In this month’s update, we discuss Russian-seized planes, Starbucks-caused traffic jams, a squabble over the use of a family name, a restaurant’s pandemic-based loss, a poorly built house, and whether insurance covers any of these claims.

We begin with the restaurant’s business interruption claim.  There, the California Supreme Court had to decide whether a virus

We touch upon various issues in our August insurance update.

The Supreme Judicial Court of Massachusetts considers the meaning of “surface waters” and whether the sublimit for floods applies when pooled water on a roof infiltrates a building.

The Kentucky Court of Appeals considers whether a pollution exclusion applies to a gasoline leak at a

It’s not often that the U.S. Supreme Court weighs in on insurance issues. That’s because the McCarran-Ferguson Act gives states the primary authority to regulate the business of insurance. So when the Supreme Court speaks on insurance, even in the context of a bankruptcy plan, it’s noteworthy for insurers.

That’s why we begin with the

Most pandemic-related businesses interruption insurance claims failed because policyholders could not show a direct physical loss. But some California courts issued conflicting decisions. The California Supreme Court has now clarified California law and joins the majority of jurisdictions finding no coverage for these types of claims.

A scooter rider sought PIP benefits under New Jersey’s

Careening race cars, missing diamonds, and gold treasure provide some of the backdrop for insurance issues that courts had to decide this past month.

We begin in Pennsylvania where the state’s high court reined in some loose analysis by the lower courts.  If a controlled substances exclusion applies to “bodily injury” claims and “bodily injury”

Our April 2024 Insurance Update is now available.

Dominance was the theme of this year’s NCAA basketball tournament, with the UConn men’s team winning back-to-back championships and the South Carolina women’s team reclaiming the title with a perfect record. But let’s not forget about the NC State Wolfpack’s magical March run. Led by Miracle Mike and the two DJs,

Our March 2024 Insurance Update is now available.

We begin with three state supreme court decisions answering these questions:

• A year before an insured bought its claims-made policy it received an attorney’s letter threatening mass tort litigation. The first suits were filed when the claims-made policy was in effect. Is the claims-made policy triggered? The Delaware Supreme Court decides

In this month’s insurance update, we address:

• Whether opioid suits allege an occurrence
• Whether the recurring presence of wild turkeys is “infestation”
• Whether improper copying of an industry publication was in the performance of professional services
• Whether wildfire dust is a “pollutant”
• Whether an aircraft exclusion applies to a partially disassembled plane
• And whether

In our January insurance update, we include three state cases addressing some less common situations.

It’s not often that a pollution exclusion is interpreted in the context of an auto policy.  But the South Dakota Supreme Court considered whether the exclusion barred a claim arising from a contaminated wheat delivery.

Village officials made it very

Our December 2023 Insurance Update features a few firsts from state high courts. For the first time:

• The Supreme Court of Hawaii addresses reimbursement of defense costs.
• The Supreme Court of Illinois addresses coverage for construction defects.
• The Supreme Court of Appeals of West Virginia addresses trigger.

At the federal level:

• The

Robert Tugander wrote an article on the production company that produces the show “My 600-Lb Life,” and its the argument that its insurer fraudulently led it to believe it would have coverage for liability arising out of the show’s production.

To read the article, click the link below.

Law360 – Insurer’s ‘600-Lb Life’ Win Shows

In our November 2023 Insurance Update, we address consent, “occurrence,” malicious prosecution, claims-made reporting requirements, and the duty to defend.

Consent has seemed to plague TV-maker Vizio. First, it got into trouble with consumers by allegedly secretly collecting information about their viewing habits and selling that information without the consumers’ consent. Then, it reached a

Robert Tugander and Greg Mann wrote an article for Law360 on one of the most widely litigated issues: whether the insured’s liability stems from an “occurrence.”

To read the article, click the link below.

Illinois Trump Tower Ruling Illuminates Insurance ‘Occurrence’

Here’s what we discuss in our October 2023 Insurance Update.

