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 »
Off Schedule: Texas Supreme Court Rules That Ambiguity Produces Blanket Coverage
Owners of multiple commercial properties can significantly reduce their insurance premiums by purchasing a scheduled policy, under which each item of covered property is separately reported (or "scheduled"), and the coverage limit for any one item is determined independently of damage to any other item. The alternative is a blanket policy, which applies a single coverage limit to the aggregate losses of all the covered properties. Recently, in RSUI Indem. Co. v. The ... Keep Reading »
Eleventh Circuit Affirms Summary Judgment for Insurer on Basis of “Other Capacity” Exclusion
On June 22, 2015, the Eleventh Circuit affirmed the grant of summary judgment in favor of National Union Fire Insurance Company of Pittsburgh, Pa., in an action where the insured sought coverage under a D&O policy. The court found that the claim was excluded under a provision barring coverage for claims “arising out of” alleged misconduct in a capacity other than as a corporate officer and director, and that, accordingly, there was no bad faith as a matter of ... Keep Reading »
In Overhead and Profit Class Actions, The Third Trade’s No Longer The Charm
When repairs to a damaged home reach a certain level of complexity, they call for supervision by a general contractor, who receives a percentage of the actual repair costs as "general contractor's overhead and profit" or "GCOP." Under "replacement cost" policies, insurers must pay GCOP for appropriate claims, even if the insured chooses not to use a contractor or elects not to make repairs. In the past, this obligation has been the subject of class action suits, in ... Keep Reading »
Florida Appellate Court Rejects Bid to Curb Insureds’ Assignments to Contractors
Many property insurance policies contain terms that prohibit assignment, but Florida law has long deemed those terms inoperative once a loss has occurred. E.g., W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220 (Fla. 1917). As a result, contractors who repair or remediate damaged property increasingly offer to accept assignments from policyholders in lieu of payment—a practice that gives them greater leverage in setting prices, because it enables them to back ... Keep Reading »
Looking Backward: West Virginia Retroactively Imposes Coverage for Faulty Workmanship
A notorious moving target in the field of coverage litigation is an insurer's responsibility under a commercial general liability policy for the policyholder's faulty workmanship. The key question is usually whether the defect in workmanship is an "occurrence" within the meaning of a policy; the answer can depend on which court you ask or how those courts deal with other policy terms. In 2013, West Virginia's highest court overruled its own precedents to hold that CGL ... Keep Reading »
Cybersecurity Coverage Litigation: Learning to Survive After the Second Wave Hits
It’s a familiar pattern. First, new risks inspire legislation and regulations that impose new penalties. Next, insurers and policyholders fight over whether the new liabilities are covered under traditional liability policies. Finally, insurers craft new coverages to define their obligations in the changed environment. See, e.g., DeMeo, Eldred, Utiger & Scruggs, "Insuring Against Environmental Unknowns," 23 J. Land Use & Envtl. L. 61, 62-65 (2007). In this ... Keep Reading »
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