A recent case pitted two State of Florida agencies involved in insurance regulation against one another, and resulted in a decision by the appellate court that the Insurance Commissioner could not be compelled to appear as a witness at trial or in deposition to answer hypothetical questions about regulatory decisions he might have made earlier in time if he had known certain information about the financial condition of particular insurance companies. Florida Office of ... Keep Reading »
The Eleventh Circuit Holds that for Sinkhole Losses, Structural Damage ≠ Any Damage to a Structure
The land in Florida is prone to sinking and insurance companies must often scramble for solid footing on which to anchor the scope of coverage for sinkhole losses. In Hegel v. First Liberty Insurance Corporation (11th Cir. Feb. 27, 2015), the Eleventh Circuit provided some much needed guidance when it held that the plain meaning of "structural damage" in a homeowners policy cannot be simply "damage to the structure" in the context of determining coverage for a sinkhole ... Keep Reading »
Playing with House Money: Fifth Circuit Holds that Home Designs Can Constitute Advertisements
Insurers – who bear the burden of crafting unambiguous policy language defining the contours of coverage – constantly face difficulty in attempting to predict unexpected liability. And sometimes, Courts can make this job far more difficult. For example, a recent Fifth Circuit decision held that a copyright infringement exclusion did not apply to exclude coverage for a judgment against the insured in a case alleging, well, copyright infringement. In Mid-Continent ... Keep Reading »
Down in the Dumps: Court Refuses to Apply Pollution Exclusion in Landfill Seepage Case
Claims involving potential coverage for pollution liability pose unique challenges for insurers. In many cases, the polluting activity occurred decades ago and over a large span of time, with only a fraction of the activity occurring during the policy period. As a result, an issue in pollution liability cases is whether an insurer is obligated to indemnify an insured for the entire amount of damages resulting from pollution, or whether an insurer's obligation may be ... Keep Reading »
Illinois Supreme Court: Innocent Insured Doctrine? For a Lawyer? (cough)
In Illinois State Bar Assoc. Mut. Ins. Co. v. Law Office Of Tuzzolino and Terpinas, the Illinois Supreme Court held that the "innocent insured" doctrine does not protect an innocent prospective insured, if his law partner makes misrepresentations in the application for insurance that void the policy. The parties to this case were the two partners in a law firm, and a client who sued the firm for malpractice, on the one hand, and the Mutual Insurance Company on the ... Keep Reading »
Change is in the Air: New Jersey Justices Hold Their Noses While Siding with Insurer in UM Disputes
On February 18, 2015, the Supreme Court of New Jersey issued separate opinions in two first-party, uninsured motorist cases against the same auto insurer. Plaintiffs in both cases alleged that the insurer had acted in bad faith by forcing the insured to trial after losing an arbitration. The insurer won both cases, on the ground that its position each time had been "fairly debatable" as a matter of law. But New Jersey’s high court also suggested, in both cases, that ... Keep Reading »
Insurance is Big in Texas: In Deepwater Horizon Case, Texas Stretches a Policy’s Four Corners to Include Other Contracts
Last month, in In re Deepwater Horizon, Relator, the Supreme Court of Texas applied a fundamental principle of insurance law to a case with enormous financial implications. The owner of the Deepwater Horizon drilling rig had made BP an additional insured under its liability policies, but it did so pursuant to a drilling contract in which BP had agreed to be responsible for some of the losses those policies covered. When BP submitted a claim, therefore, a court had to ... Keep Reading »
Cooperate, Or Else
Cooperation is key. Or so says the 10th Circuit at least, in addressing an appeal from a district court's dismissal of an insured's action in which he failed to cooperate with his insurer's claim investigation. The 10th Circuit held that the insured, Kelly Bryant ("Bryant"), had not clearly demonstrated that the insurance company, Sagamore Insurance Company ("Sagamore"), breached its contract or otherwise acted unreasonably and in bad faith when it denied Bryant's claim ... Keep Reading »
Cyber Risk as a Regulatory Issue: Tales of Encryption
Spurred by the prescient reporting found in this space (and, just maybe, by the Anthem data breach, which occurred a week later), insurance regulators have recently engaged in a flurry of regulatory activity relating to cyber security issues. Very shortly after the Anthem breach was announced, the newly-formed Cybersecurity (EX) Task Force of the National Association of Insurance Commissioners (NAIC) called for a multi-state examination of Anthem's cybersecurity ... Keep Reading »
California Bans Use of Price Optimization
Yesterday California Insurance Commissioner Dave Jones became the latest voice in a growing chorus of state insurance regulators who condemn the use of "Price Optimization" as a mechanism for adjusting property-casualty insurance rates and pricing. In a Notice delivered to more than 750 P&C insurers, the Commissioner declared that "any use of Price Optimization in the ratemaking/pricing process or in a rating plan is unfairly discriminatory in violation of ... Keep Reading »
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