Commercial general liability policies typically provide coverage for claims based on “personal and advertising injury.” Increasingly, enterprising insureds have invoked this coverage in connection with a variety of legal theories arising out of the alleged use of advertising to engage in otherwise unfair business or competitive practices. Two years ago, for example, in Travelers Property Casualty Co. of America v. Charlotte Russe Holding, Inc., 207 Cal.App.4th 969 ... Keep Reading »
Louisiana’s Direct Action Statute Does Not Modify Terms of Coverage
"Direct action" statutes permit an injured plaintiff to sue an insurer for coverage under someone else’s policy—the liability insurance policy of the tortfeasor who caused the injury. They have been enacted in only a minority of states, because they abrogate the common law, which bars suits by plaintiffs who are not in privity with the insurer. Louisiana’s statute, which dates from 1918, was one of the earliest. It expresses the long-held policy of the Bayou State ... Keep Reading »
“Mend the Hold”: A Nineteenth-Century Wrestling Doctrine Keeps its Grip on Coverage Litigation in the WWE Era
The issue confronting an Illinois appellate court in BNSF Railway Company v. Probuild North LLC, No. 1-12-3648 (Ill. App. Ct. June 11, 2014), was not uncommon. The plaintiff sought coverage from its insurer under a commercial general liability policy. In defending the suit, the insurer asserted a different defense from the one it had identified in its original denial letter. The plaintiff argued that the insurer was estopped from changing its rationale for denying ... Keep Reading »
In Opposing Global Capital Standards for International Insurers, NCOIL Roils Domestic Industry
In July, the International Association of Insurance Supervisors (IAIS), a membership organization that represents insurance regulators and supervisors in more than 100 countries, released for public consultation a set of proposed basic capital requirements for “global systemically important insurers” (“G-SIIs”). Within days, the National Conference of Insurance Legislators (NCOIL), a nonprofit group that represents state legislators in Washington, adopted a ... Keep Reading »
If the Suit Fits: A Washington Court Clarifies Triggers for the Duty to Defend
Like many other federal and state environmental laws, Washington’s Model Toxics Control Act (MTCA) exposes property owners to strict liability, regardless of fault or intent, for certain types of environmental contamination. Twenty years ago, in Weyerhaeuser Co. v. Aetna Cas. & Surety Co., 874 P.2d 142 (Wash. 1994), the Supreme Court of Washington held that a property owner’s efforts to remediate polluted sites triggers a liability insurer’s duty to indemnify the ... Keep Reading »
Suit Limitations Provisions are Enforceable. Except When They’re Not.
When might a court find a reasonable and enforceable suit limitation provision neither reasonable nor enforceable? According to New York’s highest court, it’s when the provision would bar a claim to enforce the replacement coverage under a property policy, and where completion of the repairs that constitute the replacement is a condition precedent to the suit. In Executive Plaza, LLC v. Peerless Ins. Co., 5 N.E.3d 989, 990 (N.Y. 2014), the Court of Appeals of New York, ... Keep Reading »
Peeking Around Four Corners: Wisconsin Insurers Have Found a Way to Use Extrinsic Evidence to Excuse the Defense of Pending Claims
It is a truism that a liability insurer’s duty to defend is extremely broad—especially in states that apply the “four corners rule.” Under that rule, the insurer has a duty to defend whenever the underlying complaint alleges facts that could constitute a covered claim—“even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered.” Capstone Building Corp. v. American Motorists Ins. Co., 67 A.3d 961, 992 (Conn. ... Keep Reading »
Not So Fast: New York’s High Court Relieves Pressure on Liability Carriers to Disclaim Coverage “As Soon As Possible”
Under a New York statute, a liability insurer that denies coverage for a death or bodily injury claim must provide written notice of its decision “as soon as is reasonably possible.” Last year, in Long Island Lighting Co. v. Allianz Underwriters Ins. Co., 961 N.Y.S.2d 419 (1st Dep’t 2013), an intermediate appellate court applied that standard to an insurer’s denial of coverage for environmental damage claims involving the site of a manufactured gas plant (MGP). The ... Keep Reading »
Is There a Duty to Defend Pollution Claims? It’s the Complaint, Stupid
This Spring, cases from Florida and Wisconsin reaffirmed the general proposition that a liability insurer’s duty to defend must be determined from the specific claims in the underlying complaint against the insured, and not from facts available from other sources. Both cases dealt with contamination or pollution conditions, and, in both instances, the courts held it was the nature of the underlying claim, rather than the actual presence of a pollutant, that established ... Keep Reading »
Federal Judges in Brooklyn are Making it Easier to Pursue Fraud Claims Against No-Fault Medical Providers
I was bawn in Williamsboig," he says. "An’ I can tell you t’ings about dis town you neveh hoid of." - Thomas Wolfe The Eastern District of New York, which includes the New York City Boroughs of Brooklyn and Queens, has been home to some of the most colorful no-fault insurance scams in living memory. In March, a Queens attorney entered a guilty plea in what the Government describes as “the largest single no-fault automobile insurance fraud scheme ever charged”—an ... Keep Reading »
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