CaseWatch: Insurance – Decisions from The Insurance and Reinsurance Report – April 28, 2010

CaseWatch: Insurance – Decisions from The Insurance and Reinsurance Report – April 28, 2010

Actions and Proceedings

Owners Ins. Co. v. Westfield Ins. Co.
2010 Ohio App. LEXIS 1252 [lexis.com / lexisONE] (Oh. Ct. App., April 5, 2010)
Motion to Dismiss Granted Based on Forum Non Conveniens
An Ohio coverage dispute arose from a personal injury action commenced in West Virginia in which the plaintiff, a West Virginia resident, sought to recover for injuries he received in West Virginia when he came into contact with a transformer worked on by the electrical contractor for the general contractor (a West Virginia resident). The trial court granted the general contractor's insurer's motion to dismiss the Ohio case based on forum non conveniens. The appellate court held that the trial court did not abuse its discretion in dismissing the Ohio action because an action was pending in West Virginia between the general contractor and the electrical subcontractor's insurer where the coverage issues would be decided.

 

Bad Faith

Brandywine Smyrna, Inc. v. Millennium Builders, LLC
2010 Del. Super. LEXIS 140 [lexis.com / lexisONE] (Del. April 8, 2010)
Party Seeking to Establish a Claim of Bad Faith Must Show That an Insurer Lacks Reasonable Justification in Delaying or Refusing Payment of a Claim
The policyholders brought a claim against their insurer alleging that the insurer improperly denied their claim.  The court held that a party seeking to establish a claim of bad faith must show that the insurer lacked reasonable justification in delaying or refusing payment of the claim.  The ultimate question is whether at the time the insurer denied coverage there existed a bona fide dispute and therefore meritorious defense to the insurer's liability.

Little v. USAA Casualty Insurance
2010 U.S. App. LEXIS 6993 [lexis.com / lexisONE] (5th Cir.(Az.), April 2, 2010)
Parties Dispute Whether Arizona Law Permits a Claim for Bad Faith if the Insurer Correctly Denies Coverage
The policyholder brought a suit against the insurer alleging the insurer was liable in tort for breach of the policy implied covenant of good faith and fair dealing. The Court held that even assuming that there could be cases where a breach of the duty of good faith and fair dealing could be found in the absence of coverage, this case was not among them.  The Court concluded the undisputed facts that defeated the policyholder's coverage claim also defeated his bad faith claim.

Myers v. Alliance for Affordable Services
2010 U.S. App. LEXIS 7181 [lexis.com / lexisONE] (10th Cir.(Co.), April 7, 2010)
Claim for Bad Faith Breach of an Insurance Contract Requires the Existence of a Contract
The policyholder sued the insurer for bad faith breach of an insurance contract.  Applying Colorado law, the basis for liability and tort for the breach of an insurers implied duty of good faith and fair dealing is grounded upon the special nature of the insurance contract and the relationship which exists between the insurer and insured.  A claim for bad faith breach of insurance contract requires the existence of a contract. The court held that the policyholder did not allege the existence of a contract between itself and its insurer in its amended complaint. Accordingly, the District Court properly dismissed the plaintiff's claim for bad faith breach of an insurance contract.

Vigilant Insurance Company v. Continental Casualty Co.
2010 Fla. App. LEXIS 4214 [lexis.com / lexisONE] (Fla. Ct. of App., March 31, 2010)
Release and the Lack of Assignment of Rights Does Not Bar the Excess Insurer's Bad Faith Claim
The policyholder had a primary insurance policy with a self insured retention (SIR) and an excess policy. The injured party's claim was settled with payments from both insurers, although the policyholder did not pay any of the SIR.  The injured party executed a release which discharged the policyholder and both insurers; however, the excess insurer did not obtain assignment of any bad faith claim the policyholder might have against the primary insurer. The appellate court held that an excess insurer could maintain a bad faith suit against a primary insurer and that an excess judgment was not a prerequisite to such a claim.  Further, the injured party's release did not impact the excess insurer's bad faith claim against the primary insurer.

