Mealey's Insurance - 3rd Circuit: Defendant May Rely On Plaintiff's Statements For Proof Of Numerosity

PHILADELPHIA - The defendant in an insurance breach-of-contract class complaint may rely on statements made by the lead plaintiff regarding the class size to prove numerosity, the Third Circuit U.S. Court of Appeals ruled Dec. 12, partially reversing a District Court's ruling (Francine Judon, et al. v. Travelers Property Casualty Company of America, Nos. 14-3406 and 14-4099, 3rd Cir.; 2014 U.S. App. LEXIS 23554).

Mealey's Litigation Procedure - Judge Partially Grants Protective Order In Bad Faith Lawsuit

SEATTLE - A federal judge in Washington on Dec. 15 granted in part and denied in part an insurer's motion for a protective order in a breach of contract and insurance bad faith lawsuit, ruling that the insurer is not required to "produce loss reserve documents that are entitled to work product or attorney-client privilege" (Theresa L. Schreib v. American Family Mutual Insurance Co., No. 14-0165, W.D. Wash.; 2014 U.S. Dist. LEXIS 172973).

Mealey's PI/Product Liability - Judge: Agreement Did Not Bar Sale Of Condos With Chinese Drywall

MOBILE, Ala. - A 2012 settlement agreement between plaintiffs and a property holdings company accused of breach of contract did not preclude the defendant from selling seven Chinese drywall-containing condominiums at issue, a federal judge in Alabama ruled Dec. 16, because there was no such language in the agreement (Sundance LLC v. SE Property Holdings LLC, No. 14-0115-WS-C, S.D. Ala.; 2014 U.S. Dist. LEXIS 173212).

Mealey's Litigation Procedure - 3rd Circuit: Defendant May Rely On Plaintiff's Statements For Proof Of Numerosity

PHILADELPHIA - The defendant in an insurance breach-of-contract class complaint may rely on statements made by the lead plaintiff regarding the class size to prove numerosity, the Third Circuit U.S. Court of Appeals ruled Dec. 12, partially reversing a District Court's ruling (Francine Judon, et al. v. Travelers Property Casualty Company of America, Nos. 14-3406 and 14-4099, 3rd Cir.; 2014 U.S. App. LEXIS 23554).

Mealey's Insurance - Judge Partially Grants Protective Order In Bad Faith Lawsuit

SEATTLE - A federal judge in Washington on Dec. 15 granted in part and denied in part an insurer's motion for a protective order in a breach of contract and insurance bad faith lawsuit, ruling that the insurer is not required to "produce loss reserve documents that are entitled to work product or attorney-client privilege" (Theresa L. Schreib v. American Family Mutual Insurance Co., No. 14-0165, W.D. Wash.; 2014 U.S. Dist. LEXIS 172973).

Mealey's Insurance - Judge: Field Adjuster Was Improperly Joined In Bad Faith Lawsuit

DALLAS - Because an insurer, adjusting company and field adjuster have properly shown that the field adjuster was improperly joined in an insurance breach of contract and bad faith lawsuit, the parties in the action are completely diverse and remand of the action to state court is not proper, a federal judge in Texas ruled Dec. 11 (One Way Investments Inc. v. Century Surety Co., et al., No. 14-2839, N.D. Texas; 204 U.S. Dist. LEXIS 171357).

Mealey's Insurance - Judge: Insurer Had No Duty To Defend Negligence, Breach Of Contract Claims

MISSOULA, Mont. - A commercial general liability insurer had no duty to defend negligence and breach of contract claims arising out of an insured's alleged deficient work, a Montana federal judge ruled Dec. 10 (RQR Development LLC v. Atlantic Casualty Insurance Co., No. 14-118, D. Mont.; 2014 U.S. Dist. LEXIS 171084).

Mealey's Insurance - Missouri High Court: Insurer Not Entitled To Summary Judgment In Bad Faith Suit

JEFFERSON CITY, Mo. - A primary insurer failed to show that it was entitled to summary judgment on a claim for bad faith refusal to settle claim with an excess insurer, the Missouri Supreme Court ruled Dec. 9, in reversing and remanding an insurance breach of contract and bad faith lawsuit to a state circuit court (Scottsdale Insurance Co., et al. v. Addison Insurance Co., et al., No. SC93792, Mo. Sup.; 2014 Mo. LEXIS 335).

Mealey's Insurance - Judge: Insured's Claims Of Wrongful Investigation, Denial Of Coverage Fail

MCALLEN, Texas - Allegations that an insurer wrongly investigated or denied a claim for hailstorm damage fail, a Texas federal judge held Dec. 9, granting summary judgment to the insurer on claims for breach of contract, Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) violations, unfair insurance practices and breach of the duty of good faith and fair dealing (Carlos Alaniz v. Sirius International Insurance Corp., No. 14-215, S.D. Texas; 2014 U.S. Dist. LEXIS 169908).

