In a non-precedential decision, the Third Circuit Court of Appeals upheld a district court’s grant of summary judgment to an errors and omissions insurer that declined to indemnify a settlement because the insured had settled the underlying lawsuit without obtaining the insurer’s prior written consent, “an express condition of coverage under the policy’s consent clause.” Interestingly, the court noted that the E&O insurer had paid the insured’s “defense costs to the ... Keep Reading »
Claims-made and Reported
Delaware Superior Court Finds Securities Class Action and Its Opt Outs’ Subsequent Class Action Are “Related Claims”
In First Solar Inc. v. National Union Fire Insurance Company of Pittsburgh, the Delaware Superior Court held there was no coverage for a class action brought by the individuals who opted out of a prior class action that had been filed before the subject policies’ inception where both actions involved fundamentally identical allegations of wrongdoing. First Solar sought coverage for a class action lawsuit filed on June 23, 2015 (Maverick action) under primary and ... Keep Reading »
New York First Department Clarifies Effect of New York Insurance Law Section 3420 on Claims-Made-and-Reported Policies
In Certain Underwriters at Lloyd's London v. Advance Transit Co., a New York appellate court provided valuable clarity into how New York Insurance Law section 3420 applies to claims-made-and-reported insurance policies. Underwriters issued a claims-made-and-reported liability policy to Advance Transit Co., effective October 30, 2016, to October 30, 2017. The policy provided that if it were renewed, Advance would have an additional 60 days after the expiration of the ... Keep Reading »
Federal Puerto Rico Court Affirms That Coverage Under Claims-Made Policy Is Not Created by Waiver or Estoppel
The U.S. District Court for the District of Puerto Rico recently granted summary judgment in favor of Liberty International Underwriters after determining that coverage was not created by waiver or estoppel for a claim first made six months before the policy period of a claims-made policy. In Galarza-Cruz v. Grupo Hima San Pablo Inc., the plaintiff sued multiple defendants, including the insured and Liberty, in connection with various claims under Title VII and multiple ... Keep Reading »
Seventh Circuit Rejects Insured’s “Claim Within a Claim” Argument
The Seventh Circuit Court of Appeals recently had occasion to clarify the parameters of a “claim” in insurance policies. In Market Street Bancshares Inc. v. Federal Insurance Co., Judge Kanne penned an opinion holding that a legal argument appearing in an already uncovered “claim” cannot itself constitute a “claim” for purposes of liability policies. This insurance coverage dispute involved an almost two-decade-long underlying lawsuit against the insured, a bank, long ... Keep Reading »
New York Federal Court Finds Insured’s Failure to Provide Notice of Subpoena Did Not Bar Coverage for Later Lawsuit
Applying New York law, the U.S. District Court for the Southern District of New York held that because a subpoena duces tecum previously issued to the insured by a post-judgment creditor of a non-insured entity was not a "claim" against the insured, the subpoena and a later-filed lawsuit against the insured could not qualify as "related claims" deemed first made when the subpoena was issued. The court also held that the "warranty exclusion" in the application for the ... Keep Reading »
Ohio Appellate Court Rejects Policyholder’s Notice-Prejudice and Continuity of Coverage Arguments
Claims-made liability insurance policies typically require the policyholder to notify the insurer of a claim within a set amount of time — typically during the policy period, or within a specific period of time after the end of the policy period — to obtain coverage. When policyholders fail to do so, they often argue that the “notice-prejudice rule” should apply, such that the insurer can only deny coverage if it was prejudiced by the policyholder’s untimely notice. ... Keep Reading »
Related Decisions: Three Recent Cases Emphasize Breadth of “Related Wrongful Acts”
Third-party liability policies often include aggregation clauses. As the name suggests, these clauses aggregate "related claims" or "interrelated wrongful acts" into one claim or occurrence. This provides the parties with certainty as to when a claim was "first made" or when an occurrence "first occurred." These clauses often lead to litigation, with carriers and policyholders asserting narrow or broad readings of the language, depending on the desired result. A trio ... Keep Reading »
Six Degrees of Separation: Eleventh Circuit Upholds a Broad ‘Related Claims’ Provision
“Related Claims” provisions in directors and officers (D&O) and errors and omissions (E&O) policies, while common, can spawn disagreement as to scope and application. Beyond these substantive questions, an issue arises as to what information a court may consider in determining whether two or more claims are “related” within the meaning of a given policy. The Eleventh Circuit recently analyzed this issue in Health First, Inc. v. Capitol Specialty Insurance ... Keep Reading »
Defining ‘Logical Connection’: NC Federal Court Tackles ‘Related Claims’
Insurance carriers and policyholders often argue about the scope of policy provisions. Generally, policyholders take an expansive view of insuring agreements, while carriers often construe them more narrowly. But not all coverage arguments follow these familiar lines. Take, for instance, the “related claims” debate. Most third-party liability policies contain aggregation language. Such policies deem “related claims” to be a single claim “first made” when the first ... Keep Reading »