Insurance Coverage


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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Employee Benefit Plan Review – From the Courts
March 30, 2017 | Insurance Coverage | Employment & Labor
Failure to Timely File ‘Charge’ with EEOC Doomed Plaintiff’s ADA Suit, Seventh Circuit Rules The plaintiff in this case, a senior customer service representative of Christian Brothers Services (CBS), was in an automobile accident in March 2011 as a result of which she had to use a cane and limped. According to the plaintiff, CBS fired …
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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
| 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
| 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
| 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
| 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
| 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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Principles of Judicial Estoppel May Constrain the Assignability of Legal Malpractice Claims to Former Litigation Adversaries
March 15, 2017 | Insurance Coverage | Complex Torts & Product Liability | Professional Liability
In a recent decision, the United States District Court for the Southern District of New York considered whether principles of judicial estoppel may prevent an assignee of a legal malpractice claim from prevailing on a claim against his former adversary’s attorneys. Molina v. Faust Goetz Schenker & Blee, LLP, 2017 U.S. Dist. LEXIS 13568 (S.D.N.Y. …
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Employee Relations Law Journal – From the Courts
| Norman L. Tolle | Insurance Coverage
Tenth Circuit Upholds Pension Trust’s Decision to Honor IRS Levies When the plaintiffs in this case retired, they began receiving monthly benefits from the Boilermaker-Blacksmith National Pension Trust, a pension plan in which they participated. However, after the trust received notices of levy for both of them from the Internal Revenue Service (IRS), the trust …
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New York Insurance Coverage Law Update
March 7, 2017 | Insurance Coverage
Claims-Made Policy Afforded Insured 60 Days After End Of Term To Notify Insurer  An employee of New York Institute of Technology (“NYIT”) sued NYIT for defamation on February 26, 2009, and NYIT received notice of the action on August 6, 2009. NYIT’s claims-made-and-reported insurance policy ended on September 1, 2009. NYIT notified its insurer of …
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Employee Benefit Plan Review – From the Courts
February 22, 2017 | Insurance Coverage | Employment & Labor
Seventh Circuit, Joining Other Circuits, Rejects ERISA Plan’s “Coordination of Benefits” Lawsuit Against Health Insurers The plaintiff in this lawsuit, filed in a federal district court in Illinois, was the trustee of the Central States, Southeast and Southwest Areas Health and Welfare Fund, a self-funded plan under the Employee Retirement Income Security Act of 1974 …
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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
| 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
| 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
| 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
| 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
| 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
| 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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Rutkin Publishes Article entitled, “Insight – Too Good to Be True?”
February 17, 2017 | Insurance Coverage
Alan Rutkin article entitled, “Insight – Too Good to Be True?,” has been published in the February 2017 issue of Best’s Review magazine. Click here to read the article. Best’s Review:  February 2017. Copyrighted A.M. Best Company, Inc. 2017.  All Rights Reserved, Reprinted with Permission. …
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New York Insurance Coverage Law Update
February 1, 2017 | Insurance Coverage
No-Fault Insurer Timely Requested EUO Of Provider After Conducting Assignor’s EUO, Court Rules On December 19, 2013, after receiving a health care provider’s bills requesting payment of assigned no-fault benefits, the insurer conducted a timely examination under oath (“EUO”) of the assignor. On January 9, 2014, believing that the assignor’s testimony raised questions regarding the …
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New York Insurance Coverage Law Update
January 31, 2017 | Insurance Coverage
“Contractual Privity” Not Required For Project Consultant To Be “Additional Insured,” New York Trial Court Rules Rockefeller Group Development Corp-oration, as an agent for 1221 Avenue Holdings LLC, contracted with A. Best Contracting Co., Inc. (“Abestco”) to have Abestco perform construction work at 1221 Avenue of the Americas in Manhattan. The contract allegedly required that …
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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
| 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
| 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
| 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
| 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
| 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
| 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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Employee Benefit Plan Review – From the Courts
January 21, 2017 | Insurance Coverage | Employment & Labor
Florida Court Upholds Denial of Long-Term Disability Benefits to Employee Who Worked Fewer Hours  The plaintiff in this case was a financial sales professional with AXA Equitable Insurance Company who said that he experienced neck and back pains stemming from motor vehicle and snowboarding injuries that he had suffered in 2003. The plaintiff regularly worked 70 to …
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New York Insurance Coverage Law Update
December 29, 2016 | Insurance Coverage
Sagging Roof Was Not A Collapse, Court Confirms The owner of a building in the Bronx sought coverage under its property policy for a damaged roof, claiming it “collapsed,” a covered cause of loss under the policy.  The court granted the insurer’s motion for summary judgment, finding that “no part of the premises fell to …
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Employee Benefit Plan Review – From the Courts
December 21, 2016 | Insurance Coverage | Employment & Labor
Implied-in-Fact CBA Excluded Time Spent Donning and Doffing Work Clothing from Compensable Time, Eighth Circuit Decides Since at least 1967, hourly employees working at the battery manufacturing facility in Joplin, Missouri, operated by EaglePicher Technologies, LLC, were represented by a union, presently known as the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial …
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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
| 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
| 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
| 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
| 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
| 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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New York Insurance Coverage Law Update
November 30, 2016 | Insurance Coverage
Private Dispute Over Policy Coverage Did Not Support Insured’s GBL § 349 Claim Against Insurer, Fourth Department Rules A building owner sued its insurance company for deceptive acts and practices under New York General Business Law § 349, alleging that the insurer had retained a non-engineer to conduct an investigation into its claim for damage to its building and …
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Employee Benefit Plan Review – From the Courts
November 21, 2016 | Insurance Coverage | Employment & Labor
Company’s COBRA Breach Justified Award of Premiums to Former Employee, Eighth Circuit Rules When Health Resources of Arkansas, Inc. (HRA) reduced its work force in response to financial difficulties in 2012, the plaintiff in this case was 57 years old and had been working for HRA since 1987. She had worked her way up from …
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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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