“Ensuing loss” provisions have long been the subject of nuanced arguments in insurance litigation. The provisions, which sometimes afford coverage for a “covered loss” stemming from an expressly excluded peril, serve as fodder for policyholders to attempt to argue a policy is ambiguous, often where the losses are clearly excluded. Ensuing loss provision disputes can be fact-intensive and should be evaluated carefully. While this area of the law is generally ... Keep Reading »
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Tenth Circuit Upholds Clear and Unambiguous ATV Exclusion in Homeowners Policy
The Tenth Circuit Court of Appeals declared that an insurer’s homeowners policy all-terrain vehicle exclusion barred coverage for a Utah insured’s injuries that did not occur at the “insured location.” The case, Farm Bureau Property & Casualty Insurance Co. v. Cleaver, involved a claim arising out of injuries sustained by minor E.C. while riding an ATV on an unpaved, county-owned public road from a nearby gravel pit back to the insured’s home, which was insured by ... Keep Reading »
New York Federal Court Enforces “Third Party or Contracted Security” Exclusion to Abrogate Duty to Defend for All Defendants in Assault Suit
In Clear Blue Specialty Insurance Co. v. TFS NY Inc., the U.S. District Court for the Eastern District of New York, interpreting the plain and unambiguous terms of a commercial general liability policy issued by Clear Blue Specialty Insurance Co. to TFS NY Inc., ruled Clear Blue did not have a duty to defend TFS against a suit arising from an alleged assault. TFS does business as Sugardaddy’s and owns and operates a nightclub. The underlying dispute stemmed from a ... Keep Reading »
Seventh Circuit Declines to Enforce Plain Language of Distribution of Material Exclusion in Business Liability Policy
On June 15, 2023, in Citizens Insurance Company of America v. Wynndalco Enterprises LLC, the Seventh Circuit Court of Appeals affirmed the U.S. District Court for the Northern District of Illinois’ decision holding that a Citizens’ business liability insurance policy exclusion for the distribution of material in violation of statutes gave rise to an ambiguity. The ruling stems from two putative consumer class actions filed against Wynndalco Enterprises LLC, an ... Keep Reading »
Known Means Known: Eleventh Circuit Requires Actual Knowledge to Trigger Insured’s Notice Obligation
In Frankenmuth Mutual Insurance Co. v. Brown’s Clearing Inc., the Eleventh Circuit Court of Appeals affirmed an Alabama district court’s ruling that the insured was not required to give notice of an underlying lawsuit until the insured had actual knowledge of the suit. Brown’s Clearing, a tree clearing company, hired a subcontractor to clear trees along I-75 in Bartow, Georgia. In July 2018, Courtney Ford allegedly sustained injuries when a tree limb pierced the ... Keep Reading »
Eleventh Circuit Holds Buzz Words in Arbitration Demand Insufficient to Trigger Duty to Defend
On November 8, 2022, the Eleventh Circuit Court of Appeals agreed with the U.S. District Court for the Middle District of Florida that Mount Vernon Fire Insurance Co. did not have a duty to defend Global Travel International Inc. in an arbitration between Global Travel and Qualpay Inc. despite Global Travel’s best efforts to bring the claim within coverage. Global Travel and Qualpay entered into a merchant card processing agreement pursuant to which Global Travel ... Keep Reading »
Ninth Circuit Finds Settlement and Two-Year Limitations Statute Barred “Bad Faith” Workers’ Compensation Suit by Man Struck by Lightning
In Larson v. Liberty Mutual Fire Insurance Co., the Ninth Circuit Court of Appeals affirmed that, under Hawaii law, unambiguous broad settlement release language and the two-year tort statute of limitations barred claims that Liberty Mutual Fire Insurance Co. somehow improperly handled a workers’ compensation claim. In February 2002, Lonnie Larson filed for workers’ compensation under his Liberty policy, claiming that he was struck by lightning during the course of ... Keep Reading »
Eleventh Circuit Holds Tort Claimants Lack Standing to Challenge Judgment That Insurer Has No Duty to Defend
On March 29, 2022, the Eleventh Circuit Court of Appeals held that a tort claimant lacks standing to challenge a court's judgment finding that the carrier had no duty to defend the insured. A.B. was 10 years old when she was sexually abused by her parent and her parent's spouse. The spouse was ultimately indicted, pleaded guilty to two counts of human trafficking, and was sentenced to 30 years in prison per count. In her suit against the convicted human trafficker ... Keep Reading »