PropertyCasualtyFocus

Outlier Decision of New York Appellate Court Denies Insurer’s Right to Recoup Defense Costs Even Though Court Found No Duty to Indemnify

by Charles W. Stotter

Recoupment of defense costs (defense fees and costs) by insurers in the absence of a duty to indemnify under a liability policy is an unsettled issue in many states. In a recent decision, a New York intermediate appellate court held that even though there was no duty to indemnify an underlying personal injury action under a CGL policy, the insurer could not recoup the defense costs it had advanced under a reservation of rights (ROR) letter where the policy at issue ... Keep Reading »

Florida Judges Find COVID-19 Does Not Cause Direct Physical Loss or Damage

by Andrew Daechsel

The tidal wave of favorable rulings for insurers in COVID-19 business interruption insurance coverage lawsuits that started in 2020 is continuing in 2021. As this blog has previously explained, commercial property insurance policies generally require “direct physical loss of or damage to” the insured property to trigger business interruption coverage. In some COVID-19 business interruption insurance lawsuits, policyholders have alleged that the presence of COVID-19 on ... Keep Reading »

New York Supreme Court Allows Paint Company to Pursue Coverage for $102M Lead Paint Settlement

by Novera H. Ahmad

In Certain Underwriters at Lloyd’s, London v. NL Industries Inc., a New York Supreme Court recently ruled that paint maker NL Industries Inc. may seek insurance coverage for its almost $102 million share of a settlement, stemming from a suit over the negative impact of the use of its lead-based paint in California homes and buildings. A Case 20 Years in the Making The underlying suit was first filed in 2000 by certain California counties that sought to hold a number of ... Keep Reading »

Missouri Federal Court Finds New York Choice-of-Law Provision Does Not Inhibit Insured’s Assertion of Missouri-Specific Public Policy Statute Violation

by Roben West

In Maritz Holdings Inc. v. Certain Underwriters at Lloyd’s London, a federal court in Missouri denied an insurer’s motion to dismiss the insured’s assertion of a vexatious refusal to pay claim based on an obscure Missouri-specific public policy statute, despite the court’s acknowledgment that the subject insurance contracts were governed by their New York choice-of-law provisions. This insurance coverage dispute stemmed from alleged losses following two separate ... Keep Reading »

Texas Federal Court Finds No Coverage for Civil Authority Orders Issued in Preparation for Hurricane Harvey Because They Were Not Issued as a Result of Physical Loss or Property Damage

by J. Kent Crocker

The United States District Court for the Southern District of Texas, in the matter of Evanston Ins. Co. v. AmSpec Holding Corp., granted summary judgment in favor of Evanston Insurance Company (“Evanston”) after determining no coverage was available under a property insurance policy for Civil Authority Orders issued by the Coast Guard. No. 4:19-CV-1498, 2020 WL 6152190 (S.D. Tex. Oct. 20, 2020). AmSpec Holding Corporation (“AmSpec”) performs testing and inspection ... Keep Reading »

Delaware Supreme Court Finds That Appraisal Proceedings Are Not a “Securities Claim,” Again Refusing To Broaden That Definition in the Context of D&O Policies

by Chael Clark

We previously discussed the Delaware Supreme Court's refusal to broaden the definition of a "securities claim" in In re Verizon Insurance Coverage Appeals, and this issue continues to be ripe for dispute. The Delaware Supreme Court took another look at what constitutes a "securities claim" in In re Solera Insurance Coverage Appeals, Nos. 413, 2019; 418, 2019 (Del Oct. 23, 2020), where it considered as a matter of national first impression the question of whether ... Keep Reading »

Ninth Circuit Applies Willful Violation of Law Exclusion in Professional Liability Policy To Preclude Coverage for Wrongful Death Lawsuit Stemming From Doctor’s Unlawful Distribution of Fentanyl

by Gregory Gidus

In National Fire & Marine Insurance Company v. Hampton, No. 19-17235 (9th Cir. Oct. 21, 2020), the Ninth Circuit held that a doctor’s guilty plea to the unlawful distribution of a controlled substance barred insurance coverage under his professional liability policy for a subsequent wrongful death lawsuit resulting from a patient’s overdose. According to the Ninth Circuit, the doctor’s admission that he intentionally distributed fentanyl clearly implicated the ... Keep Reading »

Florida Appellate Court Affirms Dismissal of First-Party Bad Faith Suit Based on Insured’s Deficient Statutory Pre-Suit Notice

by Andrew Daechsel

In Julien v. United Prop. & Casualty Insurance Company, 45 Fla. L. Weekly D2199 (Fla. 4th DCA Sept. 23, 2020), Florida’s Fourth District Court of Appeals affirmed the dismissal of a first-party bad faith lawsuit due to the lack of specificity in the pre-suit civil remedy notice of insurer violations filed by the insured. Overview of Civil Remedy Notice Requirement In Florida, first-party bad faith claims are a creature of statute. No cause of action exists under ... Keep Reading »

California Federal Court Holds Professional Services Policy Issued to FedEx Covered Acts of Self-Service Kiosks’ Physical Printing of Receipts

by Benjamin Stearns

In 2017, FedEx faced a series of class action lawsuits resulting from the alleged “unmasking” of customers’ credit card numbers on receipts in violation of the Fair and Accurate Credit Transactions Act (FACTA). FedEx submitted a claim to Continental Casualty Company for defense of the FACTA actions under a policy covering FedEx against certain “Professional Services Liability” claims. Continental denied the claim, and FedEx bore approximately $2.3 million in costs ... Keep Reading »

Ninth Circuit Adopts General Rule Regarding Circumstances in Which Excess Insurers May Dispute Exhaustion of Underlying Insurance

by Alex B. Silverman

Addressing an issue of first impression, the Ninth Circuit recently adopted a general rule that will sharply limit the ability of excess insurers to second-guess payment decisions made by lower-level insurers. Subject to limited exceptions, the court concluded that an excess carrier generally cannot challenge decisions underlying insurers made with respect to earlier, unrelated claims, as a basis for arguing that its own layer of coverage has not yet been reached.  AXIS ... Keep Reading »