Insurance Update

August 22, 2023 | Robert Tugander | Greg E. Mann | Insurance Coverage

We bring you our August 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 policy.  The shareholders alleged that the company continued to make and sell ice cream despite knowing about Listeria contamination affecting their plants.  The court addressed two key issues: did the complaint allege an “occurrence” and were the shareholders’ alleged damages “because of bodily injury”?

Does the mental state of the attacker matter when applying an assault and battery exclusion?  That’s the question the Ohio Supreme Court took on.

What about when a pedestrian stands in front of moving vehicles with no intent to get out of the way?  A Michigan appellate court decides whether no-fault benefits are available in that circumstance.

Moving on, the Sixth Circuit considers the scope of a “claims in progress” exclusion in a pollution matter.

Applying Georgia law, the Eleventh Circuit ponders whether an insurer that reserved the right to be reimbursed for defense costs before getting clear of the duty to defend can exercise that right when the insurance policy itself says nothing about reimbursement.

And a Nevada federal court considers whether a claim relates back to a deposition subpoena in assessing whether an insurer is on the hook for the insured’s costs in responding to an SEC investigation.

We hope you find this update informative.

Robert Tugander and Greg Mann

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