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...

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...

“In the Business Of” Trucking

Acceptance Casualty Insurance Company (Acceptance) sought review of a published decision of the court of appeals that had affirmed the circuit court’s grant of summary judgment in favor of Great West Casualty Company (Great West). Both Acceptance and Great West issued liability insurance policies...

The Next Coverage Battle Looming?: Eliminating Coverage Under A “Standard” CGL Policy For Construction Site Bodily Injury Claims

Over the past few years insurers have been taking various affirmative steps, such as adding endorsements, to attempt to limit their exposure for bodily injury claims on construction sites (not to mention for property damage). The Eleventh Circuit just provided (for the second time in six months) the...

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...

Ninth Circuit Holds Extrinsic Facts Triggered Duty to Defend

In its decision in Burlington Ins. Co. v. CHWC, Inc ., 2014 U.S. App. LEXIS 3941 (9 th Cir. Mar. 3, 2014), [ enhanced version available to lexis.com subscribers ], the United States Court of Appeals for the Ninth Circuit, applying California law, had occasion to consider an insured’s obligation...

CGL Carrier’s Duty To Defend Was Triggered Where Non-Professional Work Was Alleged and, Therefore, the Professional Services Exclusion Did Not Apply to Remove All Possibility of Coverage

North Counties Engineering, Inc. v. State Farm General Ins. Co. , 224 Cal. App. 4th 902 (2014), [ enhanced version available to lexis.com subscribers ]. In North Counties Engineering , the California Court of Appeal held that an insurer’s duty to defend its insured under a comprehensive business...

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...

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...

Court Looks For Fair Way To Interpret Golf Cart Coverage: Insurer Gets It Rough And Insured Gets The Green

Lots of courts have addressed whether golf carts are “autos” for purposes of liability and automobile policies. I’ve confronted the issue a couple of times and it’s an interesting one. The Court of Appeals of Georgia just had a golf cart coverage case before it. But the issue...

ISO Pull Up A Stool: Federal Appeals Court Offers A Different Way To, Er, Draft A Liquor Liability Exclusion

A couple of the amendments to the 2013 version of ISO’s workhorse commercial general liability policy (CG 00 01) involve the Liquor Liability exclusion. In general, it has been amended to state that it applies even if the claims against any insured allege negligence or other wrongdoing in the supervision...

Insurer Held Not Liable for Losses Arising from the Insureds’ Alleged Ponzi Scheme Because Coverage Was Precluded By California Insurance Code Section 533

Dillon v. Continental Casualty Co. , 2014 U.S. Dist. LEXIS 41709 (N.D. Cal. Mar. 26, 2014), [ enhanced enhanced version available to lexis.com subscribers ]. In Dillon , the district court held that Insurance Code Section 533 (“Section 533”) [ enhanced version available to lexis.com subscribers...

When The Duty To Indemnify Is Broader Than The Duty To Defend

When it comes to coverage principles this one is as black as coal: the duty to defend is broader than the duty to indemnify and if an insurer does not have a duty to defend, it does not have a duty to indemnify. But in Texas it can be a different story. A determination that an insurer has no duty...

Why I Don’t Own A Stairmaster

In Landmark American Insurance Co. v. VO Remarketing Corp, No. 13-1386 (D. Colo. June 13, 2014), [ enhanced version available to lexis.com subscribers ], a Colorado federal court interpreted the terms “finally delivered” as used in the “auto exclusion” in ISO’s standard...

California Court of Appeal Holds That a CGL Policy’s Coverage for Products Liability Applies Because Food Truck Fell Under “Mobile Equipment” Exception to an “Auto” Exclusion

Am. States Ins. Co. v. Travelers Prop. Cas. Co. of Am. , 223 Cal. App. 4th 495 (2014), [ enhanced enhanced version available to lexis.com subscribers ]. In American States , the California Court of Appeal held that the primary purpose of a food truck was to serve as a mobile kitchen and was not to...

Facts Rule Coverage – Pollution Exclusion Effective

Insurers do not want to cover pollution under a basic automobile insurance policy. In their generosity they take on the liability of their insureds if, as a result of a collision or upset of an insured vehicle, some pollution occurs. That does not, however give coverage for every incident of pollution...

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...

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...

The Philosophical “Products Hazard” Case

There is just something about the Third Circuit’s decision in Allegheny Design Management, Inc. v. Travelers Indemnity Company, No. 13-4263 (3rd Cir. July 11, 2014), [ enhanced version available to lexis.com subscribers ], addressing whether property damage comes within the “products-completed...

Insurer Had No Duty to Defend or Indemnify Trademark Infringement Claim Because It Fell Within the Scope of an Intellectual Property Exclusion

North Coast Med., Inc. v. Hartford Fire Ins. Co. , 2014 U.S. Dist. LEXIS 20701 (N.D. Cal. Feb. 17, 2014), [ enhanced version available to lexis.com subscribers ]. In North Coast Medical , the district court held that the insurer had no duty to defend or indemnify its insured in connection with an...

PMA v. Aetna: Straight From The Horse’s Mouth: PMA’s Lawyer Still At It Nearly 60 Years Later

As mentioned in the July 23rd issue of Coverage Opinions , the Pennsylvania Supreme Court’s 1967 decision in PMA v. Aetna, [ enhanced version available to lexis.com subscribers ], has long-been a controversial one. The decision holds that the Employer’s Liability exclusion (even when it says...

The Central District of California Holds that an Invasion of Privacy Exclusion Found in a D&O Policy Barred Coverage for a Suit Alleging Violations of the Telephone Consumer Protection Act

LAC Basketball Club, Inc. v. Federal Insurance Co. , 2014 U.S. Dist. Lexis 58836 (C.D. Cal. Feb. 14, 2014), [ enhanced version available to lexis.com subscribers ]. In LAC Basketball Club , the district court held that an exclusion for any claim based on or arising out of invasion of privacy applied...

Ewing’s Undoing’s Ungluing: Appeals Court Follows Ewing And Holds That Contractual Liability Exclusion Precludes Coverage For Construction Defect Claim

In January, the Supreme Court of Texas, in easily one of the most important coverage cases of 2014, held in Ewing Construction Co. v. Amerisure Insurance Co., [ enhanced version available to lexis.com subscribers ], that the “contractual liability” exclusion, contained in a CGL policy, did...

Insurer Cherry Bombs: Court Holds That Pollution Exclusion Does Not Apply To Fireworks [Yes, Fireworks]

One of the things that makes the pollution exclusion such a fan-favorite is that its applicability is sometimes tested against unusual substances, i.e., ones that don’t necessarily shout pollution when come across. For example, just since 2011, courts have addressed whether such things as aroma...