Insurance Coverage


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
| 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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Feb. 15 Deadline Looms for NY’s Banking, Insurance and Financial Services Industries
January 31, 2018 | Shari Claire Lewis | Banking | Insurance Coverage | Privacy, Data & Cyber Law
New York based bank, insurance and financial service businesses face a February 15, 2018 deadline to submit their compliance certification to the State’s Department of Financial Services (DFS). New York’s Cybersecurity Regulation (23 NYCRR Part 500) was issued by DFS last March – the first such state regulation in the nation. The Regulation includes various …
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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
| 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 | Employment & Labor | Insurance Coverage
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
| 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
| 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
| 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
| 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
| 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
| 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”
| 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
| 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
| 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
| 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
| 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
| 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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Employee Benefit Plan Review – From the Courts
May 9, 2017 | Insurance Coverage | Employment & Labor
Employee Who Left Job Due to Terminal Illness Was Entitled to Severance Pay, Ninth Circuit Rules The wife of the plaintiff in this case was employed by the American Society for Technion-Israel Institute of Technology (ATS) until her terminal illness forced her to leave her job. The plaintiff contended that his wife was entitled to severance …
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New York Insurance Coverage Law Update
April 28, 2017 | Insurance Coverage
Court Holds Insurer Did Not Establish Insured’s Failure To Cooperate An insurer’s disclaimer based on the insured’s lack of cooperation was challenged in court. The Appellate Division, Second Department, found that the insurer made diligent efforts that were reasonably calculated to obtain its insured’s cooperation. However, the court ruled that the disclaimer could not be …
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Multiple Sales of Tabletop Torches Were Multiple Occurrences
April 21, 2017 | Insurance Coverage | Complex Torts & Product Liability
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
| 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
| 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 Suits Alleging Violation of Environmental Laws
| 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
| 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
| Insurance Coverage | General Liability
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
| 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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McAloon and Kruglyak Co-Author Article For ABA’s Tort Trial and Insurance Practice Law Journal
April 13, 2017 | Insurance Coverage
Sean McAloon and Viktoriya Kruglyak co-authored the section on Appraisal in Recent Developments in Property Insurance Law, which was published in the Winter 2017 issue of the American Bar Association’s Tort Trial & Insurance Practice Law Journal. To read the article, Click Here. This information or any portion thereof may not be copied or disseminated …
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