The Fifth Circuit Court of Appeals recently reversed a federal Texas court’s order granting summary judgment in favor of the insured, holding that its “deductible buyback policy” was a “named perils” policy that did not provide coverage in relation to the insured’s flood-related damage sustained by a commercial building during Hurricane Harvey. The insured’s primary “all-risks” policy, which provided insurance for several of the insured’s properties, had a high ... Keep Reading »
Eleventh Circuit Finds Employer’s Liability Exclusion Ambiguous Under Alabama Law
The Eleventh Circuit Court of Appeals affirmed a decision that an insurer had a duty to defend its insureds under a commercial general liability policy in an action arising out of a catastrophic explosion at a pyrotechnics plant that killed two individuals and injured another, holding an "employer's liability exclusion" was ambiguous under Alabama law and thus must be construed in favor of coverage. The exclusion provided: "This insurance does not apply to any claim, ... Keep Reading »
“Belt and Suspenders” Don’t Need Zip: Federal New York Court Rejects Timeliness Obligation for Optional Disclaimer
In Adirondack Insurance Exchange v. Banagos, the Eastern District of New York held that an insurer is not required to send a disclaimer letter where a loss does not fall within the scope of the insuring agreement and voluntarily sending a disclaimer letter, including one that discusses exclusions, does not create the obligation to send it in a timely manner. At issue in the case was a homeowners insurance policy that Adirondack Insurance Exchange issued in favor of ... Keep Reading »
Fifth Circuit Affirms Finding of No Coverage for Phished Funds Never “Held” by Insured
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 »
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