Mealey's Insurance - Judge: Insured May Not Seek Punitive Damages On Breach Of Contract Claim

OKLAHOMA CITY - A federal judge in Oklahoma on Dec. 5 granted in part and denied in part an insurer's motion to dismiss in a breach of contract and insurance bad faith lawsuit, ruling that although an insured may not seek punitive damages on a breach of contract claim, if successful, they may be sought on the insured's bad faith claim (SAB One Inc. v. The Travelers Indemnity Company of Connecticut, No. 14-1085, W.D. Okla.; 2014 U.S. Dist. LEXIS 169036).

Mealey's PI/Product Liability - Estate Can Sue Insurer, But Exclusion Prevents It From Collecting $9.5M Judgment

TALLAHASSEE, Fla. - Answering three certified questions from the 11th Circuit U.S. Court of Appeals in the affirmative, the Florida Supreme Court on Dec. 4 found that although the estate of a deceased employee of an insured has standing to bring a breach of contract lawsuit against the insured's employer's workers' compensation and employer liability insurer, a workers' compensation exclusion and release prevent the estate from collecting a $9.5 million wrongful death judgment from the insurer (Leticia Morales, et al. v. Zenith Insurance Co., No. SC13-696, Fla. Sup.; 2014 Fla. LEXIS 3555).

Mealey's Labor & Employment - Estate Can Sue Insurer, But Exclusion Prevents It From Collecting $9.5M Judgment

TALLAHASSEE, Fla. - Answering three certified questions from the 11th Circuit U.S. Court of Appeals in the affirmative, the Florida Supreme Court on Dec. 4 found that although the estate of a deceased employee of an insured has standing to bring a breach of contract lawsuit against the insured's employer's workers' compensation and employer liability insurer, a workers' compensation exclusion and release prevent the estate from collecting a $9.5 million wrongful death judgment from the insurer (Leticia Morales, et al. v. Zenith Insurance Co., No. SC13-696, Fla. Sup.; 2014 Fla. LEXIS 3555).

Mealey's Insurance - Estate Can Sue Insurer, But Exclusion Prevents It From Collecting $9.5M Judgment

TALLAHASSEE, Fla. - Answering three certified questions from the 11th Circuit U.S. Court of Appeals in the affirmative, the Florida Supreme Court on Dec. 4 found that although the estate of a deceased employee of an insured has standing to bring a breach of contract lawsuit against the insured's employer's workers' compensation and employer liability insurer, a workers' compensation exclusion and release prevent the estate from collecting a $9.5 million wrongful death judgment from the insurer (Leticia Morales, et al. v. Zenith Insurance Co., No. SC13-696, Fla. Sup.; 2014 Fla. LEXIS 3555).

Mealey's Insurance - Federal Judge Grants Jurisdictional Discovery In Insurance Bad Faith Suit

OKLAHOMA CITY - A federal judge in Oklahoma on Dec. 4 granted an insurer's motion for jurisdictional discovery in an insurance breach of contract and bad faith lawsuit, ruling that such discovery is in the best interest of the action overall as a way of preventing the action from "bounc[ing] back and forth between state and federal courts" (Timothy Misner, et al. v. State Farm Fire and Casualty Co., No. 14-873, W.D. Okla.; 2014 U.S. Dist. LEXIS 168007).

Mealey's Insurance - Magistrate: Attorney-Client Privilege Requires Intent To Confer Agent Status

NEW YORK - Concluding that underlying plaintiffs in a breach of insurance contract lawsuit never intended to confer agent status on a broker, a New York federal magistrate judge on Dec. 2 denied a lawyer's motion to quash discovery of his communications with the broker under an assertion of attorney-client privilege (La Suisse, Societe D'Assurances Sur La Vie n/k/a Swiss Life AG v. Moses Krause, et al., No. 1:06-cv-04404, S.D. N.Y.; 2014 U.S. Dist. LEXIS 166673).

Mealey's Litigation Procedure - Magistrate: Attorney-Client Privilege Requires Intent To Confer Agent Status

NEW YORK - Concluding that underlying plaintiffs in a breach of insurance contract lawsuit never intended to confer agent status on a broker, a New York federal magistrate judge on Dec. 2 denied a lawyer's motion to quash discovery of his communications with the broker under an assertion of attorney-client privilege (La Suisse, Societe D'Assurances Sur La Vie n/k/a Swiss Life AG v. Moses Krause, et al., No. 1:06-cv-04404, S.D. N.Y.; 2014 U.S. Dist. LEXIS 166673).

