Twenty-five years ago, the New York Court of Appeals ruled that a claim under General Business Law section 349 does not lie when the plaintiff alleges only "a private contract dispute over policy coverage and the processing of a claim which is unique to the[] parties, not conduct which affects the consuming public at large." N.Y. Univ. v. Cont'l Ins. Co., 87 N.Y.2d 308, 321 (1995). Recently, the court was asked a different question: where an insurance contract, ... Keep Reading »
About Nora Valenza-Frost
Appearance by Video Might Be More Convenient for a Nonparty in Arbitration, but It Can’t Be Compelled Under the FAA
You find yourself in an arbitration needing documents and testimony from a nonparty. Your arbitrator issues a nonparty summons, "conveniently" requiring the out-of-state nonparty to appear by video at a hearing and produce documents to the parties and the arbitrator in advance. As it goes, the nonparty objects to the summons, refusing to comply without an order compelling it to do so. So you move to enforce the arbitral summons in the district court in which the ... Keep Reading »
New York’s Highest Court Holds Untimely Disclosure Is Not an Untimely Disclaimer
The defendant, Preferred Contractors Insurance Company Risk Retention Group LLC (PCIC), is a risk retention group charted in Montana and doing business in New York. PCIC issued a CGL policy naming defendant Nadkos Inc. as an additional insured for liability related to the ongoing operations of the subcontractor and other members of the risk retention group. PCIC disclaimed coverage for Nadkos for an underlying personal injury action by an employee of Nadkos' ... Keep Reading »
Break Out Your Crystal Ball: New York’s First Department Relies on Policy’s Mitigation Provision as Support for Allegation That Consequential Damages Were Foreseeable
An insured sought coverage under its commercial property insurance policy for property damage incurred after construction work was performed in an adjoining building. Contending the insurer’s “investigatory process has taken so long and become so attenuated that the structural damage to the building has worsened,” the insured brought suit for breach of contract for failure to pay a covered loss under its insurance policy and breach of the implied covenant of good faith ... Keep Reading »
Underlying Assertion of Negligent Misrepresentation Is Not Necessarily an Occurrence
Courts sometimes struggle with the issue of whether property damage arising in the context of a contractual relationship, particularly in construction contracts, constitutes an “occurrence” under a standard commercial general liability (CGL) policy. Generally, but not always – and it varies from jurisdiction to jurisdiction – courts regard contractual breaches as non-accidental conduct, and/or apply the so-called “business risk” exclusions (such as the standard CGL “Your ... Keep Reading »
An Expert Is Only as Good as His Actual Experience
Experts are often used to address issues of causation and scope of damages in insurance coverage matters. It is well established, however, that an expert must be qualified through specific training or actual experience. Without such training or experience, a purported expert’s affidavit may not be sufficient to create an issue of material fact sufficient to defeat summary judgment. Such was the lesson in Superhost v Selective Ins (NY App 2018-04-12), Case No. 525034 (NY ... Keep Reading »
See Something, Say Something – Especially on Your Application for Insurance Coverage
When is a misrepresentation material on an application for insurance coverage? The Ninth Circuit affirmed a decision from the Central District of California, finding that an answer on an application for D&O insurance was a material misrepresentation, and that therefore the policy was rescinded. The question on the application asked: None of the individuals to be insured under any Coverage Part (the “Insured Persons”) have a basis to believe that any wrongful act, ... Keep Reading »
Multiple Instances of Defectively Designed, Manufactured, or Installed Windows Does Multiple Occurrences Make
After previously holding that various claims against the insured, Pella, alleged property damage caused by an “occurrence,” thus triggering Liberty Mutual Insurance Company’s (“Liberty”) coverage obligations under various CGL policies, in Pella Corp. v. Liberty Mut. Ins. Co., No. 4:11-cv-00273 (S.D. Mar. 31, 2017), the Southern District of Iowa was then tasked with determining the number of “occurrences.” Pella purchased annual liability policies – CGL policies (with ... Keep Reading »
NY DFS Cybersecurity Regulations Take Effect March 1, 2017
We previously reported on the New York Department of Financial Services’ proposed cybersecurity regulations. During the public comment period, the DFS received over 150 comments. In response, the DFS announced on December 28, 2016, that it had revised the proposed regulations and delayed their effective date two months. On February 16, 2017, the DFS confirmed the final regulations will take effect March 1, 2017, with required compliance 180 days thereafter (August 28, ... Keep Reading »
What You Must Know about New York’s Proposed Cybersecurity Regulation for the Banking, Insurance, and Financial Services Sectors
Co-Authors: Josephine Cicchetti, Steven Blickensderfer Last week, New York’s Department of Financial Services released its long-awaited proposed cybersecurity regulation, which promises to deliver sweeping protections to consumers and financial institutions alike. The proposed regulation, titled "Cybersecurity Requirements for Financial Services Companies" (23 NYCRR Part 500), if implemented, would be a first-of-its-kind state provision that creates mandatory ... Keep Reading »