolved by the Appellate Division or by the New York Court of Appeals, or clarified by the legislature or the Department of Financial Services, the Appellate Term split will make it difficult for automobile insurers to accurately calculate premium rates for no-fault coverage or to know which claims of health care providers they should …
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New York Insurance Coverage Law Update
October 27, 2017 | Alan C. Eagle | Insurance Coverage
Appellate Division Rules That Policy Covered Loss Caused By A Defect That Began Before Policy’s Effective Date The insured made a claim under its insurance policy for losses that resulted when a power-generating turbine was taken out of operation due to excessive vibrations. The vibrations were found to have been caused by a crack in …
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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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Employee Benefit Plan Review – From the Courts
October 7, 2017 | Norman L. Tolle | Insurance Coverage | Employment & Labor
California Federal Court Permits Plaintiff in ERISA Suit to Proceed Under a Pseudonym The plaintiff in this case, appearing anonymously as John Doe, filed a lawsuit against Lincoln National Life Insurance Company alleging violations of the Employee Retirement Income Security Act of 1974 (ERISA). Specifically, the plaintiff alleged that, since June 12, 2013, he had been disabled, …
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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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Employee Benefit Plan Review – From the Courts
September 18, 2017 | Norman L. Tolle | Insurance Coverage
Insurer Could Offset Monthly Disability Payments Against Plaintiff’s Part-Time Earnings, Third Circuit Rules The plaintiff in this case, a gastroenterologist, suffered a debilitating injury to her shoulder and underwent surgery in an attempt to repair the damage. The surgery was only partly successful and the damage from her injury prevented her, for a time, from …
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New York Insurance Coverage Law Update
September 2, 2017 | Alan C. Eagle | Insurance Coverage
Insurer Failed To Demonstrate Insured’s Noncooperation, Second Department Rules The claimant sued ML Specialty Construction, Inc., alleging that her property had been damaged by construction work performed by ML on a neighbor’s property.  ML’s insurer retained counsel to defend ML. The insurer disclaimed coverage on the ground that ML stopped cooperating after five years, and …
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Diverse Legal Issues Can Arise in Insurance Fraud Prosecutions
August 31, 2017 | Evan H. Krinick | Insurance Coverage
Even clear proof of a false claim and a criminal defendant’s guilt does not necessarily mean that a criminal insurance fraud case will proceed uneventfully to a conviction, or withstand a defendant’s appeal. In some instances, a defendant who has filed a false claim with intent to defraud an insurance company will file a motion …
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New York Insurance Coverage Law Update
August 22, 2017 | Alan C. Eagle | Insurance Coverage
“Vertical Exhaustion” Of Primary Policies Triggered Excess, But Excess Policies’ Prior Insurance Provision Limited Insured’s Recovery, Second Circuit Holds  Olin Corporation, a chemical manufacturer, contended that an excess insurer that had issued three consecutive annual policies had to indemnify it for environmental con-tamination that had taken place over a number of years at several manufacturing …
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In Term of Transition, Court Sides With Insurers
August 21, 2017 | Evan H. Krinick | Insurance Coverage
The one thing that can be said about the most significant insurance law cases decided by the Court this past term: They all were decided in favor of the insurance carriers. It was a term of transition for the New York Court of Appeals, with Associate Judge Eugene Pigott Jr., retiring at the end of …
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Rutkin Publishes A.M. Best Article Entitled, “Cyber Concerns”
August 15, 2017 | Alan S. Rutkin | Insurance Coverage
Alan Rutkin’s article entitled, “Cyber Concerns,” has been published in the August 2017 issue of Best’s Review magazine. The article discusses how spyware, installed on computers by retailers, led to lawsuits involving insurance companies. Click here to read the article. Best’s Review:  August 2017. Copyrighted A.M. Best Company, Inc. 2017.  All Rights Reserved, Reprinted with Permission. …
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Employee Relations Law Journal – From the Courts
August 15, 2017 | Norman L. Tolle | Insurance Coverage
Claims Administrator Did Not Wrongly Deny Benefits to Ex-Employee, Seventh Circuit Rules The plaintiff in this case was hired by General Motors as an electrical engineer in 1991. A year later, General Motors circulated a “summary plan description” detailing the disability benefits available to its employees. This document provided that employees who became disabled before accruing …
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Employee Benefit Plan Review – From the Courts
August 15, 2017 | Norman L. Tolle | Insurance Coverage
Agreement That Settled Arbitrations Also Barred Former Employee’s ERISA Action, Ninth Circuit Says In December 2010, the plaintiff in this case, a physician, filed wrongful termination lawsuits against Kaiser Foundation Hospitals (Kaiser) and The Permanente Medical Group, Inc. (TPMG). Both of those lawsuits were consolidated in arbitration. The plaintiff, Kaiser, and TPMG settled those arbitrations in …
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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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New York Insurance Coverage Law Update
July 28, 2017 | Insurance Coverage
No Additional Insured Coverage Where Alleged Accident Occurred Off Leased Space An employee of Linea 3 allegedly was injured in the parking lot while walking from his car to space Linea leased in a building owned by Atlantic Ave. Sixteen AD, Inc. The employee sued Atlantic, which sought additional insured coverage under Linea’s policy. The …
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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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New York Insurance Coverage Update
June 14, 2017 | Alan C. Eagle | Insurance Coverage
New York Court Of Appeals Limits Scope Of Additional Insured Coverage  An excavator contracted with the New York City Transit Authority (“NYCTA”) to perform tunnel excavation work on a subway construction project. Its excavation machine touched a live, buried electrical cable, resulting in an explosion and injury to the claimant. The claimant sued the City, …
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New York Insurance Coverage Law Update
May 31, 2017 | Insurance Coverage
Court Rejects Insurers’ Defenses To Coverage For Bear Stearns’ Settlement With SEC Bear Stearns agreed to pay $250 million to resolve claims by the Securities and Exchange Commission that it had facilitated its customers’ late trading and market timing practices in its performance of clearing services on their behalf.  Of that amount, part was labeled …
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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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