A Pennsylvania appeals court recently addressed a nuanced procedural question: the applicable statute of limitations in a declaratory action of a coverage dispute. In Selective Way Ins. Co. v. Hospitality Group Svcs, Inc., No. 1430 WDA 2015 (Pa. Super. Ct. July 7, 2015), the court determined that an insurer’s responsibility to commence a timely action for declaratory relief in a coverage dispute begins to toll when the insurer has a factual basis sufficient to allow it ... Keep Reading »
Cybersecurity as a Regulatory Issue: The NAIC Considers The Anthem Breach And Weighs a “Cybersecurity Bill of Rights”
The Cybersecurity Task Force of the National Association of Insurance Commissioners (the "NAIC") met last month, as part of on the NAIC's 2015 Summer National Meeting in Chicago. The Task Force focused on two issues: the recent massive data breach suffered by Anthem, Inc., and a draft "Consumer Cybersecurity Bill of Rights" that was released for public comment in late July. The Anthem Breach Anthem's general counsel reported that the FBI has completed its ... Keep Reading »
Playing With Fire: No Liability Coverage For Tax Preparers Who Took Deductions for Illegal Tax Shelters
“Gimme Shelter” is one of the greatest of a lot of great Rolling Stones songs (made greater by Merry Clayton’s gut-wrenching contribution). And, of course, “Gimme Shelter” is a cliché often trotted out in discussions of tax shelters. We’re not going to do that here. Instead, Financial Strategy Group, PLC v. Continental Casualty Co., Case No. 14-6296 (6th Cir. Aug. 4, 2015), puts us in mind of that other great Stones song, “You Can’t Always Get What You Want.” Because ... Keep Reading »
California Declares New Rules for Assignment of Long Tail Claims
Last week, in a unanimous decision, the Supreme Court of California changed the law governing anti-assignment provisions in liability insurance policies. Twelve years ago, in Henkel Corp. v. Hartford Accident & Indemnity Co., 29 Cal.4th 934 (2003), the court held that such provisions are fully enforceable, until a claim against the insured has been reduced to either a judgment or a settlement. The latest case, Fluor Corporation v. Superior Court, No. S205889 (Cal. ... Keep Reading »
Ninth Circuit Finds Defects in the Construction of a “Known-Loss” Exclusion
A mason who performed work on a residential project was notified in 2006 that cracks had developed in his work. Several months later, the mason purchased a commercial general liability policy that expressly excluded coverage for property damage, if an insured "knew that the … damage had occurred, in whole or in part." In 2007, the project's general contractor sued the mason, claiming that defects in his work had caused the property damage that was the subject of a suit ... Keep Reading »
For “At-Issue Waiver,” The Best Defense May Not Be An Affirmative Defense
Silence is argument carried out by other means. –Ernesto “Che” Guevara As this blog has repeatedly documented, it can be hard for insurers to assert the attorney-client privilege in the context of bad faith litigation. One difficulty arises in states that enforce a presumption against the privilege in bad faith suits. In many cases, insurers need to waive the privilege, to assert a defense based on advice of counsel. Last month, a federal court in South Carolina ... Keep Reading »
Fifth Circuit Finds Erosion in Texas—Because Endorsements Are Transformative
In Amerisure Mut. Ins. Co. v. Arch Specialty Ins Co., No. 14-20239 (5th Cir. April 21, 2015), a case that applied Texas law, the U.S. Court of Appeals for the Fifth Circuit recently held that the word "expenses," as used in a liability policy, unambiguously applies to attorneys' fees—and that an endorsement dealing with "expenses" had "transform[ed] the policy in an 'eroding limits' policy." Among other things, the case shows that Texans and New Yorkers don't use words ... Keep Reading »
Who’s the Boss? In Policies Covering Multiple Insureds, the Details Matter
Liability policies for businesses are subject to a number of common exclusions; many, for example, do not cover liability to employees of the business who are injured on the job. Frequently, those policies do provide coverage to additional insured parties, such as lenders or property owners, that deal with the business. Recently, in Mutual Benefit Ins. Co. v. Politsopoulos, No. 60 MAP 2014 (Penn. May 26, 2015), the Supreme Court of Pennsylvania addressed the question ... Keep Reading »
Fourth Circuit: If You Want to Limit Additional Insured Coverage to Vicarious Liability, You Should Say So
In Capital City Real Estate, LLC v. Certain Underwriters at Lloyd's, London, No. 14-1239 (4th Cir. June 10, 2015), the Fourth Circuit Court ruled that a Maryland federal court erred in granting summary judgment to Certain Underwriters at Lloyd's, London (“Lloyd's") in a coverage dispute between it and its insured, a construction contractor, by misinterpreting the “additional insured" endorsement in the policy issued by Lloyds. The lawsuit arose out of a construction ... Keep Reading »
Cyberclaim Coverage Denied: The TCPA Protects Privacy, Not Personally Identifiable Information
In Doctors Direct Ins., Inc. v. Beaute’ E’mergente, LLC, No. 1-14-2919 (Ill. App. Ct. June 22, 2015), an Illinois state appellate court recently affirmed that a medical malpractice liability insurer did not owe a duty to defend or indemnify its insured in an underlying class action lawsuit alleging violations of the Telephone Consumer Protection Act (the “TCPA”) and the Illinois Consumer Fraud and Deceptive Business Practices Act (the “ICFA”), because there was no ... Keep Reading »
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