Recent decisions from the U.S. Courts of Appeal for the Tenth and Second Circuits have partially overturned a longstanding rule against coverage for faulty workmanship under commercial general liability policies. The rule, known as the “fortuity doctrine,” was based on insuring clauses that provided coverage only for claims arising out of an “occurrence,” and which defined “occurrence” to mean “accident.” For many years, courts held that claims based on the insured’s ... Keep Reading »
It’s All About the Pleadings: Florida Court Expands Insurers’ Obligation to Provide Separate Counsel for Insured Co-Defendants
The duty of a liability insurer to provide a defense for its insured is controlled by the contents of the pleading against that insured: the duty can arise on the basis of allegations that establish grounds for coverage, even if the insurer knows those allegations to be false. If, in those circumstances, the insurer reserves its right to dispute coverage (and especially if, in doing so, it relies on a theory that would prejudice the insured’s position in the underlying ... Keep Reading »
CFPB Mortgage-Servicing Regulations will Impact Lender-Placed Insurance
Under Dodd-Frank, the Consumer Financial Protection Bureau (“CFPB”) is authorized to issue regulations that cover the servicing of consumer mortgage loans. In January, the CFPB issued new regulations (‘the “Final Rule”) that extensively amend the mortgage-servicing rules of both Regulation X (the regulation that implements the Real Estate Settlement Procedures Act of 1974 (“RESPA”)) and Regulation Z (which implements the Truth in Lending Act (“TILA”)). The Final Rule ... Keep Reading »
In Late Notice Cases, There’s More at Stake than a Single Claim
Both property and liability policies contain provisions that require the insured to provide its carrier with timely notice of a claim, but cases in which late notice is used as a basis for denying coverage often leave the insurer in an unflattering light. It is not always apparent that the late notice has made any actual difference to the insurer. Consequently, even though most notice provisions are written as strictly as possible, making timely notice a condition ... Keep Reading »
All in Good Time: Another Court Refuses to Allow Plaintiff to Force an Early Resolution of Insurer’s Rights Under a Liability Policy
Like insurance companies, plaintiffs’ class action attorneys do better when they know how to manage risk. Bringing a case to trial can involve an enormous investment of time and resources, and most firms can’t afford to do it if there’s a significant chance the defendant will not be entitled to liability coverage at the end of the day. For that reason, avoiding an early resolution of coverage issues can sometimes help an insurer negotiate a more favorable settlement. ... Keep Reading »
In Faulty Workmanship Cases, Insuring Clause Dogs are Wagged by Exclusion Tails
In Greystone Const., Inc. v. National Fire & Marine Ins. Co., 661 F.3d 1272, 1289 (10th Cir. 2011), the U.S. Court of Appeals for the Tenth Circuit articulated an important rule for construing commercial general liability policies: [A] CGL policy ‘begin[s] with a broad grant of coverage, w[hich is then limited in scope by exclusions. Exceptions to exclusions narrow the scope of the exclusion and . . . add back coverage. But it is the initial broad grant of ... Keep Reading »
As Gunfire Thins the Ranks of the Employed, Employee Exclusions Hold the Line Against Coverage
As this blog has previously reported, accidents with guns are not likely to become less common any time soon. With home- and business-owners striving to find increasingly original ways to get shot, they will put increasing strain on the traditional language of the coverage exclusions in insurance policies. In Gear Automotive v. Acceptance Indemnity Insurance Company, No. 12-2446 (8th Cir. Mar. 18, 2013), the U.S. Court of Appeals for the Eighth Circuit recently ... Keep Reading »
Too Much of a Good Thing: Household Product Triggers Pollution Exclusion, Because “Quantity Matters”
Pollution exclusion clauses began appearing in commercial general liability policies when federal laws began making businesses liable for the cost of massive environmental clean-ups—like the remediation of “Volatile Organic Compounds” that was recently at issue in Chubb Custom Ins. Co. v. Space Systems/Loral, Inc., No. 11-16272 (9th Cir. March 15, 2013). A recent Colorado case presented the issue of when the grease that goes into your bacon double cheeseburger becomes a ... Keep Reading »
SCOTUS: Would-Be Class Representative Cannot Avoid CAFA Jurisdiction by Stipulating to Limit Damages
Some class action plaintiffs who want to keep their cases in state court execute “stipulations” not to seek more than $5 million in aggregated damages on behalf of the class. When the case is removed, they argue that the defendant cannot establish that “the matter in controversy exceeds the sum or value of $5,000,000”—the threshold for federal jurisdiction under the Class Action Fairness Act. In a curt, unanimous opinion authored by Justice Breyer, the Supreme Court of ... Keep Reading »
Eighth Circuit Declines to Expand Definition of “Conflict of Interest” in Reservation-of-Rights Scenario
A liability insurer’s reservation of rights can affect the insurer’s ability to participate in the litigation of the underlying action. In most states, an insurer must provide independent counsel if the insurer’s coverage position might benefit from a failure of the insured’s defense on one or more issues in the underlying suit. As this blog has reported, it is a rule in some other states that the reservation of rights, in and of itself, creates a conflict that ... Keep Reading »
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