Ten Most Significant Insurance Decisions of 2010: Case Summaries and Core Search Terms from Lexis.com

The following ten cases were selected by White & Williams LLP partners Randy J. Maniloff and Joshua A. Mooney for analysis in their annual article Endurance Coverage 2010: The Year’s Ten Most Significant Insurance Decisions Reaches the Decade Mark.  What follows are summaries and core search terms for each case from lexis.com. Also included are links to the enhanced version of each case (for Community members who are lexis.com subscribers) as well as links to the un-enhanced version of each case from the Free Case Law search on lexisONE.

The full version of the Maniloff/Mooney commentary is available as a FREE DOWNLOAD on the Insurance Law Community.

1. Pharmacists Mut. Ins. Co. v. Myer, Cooper and MMG Ins. Co., No. 08-405, SUPREME COURT OF VERMONT, 2010 VT 10; 187 Vt. 323; 993 A.2d 413; 2010 Vt. LEXIS 6, February 4, 2010, Filed
OVERVIEW:  It was error to enter summary judgment for an insurer with regard to its duty to defend or indemnify the insured in an underlying defamation case. The jury in that case had been directed to determine whether certain statements were made negligently, and an exclusion did not bar coverage of the statements that it found to have been made negligently.
CORE TERMS:  coverage, insured, insurer, defamation, defamatory statements, uncovered, negligently, duty to defend, special interrogatory, interrogatories ...
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Pharmacists Mut. Ins. Co. v. Myer, Cooper and MMG Ins. Co., 2010 VT 10 (Vt. 2010)
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2. Medical Protective Co. v. Bubenik, No. 09-2324, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 594 F.3d 1047; 2010 U.S. App. LEXIS 3176, January 12, 2010, Submitted, February 18, 2010, Filed
OVERVIEW:  Where a dentist asserted his Fifth Amendment privilege in a malpractice action, the insurer could deny coverage due to breach of the policy's cooperation clause because, inter alia, the dentist's noncooperation substantially prejudiced the insurer's ability to defend the claims, and waiver and estoppel did not apply.
CORE TERMS:  cooperation, insured, cooperate, coverage, breached, insurer, insurance policy, interrogatory, malpractice, preparation ...
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Medical Protective Co. v. Bubenik, 594 F.3d 1047 (8th Cir. Mo. 2010)
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3. Gilbane Bldg. Co. v. Empire Steel Erectors, L.P., CIVIL ACTION H-08-1707, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION, 2010 U.S. Dist. LEXIS 121808, November 16, 2010, Decided, November 16, 2010, Filed
CORE TERMS:  insured, lawsuit, coverage, duties to defend, insurer, ladder, indemnification, bodily injury, attorneys' fees, prejudgment interest ...
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Gilbane Bldg. Co. v. Empire Steel Erectors, L.P., 2010 U.S. Dist. LEXIS 121808 (S.D. Tex. Nov. 16, 2010)

4. Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co., Nos. 09-5113/09-5136, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT,  10a0068p.06;, 598 F.3d 257; 2010 U.S. App. LEXIS 5288; 2010 FED App. 0068P (6th Cir.); 2010-1 Trade Cas. (CCH) P76,984, January 20, 2010, Argued, March 12, 2010, Decided, March 12, 2010, Filed
OVERVIEW:  An insurer was properly found to be entitled to reimbursement of its contribution to settlement costs for a lawsuit involving its insured because it provided the insured timely notice of its reservation of rights and it sought reimbursement only for its settlement contribution for claims that were not covered by the insurance policy.
CORE TERMS:  settlement, insurer, reimbursement, coverage, disparagement, insured, duty to defend, pre-judgment, machine, tortious interference ...
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Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co., 598 F.3d 257 (6th Cir. Ky. 2010)
Non-subscribers can use lexisOne’s Free Case Law search to view the free, un-enhanced version of Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co.

5. Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield, L.L.C., No. 272A08, SUPREME COURT OF NORTH CAROLINA, 364 N.C. 1; 692 S.E.2d 605; 2010 N.C. LEXIS 344, May 4, 2009, Heard in the Supreme Court, April 15, 2010, Filed
OVERVIEW:  Commercial general liability insurers were not required to defend an insured against a competitor's claims that the insured falsely advertised the attributes of its insect-repellant clothing because the insurance policies' failure to conform exclusion eliminated coverage for injury caused by false statements the insured made about its own products.
CORE TERMS:  repellent, insect, apparel, advertisement', skin, advertising, website, coverage, bite, conform ...
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Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield, L.L.C., 364 N.C. 1 (N.C. 2010)
Non-subscribers can use lexisOne’s Free Case Law search to view the free, un-enhanced version of Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield.

