In Knickerbocker Village Inc. v. Lexington Insurance Co., New York's Appellate Division, First Judicial Department, dictated a clear rule for single-insured cases regarding the discovery of an insurer's treatment of insurance claims brought by other similarly situated insureds: that information is not "material and necessary" and thus not discoverable under section 3101 of the New York Civil Practice Law and Rules. This case arose out of a disagreement between ... Keep Reading »
New York Supreme Court Holds Documents Created By Counsel During Claims Handling Were Not Privileged
Pharmavite LLC filed a statement of loss under a policy issued by Crum & Forster Specialty Insurance Co. Crum & Forster disclaimed coverage, and Pharmavite commenced an action for breach of contract and declaratory judgment. After the parties disputed whether certain documents in Crum & Forster's privilege log were discoverable, the court conducted an in camera review and ordered Crum & Forster to disclose all documents. Crum & Forster moved to ... Keep Reading »
New York State Court Affirms All-Sums Allocation Method
A New York state court explored the proper allocation method for insurance policies with non-cumulation clauses covering asbestos exposure loss occurring over the course of multiple successive policy periods in In re Liquidation of Midland Insurance Co. At issue were four excess policies issued by Midland to ASARCO LLC, which, through one of its subsidiaries, engaged in the selling of asbestos products. A series of asbestos claims against ASACRO ensued, and ASARCO sought ... Keep Reading »
Nevada Supreme Court Holds That Insurer’s Liability for Breach of the Duty to Defend is Not Capped at Policy Limits
In Century Surety Company v. Dana Andrew (Dec. 13, 2018), the Nevada Supreme Court issued an opinion regarding whether, under Nevada law, the liability of an insurer that has breached its duty to defend, but not acted in bad faith, is capped at the policy limit plus any costs incurred by the insured in mounting a defense, or whether the insurer is liable for all losses consequential to the insurer's breach. Ryan Pretner ("Pretner") and Pretner's guardian (Respondents) ... Keep Reading »
Professional Services Exclusion Precludes Coverage for False Claims Act Suit
It is not unusual for a directors and officers liability policy to have an exclusion for professional services. A such, a question often arises regarding whether the claimed wrongful conduct involved the rendering or failure to render professional services in a particular context. In HotChalk, Inc. v. Scottsdale Ins. Co., No. 16-17287 (9th Cir. June 4, 2018), the Ninth Circuit found that coverage was precluded for a False Claims Act suit because the insured’s ... Keep Reading »