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Ninth Circuit Confirms Privacy Exclusion Bars TCPA Claims

November 3, 2017 by Daniel G. Enriquez

Kobe Bryant mural on the wall of a hotel

Claims under the Telephone Consumer Protection Act (TCPA) present numerous issues for insurance companies and policyholders. Because TCPA claims lend themselves to class action suits, the potential exposure can be significant. For years, liability insurers have argued that invasion of privacy exclusions bar coverage for claims under the TCPA. These arguments received a boost when the Ninth Circuit held that “a liability insurance policy that unequivocally and broadly ... Keep Reading »

SDNY Rules SEC Investigation Is A “Claim” Within Pending and Prior Acts Exclusion

October 27, 2017 by Alex B. Silverman

The U.S. District Court for the Southern District of New York has held that a long-running investigation by the SEC constituted a “Claim” triggering the pending and prior claims exclusion in an excess directors and officers (“D&O”) policy. See Patriarch Partners, LLC v. AXIS Ins. Co., No. 16-cv-2277 (VEC) (S.D.N.Y. Sept. 22, 2017). This case stems from a high-profile SEC investigation into plaintiff Patriarch Partners, LLC (“Patriarch”) relating to certain ... Keep Reading »

Pennsylvania Supreme Court Clarifies Showing Required for Bad Faith Insurance Claims

October 20, 2017 by Jason Brost

The Pennsylvania Supreme Court has, for the first time in the 37-year history of Pennsylvania’s bad faith insurance statute, 42 Pa.C.S. § 8371, considered the necessary elements of such a claim, and it has determined that proof of an insurer’s motive of self-interest or ill will are not required.  See Rancosky v. Washington Nat'l Ins. Co., 28 WAP 2016 (Pa. Sept. 28, 2017). The case arose from a supplemental cancer insurance policy that plaintiff LeAnn Rancosky ... Keep Reading »

Georgia Federal Court Rules on Questions of Efficient Proximate Cause, Manifestation/Continuous Trigger and Pro Rata Allocation of Damages

October 6, 2017 by Heidi Hudson Raschke and Nancy Faggianelli

Corroded Metal Building

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 »

Navigating Florida Property Coverage Waters After Hurricane Irma

September 22, 2017 by Heidi Hudson Raschke and James Chin

Hurricane Irma

As the waters recede from Hurricane Irma, there are many issues for property insurers to consider as they adjust claims in Florida, including unique issues raised by assignment of benefits, Florida law on concurrent causation, and time element considerations. Assignment of Benefits An assignment of benefits (AOB) is a legal tool that allows a third party to be paid for services performed for an insured property owner who would normally be paid or reimbursed by the ... Keep Reading »

Third Circuit Clarifies Abstention Doctrine in Insurance Coverage Declaratory Action

September 1, 2017 by Alex B. Silverman

Drunk Driving Car Accident

Insurers looking to remove declaratory judgment actions to courts in the Third Circuit were recently given some clarity — and, for one defendant insurer, a welcome reversal. On August 21, the U.S. Court of Appeals for the Third Circuit held that the Eastern District of Pennsylvania abused its discretion by applying an overly broad definition of what constitutes a “parallel proceeding” in determining whether to abstain from hearing an action under the Declaratory Judgment ... Keep Reading »

Texas Appeals Court affirms Class Certification in Case Alleging Roofer Violated Insurance Code

August 28, 2017 by John C. Pitblado

House Flooding

Texas homeowners Joe and Stacci Key sued their roofer, Lon Smith Roofing Contractors (“LSRC”), alleging LSRC violated the Texas Insurance Code by acting as an unlicensed public insurance adjustor. The trial court granted class certification, and LSRC sought interlocutory review. The Texas Court of Appeals affirmed in a case captioned Lon Smith & Assocs., Inc. v. Key, No. 02-15-00328-CV (Tex. Ct. App. Aug. 3, 2017). When it Hails… The Keys retained LSRC to make ... Keep Reading »

The Privilege Maintains Its Power: Texas Supreme Court Blocks Discovery of Insurer Attorney’s Billing Information

August 11, 2017 by Amanda Proctor

An insurers’ attorney invoices do not become discoverable just because they are challenging an insured’s claim for attorneys’ fees.

When (if ever) are an insurer’s attorney’s fees and billing information discoverable in a coverage dispute? Though the question is straightforward, the answer can vary from case to case and jurisdiction to jurisdiction. The Texas Supreme Court recently weighed in on the issue and found that an insurer’s attorney-billing information is not discoverable merely because the insurer challenges the insured’s request for attorney’s fees in coverage litigation. See In re Nat'l ... Keep Reading »

District Courts Buck Trend on Fidelity Coverage for Social Engineering and Business Email Compromise Schemes

August 4, 2017 by John C. Pitblado

Cyber Crime Hacker

The FBI continues to warn that losses are on the rise from business email compromise (BEC) or “social engineering” schemes, which the Bureau describes as: Carried out by transnational criminal organizations that employ lawyers, linguists, hackers, and social engineers, BEC can take a variety of forms. But in just about every case, the scammers target employees with access to company finances and trick them into making wire transfers to bank accounts thought to belong to ... Keep Reading »

“Arising” tide for insurers: 11th Circuit takes expansive view of Prior Acts Exclusion

July 28, 2017 by Daniel G. Enriquez

National Bank & Trust

Claims-made policies often cover acts that occur before a policy period, so long as they result in a covered claim during the policy period. This is a fundamental difference between claims-made and occurrence policies. But the retroactive scope of a claims-made policy is not limitless. Many claims-made policies contain 'retroactive dates' that cut off an insurer's liability for occurrences before that date. Financial lines claims - as opposed to bodily injury or ... Keep Reading »

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