Illinois: Environmental Suits Alleging Non-Compliance with Laws and Regulations Did Not Assert an “Occurrence”

Massachusetts (federal): Insurer May Consider Sums Uninsured Party Would Have Paid Under Joint Defense Agreement When Assessing Costs Reasonably Related to Insured’s Defense

Delaware: Professional Services Exclusion Does Not Apply to

We touch upon several topics in our September 2023 Insurance Update.

We begin with two federal circuit court rulings on late notice – one involving a claims-made policy and the other an occurrence policy. In these cases, the courts address whether an insurer can maintain a late notice defense when it was aware of the

We bring you our August 2023 Insurance Update.

Mental state, in some form, is the common theme running through our first three cases this month.

The Fifth Circuit decides whether directors and officers of an ice cream company, accused of breaching their fiduciary duties to shareholders, were entitled to a defense under the company’s CGL

We bring you our July 2023 Insurance Update.

We begin with two cases about late notice.  First, the Kentucky Supreme Court considers whether the notice-prejudice rule applies to claims-made-and-reported policies.  Second, the Ninth Circuit provides an example of when prejudice can be determined as a matter of law.

The Wisconsin Supreme Court addresses the contours

Courts took up some interesting insurance questions this past month.  Here’s some we address in our June Insurance Update.

When a government sponsored cyberattack infects computers worldwide, does the war exclusion apply?

A professional liability policy will often pay the insured’s costs of responding to subpoenas or disciplinary proceedings.  What about search warrants?

People pay

Additional insureds and applications.  That’s our main theme this month.

Additional insured disputes can sometimes get complicated.  How much coverage the additional insured gets is often a hotly contested issue, especially when the named insured has coverage above the minimum limits it promised to get for the additional insured.  We see different outcomes on this

Courts were in full swing deciding insurance coverage issues over the past month or so.  Here are a few that caught our attention.

The Louisiana Supreme Court became the latest state supreme court to find no coverage for pandemic-related business interruption losses because such claims do not involve “direct physical loss.”  This case was closely

We bring you our March Insurance Update.

As college basketball programs embark on the road to the final four, we select our top four insurance cases from the past month.

In a dispute over the priority of coverage, the New Jersey Supreme Court weighs in on whether a city’s membership in a joint insurance fund

Here are some of the leading insurance cases from the past month.

The Sixth Circuit is the latest appellate court to address whether insurers must defend drug companies in local government opioid suits.  Joining the Ohio and Delaware Supreme Courts, the Sixth Circuit found that because the suits do not seek “damages because of bodily

It was a busy end to the year, as courts handed down several key insurance decisions before ringing in 2023.

The Ohio Supreme Court considered the contours of “direct physical loss or damage” in two separate decisions – one for pandemic-related business interruption losses, the other for losses from a ransomware attack.  In both cases,

Robert Tugander wrote, “Two Words Play a Key Role in Opioid Litigation,” for the insurance industry publication, Best’s Review.

The article discusses the issues insurers confront when government entities sue their pharmaceutical company insureds. Often, the courts will rely on two words — because of — in the policy language when determining whether insurers are

We roll out our December Insurance Update just in time for the holidays.

Here’s what’s inside:

• The California Supreme Court discusses rules of policy construction in the context of a TCPA claim against Yahoo.
• A Minnesota federal judge considers data breach coverage for wire transfers to a fraudulent account.
• A Massachusetts federal court weighs

Our November Insurance Update covers several topics.

We’ve seen cases on whether contractors who repair homes can recover directly from insurers through assignments.  The Nebraska Supreme Court now considers whether a policyholder can assign to a non-policyholder a cause of action for first-party bad faith.

The Delaware Supreme Court is the latest

Kidnapping, treasure hunts, insurgents shooting down airplanes  — sounds like the Fall TV lineup.  But no, it’s our October Insurance Update.

And in honor of the month’s most treasured sporting event, the Fall Classic, we roll out a lineup of nine sluggers that will bring you up to date on what’s happened in the world

Some important insurance decisions were handed down over the past month.

We begin in Ohio, where public nuisance claims by state and local governments over opioids and lead paint were on full display.  In Acuity, the Ohio Supreme Court found that the opioid suits were not brought “because of bodily injury.”  A week earlier, the

State and local governments have been pursuing “public nuisance” claims against companies responsible in some way for societal problems. We’ve seen cases against manufacturers and distributors of guns, lead paint and opioids. And this theory is being tested in climate change cases against energy companies.

