Legal bloggers sometimes ask themselves: If my post appears on the Internet, but there’s no evidence anyone has read it, have I been published? The question has not yet been finally resolved among law firm compensation committees, but, in the data privacy context, a federal court in Virginia recently offered an emphatic "yes." In Travelers Indemnity Company of America v. Portal Healthcare Solutions, LLC, No. 1:13-cv-917(GBL) (E.D. Va. Aug. 7, 2014), the court found ... Keep Reading »
Declaratory Judgment
Nutmeg, Sí, Palmetto, No!: Travelers Wins Both Sides of Insurer-vs.-Insurer Dispute
Although large or protracted losses can implicate more than one liability policy, sometimes only one insurer steps up to provide a defense. When that happens, the insurer can try any of several ways to recover its expenses from other carriers, including a declaratory judgment action, an action for equitable subrogation and a claim for contribution. But the law in this area is not uniform, as two recent cases illustrate. In Travelers Cas. & Surety Co. of America ... Keep Reading »
All in Good Time: Another Court Refuses to Allow Plaintiff to Force an Early Resolution of Insurer’s Rights Under a Liability Policy
Like insurance companies, plaintiffs’ class action attorneys do better when they know how to manage risk. Bringing a case to trial can involve an enormous investment of time and resources, and most firms can’t afford to do it if there’s a significant chance the defendant will not be entitled to liability coverage at the end of the day. For that reason, avoiding an early resolution of coverage issues can sometimes help an insurer negotiate a more favorable settlement. ... Keep Reading »
In Faulty Workmanship Cases, Insuring Clause Dogs are Wagged by Exclusion Tails
In Greystone Const., Inc. v. National Fire & Marine Ins. Co., 661 F.3d 1272, 1289 (10th Cir. 2011), the U.S. Court of Appeals for the Tenth Circuit articulated an important rule for construing commercial general liability policies: [A] CGL policy ‘begin[s] with a broad grant of coverage, w[hich is then limited in scope by exclusions. Exceptions to exclusions narrow the scope of the exclusion and . . . add back coverage. But it is the initial broad grant of ... Keep Reading »
Eighth Circuit Declines to Expand Definition of “Conflict of Interest” in Reservation-of-Rights Scenario
A liability insurer’s reservation of rights can affect the insurer’s ability to participate in the litigation of the underlying action. In most states, an insurer must provide independent counsel if the insurer’s coverage position might benefit from a failure of the insured’s defense on one or more issues in the underlying suit. As this blog has reported, it is a rule in some other states that the reservation of rights, in and of itself, creates a conflict that ... Keep Reading »
Amid Gun Frenzy, West Virginia Court Pries Coverage Issue From the Jury’s Hands
Since President Obama called for new gun-control legislation after the Sandy Hook tragedy, sales of weapons have spiked and government officials have proposed a variety of new measures to encourage —or even mandate —gun training and ownership. In a development that is arguably unrelated to this increase in the number of people handling firearms, accidental shootings have occurred at gun shows and ranges, in gun stores and even during gun certification training courses. ... Keep Reading »
Impleading an Insured Proves “Mighty” Costly
Nuances of procedure can make a big difference in coverage disputes. In Danaher Corp. v. Travelers Indemnity Corp., No. 10 Civ. 0121(JPO)(JCF) (S.D.N.Y. Jan. 31, 2013), Travelers was required to pay the attorneys’ fees its insured had incurred filing a summary judgment motion in a case against Travelers. The ruling was not based on any impropriety in the insurer’s opposition to the motion, but rather, on the fact that Travelers had chosen to bring the insured into the ... Keep Reading »
In the Last Frontier, Insurers Shouldn’t Leave Defendants Out in the Cold
An Alaska politician once said of the folks she grew up with, "We grow good people in our small towns, with honesty and sincerity and dignity." But those virtues don’t exactly leap out of the story behind Williams v. Geico Cas. Co., No. S–14089 (Alaska Jan. 25, 2013), which mostly has to do with alcohol, selfishness and stupidity. At the climax of this sordid tale, a party to the lawsuit argued that an insurer’s refusal to offer policy limits for a release of only one ... Keep Reading »
Federal Court Refuses to Let Insured Shoot First, Seek Coverage Later
at Sandy Hook Elementary School, the issue has been taken up passionately by both sides of the dispute over gun violence. Did the murderers in Newtown and Aurora kill in large numbers because they were able to fire many shots quickly, and without reloading, as Sen. Lautenberg believes? Or, as a Wall Street Journal editorial recently suggested, can the proliferation of mass killings be more reasonably attributed to the practice of designating “gun-free zones” in ... Keep Reading »
If a Tree Falls, and No Court Held an Insurer Must Defend It, Is There a Breach of Contract?
A liability carrier claims a policy does not require it to defend a particular lawsuit. A federal district court agrees, and the insurer stops providing a defense. Five years later, a Court of Appeals reverses. Did the insurer breach its insurance contract? In what appears to be a case of first impression, a federal court in California has said “no,” because holding otherwise would “tip the scales too far in favor of the insured.” ... Keep Reading »
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