The Ninth Circuit Court of Appeals recently found that insurers did not have to defend a construction company from the San Francisco 49ers' claim that the company negligently failed to construct the NFL team's stadium to be accessible to all people with physical disabilities. In Hartford Fire Insurance Co. v. Turner/Devcon, the federal appellate court ruled that because the construction of the stadium was an intentional act, it did not constitute bodily injury or ... Keep Reading »
Occurrence
Eleventh Circuit Finds Fuel Thefts Separated by “Time and Space” Constitute Separate Occurrences Needing Separate Deductibles Under Property Policy
A common issue arising in the interpretation of both liability and first party property policies is the determination of whether one or more “occurrences” are involved in any given claim or loss. The resolution of this issue can affect the applicable limit of the policy when the policy contains both a per occurrence and an aggregate limit. The issue also can arise in determining the applicable deductible or retention the insured must exhaust before any insurance under ... 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 »
Iowa Supreme Court Finds Fatality Allegedly Caused by Gross Negligence Was a Potential “Accident” Under CGL Policy
Coverage under most commercial general liability (CGL) policies applies only to liability arising from an “accident.” As such, injury or damage that an insured “expected or intended” to occur is not covered. But whether an insured subjectively intended to cause injury may be difficult to determine, even when the conduct itself was clearly intentional. In a recent decision by the Supreme Court of Iowa, the court examined a related, if not potentially more difficult, ... Keep Reading »
Flooded: Court Finds “Named Windstorm” Coverage, and Not Flood Sublimit, Applies to Superstorm Sandy Water Damage Claim
When the National Weather Service names a storm heading in your direction, you know to expect wind and water. This can create a quandary for property insurers. Is water damage from a named windstorm caused by the flood or the storm? This distinction can mean millions. In New Jersey Transit Corp. v. Certain Underwriters at Lloyd's London, a three-judge panel from the Superior Court of New Jersey held that the New Jersey Transit Corp. was entitled to $400 million in ... Keep Reading »
Insured’s Leaky “Abrupt” Interpretation of All-Risk Insurance Collapses Under Eleventh Circuit Scrutiny
In S.O. Beach Corp. v. Great American Insurance Company of New York, No. 18-1967 (11th Cir. Oct. 31, 2019), the Eleventh Circuit affirmed the district court’s grant of summary judgment in full to the insurer, finding there was no ambiguity in the all-risk policy’s definition of a “collapse” as “an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose” ... Keep Reading »
Missouri Appeals Court Rules That Insurer Must Pay Double Policy Limits in Medical Malpractice Claim Involving Birth Injuries
In John Patty, D.O., LLC v. Missouri Professionals Mutual Physicians Professional Indemnity Association, No. ED106747 (Mo. Ct. App. Apr. 23, 2019), a Missouri appellate court rejected the lower court’s decision regarding liability limits in a medical malpractice suit involving injuries to both mother and baby. Specifically, the court held that because allegations of a physician’s negligence included acts and omissions, which occurred not only before and during a cesarean ... Keep Reading »
Homeowners Insurance Has Unintended Consequence, Insurer Must Defend Teen in Cyberbullying Suit
In State Farm Fire and Casualty Co. v. Motta, et al., No 18-cv-3956 (E.D. Pa. Dec. 11, 2018), the Eastern District of Pennsylvania Court held that State Farm Fire and Casualty Co. had a duty to defend a teenage boy against a lawsuit accusing him of cyberbullying one of his classmates that led her to commit suicide, under the boy’s mothers’ homeowners insurance policy. Julia Morath died by suicide within a couple of days of Zach Trimbur attacking her, via text message ... Keep Reading »
‘Me Too’ Coverage Implications for Employers
When an employer negligently supervises an employee who commits separate acts of sexual harassment against three different co-workers on separate occasions, how many "occurrences" are there under a standard commercial general liability policy? The Northern District of Ohio, Eastern Division, considered this question in Scott Fetzer Co. v. Zurich Am. Ins. Co., No. 16 CV 1570 (N.D. Ohio Dec. 18, 2017), and concluded that the answer is three. Three Times the Harassment In ... Keep Reading »
Georgia Federal Court Rules on Questions of Efficient Proximate Cause, Manifestation/Continuous Trigger and Pro Rata Allocation of Damages
In ACE American Ins. Co. v. Exide Technologies, Inc. and The Wattles Co., No. 1:16-CV-1600-MHC (N.D. Ga. Sept. 20, 2017), the Federal District Court for the Northern District of Georgia applied a continuous trigger theory to an all risk property policy and declined to allocate damage, resulting in a single first-party property carrier being responsible for several years of damage. This case demonstrates that courts in some jurisdictions may require that policy language ... Keep Reading »
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