- Volume 23, Issue #2
- Professional Liability Insurer Entitled To Rescind Policy Over Misrepresentations
CHARLESTON, W.Va. - A West Virginia federal judge on Jan. 11 held that a professional liability insurer was entitled to rescind an insurance policy due to two material misrepresentations made on the application, further finding that because the policy is void ab initio, it cannot be the basis of liability and, therefore, the insurer cannot recover from the insured the underlying defense costs it has incurred (ALPS Property & Casualty Insurance Company v. Michael A. Turkaly, et al., No. 16-10064, S.D. W.Va., 2018 U.S. Dist. LEXIS 5026).
- 9th Circuit Affirms Injuries Arose Out Of 'Assault And Battery'; Coverage Limited
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Jan. 12 rejected appellants' argument that whether the injuries they suffered were the result of an "assault and battery" under a commercial general liability insurance policy is a question of fact for a jury, affirming a lower court's ruling in favor of the insurer (The Burlington Insurance Company v. Rosa De La Puente, et al., Nos. 16-16899 and 16-16986, 9th Cir., 2018 U.S. App. LEXIS 891).
- Exclusionary Language 'Undeniably Captures' Alleged Conduct, 11th Circuit Affirms
ATLANTA - The 11th Circuit U.S. Court of Appeals on Jan. 12 affirmed a lower federal court's ruling that a liquor liability insurance policy's assault and battery exclusion relieves the insurer of its duty to defend against an underlying lawsuit that resulted in a $3.5 million consent judgment against its bar owner insured (Jane Doe v. Hudson Specialty Insurance Company, No. 17-11642, 11th Cir., 2018 U.S. App. LEXIS 784).
- Professional Services Exclusion Does Not Bar Coverage, Federal Judge Rules
SAN JOSE, Calif. - Ruling on dueling summary judgment motions in an insurer's lawsuit seeking equitable contribution from a second insurer, a California federal judge on Jan. 9 found that two underlying lawsuits against Narconon International and its affiliates triggered commercial general liability and improper sexual conduct coverage and, therefore, the second insurer also has a duty to defend (Western World Insurance Company v. Nonprofits Insurance Alliance of California, No. 14-04466, N.D. Calif., 2018 U.S. Dist. LEXIS 4720).
- Panel: Insured's Delay In Notifying Insurer Of Claim Is 'Unexcused,' 'Unreasonable'
NEW YORK - The Second Circuit U.S. Court of Appeals on Jan. 5 affirmed a federal court's dismissal of breach of contract, unjust enrichment, conversion and declaratory judgment claims against a directors and officers liability insurer, reiterating that the insured's failure to provide the insurer with timely notice of an underlying claim negated coverage (J. Graham Zahoruiko v. Federal Insurance Co., et al., No. 17-965, 2nd Cir., 2018 U.S. App. LEXIS 250).
- Justice Orders Excess Directors And Officers Liability Insurers To Pay Legal Fees
NEW YORK - A New York justice on Dec. 21 granted insureds' motion for a preliminary injunction directing excess insurers to advance attorney fees and costs to defend against underlying criminal and civil proceedings brought against the insureds until a final adjudication that the insureds' purported wrongdoings fall under policy exclusions (Freedom Specialty Insurance Company, et al. v. Platinum Management [NY], LLC, No. 652505/2017, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 5165).
- No Coverage Owed For $475,000 Award Arising From Church's Election Recall Petition
EL PASO, Texas - A Texas federal judge on Jan. 4 held that an insurer has no duty to defend or indemnify a church and its president against a $475,000 consent judgment for their violations of the Texas Election Code, finding that a recall election notice posted on the church's website failed to constitute an "advertisement" under the insurance policy (Word of Life Church of El Paso, et al. v. State Farm Lloyds, No. 17-00049, W.D. Texas, 2018 U.S. Dist. LEXIS 1688).
- Magistrate Bifurcates Bad Faith Claim In Dispute Over Alleged Concert Injuries
LOUISVILLE, Ky. - Refusing to go down the rabbit hole of "what ifs" in a coverage dispute arising from underlying injuries sustained at a concert, a Kentucky federal magistrate judge on Jan. 3 granted an insurer's motion to bifurcate a bad faith from the other claims for discovery and trial purposes (Live Nation Worldwide, Inc. v. Secura Insurance, et al., No. 17-216, W.D. Ky., 2018 U.S. Dist. LEXIS 872).
- Franchise Dispute Fails To Allege Express Or Implied Covered Occurrence, Judge Says
OMAHA, Neb. - A Nebraska federal judge on Jan. 2 found that insurers have no duty to defend insureds in a franchise dispute because the underlying complaint fails to state a claim for express or implied defamation to warrant coverage (Maids On Call, LLC, et al. v. Ohio Security Insurance Company, et al., No. 17-252, D. Neb., 2018 U.S. Dist. LEXIS 288).
- Cosby Asks 1st Circuit To Reverse Ruling Allowing Insurer To File Supersedeas Bond
BOSTON- William H. Cosby Jr. on Dec. 28 filed a notice of appeal to the First Circuit U.S. Court of Appeals challenging a lower court's grant of his homeowners and excess insurer's motion to file a supersedeas bond in a coverage dispute over underlying defamation lawsuits arising from sexual assault claims (AIG Property Casualty Co. v. Tamara Green, et al., No. 18-1024, 1st Cir.).
- Insurer Says No Coverage Due In Yahoo Email Scanning Suits
SAN JOSE, Calif. - A commercial general liability (CGL) insurer on Jan. 4 moved for summary judgment in California federal court in a coverage dispute with Yahoo! Inc., arguing that its duty to indemnify was never triggered in underlying privacy lawsuits over the internet firm's former email-scanning practices because no damages award was levied against Yahoo (Yahoo! Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 5:17-cv-00489, N.D. Calif.).
- Coverage Row Over Unlawful Disclosure Claims Against Doctor Argued In 1st Circuit
BOSTON - A federal court correctly determined that, based on terms in a professional liability policy, an insurer has no duty to defend an insured doctor against claims by his ex-wife that he unlawfully disclosed her confidential health care information, the insurer tells the First Circuit U.S. Court of Appeals in a Nov. 22 response brief (Medical Mutual Insurance Company of Maine, Inc. v. Douglas Burka, 17-1872, 1st Cir.).
- New York Justice Denies Insurers' Motions In Dispute Arising From Hazing Death
NEW YORK - A New York justice on Dec. 19 found that there is simply is not enough information in the record to grant summary judgment in favor of two insurers in their declaratory judgment lawsuit disputing coverage for an underlying wrongful death lawsuit stemming from a fraternity hazing incident (Adirondack Insurance Exchange, et al. v. Julio Hewu, et al., No. 155658/2016, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 5091).
- Judge: City Is Not Entitled To Independent Counsel In Sewer Backup Coverage Suit
SANTA ANA, Calif. - A California federal judge on Dec. 18 denied the city of Laguna Beach's motion for partial summary judgment but granted its motion for partial stay in a coverage dispute over damages arising from an April 26, 2016, sewer backup (Tokio Marine Specialty Insurance Company v. Laguna Beach, No. 17-00277, C.D. Calif., 2017 U.S. Dist. LEXIS 212828).
- Consumer Class Action Alleges Covered Disparagement Claim, Insured Argues
SAN FRANCISCO - A shampoo manufacturer insured has asked a California appeals court to find that an underlying consumer class action alleging that it falsely advertised its hair products as "organic" triggers a coverage claim for disparagement under its insurance policy (Hartford Casualty Insurance Company v. Vogue International, LLC, et al., No. A150921, Calif. App., 1st Dist.).