 

Cancellation/Rescission

Putnam Bancshares, Inc. v. T.C.'s Used Cars, LLC
2010 W. Va. LEXIS 29 [lexis.com / lexisONE] (W.V., April 5, 2010)
Insurer Not Required to Notify Loss Payee Where Policy Expires
The policyholder's policy was coming to its natural end.  The insurer offered to renew the policy, but received no response from the policyholder. The policy term ended, and shortly thereafter, the policyholder was involved in an accident that totaled his car. After the accident, he paid the premium for a new policy, but the policy renewed with a lapse in coverage. The policyholder and loss payee sued the insurer, asserting that the insurer was obligated to provide coverage because it failed to give notice of the "intent to cancel for non-payment of the renewal premium" as required by statute. The court held that where a policy expires, the insurer has no duty to provide notice to either the policyholder or loss payee that the policyholder let the policy expire.

Hillery v. Allstate Indemnity Company
2010 U.S. Dist. LEXIS 32939 [lexis.com] (S.D.Ala., April 2, 2010)
Question of Fact Regarding Policyholder's Intent to Deceive Where Policyholder Corrected False Information Prior to Coverage Determination
Question of facts existed regarding whether policyholder had intent to deceive where he initially provided inaccurate information regarding a claim, but later corrected the information well in advance of a coverage determination.  Further, under Alabama law, where an insurer establishes a prima facie case of arson, it raises an inference that the policyholder committed arson but does not entitle the insurer to summary judgment. Nonetheless, the insurer was granted summary judgment dismissing the claim because the policyholder failed to comply with the policy condition that it provide an accurate inventory of the loss.

 

Duty to Defend

Hyundai Motor America v. National Union Fire Ins Co of Pittsburgh, PA
2010 U.S. App. LEXIS 6978 [lexis.com / lexisONE] (9th Cir.(Cal.), April 5, 2010)
Patent Infringement Can Qualify As An Advertising Injury If The Patent Involved Could Be Considered An Advertising Idea
Depending on the context of the facts and circumstances of the case, patent infringement can qualify as an advertising injury if the patent involves any process or invention which could reasonably be considered an advertising idea, or expressing the same idea in different works, if the third party alleged violation of a method patent involving advertising ideas.

Medassets, Inc. v. Federal Ins. Co.
2010 U.S. Dist. LEXIS 31186 [lexis.com] (N.D.Ga., March 31, 2010)
Duty To Defend Exists Even Where There Are Allegations That Would Be Excluded Under The Policy
Policyholder brought an action against insurer alleging that the insurer had a duty to defend because only one of four counts in the underlying lawsuit alleged an action that would not be covered under the policy.  The court held that the insurer's duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy.  Thus, an insurer is obligated to defend even where the allegations of the complaint are ambiguous or incomplete with respect to the issue of insurance coverage.

 

Environmental

American Commercial Lines LLC v. Water Quality Ins. Syndicate
2010 U.S. Dist. LEXIS 33251 [lexis.com] (S.D.N.Y., March 29, 2010)
Court Holds Insurer Obligated To Continue Reimbursement Of Defense And Investigation Costs Despite Policy Limits On Indemnity For Oil Spill Claims
An unmanned barge sank and released approximately 300,000 gallons of fuel oil into the river.  As a result of the accident the policyholder, as owner of the barge, was sued for the clean-up costs. The policy required the insurer to (1) indemnify the policyholder for "such amounts as it shall have become liable to pay and shall have paid for pollution response or damages" as owner or operator of the barge, and (2) reimburse the policyholder for "certain other costs and expenses" including costs associated with the discharge of oil (Coverage A), the discharge of hazardous substances (Coverage B), and investigation and defense (Coverage C). The court held that the policy language was unambiguous and that the provision, on its face, contained no temporal or quantitative limit on the reimbursement obligation. Thus, the insurer's argument that its obligation to make payments for investigation and defense costs under Coverage C ended because payments under coverages A& B met the policy limits was deemed meritless.

