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
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
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
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
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
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
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 »
New York’s High Court Holds Additional Insured Coverage Extends Only to Injuries Proximately Caused by Named Insured’s Fault
On June 6, the New York Court of Appeals in Burlington Insurance Co. v. NYC Transit Authority held that where liability is limited to injuries “caused, in whole or in part” by the named insured’s “acts or omissions,” coverage extends only to those injuries proximately caused by, not just causally linked to, the named insured’s actions or omissions. The 4-2 decision reversed the intermediate appellate court’s (Appellate Division, First Department) holding that under such ... Keep Reading »
Washington Federal Court Rejects Policyholder’s “Separate Claim” Argument
In April, a federal district court in the Western District of Washington issued a decision in National Union Fire Insurance Co. v. Zillow, Inc. While at first blush, it may seem only of interest to those who work with media policies, this decision has potential broader application. In short, the decision rejects the argument that a demand letter and subsequent litigation based on the facts asserted in the demand letter are separate claims and thus should be treated as ... Keep Reading »
Poisoning the Well: Washington Supreme Court Applies Efficient Proximate Cause to Eviscerate Pollution Exclusion in Liability Policy
Professionals and practitioners in first party property insurance are likely familiar with the efficient proximate cause rule, which requires an insurance policy to provide coverage where "a covered peril sets in motion a causal chain," even if subsequent causes-in-fact of the loss are excluded by the policy. As indicated by our previous coverage [1, 2, 3] of this doctrine, this can be a confusing analysis that leads to unpredictable results. Until recently, the ... Keep Reading »
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