As new legal theories and trends emerge, so do insurance

A few years back, we discussed the Montana Supreme Court’s Parker decision, which interpreted an earth movement exclusion in a first-party claim under a homeowner’s policy.  There, a boulder dislodged from a hillside and damaged the insured’s house.  The issue was whether a tumbling boulder should be considered earth movement.  The court said yes.  Now,

Our July Insurance Update is here.  This is what we discuss.

“Hoosier” daddy?  When a Little Daddy’s bouncer chased a drunk patron from Big Daddy’s parking lot, who knew it would lead to the Indiana Supreme Court adopting the efficient and predominant cause theory, no matter whose Daddy the bouncer was working for.

Oklahoma has

Coverage disputes often center on whether the policy language is clear.  Under the rules of contract construction, unambiguous language in an insurance policy must be given its plain and ordinary meaning.  Sometimes, policyholders try to create an ambiguity despite language that seems clear on its face, or suggest another reason why the language should not

You’ll find some notable decisions in our May Insurance Update.

Appeals over pandemic-related business interruption losses have made their way up to state high courts.  And so far, these courts have continued the trend favoring insurers.

The Texas Supreme Court addresses an issue of first impression: What duty of care does an insurer owe to

Cases in our April Insurance Update address several questions:

• Are costs incurred to comply with a subpoena covered?
• What must an insured show to rebut the presumption of prejudice in a late notice situation?
• What are related claims under claims-made policies?
• How does a retroactive date limitation apply?
• Is there a “loss of use”

Texas practitioners can add a new term to their legal vocabulary:  “the Monroe exception.”  The Texas Supreme Court has finally weighed in on whether to create an exception to the eight corners rule when determining if an insurer has a duty to defend.  Crafting a rule similar to what the Fifth Circuit proposed years earlier,

Causation, an issue courts often wrestle with when deciding insurance coverage issues, lands the starring role in our February Insurance Update.

• A county experienced higher costs due to the opioid crisis.  Does its complaint against drug stores allege damages because of bodily injury?
• A company sells a knock-off trailer with its logo on the

Cases discussed in our January Insurance Update answer these questions:

• A commercial crime policy covers property that the insured “holds for others.”  In the context of a phishing scheme, does “hold” mean the insured must possess the diverted funds or simply have some control over them?
• Federal and state agencies order a manufacturer to

Robert Tugander’s article, “Do You Have the Right Cyber Insurance for Your Business?” appeared in the Winter 2021/2022 issue of USLAW Magazine.

The article explores the reasons why the same cyber crime often results in different insurance coverage outcomes, depending on the court or the language of the insurance policy. And while no single policy can

Our December Insurance Update features four cases.

The Minnesota Supreme Court decides if a resident-relative exclusion violates public policy.

A Texas appellate court considers, for a second time, if damage from illegal dumping was caused by an “occurrence.”

A Massachusetts appellate court determines whether an uninsured premises exclusion applies where the claim dates back to

We bring you our November Insurance Update.

Here’s what happened over the past month.

Insurers scored a hat trick before the Ninth Circuit, as the court found no coverage for pandemic-related business interruption losses in three separate cases.  The cases addressed the “direct physical loss” language, the virus exclusion, causation, and civil authority coverage.

The

Here’s our October Insurance Update.

The Sixth Circuit had insurance on its mind this past month.  Three of the decisions we discuss in our update are from that court.

First, the Sixth Circuit joins the Eighth and Eleventh Circuits in finding that pandemic-based business interruption losses did not amount to a “direct physical loss of

September.  Synonymous with back to school, the end of summer, and the start of the NFL season.  And while the Cowboys and Bucs kicked off the season this year, another epic battle was brewing out west in the corridors of the Ninth Circuit.