House of Clean, Inc. v. St. Paul Fire and Marine Ins. Co., Inc.
2010 U.S. Dist. LEXIS 33159 [lexis.com] (D.Mass., April 2, 2010)
Question Regarding "Sudden and Accidental" Triggers Duty to Defend
Perchloroethylene was released into the ground around a dry cleaning business.  The court held that although plaintiff may not ultimately be indemnified because of a possible finding that the releases were not "sudden and accidental", the claims against plaintiff are reasonably susceptible to an interpretation that they are covered.

West Bend Mutual Ins. Co. v. United States Fidelity and Guaranty Co.
2010 U.S. App. LEXIS 6192 [lexis.com / lexisONE] (7th Cir.(Ind.), March 25, 2010)
"Motor Fuels" Includes Gasoline
Plaintiff paid $4 million to settle a class action relating to gasoline that leaked from a gas station into nearby groundwater and sought reimbursement from another insurer.  Plaintiff argued that the other insurer's policy did not expressly deny coverage for gasoline-related injuries. The policy, however, excluded coverage property damage or personal injuries related to "motor fuels", which includes gasoline.

 

Fraud

Joyce v. USA
2010 U.S. App. LEXIS 7152 [lexis.com / lexisONE] (3rd Cir.(Pa.), April 6, 2010)
Use of Insurance Funds Is Evidence of Fraudulent Intent
A sitting judge in Pennsylvania was found guilty of mail fraud due to fraudulent uninsured motorist claim. The court held that the manner in which insurance proceeds were spent was probative of intent to defraud insurance company.

Sammons v. Hartford Underwriters Ins. Co.
2010 Del. Super. LEXIS 134 [lexis.com / lexisONE] (Del. Sup. Ct., April 1, 2010)
Insurer Can Be Liable Under Consumer Fraud Act
Court denied the insurer's Motion to Dismiss Plaintiff's Consumer Fraud Act Complaint which alleged failure to pay PIP claims within 30 days constituted a violation of the CFA.

Scott v. Allstate Property & Casualty Ins. Co.
2010 U.S. Dist. LEXIS 30417 [lexis.com] (S.D.Ga., March 30, 2010)
Fraudulent Misrepresentation Does Not Bar Entire Claim
The policyholder was incarcerated at time of fire loss at her home.  Her daughter, a resident in the house, filed a claim for additional living expenses representing she was the policyholder.  The daughter was paid $2,000.  When the policyholder was released from prison she submitted a claim for structural damage to the house and loss of personal property. The insurer disclaimed coverage asserting the policy's fraud provision was breached.  The Court found daughter's misrepresentation was not material to the entire claim.  While no further additional living expenses could be paid, the structural damage and personal property claims were valid.

 

General Liability Policy Exclusions/Conditions

QBE Ins. Co. v. Couch Pipeline & Grading, Inc.
2010 Ga. App. LEXIS 309 [lexis.com / lexisONE] (Ga. App., March 26, 2010)
Business Risk Exclusions Preclude Coverage for Damage to Real Property Arising From Contractor's Defective Work Product
A grading subcontractor hired to perform certain work in the construction of an office building sued the general contractor for failing to pay the contract amount after the work was performed. The general contractor filed a counterclaim alleging that the subcontractor negligently performed the work by failing to remove unsuitable soil which prevented the building pad from being appropriately compacted.  The subcontractor's insurer sought a declaration that it was not obligated to defend or indemnify the subcontractor on the counterclaim. The court held that the policy's business risk exclusions unambiguously precluded coverage for property damage arising from the subcontractor's defective work product.

 

Life, Health, Disability and ERISA

Cotton v. Starcare Medical Group, Inc.
2010 Cal. App. LEXIS 438 [lexis.com / lexisONE] (Ca. App., March 30, 2010)
The Medicare Act did not Preempt Most of the Causes of Action
The primary issue before the court was whether the plaintiffs' causes of action were preempted, either expressly or implied, by the Medicare Act.  With the exception of one cause of action that alleged a breach of statutory duty imposed by the Knox-Keene Health Care Service Plan Action, the court held the claims were not preempted.