Mealey's Insurance - Credentialing Is Professional Service; Coverage Barred By Exclusion, Judge Rules

MINNEAPOLIS - A Minnesota federal judge on Dec. 2 entered judgment in favor of an insurer one day after concluding that a professional services policy exclusion bars coverage for underlying negligence claims brought against the insured by claimants who alleged that they contracted hepatitis C from tainted syringes (Assurance Company of America v. The American Registry of Radiologic Technologists, No. 13-1136, D. Minn.; 2014 U.S. Dist. LEXIS 166852).

Mealey's Litigation Procedure - Federal Judge Grants Injunction Barring FINRA Arbitration

NEW YORK - After finding that Luxembourg and Canadian corporations showed the necessary elements for a preliminary injunction, a New York federal judge on Dec. 1 granted their request to enjoin a partnership and a corporation from arbitrating a breach of contract dispute before the Financial Industry Regulatory Authority (FINRA) (Pictet Funds [Europe] S.A., et al. v. Emerging Managers Group L.P., et al., No. 14-cv-6854, S.D. N.Y.; 2014 U.S. Dist. LEXIS 166477).

Mealey's Insurance - Federal Judge Rejects Suit Seeking Additional Coverage For Hurricane Irene Damage

RALEIGH, N.C. - Finding that an insured failed to submit a timely and properly documented amended proof of loss for additional Hurricane Irene damage, a North Carolina federal judge on Nov. 26 granted summary judgment in favor of a federal flood insurer on the insured's breach of contract claim (Gladys Greene v. Nationwide Mutual Fire Insurance Co., No. 13-255, E.D. N.C.; 2014 U.S. Dist. LEXIS 165951).

Mealey's Toxic Tort/Environmental - Texas Judge Sets Dates For Discovery, Trial In Fracking Contract Dispute

HOUSTON - The federal judge in Texas presiding over a contract dispute between a hydraulic fracturing company and another company that provided technology services for the operation of the fracking business on Dec. 1 issued an order setting the deadline for discovery, mediation and eventual trial, if necessary (Southwestern Energy Production Co. v. Crawford Technical Services LLC, No. H-14-1742, S.D. Texas).

Mealey's IP/Tech - Connecticut Federal Judge Won't Allow Amended Complaint, Patent Claims

HARTFORD, Conn. - More than a year after dismissing a breach of contract case for lack of subject matter jurisdiction, a Connecticut federal judge on Dec. 1 denied a plaintiff's request to add new allegations of patent infringement in an effort to overcome the previous dismissal (Joseph Faryniarz v. Jose E. Ramirez Jr., et al., No. 13-1064, D. Conn.).

Mealey's Toxic Tort/Environmental - Gas Exploration Company Sues Fracking Operator For Share Of Oil And Gas Assets

HOUSTON - An oil and gas exploration company on Nov. 25 filed a complaint in the U.S. District Court for the Southern District of Texas against a hydraulic fracturing company, contending that it has breached its contract by not offering the exploration company an opportunity to purchase a proportionate share of oil and gas assets the exploration company says it is due under a contract with a previous company (Energy & Exploration Partners LLC v. New Gulf Resources LLC, No. 14-03375, S.D. Texas).

Mealey's Insurance - Panel Reverses Judgment Based On Fact Issues Over Additional-Insured Status

PHOENIX - Claims for breach of contract and breach of the implied covenant of good faith and fair dealing against an insurer relate to whether a contractor was entitled to coverage as an "additional insured" under insurance policies issued to a subcontractor hired by it, an Arizona appeals panel ruled Nov. 25, reversing summary judgment in favor of the insurer (KB Home Tucson Inc. v. The Charter Oak Fire Insurance Co., et al., No. 1 CA-CV 12-0681, Ariz. App., Div. 1; 2014 Ariz. App. LEXIS 228).

Mealey's Insurance - Judge Denies Summary Judgment Motions In Insurance Bad Faith Suit

MUSKOGEE, Okla. - A federal judge in Oklahoma on Nov. 20 denied opposing motions for summary judgment in an insurance breach of contract and bad faith lawsuit, ruling that questions of fact exist as to whether the insurer's claims administrator ever received the plaintiff's claim for underinsured motorist benefits under his employers' commercial insurance policy (Harold Buffington v. Arch Insurance Co., et al., No. 14-78, E.D. Okla.; 2014 U.S. Dist. LEXIS 163596).

Mealey's Insurance - Panel: Insured's Late Notice Of Breach Of Contract Suit Prejudiced Its Insurer

ATLANTA - An insurer was prejudiced by its insured's late notice in tendering a claim for an underlying breach of contract lawsuit against it for allegedly improperly applying a paint coating system to a vessel, the 11th Circuit U.S. Court of Appeals affirmed Nov. 19 (Gemini II Ltd. v. Mesa Underwriters Specialty Insurance Co. and R&L Yacht Refinishing Inc., No. 14-11623, 11th Cir.; 2014 U.S. App. LEXIS 22105).