6. World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., S10Q0341., SUPREME COURT OF GEORGIA, 287 Ga. 149; 695 S.E.2d 6; 2010 Ga. LEXIS 365; 2010 Fulton County D. Rep. 1528, May 3, 2010, Decided
OVERVIEW:  In response to certified questions, the Supreme Court of Georgia ruled that although a written reservation of rights was not required, an insured did not effectively reserve its rights to deny coverage by advising the insured that it "did not see coverage," and relying on a written reservation issued by a sister insurer in a prior similar lawsuit.
CORE TERMS:  insured, insurer, reservation of rights, noncoverage, coverage, appearance, estopped, conclusively presumed, estoppel, lawsuit ...
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World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 287 Ga. 149 (Ga. 2010).
Non-subscribers can use lexisOne’s Free Case Law search to view the free, un-enhanced version of World Harvest Church, Inc. v. GuideOne Mut. Ins. Co.

7. Pekin Ins. Co. v. Wilson, Docket No. 108799., SUPREME COURT OF ILLINOIS, 237 Ill. 2d 446; 930 N.E.2d 1011; 2010 Ill. LEXIS 670; 341 Ill. Dec. 497, May 20, 2010, Opinion Filed,  Counsel Amended July 29, 2010.
OVERVIEW:  In an insurance company's declaratory action alleging insurer committed intentional acts excluding him from coverage, insured's counterclaim could be considered to determine application of policy's self-defense exception; such an affirmative defense would be raised pursuant to 735 ILCS 5/2-613, and only an insured would want to plead such facts.
CORE TERMS:  duty to defend, underlying lawsuit, insured, coverage, self-defense, insurer's, counterclaim, declaratory judgment, lawsuit, genuine ...
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Pekin Ins. Co. v. Wilson, 237 Ill. 2d 446 (Ill. 2010).
Non-subscribers can use lexisOne’s Free Case Law search to view the free, un-enhanced version of Pekin Ins. Co. v. Wilson.

8. C.R.S.A. § 13-20-808 (Colorado): ‘An Act Concerning Commercial Liability Insurance Policies Issued To Construction Professionals’
OVERVIEW: In requiring courts interpreting liability insurance policies issued to construction professionals to presume that the construction professional’s work that results in property damage, including damage to the work itself, is an accident unless the property damage is intended and expected by the insured, Colorado General assembly determined that an insured’s own work that is faulty DOES qualify as having been caused by an accident, i.e., an “occurrence.”
CORE TERMS:  occurrence, faulty workmanship, property damage, CGL policy, construction defects, construction professional, accident . . .
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C.R.S. 13-20-808.

9. Flomerfelt v. Cardiello, A-4 September Term 2009, SUPREME COURT OF NEW JERSEY, 202 N.J. 432; 997 A.2d 991; 2010 N.J. LEXIS 546, November 9, 2009, Argued, July 7, 2010, Decided
OVERVIEW:  Where insurer refused to indemnify insured from woman's suit alleging she was injured by overdosing on alcohol and/or drugs he gave her, based on policy's exclusion of claims "arising out of" transfer of illegal drugs, its duty to defend attached as some theories of liability advanced in complaint would not be excluded from coverage under policy.
CORE TERMS:  insured, coverage, insurer, alcohol, duty to defend, indemnify, nexus, illegal drugs, insurer's duty to defend, policy's exclusion ...
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Flomerfelt v. Cardiello, 202 N.J. 432 (N.J. 2010)
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10. State Auto. Mut. Ins. Co. v. Flexdar, Inc., No. 49A02-1002-PL-00111, COURT OF APPEALS OF INDIANA, 937 N.E.2d 1203; 2010 Ind. App. LEXIS 2170, November 22, 2010, Decided, November 22, 2010, Filed
OVERVIEW:  Trial court properly excluded new policy endorsement drafted by insurer that specifically identified trichloroethylene (TCE) as example of pollutants for purposes of  pollution exclusion as such modifications constituted subsequent remedial clarifications which were not admissible to interpret insured's existing CGL policy under Ind. R. Evid. 407.
CORE TERMS:  pollution exclusion, insured, coverage, pollutant, ambiguous, insurer, endorsement, summary judgment, insurance policies, contaminant ...
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State Auto. Mut. Ins. Co. v. Flexdar, Inc., 937 N.E.2d 1203 (Ind. Ct. App. 2010).
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