Dobbs v. Anthem BCBS
2010 U.S. App. LEXIS 6597 [lexis.com / lexisONE] (10th Cir.(Co.), March 31, 2010)
Pension Protection Act of 2006 Applies Retroactively
Circuit court originally vacated dismissal by district court as preempted by ERISA holding that it claims would not be preempted if it were a "governmental plan" under an amended statutory definition.  Finding that the statutory exemption for tribal government's plans applied, the court held the PPA applied retroactively and remanded for a factual determination.

Franklin Electric Co., Inc. v. Lutheran Hosp. Of Indiana
2010 Ind. App. LEXIS 518 [lexis.com / lexisONE] (Ind. App., March 31, 2010)
Applying "Fallback Rule", Father's Plan was Primary
Two health care facilities sued regarding payment of medical expenses between son's parents, who were never married.  Finding it was an error to apply the coordination of benefits language related to divorced or separated parents, the court applied the "fallback rule" in the policy, which states the policy that pays longer is first.

United Healthcare Ins. Co. v. Davis
2010 U.S. App. LEXIS 6614 [lexis.com / lexisONE] (5th Cir.(La.), March 31, 2010)
State Act Regarding Health Insurance Found to Violate Contract Clause of the Constitution
The Fifth Circuit held that "Act 479," which mandates the Office of Governmental Benefits (OGB) obtain proposals and contract with Louisiana HMOs is a violation of the Contract Clause of the U.S. Constitution, which prohibits states from passing laws that impair contracts.  In contrast, it held the Act did not violate the Commerce Clause because the market participator exception applied.

 

No-Fault

Premo v. United States
2010 U.S. App. LEXIS 6478 [lexis.com / lexisONE] (6th Cir.(Mich.), March 30, 2010)
Because of Federal Tort Claims Act, Michigan No-Fault Act Does Not Apply To the USPS
A bicyclist without automobile insurance of her own was struck and injured by a United States Postal Service ("USPS") truck. She claimed benefits pursuant to the Michigan No-Fault Automobile Insurance Act ("No-Fault Act"), under the postal service's insurance plan. The USPS declined the request and this case ensued.  On appeal from a determination by the district court judge, the 6th Circuit observed that the No-Fault Act, under which a person injured can collect no-fault benefits  without regard to fault and which, therefore imposes strict liability for economic damages in motor vehicle accident cases, conflicts with the express language of the Federal Tort Claims Act ("FTCA"), under which the federal government waives its sovereign immunity only under limited circumstances (e.g., under the FTCA, the federal government may be liable for personal injury or death caused only when by the negligent or wrongful act or omission of any government employee).  Therefore, the Court held that because the federal government could be held liable without a finding of fault pursuant to the No-Fault Act, which conflicts with the FTCA, the No-Fault Act is inapplicable and irrelevant and the plaintiff cannot recover economic damages.

Do v. Am. Family Mut. Ins. Co.
2010 Minn. LEXIS 146 [lexis.com / lexisONE] (Minn., March 25, 2010)
Minnesota's Collateral Source Statute Not Applicable To Reduce No-Fault Award
The plaintiff brought an action against his automobile insurer seeking no-fault medical expense benefits related to a motor vehicle accident.  Following a jury verdict awarding him damages, the district court reduced the award by the amount the plaintiff received in settlement from the at-fault driver in the tort action, holding that the payment was a "collateral source" under Minnesota's collateral source statute. The intermediate appellate court affirmed, but the Supreme Court reversed, concluding that a payment made by a tortfeasor's automobile insurer is not a collateral source under the collateral source statute.  The Court held that because a payment made by a tortfeasor to an injured party is a direct source rather than a collateral source, the latter meaning a source unrelated to and unconnected with the tortfeasor, such payments are not "collateral source" payments for purposes of the collateral source statute.

 

Occurrence/Trigger of Coverage

Silgan Containers Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa.
2010 U.S. Dist. LEXIS 30100 [lexis.com] (N.D.Cal., March 29, 2010)
Excess Insurer Has No Duty to Indemnify
Plaintiff manufactured defective pull-tab cans and its customer sought to recover damages as a result.  The court held that plaintiff failed to demonstrate that the loss of fruit as a result of the defective containers constitutes either "physical injury to tangible property" or "loss of use of tangible property that is not physically injured".  Accordingly, the excess insurer's duty to pay for the customer's loss of fruit is not triggered by the policy.

