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Grateful Marijuana Grower Scores Coverage Victory in Colorado Federal Court

April 20, 2016 by John C. Pitblado

The refusal of the Senate to fill a Supreme Court vacancy has put gridlock back on the front page, as it leaves important questions about immigration and clean energy unresolved. Uncertainty about federal policy is also affecting other areas of American life, including one of our most popular pastimes. Recently, in The Green Earth Wellness Center, LLC v. Atain Specialty Ins. Co., No. 13-cv-03452-MSK-NYW (D. Colo. Feb. 17, 2016), a federal court in Colorado held that the ... Keep Reading »

Ninth Circuit Leaves it to Policyholder to Pay Eddie Haskell’s Attorneys’ Fees

April 15, 2016 by Meredith Whigham Caiafa and Robert D. Helfand

Eddie: Well, look, there's nothin' to be so shook about. Lumpy's insurance'll take care of it. Moral hazard lurks around the edges of many disputes about liability coverage. Everyone agrees in principle that insurance shouldn’t help bad actors benefit from their wrongdoing, but parties often clash over where the principle applies.  Some courts have addressed the problem by asking if the insured has suffered an insurable “loss.”  E.g., Ryerson Inc. v. Federal Ins. Co., ... Keep Reading »

None Of Your Business: Eleventh Circuit Enters A Gray Area For Contract Liability Exclusions

April 7, 2016 by Blaise Gamba

Businesses have responsibilities; they buy liability insurance to cover losses that arise if they fail to perform them all.  Businesses  also “assume” responsibilities under contracts; those responsibilities are typically excluded from coverage. Sometimes the two kinds of responsibility overlap. Last month, in Payroll Management, Inc. v. Lexington Ins. Co., No. 15-10314 (11th Cir. March 1, 2016), the U.S. Court of Appeals rejected an insured’s attempt to exploit that ... Keep Reading »

How General is “General Aggregate?”

April 1, 2016 by Daniel G. Enriquez

“It’s a big enough umbrella, but it’s always me that ends up getting wet.”  - Sting (1981) “Here’s a second umbrella” – Montana Supreme Court (2016) Although the terms are often used interchangeably, there are several key differences between umbrella and excess coverage. One such distinction is that an umbrella policy can apply to multiple underlying policies. This makes it essential to clearly delineate and define the policy’s aggregate limit of liability— the maximum ... Keep Reading »

For Excess Liability Insurers, Consent-to-Settle Clauses Still Count

March 18, 2016 by Stephen J. Bagge

When a liability insurer defends its insured under a reservation, recent decisions limit the insurer’s right to enforce a policy’s consent-to-settle clause. But can the reservation affect the rights of an excess carrier? And does it matter if the carrier declines to participate in an upcoming mediation? Last month, in The Doe Run Resources Corp. v. The Fidelity & Cas. Co. of N.Y., G050689 (Cal. Ct. App. Feb. 1, 2016), a California appellate court (applying Missouri ... Keep Reading »

We Don’t Feel Your Pain: Massachusetts Limits Recoveries By Workers Compensation Insurers

March 11, 2016 by Ashley Harrison Sakakeeny and Robert D. Helfand

When an injured employee sues a third party for negligence, the law usually permits her employer’s workers compensation insurer to share in the recovery. Last month, in DiCarlo v. Suffolk Construction Co., Nos. SJC-11854 and SJC-11853 (Mass. Feb. 12, 2016),   the Supreme Judicial Court of Massachusetts found that this right does not apply to any portion of a settlement designated as compensation for “pain and suffering.” The decision turns on a highly questionable ... Keep Reading »

In Examinations Under Oath, Friends Must Let Friends Testify Alone

March 4, 2016 by Nora Valenza-Frost

The cooperation provisions in most personal lines insurance policies require policyholders to sit for Examinations Under Oath ("EUO") to answer questions about the validity of a claim. What if the insured refuses to attend without having his non-lawyer friend sit beside him? May the insurer insist on examining the insured without the friend in the room? That was the question in Foremost Insurance Company v. Freeman, 2016 WL 380126 (S.D. Miss. Jan. 29, 2016). When Bad ... Keep Reading »

Florida Makes it Safer to Collect Subrogation Claims from Consumers

February 12, 2016 by Elizabeth M. Bohn

Florida Makes The World Safer for Subrogation

As insurers show increasing interest in pursuing recovery opportunities after paying claims, they face increased exposure to litigation hazards associated with the debt collection industry. A recent decision by a federal court in Florida will help ameliorate that risk—at least within the Sunshine State. In Schaefer v. Seattle Service Bureau, Inc., No. 2:15-cv-444 (M.D. Fla., Dec. 16, 2015), the court ruled, as a matter of first impression, that insurance subrogation ... Keep Reading »

Too Little, Too Late: The Harsh Bright Line of Suit Limitation Provisions

February 5, 2016 by Zachary D. Ludens

Approximately twenty percent of Americans have been classified as chronic procrastinators, which means one in five policyholders faces a potential problem when suing for coverage.  While the statute of limitations for breach of contract varies by state, it is typically three years or more.  However, insurance policies often impose their own, contractual suit limitations, and it is often only a year or two.  When and how these provisions operate to bar coverage varies ... Keep Reading »

Coverage for Direct Physical Loss Does Not Necessarily Include “Matching” or Require “Aesthetic Uniformity”

January 29, 2016 by Heidi Hudson Raschke

Picture of Kalman Maklary Fine Arts

When a property insurance policy covers a multi-story building or multi-building property, and a portion sustains damage, there is often a question regarding the extent to which undamaged property should be replaced to ensure matching and/or aesthetic uniformity throughout the property.  In Great American Insurance Company of New York v. The Towers of Quayside No. 4 Condominium Association, 15-CV-20056 (S.D. Fla. Nov. 5, 2015), a District Court recently determined that ... Keep Reading »

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