Insurance Update

July 17, 2018 | Robert Tugander | Insurance Coverage

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 whether an insured who was accused of facilitating a murder could be entitled to coverage due to a lack of intent.

In the third case, the Third Circuit considers the “occurrence” definition in the context of faulty workmanship.

We also include a case interpreting the prior acts exclusion under a D&O policy.

Our update is bookended by a pair of state Supreme Court decisions. The first, before the Louisiana Supreme Court, addresses waiver.  The court considers whether an insurer is precluded from asserting a coverage defense due to its failure to assert that position in a prior claim.

The final case, before the New Jersey Supreme Court, addresses the unavailability exception. Last March, the New York Court of Appeals held that an insurer need not indemnify its insured for property damage attributable to periods when liability insurance was unavailable. The New Jersey Supreme Court, considering the unavailability exception against the backdrop of asbestos bodily injury claims, has taken a different view. The twist is that the policyholder continued to manufacture products containing asbestos long after asbestos coverage was no longer available in the marketplace. The insurers wanted to allocate liability to the policyholder for that period. But the New Jersey Supreme Court majority rejected the insurers’ argument. The dissenting opinion makes several good points and is worth reviewing.

We hope that you find these cases informative.

Click here to read the Update.

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