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 »
Occurrence
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 »
Connecticut Appellate Court Addresses Trigger, Allocation, Exclusions, and Other Issues of First Impression in Coverage Litigation Over Long-Latency Asbestos Injury Cases
Connecticut’s intermediate appellate court addressed a number of novel issues in a wide-ranging opinion regarding primary and excess insurers’ respective duties to defend and indemnify their common insured for long-tail asbestos-related injury claims. The opinion was rendered unanimously and authored collectively by the three-judge panel of Robert Beach, Douglas Lavine, and Stuart Bear (ret.). The case, styled R.T. Vanderbilt Company, Inc. v. Hartford Accident and ... Keep Reading »
Multiple Instances of Defectively Designed, Manufactured, or Installed Windows Does Multiple Occurrences Make
After previously holding that various claims against the insured, Pella, alleged property damage caused by an “occurrence,” thus triggering Liberty Mutual Insurance Company’s (“Liberty”) coverage obligations under various CGL policies, in Pella Corp. v. Liberty Mut. Ins. Co., No. 4:11-cv-00273 (S.D. Mar. 31, 2017), the Southern District of Iowa was then tasked with determining the number of “occurrences.” Pella purchased annual liability policies – CGL policies (with ... Keep Reading »
Subcontractor Exception Torpedoes Insurers’ Defense To Faulty Workmanship Claim
As this blog has reported, a line of cases deciding coverage disputes over faulty workmanship runs against (or, at least, around) a basic rule for interpreting insurance policies. Under that rule, the scope of coverage is determined by a policy’s insuring clause, which may be narrowed by one or more exclusions. Exceptions to the exclusions can add back coverage that the exclusions remove, but they cannot create coverage beyond the ambit of the insuring clause. E.g., ... Keep Reading »
Washington Court Finds Coverage For “Collapse” Is Not Set In Stone
As this blog has documented, the language of insurance policies evolves; it changes to address new risks, and it also responds to new interpretations of old policy provisions. Even if a policyholder maintains a long-standing relationship with a single carrier, the availability of coverage might turn on whether the loss occurred in a particular policy term. Property coverage for “collapse” provides an example of this development. After a number of courts found that the ... Keep Reading »
Grateful Marijuana Grower Scores Coverage Victory in Colorado Federal Court
The refusal of the Senate to fill a Supreme Court vacancy has put gridlock back on the front page, as it leaves important questions about immigration and clean energy unresolved. Uncertainty about federal policy is also affecting other areas of American life, including one of our most popular pastimes. Recently, in The Green Earth Wellness Center, LLC v. Atain Specialty Ins. Co., No. 13-cv-03452-MSK-NYW (D. Colo. Feb. 17, 2016), a federal court in Colorado held that the ... Keep Reading »
How General is “General Aggregate?”
“It’s a big enough umbrella, but it’s always me that ends up getting wet.” - Sting (1981) “Here’s a second umbrella” – Montana Supreme Court (2016) Although the terms are often used interchangeably, there are several key differences between umbrella and excess coverage. One such distinction is that an umbrella policy can apply to multiple underlying policies. This makes it essential to clearly delineate and define the policy’s aggregate limit of liability— the maximum ... Keep Reading »
After Pit Bull Case, Questions Dog New York’s “Unfortunate Event” Test
Where an insurance policy contains a “per occurrence” limit on coverage, New York courts apply what they call the “unfortunate event” test to determine how many “occurrences” are involved in a given claim or set of claims. The test does not apply at all, however, where the policy language indicates “an intent to aggregate separate incidents into a single occurrence.” As this blog recently discussed, the U.S. Court of Appeals for the Second Circuit ruled in September ... Keep Reading »
No Contractor Is An Island: Florida Court Narrowly Applies “Your Work” Exclusion
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 »