A New York trial court recently granted summary judgment to a group of excess D&O insurers seeking a declaration that their policies do not cover settlements and consent judgments the defendants paid in connection with underlying securities actions. The decision emphasizes the insured capacity limitation in the D&O policy definition of a “wrongful act” and also reinforces that amounts paid as disgorgement are uninsurable as a matter of New York ... Keep Reading »
Damage/Loss
Target Data Breach Not Covered Under CGL Policy: Court Rejects “But-For” Theory for Loss of Use Damages Where There Was No Evidence of Value of the Use of Payment Cards
Following a 2013 data breach in which the credit and debit card information of more than 110 million customers was stolen or exposed, Target Corp. sought coverage from its CGL insurers for $74 million that it incurred in settlements with various banks (the credit and debit card issuers) for their costs in issuing new payment cards (both credit and debit cards) to the customers. In a recent decision on the parties’ cross-motions for summary judgment, the U.S. District ... Keep Reading »
Florida Supreme Court Defines Damages Recoverable by First-Party Insureds in Actions Alleging Breach of Policy
In Citizens Property Insurance Corp. v. Manor House, LLC, the Florida Supreme Court recently answered “no” to the following question certified as a matter of “great public importance”: In a first-party breach of insurance contract action brought by an insured against its insurer, not involving suit under section 624.155, Florida Statutes, does Florida law allow the insured to recover extra-contractual, consequential damages? The case involved a dispute over property ... Keep Reading »
Florida Judges Find COVID-19 Does Not Cause Direct Physical Loss or Damage
The tidal wave of favorable rulings for insurers in COVID-19 business interruption insurance coverage lawsuits that started in 2020 is continuing in 2021. As this blog has previously explained, commercial property insurance policies generally require “direct physical loss of or damage to” the insured property to trigger business interruption coverage. In some COVID-19 business interruption insurance lawsuits, policyholders have alleged that the presence of COVID-19 on ... Keep Reading »
New York Supreme Court Allows Paint Company to Pursue Coverage for $102M Lead Paint Settlement
In Certain Underwriters at Lloyd’s, London v. NL Industries Inc., a New York Supreme Court recently ruled that paint maker NL Industries Inc. may seek insurance coverage for its almost $102 million share of a settlement, stemming from a suit over the negative impact of the use of its lead-based paint in California homes and buildings. A Case 20 Years in the Making The underlying suit was first filed in 2000 by certain California counties that sought to hold a number of ... Keep Reading »
Texas Federal Court Finds No Coverage for Civil Authority Orders Issued in Preparation for Hurricane Harvey Because They Were Not Issued as a Result of Physical Loss or Property Damage
The United States District Court for the Southern District of Texas, in the matter of Evanston Ins. Co. v. AmSpec Holding Corp., granted summary judgment in favor of Evanston Insurance Company (“Evanston”) after determining no coverage was available under a property insurance policy for Civil Authority Orders issued by the Coast Guard. No. 4:19-CV-1498, 2020 WL 6152190 (S.D. Tex. Oct. 20, 2020). AmSpec Holding Corporation (“AmSpec”) performs testing and inspection ... Keep Reading »
Florida Appellate Court Allows Insurer To Proceed With Appraisal on Scope of Covered Repairs in Hurricane Irma Property Damage Claim
The Florida Third District Court of Appeal recently ruled that an insurer did not waive its right to appraisal after choosing to cover only part of a property damage loss claimed by its insured. The case, People's Tr. Ins. Co. v. Farua Portuondo, No. 3D20-266 (Fla. 3d DCA Oct. 7, 2020), involved a property damage claim regarding alleged damage sustained to the insured's home following Hurricane Irma in September 2017. In December 2018, Farua Portuondo first reported ... Keep Reading »
South Carolina Federal Court Finds No Coverage for Faulty Workmanship Damages Discovered Years After Occurrence-Based Policy Expiration
Potential Six-Year Delay in Notice of Flood and Mold Damage “Substantially Prejudiced” Insurer In Atain Specialty Insurance Company v. Carolina Professional Builders, LLC et al., 2:18-cv-2352-BHH (D.S.C. Oct. 2, 2020), a federal judge in South Carolina granted summary judgment to an insurer after finding that the record clearly supported that although flood and mold damages may have occurred during the policy period, that damage was distinct from the damage being ... Keep Reading »
Eleventh Circuit Finds No “Direct Physical Loss” to Dust-Covered Restaurant that Merely Required Cleaning
As the COVID-19 pandemic continues, so does the deluge of litigation stemming from property insurers' denials of COVID-19 business interruption claims. Much of the debate between carriers and policyholders concerns whether the coronavirus or the COVID-19 shutdown orders caused "direct physical loss of or damage to" the insured's property. The Eleventh Circuit's recent opinion in Mama Jo's Inc. v. Sparta Insurance Co., while not related to COVID-19, arguably supports the ... Keep Reading »
Eleventh Circuit Explicitly Adopts Distinction Following Hoover to Confirm That Coverage Cannot Be Created Through Waiver or Estoppel
On July 30, 2020, the Eleventh Circuit Court of Appeals in AEGIS Electric & Gas International Services Ltd. v. ECI Management LLC reversed the trial court's grant of summary judgment in favor of an insurer, AEGIS Electric & Gas International Services Ltd. In that case, AEGIS issued a real estate services professional liability policy to ECI Management LLC. Subsequently, ECI was named as a defendant in a putative class action in which the plaintiff alleged that ... Keep Reading »
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