Ace American Ins. Co. v. RC2 Corporation, Inc.
2010 U.S. App. LEXIS 7018 [lexis.com / lexisONE] (7th Cir.(Ill.), April 5, 2010)
"Occurrence" Triggering Coverage Takes Place Where Harm Occurs, Not Where Antecedent Negligent Acts Occur
A toy company that designs and produces children's toys manufactured in China was sued in several class action suits due to the existence of lead paint in its products.  The toy company sought coverage under its various commercial general liability policies, including a policy that applied internationally but expressly excluded occurrences that took place within the United States.  The court disregarded the toy company's contention that an occurrence took place when the products were negligently manufactured in China and held that the occurrence that triggers coverage took place where the actual event that inflicts the harm occurs, the United States.

Universal Image Productions, Inc. v. The Chubb Corporation
2010 U.S. Dist. LEXIS 29532 [lexis.com] (E.D.Mich., March 29, 2010)
Summary Judgment Granted to Insurer
Plaintiff sought coverage for damages relating to foul odors from mold.  The court dismissed plaintiff's claim because it failed to show a direct physical loss under the policy, including structural or any other tangible damage other than foul odors and the presence of mold.

 

Other Insurance

American  Serv. Ins. Co. v. Jones
2010 Ill. App. LEXIS 273 [lexis.com / lexisONE] (Ill. Ct. App., March 31, 2010)
Auto Insurers Ordered to Prorate Loss Between Policies
A moving company procured insurance covering its two trucks for personal moving services. The company then rented a truck from a truck rental business, which also had auto insurance. The driver of the rental truck was involved in an accident. The insurer of the moving company and insurer of the rental truck disagreed about the priority of coverage. The court held that that the insurer of the rental truck provided primary coverage for public policy reasons because the rental truck company failed to offer the moving company the choice of primary coverage. It also held, however, that the insurer of the moving company was obligated to provide primary coverage pursuant to the Illinois Transportation Act. Thus, the court held that the policies cancelled each other out and that the loss must be prorated between them.

Travelers Lloyds Ins. Co. v. Pacific Employers Ins. Co.
2010 U.S. App. LEXIS 7113 [lexis.com / lexisONE] (5th Cir.(Tex.), April 6, 2010)
"Other Insurance" Clauses Conflict, Impose Coverage Obligation on Both Insurers
The tenant of certain premises obtained liability insurance containing additional insured coverage for the premises owner with respect to liability arising from the tenant's operations or premises owned or rented by the tenant. The owner tendered its defense and indemnity to the tenant's insurer after it was sued by a customer for injuries sustained upon exiting the premises. The Fifth Circuit held that the owner was entitled to additional insured coverage from the tenant's insurer. Inasmuch as the owner's policy and tenant's policy contained conflicting "other insurance" clauses, the Fifth Circuit held that both insurers were obligated to share in the owner's defense costs in an amount proportionate to the coverage each policy provided.

 

Professional Liability

Associated Community Bancorp, Inc. v. The Travelers Co., Inc.
2010 U.S. Dist. LEXIS 34799 [lexis.com] (D.Conn., April 8, 2010)
Insolvency Exclusion Bars Coverage for Madoff Related Suit
CCB, Westport, and Clark are defendants in four pending lawsuits arising out of the Ponzi scheme run by Bernie Madoff. The insurer denied coverage asserting a number of policy exclusions, including the insolvency exclusion. With respect to this exclusion, the court noted that the policy excluded coverage for any loss resulting from a claim "made against any insured...based upon or arising out of...the insolvency ...or financial inability to pay...by any investment company, broker, or dealer...in securities or commodities."  The court noted that Connecticut courts have routinely applied a broad interpretation of the phrase "arising out of" and in applying the terms of the exclusion to the facts here, the court concluded that the underlying lawsuits were certainly connected with, incident to, or flow out of Madoff's insolvency. Had Madoff not become insolvent and lost the investor's money, the investors would have no damages and thus no reason to file suit against Westport.

