California Court Denies Summary Judgment on Known Conditions Exclusion

In its recent decision in Lennar Mare Island v. Steadfast Ins. Co ., 2014 U.S. Dist. LEXIS 26405, [ enhanced version available to lexis.com subscribers ], the United States District Court for the Eastern District of California had occasion to consider the relationship between a fixed site pollution liability...

OMG: The Strangest Pollution Exclusion Case You Have Ever Seen

[While Coverage Opinions likes to kid around, the following summary involves a real case. You can look it up. 2014 U.S. Dist. LEXIS 59278] I have been a student of the pollution exclusion for many years. I can’t even begin to imagine how many pollution exclusion cases I have read. I recently...

Don’t Let a Viable Defendant Walk Free

I have many times in this space cautioned against giving up the ability to sue and collect from a viable defendant with assets to seek damages from an insurer. In Jennifer A. Stephens, as Personal Representative of the Estate of Charles Eugene Becker and as Assignee of Anchorage Homes, LLC, Plaintiff...

West Virginia Reviews Attorney-Client Privilege in Insurer/Coverage Counsel Extra-Contractual Claims

By Mark G. Jeffries, Associate On April 10, 2014, the West Virginia Supreme Court of Appeals held in State ex rel. Montpelier U.S. Ins. Co. and Charleston, Revich & Wollitz LLP that the attorney-client privilege protects confidential communications between an insurer and its coverage counsel...

I See Dead People Causing Coverage Disputes

Look, it’s not pleasant, but when you are involved in liability claims you will be forced to confront scenarios involving death. It’s simply the nature of the beast. Liability insurance claims are, by their nature, all about when things go wrong. And when things go wrong – really wrong...

Pennsylvania Superior Court Opens Door to Coverage of Faulty Workmanship Claims

By Darin J. McMullen Pennsylvania policyholders can more confidently challenge insurance companies' denials of faulty workmanship claims following the Pennsylvania Superior Court's recent opinion in Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2013 Pa. Super 311 (Dec...

Insurance Coverage for Wage and Hour Claims

By David A. Gauntlett, Principal, Gauntlett & Associates Litigation contending wage and hour law violations has escalated rapidly in recent years. Virtually every business, especially those in California, is susceptible to claims by an increasingly vigorous plaintiff’s bar, including...

Federal Court Answers The Question : “What Is A ‘Commercial General Liability Insurance’ Policy?”

The issue before the Southern District of Texas in Pac-Van, Inc. v. CHS, Inc., No. 12-341 (S.D. Tex. Mar. 31, 2014) [ enhanced version available to lexis.com subscribers ] -- just what is a commercial general liability insurance policy anyway -- isn’t likely to arise too often. Since this may be...

Punitive Damages: Insurable In 38 States – The Sometimes Oversimplified Issue

It is a question that is uttered by claims professionals and coverage counsel on a regular basis: Are punitive damages insurable in such and such state? In essence, what the questioner is often asking is whether the particular state’s public policy permits a tortfeasor to insure against punitive...

Chickens And Eggs: What Comes First – Underlying Case Or Coverage Case?

It is one of the most frequently occurring and important issues on the coverage landscape. Yet, for some reason, guidance can sometimes be unclear, inconsistent or just plain elusive. Here is the scenario. An insurer is defending its insured in an underlying action under a reservation of rights. Uncertainty...

Construction Defects and the Space Between: Gap and Overlap In the Combined Coverage of Performance Bonds and CGL Policies for Construction Defects

By Thomas Rush and David A. Attisani Among other harbingers of a gradually convalescing economy, construction activity is on the rise, and is projected to remain on that trajectory throughout 2014. As a consequence of such growth, there will also be an increase in construction-related loss and...

Effect of “Assault & Battery” Exclusion: Entire Policy Must Be Read to Interpret Policy

Insurance policies, contrary to the belief of some members of the plaintiffs’ bar, are nothing more than a contract that needs to be interpreted like any other contract. In so doing the entire contract must be read to determine the intent of the parties to the contract. In Certain Interested...

