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Third Circuit Slams The Door On Coverage For The Cost of Defending Excluded Claims—Then Leaves It Wide Open

July 15, 2016 by Heidi Hudson Raschke

An insured corporation settles a class action, and a portion of the settlement pays the plaintiffs’ attorneys. Payments to the class are excluded from coverage under the terms of the corporation’s liability policy. But can the company still get coverage for the attorneys’ fees? In April, this blog discussed a case in which the answer turned on the nature of the company’s underlying conduct. The following month, in PNC Financial Services Group, Inc. v. Houston Casualty ... Keep Reading »

Not Seeing Double: In Reversal, New York Court Holds That Third-Party Liability Payments May Not Offset UIM Benefits

July 8, 2016 by Gabriella Paglieri

In New York, uninsured/underinsured motorist coverage “does not function … to fully compensate … insureds for their injuries.” Weiss v. Tri-State Consumer Ins. Co., 98 A.D.3d 1107, 951 N.Y.S.2d 191 (2d Dep’t 2012). UIM coverage is subject to limits, and those limits are generally reduced by the amount of coverage available to the person who caused the injury. Standard UIM endorsements also provide that coverage “shall not duplicate” payments the insured receives from ... Keep Reading »

Defining the Contours of Cyber Coverage for Data Breach: a Warning in Arizona

June 24, 2016 by John C. Pitblado

By Immanuel Giel - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=36783221

A year ago in this space, we looked at the receding wave of coverage litigation regarding whether various cyber-related exposures were covered under traditional policies, such as CGL and professional liability policies.  Deemed “square peg” litigation, those cases were mostly a mixed bag.  And, as predicted, since the advent of the now burgeoning cyber-specific coverage market, those cases are largely becoming irrelevant, as insurers have begun to place exclusions in ... Keep Reading »

Round Up The Usual And Customary Suspects: Insurers May Determine UCR Prices By Shopping At Retail Outlets

June 17, 2016 by Zachary D. Ludens and Robert D. Helfand

For more than a decade, medical providers have tried to limit the discretion of automobile insurers to pay less than the billed amount for services and equipment offered to injured insureds. Most of these efforts involve challenges to the use of automated bill review systems. But in Freedom Medical Supply Inc. v. State Farm Fire & Cas. Co., No. 14-1628 (3rd Cir. June 8, 2016), a company charging 1,000% mark-ups on equipment it bought at Bed Bath & Beyond argued ... Keep Reading »

Step-Up, Insurer! Your Step-Down Provision Is Not Triggered

June 10, 2016 by Nora Valenza-Frost

“Sometimes nothin' can be a real cool hand.” -- Frank Pierson Where an automobile policy covers someone other than the named insured, a “step-down” provision may subject the amount of available coverage to the limit on “similar coverage” that is imposed by the injured person’s own policy. Sometimes, however, that second policy does not cover a particular risk at all. Last month, in Rivera v. McCray, No. A-2337-14T1 (N.J. App. Div. May 2, 2016), a New Jersey appellate ... Keep Reading »

Alabama Puts The Mystery Back Into All-Risk Coverage

June 3, 2016 by John W. Herrington

“There is, one knows not what sweet mystery about this sea …” -- Moby-Dick Insuring property against loss creates an unavoidable moral hazard: policyholders often have an incentive to cause or allow their property to disappear. Early efforts to limit insurers’ exposure to that risk—such as requiring the insured to prove the cause of a loss by “direct and affirmative evidence”—proved unsustainable. Eventually, the problem gave rise to express exclusions for losses ... Keep Reading »

Eighth Circuit Orders Coverage For Hackers’ Fraudulent Wire Transfer

May 27, 2016 by John C. Pitblado

Financial institution bonds come in various forms, depending on the nature of the insured business (e.g. bank, broker, insurance company). Common forms are fidelity bonds and commercial crime policies. These policies provide first party coverage against losses caused by employee dishonesty, forgery, kidnap, ransom & extortion, computer fraud and other specified financial frauds. These policies are common, and in some cases required by law, for banks, insurers, and ... Keep Reading »

Colorado Takes A Stand Against Unauthorized Settlements

May 20, 2016 by Brooke L. French and Robert D. Helfand

The “notice-prejudice” rule gives a pass to policyholders who breach the notice or cooperation provisions of their policies, if the breach is found not to have prejudiced the insurer. Sometimes, the late notice does not arrive until after the policyholder has settled an underlying claim; even in those cases—and even where the policy contains a “no voluntary payments” or a “consent-to-settle” clause—dozens of cases have found that the notice-prejudice rule applies. Last ... Keep Reading »

NY Appellate Court Rules “Blanket Ordinance or Law Coverage” not as Blanket as Insured Hoped

May 13, 2016 by John A. Camp

In 1947, some Bedouin shepherd boys were tending their sheep and goats near the ancient settlement of Qumran, near the Dead Sea.  One of the boys threw a rock into an opening on the side of a cliff and heard something break.  Curious, they entered what was a small cave.  Inside, they discovered a large clay vessel that had been broken by the thrown rock.  It contained several scrolls.  This led to the discovery of more clay jars and more scrolls, what would later be come ... Keep Reading »

Insuring Cyber Exposure Through a Captive Insurer

May 6, 2016 by John C. Pitblado

Cyber risks have been confounding insurers and policyholders alike as those risks have evolved and expanded in recent years. Indeed, the risks have effectively outgrown the confines of standard commercial insurance coverage, and numerous insurers have developed new products, creating a market for cyber-specific coverages and policies. While predictions about growth in this market have generally been bullish, there are some signs it may be flattening. One recent survey ... Keep Reading »

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