The public policy in most states is to enforce arbitration agreements in

Here is what you will find in our August Insurance Update:

• Pollution Exclusion Bars Coverage for Criminal Proceeding Over Submission of Fraudulent Coal-Dust Samples, Sixth Circuit Affirms
• Fifth Circuit Finds Insurer Has Duty to Defend Insured for a Data Breach Litigation Under Policy’s Personal and Advertising Coverage
• Warranty Exclusion Bars D&O Liability Coverage for

Appellate courts have been busy the last few weeks deciding a wide swath of insurance issues.

The Eighth Circuit became the first federal appellate court to weigh in on pandemic-related business interruption claims.

The Wisconsin Supreme Court discusses obligations owed to “innocent insureds,” while a California appellate court addresses the liability of a life insurer

Insurance coverage litigation often centers on the interpretation of specific terms and phrases in an insurance policy.

In our June Insurance Update:

• The Illinois Supreme Court decides whether disclosure of biometric identifiers to a single party is a “publication” and whether a BIPA claim involves a “right of privacy”
• A federal court in Kentucky

We bring you our May Insurance Update.

In this month’s update:

• The Minnesota Supreme Court considers an issue of first impression over the reasonableness of settlement agreements that fail to allocate between covered and uncovered claims
• The Seventh Circuit decides whether a policy’s TCPA exclusion bars coverage for common law claims arising out of

We bring you our April insurance update.

In this month’s update, state high courts consider reimbursement of defense costs, reimbursement of medical marijuana costs, and reimbursement of ransomware payments.

Federal courts determine whether a debt collector is entitled to a defense in a suit over its aggressive recovery tactics and whether a manufacturer is out

In our March Insurance Update, we discuss four state supreme court cases and four cybercrime cases.

The state high courts address:

• From whose perspective should a consent-to-settle provision be judged?
• What standard applies when construing an intentional injury exclusion?
• Does prior knowledge by one employee of an insured void claims-made coverage for all employees?

Our February insurance update discusses several issues involving first-party and third-party insurance claims.

• The Florida Supreme Court answers a certified question about the type of damages available to first-party litigants in breach of insurance contract cases.
• The Tenth Circuit considers the breadth of an earth movement exclusion and whether damage caused by a rolling

Courts ended 2020 with a flurry of insurance decisions.  Our January 2021 Update highlights some of these decisions, including several by state supreme courts.

We begin with a new twist on pandemic-related claims.  Within two days of each other, federal district court judges found, on the one hand, that Covid-19 business interruption losses were not

Here is what we cover in our December Insurance Update.

• In a case of first impression, the Illinois Supreme Court construes a mechanical device exclusion in an auto policy.
• A New Jersey federal judge considers whether an insured is covered under its E&O policy for an email spoofing scheme.
• Federal courts in California and

Our November Insurance Update touches upon some novel issues.

• Is an appraisal action – a proceeding to determine fair stock value on the date of merger – a Securities Claim for purposes of a D&O policy?
• Must a workers’ compensation carrier pay for medical marijuana costs?
• Does a pollution exclusion bar a landlord’s costs

• Judicial Panel on Multidistrict Litigation Centralizes Some COVID-19 Related Insurance Cases
• Ninth Circuit Rejects Excess Insurer’s “Improper Erosion” Theory
• Insurer Had No Duty to Defend Landfill Operator in Criminal Proceeding Stemming from Pollution Incidents, Fifth Circuit Holds
• Repeated Fuel Thefts by Truck Drivers Who Exploited Programming

The duty to defend takes center stage in this month’s Insurance Update, and particularly, when extrinsic evidence may be considered in assessing that duty.

As it’s back to school time (whether virtually or in person), we thought we’d begin with a short quiz.

Which of the following circumstances gives rise to an insurer’s duty to

We bring you our July Insurance Update.

Perhaps the biggest news this month comes out of Michigan.

At a Zoom hearing on July 1, a Michigan Circuit Court judge became the first to hand down a decision on whether business interruption losses caused by COVID-19 are covered.  In Gavrilides Mgmt. Co. v. Michigan Ins. Co.,

“Intent” is the main theme of our June Insurance Update.

Policyholders will often point to allegations of negligence in attempting to secure coverage for claims involving the policyholder’s intentional conduct.  But it’s the facts, not the labels, that determine coverage.  And we discuss several decisions in our update emphasizing this point.  Whether in the context

We bring you our May Insurance Update.