Pet Insurance Bill Provides Important Consumer Protection For Rapidly Growing Market

Pet insurance industry to reach $750 million by 2015 as Americans increase spending on veterinary care. Within California's economy, the pet insurance market is rapidly growing and expected to reach $750 million by next year. AB 2056 (Matt Dababneh), [ enhanced version available to lexis.com...

You Won’t Believe This Case -- I Did Not Make This Up. Really!

Imagine this scenario for a second. A man is having marital problems. So he takes the not unreasonable step of visiting his priest to seek guidance. Unbeknownst to the man, however, the priest has been having an intimate relationship with the man’s wife. The priest fails to mention this detail...

Federal Court Lists 10 Requirements For A Reservation Of Rights Letter

“What’s in a name? That which we call a rose by any other name would smell as sweet.” William Shakespeare, “Romeo and Juliet,” Act II, Scene 2. [Well, actually, Wikipedia.] But the same cannot be said of reservation of rights letters. In fact, just the opposite. A letter...

A Dog Bite Coverage Case Gets To A Supreme Court

I love dogs. I love coverage cases. So do the math -- I love dog bite coverage cases. On one hand, I’m glad that there are so many of them. On the other hand, a lot of dog bite coverage cases can mean only one thing -- there are a lot of dog bites. And that’s not a good thing. So it’s...

State Farm’s Relentless Pursuit to Deny Coverage for TCPA Cases

As policyholder lawyers, one can usually count on a few basic mistakes that insurers will make. First, they wrongfully deny coverage and fail to defend. They abandon their insured who is then left to its own devices to protect itself. The policyholder enters into a consent judgment or settlement with...

Below-Limits Settlements Do Not Result In The Loss Of Excess Coverage - Zeig Remains Guiding Precedent, Even Post-Ali

By Adam G. Unikowsky, Attorney, Jenner & Block LLP Excess insurance policies typically include provisions stating that the policyholder cannot pursue coverage from the excess insurer until the policyholder has received payment from the underlying insurers. One of the most frequently-litigated...

Must Insured First Prove Prima Facie Case? An LLC Is Not an Employee

When an insured acquires an insurance policy the insured promises, among other things, to first prove that when presenting a claim for indemnity the Insured will establish a prima facie (on its face) case that coverage is available. In Network F.O.B., Inc. v. Great American Ins. Co. of New York , Slip...

Notable Insurance Coverage Rulings in the First Half of 2014

By Jonathan Hardin and Feola Odeyemi 2014 is shaping up to be a momentous year in insurance coverage law. State and federal courts have already issued several important coverage decisions this year that nevertheless may have slipped "under the radar." This commentary examines such key rulings...

California Supreme Court Refines the Tort of Commercial Disparagement

The California Supreme Court has issued its decision in the closely watched case of Hartford Casualty Insurance v. Swift Distribution, Inc. , S207172. I reported on the Court of Appeals decision last year on this blog in the post "California Supreme Court to Decide Scope of Implied Disparagement;...

D&O Coverage: The Devil Is In the Details

A five-paragraph opinion by the New York Appellate Division suggests the potentially devastating consequences of ignoring the fine print of Directors & Officers Liability insurance policies. In Associated Community Bancorp., Inc., et al. v. St. Paul Mercury Ins. Co. , 2014 NY Slip Op 04697 (App....

Court Finds Coverage For Settlement Of Restitution Claim

Insurers often take the position that indemnification for claims for “restitution” are barred by public policy, and contend they have no obligation to reimburse a settlement of such claims. They often take this position even if the policy itself states that coverage can only be denied if...

Oops, Insurer’s Poorly Drafted Language Applied As Written; Double Oops, Insured Can’t Complain When New York Law is Applied After It Chose to Reject Missouri Tax

By Jill Berkeley , Partner, Neal, Gerber & Eisenberg LLP An insured under an errors and omissions policy gives timely notice of circumstances during the policy period in effect when it first became aware of its potential civil liability. The E&O insurer acknowledges notice. Many years later...

A-L-I Opener: More On Chapter 3 Of The ALI Principles

In the last issue of Coverage Opinions I took a brief look at what’s up next for the American Law Institute’s “Principles of the Law of Liability Insurance” Project: Chapter 3. In particular I discussed the Principles’s proposed definition of “accident.” It is...