Connecticut’s intermediate appellate court addressed a number of novel issues in a wide-ranging opinion regarding primary and excess insurers’ respective duties to defend and indemnify their common insured for long-tail asbestos-related injury claims. The opinion was rendered unanimously and authored collectively by the three-judge panel of Robert Beach, Douglas Lavine, and Stuart Bear (ret.). The case, styled R.T. Vanderbilt Company, Inc. v. Hartford Accident and ... Keep Reading »
Eleventh Circuit Deems Voluntary Dismissal of a Coverage Action Sufficient to Award Attorneys’ Fees to a Policyholder as the Prevailing Party
In a recent unpublished opinion, the Eleventh Circuit issued a decision that should serve as a warning to insurers to be sure to resolve all issues before dismissing a coverage action, particularly when involved in the settlement of an underlying suit. A Tale of Two Cases In W&J Group Enterprises, Inc. v. Houston Specialty Ins. Co., No. 16-15625 (11th Cir. Apr. 6, 2017), the insurance carrier filed a declaratory action against its policyholder in the Middle ... Keep Reading »
Multiple Instances of Defectively Designed, Manufactured, or Installed Windows Does Multiple Occurrences Make
After previously holding that various claims against the insured, Pella, alleged property damage caused by an “occurrence,” thus triggering Liberty Mutual Insurance Company’s (“Liberty”) coverage obligations under various CGL policies, in Pella Corp. v. Liberty Mut. Ins. Co., No. 4:11-cv-00273 (S.D. Mar. 31, 2017), the Southern District of Iowa was then tasked with determining the number of “occurrences.” Pella purchased annual liability policies – CGL policies (with ... Keep Reading »
Oregon Supreme Court Revives Century-Old Statute to Award Attorney’s Fees to Policyholder
The general rule regarding a party’s responsibility for legal fees in U.S. courts, known as the “American Rule,” provides that, barring a contrary contractual obligation or statute, each party is responsible for its own legal fees, regardless of a dispute’s outcome. Although statutory exceptions to this rule are many, the overwhelming majority of those exceptions require that the person receiving a fee award at least be the prevailing party. Not so in Oregon — or at ... Keep Reading »
Texas Supreme Court Clarifies When Insured May Recover Policy Benefits
In an effort to clarify over 20 years of conflicting precedent, the Texas Supreme Court announced five rules that, according to the court, explain the relationship between claims for breach of insurance policy and extra-contractual claims for bad faith and violations of the Texas Insurance Code. USAA Texas Lloyds Co. v. Menchaca, No. 14-0721, slip op. at 6 (Tex. April 7, 2017). Although an insurance policy is an agreement between the parties that is generally governed by ... Keep Reading »
New York Court Upholds Suit Limitation Period, Ruling Appraisal is Not a Condition Precedent to Filing Suit
Courts will generally uphold reasonable suit limitation periods in property insurance policies, if the insurer does not affirmatively waive or extend them. In MZM Real Estate Corp. v. Tower Ins. Co. of New York, No. 452741/2015 (N.Y. Sup. Ct. April 11, 2017), a New York court followed the general rule. In enforcing a suit limitation period, the court was unpersuaded by the insured’s argument that once appraisal is demanded it becomes a condition precedent to filing ... Keep Reading »
Marijuana Insurance: Workers’ Compensation Carriers Take a Hit
Marijuana is becoming big business as its growth rate zooms past even the astronomical dotcom industry growth rate of the 1990s. The industry had nearly $7 billion in 2016 revenue (a 30 percent increase over 2015), and an eye-popping $20 billion in annual revenue is projected by 2021. Since the 2016 elections, 28 states plus D.C., Puerto Rico, and Guam, have legalized marijuana in some form — of these, eight states plus D.C. have legalized its recreational use. But, ... Keep Reading »
A Stitch in Time Saves … An Insured From Incurring Non-Covered Defense Costs
Timely notice is typically a condition precedent to coverage under an insurance contract, though many states require an insurer to demonstrate prejudice before denying coverage solely based on a failure to comply with a notice provision. However, as the court found in EmbroidMe.com, Inc. v. Travelers Property Casualty Company of America, No. 14-10616 (11th Cir. Jan. 9, 2017), even in the absence of demonstrable prejudice to an insurer, late notice by the insured may ... Keep Reading »
Blowing the Whistle on Willful Misconduct: California Court holds that False Claims Act Suits Are Uninsurable Due to Public Policy
Willful misconduct is uninsurable. It is a fundamental principle of insurance, and it makes sense to both the lay and the lawyerly. But few states go as far as to codify this principle in the insurance code. California is an exception. In Office Depot, Inc. v. AIG Specialty Insurance Company, Case No. 15-02416-SVW-LPRx (C.D. Cal. Jan. 4, 2017), the U.S. District Court for the Central District of California held that Section 533 of California’s Insurance Code relieved ... Keep Reading »
Reading the Crystal Ball: Reservation of Rights Letters under South Carolina Law in the Wake of Harleysville Group Insurance v. Heritage Communities, Inc., et al.
The South Carolina Supreme Court recently took a firm stance on what constitutes a sufficient reservation of rights letter in Harleysville Group Insurance v. Heritage Communities, Inc., et al., -- S.E.2d -- , No. 2013-001281, 2017 WL 105021, at *2 (S.C. Jan. 11, 2017). In Heritage, the court addressed coverage for defective construction at two condominium developments in Myrtle Beach. According to the opinion, the developments were constructed between 1997 and 2000 by ... Keep Reading »
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