As we previously reported, in February 2021, a Texas federal court ruled that RealPage Inc. was not entitled to insurance coverage for funds diverted in an email phishing scheme because RealPage did not "hold" the diverted funds. The Fifth Circuit Court of Appeals has now weighed in, agreeing that RealPage never "held" the diverted funds as required by the policy and affirming the district court's decision. In 2018, a RealPage employee clicked on a phishing email ... Keep Reading »
Proposed Amendments to New York’s Comprehensive Insurance Disclosure Act Would Ease Burden on New York Litigants
On December 31, 2021, New York Gov. Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, a sweeping reform to the disclosure obligations formerly required under CPLR 3101(f). As enacted, the Comprehensive Insurance Disclosure Act places restrictive new disclosure requirements on defendants and defense counsel litigating in New York. You can read our prior coverage of the act here. However, even as she was signing the bill into law, Gov. Hochul ... Keep Reading »
Ninth Circuit Affirms Coverage Denial Based on Insured’s Unreasonable Expectations
In a brief opinion filed on December 3, 2021, in Atain Specialty Insurance Co. v. Dignity Housing West Inc., the Ninth Circuit Court of Appeals held that terms of coverage are limited by information contained in policy declarations and do not extend to risks not disclosed in the application. Oakland Apartment Fire In the early morning of Monday, March 27, 2017, a fire swept through a large, three-story transitional housing development in Oakland, California. The ... Keep Reading »
Claim Managers Take Note: New York’s Comprehensive Insurance Disclosure Act Places New, Immediate, and Retroactive Disclosure Obligations Under CPLR 3101(f) on Defendants and Defense Counsel
On December 31, 2021, New York Gov. Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, significantly increasing the disclosure requirements for defendants litigating in New York state court. The Comprehensive Insurance Disclosure Act amends CPLR 3101(f), which previously allowed plaintiffs in litigation to seek disclosure from defendants as to the existence and contents of any insurance agreement that may be used to satisfy a judgment. Under the ... Keep Reading »
Sixth Circuit Finds No Coverage for Alleged Losses Related to COVID-19
Just like the tidal wave of trial court decisions in favor of insurers in COVID-19 business interruption insurance coverage lawsuits, a similar wave of appellate decisions is now forming. In Dakota Girls LLC v. Philadelphia Indemnity Insurance Co., the Sixth Circuit Court of Appeals, applying Ohio law, affirmed the dismissal of a lawsuit brought by private preschools seeking coverage for alleged COVID-19-related business interruption losses. The Sixth Circuit held there ... Keep Reading »
Sixth Circuit Affirms Ruling That Knowledge Exclusion Barred Coverage for Listeria Contamination Loss, Finds Green Bean Farmer Forfeited “Ambiguity” Argument
Invoking the legal equivalent of "you snooze, you lose," the Sixth Circuit Court of Appeals found a farmer slept on its right to argue on appeal that an exclusion in its insurance policy was ambiguous. The decision, Arbre Farms Corp. v. Great American E&S Insurance Co., affirmed a district court ruling that the farmer was not entitled to coverage under its product recall policy based on a prior knowledge exclusion. Arbre Farms grows and sells vegetables. In 2019, ... Keep Reading »
Florida Appellate Court Rejects Third Party’s Attempt to Rewrite Appraisal Clause in Property Insurance Policy
On November 10, 2021, Florida’s Fourth District Court of Appeal weighed in on a matter involving the interpretation of an appraisal clause for resolving disputes regarding the amount due for covered loss in First Call 24/7, Inc. v. Citizens Property Insurance Corp. In July 2018, Citizens Property Insurance insured a piece of property owned by the policyholder. The policyholder contacted First Call 24/7 Inc. to provide water mitigation services after her property ... Keep Reading »
10th Circuit Finds No Coverage Under All-Risk Policy for Building Damage Caused by Soil Collapse Triggered by Burst Water Pipe
In Naabani Twin Stars, LLC v. St. Paul Fire & Marine Insurance Co., the Tenth Circuit Court of Appeals held that St. Paul Fire and Marine Insurance Co. has no duty to cover damage that occurred when a building’s underlying soil collapsed, but not the building itself, due to a burst water pipe under an adjacent parking lot. In July 2016, a waterline under a parking lot, near a building owned by Naabani Twin Stars LLC and Twin Stars Limited, ruptured. Two ... Keep Reading »
Virginia Federal Court Orders Suppliers of Contaminated Fruit to Reimburse Subrogated Insurer for Defense of Smoothie Cafes
Sentinel Insurance Co. v. VLM Foods Inc. arose after a hepatitis A outbreak was traced back to contaminated strawberries used and sold by several insured smoothie cafe franchises. The insured tendered all of the outbreak claims to its strawberry suppliers, pursuant to several hold harmless agreements. Although the suppliers paid a bulk of the claims, they refused to pay any of the insured’s attorneys’ fees and costs incurred in defending the outbreak claims, which were ... Keep Reading »
Florida Federal Court Affirms Insurer’s Denial of Hurricane Irma Claim Reported More Than Two Years Late
The U.S. District Court for the Southern District of Florida granted a motion for summary judgment in favor of the insurer in LMP Holdings v Scottsdale Insurance Co., holding that the insurer was prejudiced by the insured’s delayed reporting of the claim. The matter concerned a Hurricane Irma claim for a commercial property located in Miami-Dade County, Florida. The insurer, Scottsdale Insurance Co., issued LMP Holdings Inc., the insured, an all-risk commercial ... Keep Reading »
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