When an insurer issues a Commercial General Liability policy to a contractor, the policy typically excludes coverage for the cost of repairing or replacing the contractor's own defective work, but covers the cost of repairing damage to other parts of the property which the defective component might cause. As this blog has explained, the "your work" exclusion serves to distinguish a liability policy from "a performance bond or warranty of a contractor's product." But ... Keep Reading »
General Liability
As TCPA Class Actions Soar, Issues Emerge in TCPA Coverage for Claims
Both the number of cases under the Telephone Consumer Protection Act (TCPA) and the types of practices that those cases challenge have mushroomed within the last several years. Yet a dedicated form of insurance against TCPA claims has not yet developed. Instead, businesses seeking defense and indemnification of TCPA suits have resorted to traditional policy provisions dealing with property damage, personal and advertising injury, and (more recently) the language of ... Keep Reading »
Wall-to-Wall Ads: Florida Court’s Broad Definition of “Advertisement” Expands Scope of Advertising Injury Coverage
“Advertising injury” can be tricky. In theory, the term applies to the type of harm that can be inflicted through advertising media—defamation, disparagement, violation of privacy rights or misappropriation of intellectual property. Because trademark infringement injures plaintiffs in a different way, trademark claims are generally excluded from coverage—except where the insured has used an infringing text or trade dress in an advertisement. That wrinkle makes it ... Keep Reading »
Additional Insureds Deserve Attention Too: New York Court Finds Insurer’s Reservation of Rights to Named Insured Did Not Constitute Notice to Additional Insured Under § 3420(d)(2)
Liability insurers issuing or delivering policies in New York are well apprised of the statutory requirement that the insured is to be provided written notice of a disclaimer or denial of a bodily injury or death claim “as soon as is reasonably possible.” N.Y. Ins. Law § 3420(d)(2). Also well-known is that an insurer may face severe consequences from delaying issuance of a disclaimer on a ground that is known to be valid, while still investigating other possible grounds ... Keep Reading »
“Contractor?” I Do Not Think That Employers’ Liability Exclusion Means What You Think It Means
Over the summer, this blog reported on how the Supreme Court of Pennsylvania managed to parse an employer's liability exclusion to find that it did not exclude claims by employees of additional insureds. As the leaves started to turn, the U.S. Court of Appeals for the First Circuit put an employer's exclusion under a similar microscope. In United States Liab. Ins. Co. v. Benchmark Constr. Svcs., Inc., No. 14-1832 (1st Cir. Aug. 12, 2015), a case arising out of a home ... Keep Reading »
McCarran-Ferguson Lands a Jab on the FAA
As we reported in this space late last year, the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1745 (2011), tilted the scales toward federal power in the field of arbitration, preempting state laws that may stand in the way of enforcing arbitration agreements pursuant to the Federal Arbitration Act ( "FAA"). Naturally, this left the McCarran-Ferguson Act spoiling for a fight, given its restoration to the states of all power to ... Keep Reading »
Third Circuit Decides that “Publication” Doesn’t Include the Collection of Customer Data
On September 15, 2015, the Third Circuit Court of Appeals declared that Lamorak Insurance Company (formerly OneBeacon America Insurance Company) and the Hanover Insurance Group don't have to defend their insureds, Urban Outfitters, Inc. and its subsidiary Anthropologie, Inc., under "personal and advertising injury" coverage in three putative class action lawsuits challenging the stores' collection of customer zip codes. The putative class actions are in the District ... Keep Reading »
Accrual to be Kind: Pennsylvania Appellate Court Addresses Statute of Limitations for Declaratory Claim
A Pennsylvania appeals court recently addressed a nuanced procedural question: the applicable statute of limitations in a declaratory action of a coverage dispute. In Selective Way Ins. Co. v. Hospitality Group Svcs, Inc., No. 1430 WDA 2015 (Pa. Super. Ct. July 7, 2015), the court determined that an insurer’s responsibility to commence a timely action for declaratory relief in a coverage dispute begins to toll when the insurer has a factual basis sufficient to allow it ... Keep Reading »
California Declares New Rules for Assignment of Long Tail Claims
Last week, in a unanimous decision, the Supreme Court of California changed the law governing anti-assignment provisions in liability insurance policies. Twelve years ago, in Henkel Corp. v. Hartford Accident & Indemnity Co., 29 Cal.4th 934 (2003), the court held that such provisions are fully enforceable, until a claim against the insured has been reduced to either a judgment or a settlement. The latest case, Fluor Corporation v. Superior Court, No. S205889 (Cal. ... Keep Reading »
Ninth Circuit Finds Defects in the Construction of a “Known-Loss” Exclusion
A mason who performed work on a residential project was notified in 2006 that cracks had developed in his work. Several months later, the mason purchased a commercial general liability policy that expressly excluded coverage for property damage, if an insured "knew that the … damage had occurred, in whole or in part." In 2007, the project's general contractor sued the mason, claiming that defects in his work had caused the property damage that was the subject of a suit ... Keep Reading »
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