It’s apt to name a blog post after one of history’s great action movies when the case involves a “conceptual artillery duel” that “ends in a draw,” and that is exactly how U.S. District Judge Gerald Austin McHugh Jr. of the Eastern District of Pennsylvania described the parties’ conflicting textual interpretations in KMS Development Partners LP v. Federal Insurance Co. Keep reading to find out why the insured’s hyper-technical interpretation of the phrase “Forgery or ... Keep Reading »
Square Peg, Round Hole: 6th Circuit Affirms Finding That Cyber Claims Are Not Covered by CGL Policies
In Home Depot Inc. v. Steadfast Insurance Co., Home Depot learned the hard way a rule every DIY enthusiast knows: measure twice, cut once. It appears Home Depot’s measurements were off when it sized up its insurance needs, and when its cyber coverage didn’t measure up to the costs of a data breach, the company tried to fit those cyber claims into its commercial general liability (CGL) policies. However, the Sixth Circuit ruled that those claims do not fit within the ... Keep Reading »
California Appellate Court Rules Wildfire Debris Does Not Qualify as “Direct Physical Loss” Under Homeowners Insurance Policy
The Second Appellate District of the California Court of Appeal recently affirmed a lower court ruling that wildfire debris on an insured’s property did not qualify as “direct physical loss” within the meaning of a homeowners insurance policy, as there was no burn damage to the property. The ruling, Gharibian v. Wawanesa General Insurance Co., is especially noteworthy given its potential impact on insurance claims stemming from the 2025 Los Angeles ... Keep Reading »
Texas Supreme Court Holds $220M Settlement Agreement Is Not Binding on Insurers Without Insurer’s Consent Where Insured Faced No Liability Beyond Non-Insurance Assets
In In re Illinois National Insurance Co., the Texas Supreme Court held that disclaiming insurers were not bound by any underlying settlement agreement, entered into without the insurers’ consent, where the claimants promised not to pursue the insured’s non-insurance assets. The underlying claimants were investment funds that filed suit in 2014 against Cobalt International Energy and its officers and directors. The claimants asserted securities fraud in connection with ... Keep Reading »
Divided Ninth Circuit Finds Toxic Dust From Wildfire Is Not “Pollutant” Under Policy’s Pollution Exclusion
In Wesco Insurance Co. v. Brad Ingram Construction, the Ninth Circuit Court of Appeals reversed a summary judgment ruling in favor of Wesco Insurance Co. after a split panel concluded that toxic dust and debris from a wildfire did not fall under the policy’s definition of “pollutant.” Background and Underlying Action The plaintiff in the underlying lawsuit, Richard Vargas, was allegedly exposed to toxic dust while loading and unloading his work truck during the ... Keep Reading »
New Jersey Court Holds Primary Home Insurer Must Cover Dog Bite Injury at Insured’s Second Home
In Berardi v. FMI Insurance Co., a panel of New Jersey’s Superior Court, Appellate Decision, affirmed a lower court’s ruling, which ordered a primary home insurer to defend its insured in a dog bite lawsuit, stemming from alleged injuries sustained by a house cleaner at the insured’s secondary home. Background and Underlying Action The plaintiffs, Anthony and Janet Berardi, own a primary residence in Sparta, New York, along with a second home in Montauk, New York. ... Keep Reading »
Tenth Circuit Upholds Clear and Unambiguous ATV Exclusion in Homeowners Policy
The Tenth Circuit Court of Appeals declared that an insurer’s homeowners policy all-terrain vehicle exclusion barred coverage for a Utah insured’s injuries that did not occur at the “insured location.” The case, Farm Bureau Property & Casualty Insurance Co. v. Cleaver, involved a claim arising out of injuries sustained by minor E.C. while riding an ATV on an unpaved, county-owned public road from a nearby gravel pit back to the insured’s home, which was insured by ... Keep Reading »
Second Circuit Warns Insurers of Risks of Forgoing Discovery
The Second Circuit Court of Appeals recently found an insurer’s decision to waive discovery foreclosed its ability to provide extrinsic evidence to resolve an ambiguous insurance policy. In Ezrasons Inc. v. Travelers Indemnity Co., the insurer, Travelers Property Casualty Co., had refused to indemnify its insured, Ezrasons Inc., for the full policy limit because it contended the loss did not occur at an “approved location” under the policy. The Second Circuit ultimately ... Keep Reading »
Second Circuit Weighs in on Scope of Business Enterprise Exclusion, Finds It Bars Coverage for Legal Malpractice Suit
Directors and officers (D&O) and errors and omissions (E&O) policies often contain “capacity” limitations, which restrict coverage to claims against the insured alleging acts undertaken by the insured in his or her insured capacity. These insured capacity limitations can take on different forms. For example, the policy may limit the definition of an “insured person” to someone acting in his or her capacity as an officer or director of the insured company. Or the ... Keep Reading »
New Jersey Appellate Court Clarifies Meaning of “Wrongful Eviction” in Personal and Advertising Injury Coverage Section of Standard CGL Policy
In Watford Specialty Insurance Co. v. MDF 92 River Street LLC, the New Jersey Appellate Division clarified that the term “wrongful eviction” in the insuring agreement of a commercial general liability policy’s “personal and advertising injury” coverage section contemplates eviction from a place where the individual has a possessory interest or right of private occupancy. In that case, insurer Watford Specialty Insurance Co. issued a commercial general liability policy ... Keep Reading »
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