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 »
Exclusions/Exceptions
Florida Appellate Court Determines Faulty Workmanship Exclusion in Homeowner’s Policy Is Not Ambiguous and Thus Damage Caused by Contractor’s Conduct Is Not a Covered Loss
In Saunders v. Florida Peninsula Insurance Co., a Florida appellate court recently determined whether a faulty workmanship exclusion in a homeowner’s policy applied to a property loss caused by a contractor. The insured, Veronica Saunders, hired a contractor to install a new addition to her home, which was insured by Florida Peninsula Insurance Co. During the construction process, the contractor took off a portion of the roof and only covered the exposed area with ... 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 »
Ninth Circuit Applies Willful Violation of Law Exclusion in Professional Liability Policy To Preclude Coverage for Wrongful Death Lawsuit Stemming From Doctor’s Unlawful Distribution of Fentanyl
In National Fire & Marine Insurance Company v. Hampton, No. 19-17235 (9th Cir. Oct. 21, 2020), the Ninth Circuit held that a doctor’s guilty plea to the unlawful distribution of a controlled substance barred insurance coverage under his professional liability policy for a subsequent wrongful death lawsuit resulting from a patient’s overdose. According to the Ninth Circuit, the doctor’s admission that he intentionally distributed fentanyl clearly implicated the ... Keep Reading »
Massachusetts High Court Rejects Insurance Company’s Application of “Physical Abuse” Exclusion to a Personal Injury Claim Involving One-Time Unintentional Contact
Insurance companies typically incorporate intentional harm exclusions into their homeowners’ insurance policies, which allow them to deny coverage where the insured intentionally causes bodily injury or property damage. Policies also often include an exclusion for physical abuse and molestation. However, as the Massachusetts Supreme Judicial Court held in Dorchester Mutual Insurance Co. v. Timothy Krussell et al., No. SJC-12856 (Mass. Aug. 13, 2020), an attempt by an ... 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 »
The No Corners Rule? New York Federal Court Holds No Duty to Defend Where There Is No Possible Legal or Factual Basis for Indemnification of Insured
Under New York law, an insurer's duty to defend ends if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured. This rule was recently applied by the Southern District of New York in Philadelphia Indemnity Insurance Co. v. Streb, Inc., No. 19 CIV. 366 (KPF), 2020 WL 5549316 (S.D.N.Y. Sept. 16, 2020). In Streb, the Philadelphia Indemnity Insurance Company ("PIIC") issued a ... Keep Reading »
An Equitable Exception To the Four Corners Rule: The Eleventh Circuit Looks Beyond Operative Complaint To Find No Duty To Defend
Under Florida law, similar to that of other states, an insurer’s duty to defend is generally determined solely by the allegations found within the four corners of the complaint. Florida courts, however, recognize an exception to that general rule and will allow for the consideration of extrinsic undisputed facts, which, if pled, would place the claim outside the scope of coverage. The Eleventh Circuit recently applied this exception in BBG Design Build, LLC v. Southern ... Keep Reading »
Fifth Circuit Holds That Ensuing Loss Provision of Builders’ Risk Policy Requires Two Separate Events to Qualify for the Construction Exclusion Carve-Out
In Balfour Beatty Construction, LLC v. Liberty Mutual Fire Insurance Company, No. 19-20216 (August 3, 2020), the Fifth Circuit determined that Liberty Mutual’s policy does not cover a construction company’s claim for window damage to a skyscraper caused by a subcontractor’s welding because the policyholder failed to show the damage resulted from a covered peril. The case turned on the court’s interpretation of the policy’s construction exclusion, which included an ... Keep Reading »
Coverage Claim Bites the Dust: Seventh Circuit Finds No Coverage for $50 Million Judgment Resulting From Dust Pollution Due to Known Claim and Expected or Intended Injury Exclusions
In Greene v. Westfield Insurance Co., the Seventh Circuit Court of Appeals recently affirmed summary judgment finding that commercial general liability policies issued by Westfield Insurance Co. did not cover a $50.56 million default judgment entered against its insured, VIM Recycling, based on the policies’ “known claims” and “expected or intended injury” exclusions. Dust Pollution Leads to $50.56 Million Default Judgment VIM Recycling operated a wood recycling ... Keep Reading »
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