C. Ingram Co. v. Philadelphia Indem. Ins. Co.
2010 Ga. App. LEXIS 376 [lexis.com / lexisONE] (Ga. Ct. of App., April 7, 2010)
Prior Knowledge Exclusion Bars Coverage
The policyholder was retained by a client to file an action to foreclose on a mechanic's lien in excess of $600,000.  The policyholder failed to file the action within the statute of limitations.  On August 7, 2003, the client filed suit alleging legal malpractice.  Upon review of the record, the court concluded that it was apparent that the policyholder learned of the potential malpractice action as early as November 2001 when the policyholder was informed that it failed to timely file the mechanics lien litigation. Accordingly, the court held that the exclusion was triggered, and coverage was properly denied.

Medford v. Lavergne
2010 U.S. Dist. LEXIS 31646 [lexis.com] (W.D.La., March 31, 2010)
Insured Versus Insured Provision Bars Coverage
The plaintiff is the CEO and Chairman of a company.  He filed suit against a former manager of the company, contending that the former manager "commenced a campaign designed to undermine the integrity and credibility. . .of [the plaintiff] in the eyes of [the company's] text membership and management."  The court stated that it was apparent that both the plaintiff and former manager qualified as insureds under the policy.  Accordingly, the insured versus insured provision was triggered, and there was no coverage for the defamation claims.

Pendergest-Holt  v. Certain Underwriters At Lloyd's Of London
2010 U.S. App. LEXIS 5384 [lexis.com / lexisONE] (5th Cir. (Tex.), March 15, 2010)
Fifth Circuit Decides Expedited Appeal - Affirms Duty to Defend Stanford Defendants
It has been widely reported that about a year ago the SEC sued three companies founded by R. Allen Stanford and three individual defendants alleging that Stanford and his cohorts had engaged in a Ponzi scheme through the sale of sham certificates of deposit evidencing billions of dollars of investments. The government subsequently brought a parallel criminal action against these same executives and James Davis, a former executive. On August 27, 2009, Davis entered a guilty plea to charges of mail fraud, conspiracy to violate the mail, wire and securities fraud law, and conspiracy to obstruct a proceeding before the SEC. On November 16, 2009, the defendant insurer advised the policyholders that it was denying coverage as of August 27, 2009 based on the Money Laundering exclusion included within the D&O policy. The Circuit Court determined that the insurer must pay legal costs incurred by the policyholders in defending against the allegations "until such time that it is determined that the alleged act or alleged acts did in fact occur." Consequently, the insurer could not immediately withdraw coverage based upon money laundering claims being levied against the policyholders.

Trice, Geary & Myers, LLC V. Camico Mut. Ins. Co.,
2010 U.S. Dist. LEXIS 28541 [lexis.com] (N.D.Md., March 25, 2010)
No Duty to Defend Accountant in Third-Party Action
An accounting firm purchased a claims-made and reported accountant's professional liability policy from defendant.  A principal of the firm was a certified public account and qualified as an insured under the policy.  The policy agreed to indemnify and defend the principal against claims arising out of its professional service. However, activities performed by an insured in his or her capacity as an agent or broker for the placement or renewal of insurance products or for the sale of annuities were not considered professional services. A third-party complaint was eventually filed naming the principal and the firm as third-party defendants. The court noted that the allegations in the underlying action arose out of the principal's sale and promotion of the benefit plan in his capacity as an agent or broker for Hartford. Therefore, the special exclusion endorsement clearly applied and precluded coverage.