We begin with three state high court decisions.

Last month, we discussed the Texas Supreme Court’s reaffirmance of the eight corners rule.  This month, the Texas Supreme Court carves out an exception to that rule.

Presented with a certified question involving the significance of “those sums” language on

Our April 2020 Insurance Update can be found here.

We begin with a recap of some of the COVID-19 business interruption claims filed against insurers. For more on COVID-19, please be sure to visit our Coronavirus Resource Center. Here are some of the insurance articles you will find there.

Proposed COVID-19 Bills Targeting Insurers: Do They Pass

First and foremost, we hope everyone is staying safe and healthy.

As you probably have noticed, Rivkin Radler has issued a series of bulletins over the past several days to help our clients navigate through this difficult time.

In addition to these bulletins, we will also continue to provide our monthly newsletters.  Here is what

Courts have been busy deciding insurance disputes.  As a result, our February Insurance Update is quite robust.

Here are the headlines from this month’s update:

Whether Intentional Assault Is an “Accident” Depends on Insured’s Viewpoint, Delaware Supreme Court Rules

• Illinois Supreme Court Applies Auto Policy’s “Unambiguous” Anti-stacking Clause
• Eighth Circuit Rejects Coverage for “Dome-Outs”

Our January Insurance Update is packed with cases.

We begin with state high court decisions addressing: (1) water and weather exclusions; (2) the validity of consent-to-settle provisions; and (3) whether an insurer breaches its duty to its insured by settling for policy limits without obtaining a liability release for the insured.

We then move on

Readers of our monthly insurance newsletter may be familiar with the Sanders case. That’s the case that addresses the proper trigger for a malicious prosecution action. Since a wrongful conviction can lead to steep damages, which policy is on the hook for those damages can be an important issue for insurers. Earlier in the year,

Our November Insurance Update is here.

We report on two cases featured in past updates that have now made their way up to state supreme courts.

In Vanderbilt, the Connecticut Supreme Court upholds an intermediate appellate court’s broad application of the “occupational disease” exclusion.  The court ruled that the exclusion is not limited only to

Our October Insurance Update is now available.

We discuss a case with an unfortunate, but familiar story.  A group of masked bandits, who notoriously carry out their misdeeds at night, ransacked a home looking for whatever valuables they could find.  Based on the trail of destruction left behind by these intruders, however, the homeowner could

Our September Insurance Update features several state and federal appellate court rulings.

We kick off this month’s issue with a decision that liability insurers will appreciate.  Courts differ as to whether coverage defenses based on lack of consent require an insurer to demonstrate prejudice.  The California Supreme Court explains that while prejudice may be required

Rob Tugander and Greg Mann published an article in the ABA’s Insurance Coverage Litigation Committee Summer 2019 Newsletter entitled, “Sanders v. Illinois Union: The Start of a New Trend on Malicious Prosecution Trigger, or Simply an Outlier.”

Click here to read the article.

Our August Insurance Update is now available.

In November 2017, we reported on a California federal district court opinion regarding the TV series Dig, a production based out of Jerusalem.  The show’s producers moved the series out of Jerusalem after Hamas had fired rockets into Israel.  The relocation was costly and the producers sought reimbursement

Alan Rutkin, Robert Tugander and Greg Klubok authored USLAW article, “Cybercrime and Insurance: The Key Issues.”

Reprinted with permission from USLAW.

Our July Insurance Update is now available.  Strap in, because we’re headed on a cross-country journey.

We start out in New York where the Court of Appeals hands down an important ruling involving no-fault payments to non-physician controlled medical services corporations.

We then cross the bridge into New Jersey where that state’s Supreme Court considers

Our June insurance update is now available.  Packed with cases, our update touches upon a variety of issues.

We start off with two state high court decisions.  One deals with faulty work, the other considers whether a third-party claims administrator must answer to a claim for bad faith.

Sticking with bad faith, a Delaware court

It goes without saying that cybercrime is a growing concern. In April, the FBI released its annual IC3 (Internet Crime Complaint Center) Report, which showed that the FBI received over 350,000 cyber-crime complaints in 2018, with total losses of over $2.7 billion.