 

Regulation

Shopping Center Management v. Arch Specialty Insurance Company
2010 U.S. Dist. LEXIS 31196 [lexis.com] (S.D.Fla., March 31, 2010)
Surplus Lines Insurer Required to Comply with Florida Claims Administration Statute
Policy required the policyholder to obtain additional insured coverage and indemnification agreement from subcontractors, or its self-insured retention would increase from $50,000 to $1,000,000. The policyholder and insurer disputed the applicable SIR based upon the insurer's alleged violation of the Florida Claims Administration Statute.  The insurer was a surplus lines insurer.  The applicable statute, Florida Claims Administration Statute Section 627.426(2) was amended in June 2009 to specifically state that the section did not apply to surplus lines.  By its own terms, the statute applied to suits filed after May 15, 2009. Since the lawsuit was filed before the effective date of the statute, the FCA applied to the insurer.

Prime Rate Premium Finance Corporation, Inc. v. Maryland Insurance Administration
2010 Md. App. LEXIS 53 [lexis.com / lexisONE] (Ct. Special Appeals, Md., March 31, 2010)
Premium Finance Agreement Properly Rejected by Insurance Administration
Proposed premium finance agreement was properly rejected by the Insurance Administration because it required the insured to agree that any premium refund due could be applied to prior debts. Maryland law required that premium finance companies refund unearned premiums.  The company argued that the statute was read too narrowly, and it allowed set offs for other debts.  The court disagreed and applied the statute as written, holding that the term "premium finance agreement" applied only to a single agreement and therefore, no set off was allowed.

 

Reinsurance

Continental Casualty Company v. AXA Global Risks (UK) Limited, et al
2010 U.S. Dist. LEXIS 32850 [lexis.com] (W.D.Mo., April 2, 2010)
The District Court denied a motion by defendant to dismiss or stay the litigation brought by plaintiff because of the lawsuit initiated by the defendant on the same issues pending in London.  Defendant argued that they had filed their action in London first and that the alleged "filed-first" rule mandated that the United States action be dismissed.  In denying the motion, the Court noted that the "file-first rule" is not a rule per se, but a factor used in determining which of two concurrent federal actions should proceed to judgment.  Further, the Court held that the "rule" has never been and was not meant to be applied where the two courts involved are not of the same Sovereignty. 

 

Uninsured Motorist/Supplementary Uninsured Motorist

Wagenmaker v. Amica Mut. Ins. Co.
2010 U.S. App. LEXIS 6151 [lexis.com / lexisONE] (1st Cir.(R.I.), March 25, 2010)
Terms of the Policy Include the Declarations Page
The plaintiff claimed uninsured motorist benefits from that vehicle's insurer, which denied the claim on the ground that the vehicle had no uninsured motorist coverage, it having been cancelled at the insured's request some nine months before the motor vehicle accident. The change was reflected in the policy's amended declarations page, which clearly indicated that the vehicle was "NOT COVERED" for damages by an uninsured driver.  The plaintiff challenged the denial, arguing that the declaration meant nothing and that the terms of the policy, which provided that the insured would pay any damages that a passenger in a "covered auto" was entitled to collect from an uninsured driver and that the vehicle in which she was a passenger was a "covered auto" under the policy. Since the declarations page of subject policy unambiguously stated that there was no uninsured motorist coverage for the vehicle in which the Plaintiff was a passenger, she was not entitled to uninsured motorist coverage.

 

This edition of CaseWatch: Insurance was originally published in the The Insurance and Reinsurance Report blog.

CaseWatch: Insurance provides timely summaries of and access to insurance law decisions and legislation. It is distributed bi-weekly. For ease of reference, the cases are organized by topic. CaseWatch is the collaborative effort of Goldberg Segalla LLP's Global Insurance Services Practice Group, as is its blog The Insurance and Reinsurance Report. Goldberg Segalla's Global Insurance Service Group is comprised of over 25 attorneys throughout 10 offices in the firm's four states (New York, New Jersey, Connecticut, and Pennsylvania). The Global Insurance Services Group routinely handles matter of national and international importance for both domestic and foreign insurers, cedents and reinsurers. This includes: comprehensive audits, policy reviews, regulatory advice,  positioning dispute for resolution at the business level (either through interim funding or non-waiver agreements), negotiations among counsel, mediation or fully-involved arbitration or litigation.

 

The editors, Daniel W. Gerber and Sarah J. Delaney appreciate your interest and welcome your feedback.

 

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