One common type of cyber crime is spoofing, which is the cyber version

Just like the abundance of rain we’ve had so far this spring, we’ve seen a recent downpour of coverage disputes. And just like the April showers that brought us May flowers, those coverage disputes have now blossomed into some interesting decisions. Our May Insurance Update discusses some of the best picks:

• The insured sells

Our April Insurance Update is here.  It addresses the following questions:

• A claimant offers to settle within policy limits, and then revokes the offer 41 days later.  Claimant goes to trial and gets an excess judgment.  Has the insurer breached its duty to settle?  The Georgia Supreme Court decides and clarifies its precedent on

Most people think of spiders as insects.  But my 4th grade teacher taught us otherwise.  Insects have a head, thorax, and abdomen.  And six legs.  Spiders have two body parts (the head and thorax are combined) and have 8 legs.  They belong to a species known as arachnids.

So what does this have to do

State high courts have been busy deciding insurance coverage questions.  Our February Insurance Update addresses seven rulings handed down over the past month.

• The Idaho Supreme Court considers whether a Facebook post triggers the prior publication exclusion in a trademark infringement claim.
• The Iowa Supreme Court tackles the case of efficient proximate cause and

We hope you had an enjoyable holiday and that your new year is off to a good start.

Here’s a quick look at the cases discussed in our January Insurance Update.

• Nevada Supreme Court Says Insurer That Has Not Acted in Bad Faith May Still Be Liable for Any Consequential Damages Caused By the

Our December Insurance Update touches upon a few familiar insurance issues, and some new ones.

We begin with a pair of cases addressing the number of occurrences, or in these cases, the number of accidents. The two cases involve similar facts – multiple collisions on a highway.  Both courts applied the “cause” theory.  In one

It was a bountiful month in terms of insurance decisions.  And as a result, our November Insurance Update is like a “Thanksgiving Day feast.” With a healthy serving of decisions from state high courts, intermediate appellate courts, and federal circuit courts, our update touches upon first-party issues, third-party issues, and a case insurance brokers will

Our October Insurance Update is packed with interesting cases.

We begin with a pair of cases addressing whether the insured’s liability was because of property damage. One case deals with future lost profits, the other concerns the failure to award a college degree.

In our next pair of cases, the homeowner’s insurer properly denied coverage. Did the

One of the most widely litigated issues in insurance law concerns whether a claim involves an “occurrence.” Our September Insurance Update focuses on this issue, and its close cousin, the “expected or intended” injury exclusion.

Our lead case involves a mistaken belief.  A mining company, mistaken as to a property’s boundary lines, removed coal from

Insurance law involving cybercrimes continues to evolve.  The lead case in our August Insurance Update involves a fraudulent email scheme, where the policyholder was tricked into wiring money to an imposter. The issue was whether the loss was caused directly by computer fraud. In reversing the district court, the Sixth Circuit found that the loss was direct and

Our July Insurance Update features three cases discussing the meaning of an “occurrence.” Each case tackles a different issue.

In the first case, the Ohio Court of Appeals decides if the insured’s measures taken to prevent future property damage qualify as damages caused by an “occurrence.”

In the second case, the Northern District of Oklahoma considers

Crime, in one form or another, is the theme underlying many of the decisions discussed in our June Insurance Update.

We begin with cybercrime.  The 11th Circuit weighs in on the recurring debate over when a loss results “directly” from the use of a computer.

We then move to the Fourth Circuit, which decides if

The insurance industry is becoming the next frontier for cybersecurity regulations. On May 8, 2018, South Carolina became the first state to adopt the National Association of Insurance Commissioners’ (NAIC’s) regulations specific to insurers and brokers, and the Rhode Island Legislature is currently considering a similar bill.

The NAIC, the leading national regulatory support organization, in

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

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

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

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

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;

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

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

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

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. 

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

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

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

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

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,

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

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

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,

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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,

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

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

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 &

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

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

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

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

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

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

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

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

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

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,

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

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

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

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.,

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

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

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

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

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

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,

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

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

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

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

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

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

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