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Bench Trial Concludes In Case Over Coverage For Excess Skin Removal (Watch The Video)

ALAMEDA, Calif. — (Mealey’s)The bench trial in a class suit brought by members accusing Kaiser Foundation Health Plan Inc. of violating California Health and Safety Code Section 1367.63 by denying all requests for surgery to remove excess skin following bariatric surgery without first having...

Jets And Sharks And Insurance Coverage: Judicial Writing At Its Finest

Forget whether you can tell a book by its cover (a lot of times you really can I think), I have long maintained that you can very often tell a coverage case by its opening paragraph. A recent one from the New Jersey Appellate Division has as good as a lede as you’ll ever see. And it only got better...

The Target Data Breach: Settlement Data Suffers From A Breach Of Common Sense

The mid-March settlement by Target, of the numerous data breach class actions filed against the retailer, following disclosure of millions of its customers’ debit and credit card numbers, will cost the company about $25 million. I had the privilege of publishing an Op-ed concerning the settlement...

When Is an Exclusion “Conspicuous, Plain and Clear”: There Is No Duty to Defend if There Is No Potential for Coverage

Insurance policies must be interpreted with care. Since they are contracts of adhesion they are usually interpreted with a bias towards providing coverage for the insured. When an insured provides the information necessary to convince a court that there is a potential for coverage unless the insurer...

D&O Insurance: Insured That Settled Underlying Claim Without Insurer’s Consent Cannot Sue the Insurer for Breach of Contract or Bad Faith

The Georgia Supreme Court has held that where a policyholder settled an underlying claim without its D&O insurer’s consent, the policyholder cannot sue the carrier for breach of contract or for bad-faith failure to settle. The Court, applying Georgia law, entered its opinion in the case based...

Well That Was Easy: Construction Defect: One Insurer’s Simple Solution To It All

If you are reading this then you are familiar with the surfeit of litigation, over the past decade-plus, concerning the availability of insurance coverage for construction defects. In very general terms you could say that there have been two types of cases – ones where coverage turns on whether...

Mind the Gap! Avoiding Unexpected Gaps in Insurance Programs

By Mary McCutcheon No one insurance policy covers all liability risks. Risk managers expect to purchase several types or layers of insurance to cover different types of insurance liabilities, to provide sufficient limits for a catastrophe loss, or to provide coverage over multiple policy years. They...

Court Allows Insurer to Settle and Then Seek Recovery of Uncovered Damages

It is one of the toughest issues of them all for insurers. The insurer is defending its insured under a reservation of rights. There are strong coverage defenses. The underlying case is getting close to trial. There is a demand to settle within limits. It is a settlement that should be accepted based...

Don Ho-ly Cow: Designated Premises Endorsement: Insurers Need To Consider A Change [Top 10 Case Of The Year Candidate]

I have never been one of those people who believes that, anytime an insurer is told by a court that it must provide coverage, that it didn’t believe was owed, the insurer needs to amend its policy language. That is simply not feasible or sensible. There are myriad reasons why an insurer may lose...

Just Because It Looks Like A Duck: When Bodily Injury Is Not “Bodily Injury”

Given how broad duty to defend standards generally are, an insurer faced with a complaint, that has a lot to say about an insured’s responsibility for causing bodily injury, may be gun shy about arguing that it does not owe a defense, under a policy that provides coverage for damages for, well...

Insurer Providing A Defense Need Not Fund Insured’s Counterclaim

We’ve all had this situation. An insurer is defending an insured. The insured believes that it has a counterclaim against the plaintiff. Defense counsel files the counterclaim or the insured hires separate counsel, to work with the insurer-appointed counsel, to file the counterclaim. However, the...

Bar’s Policy That Excludes Assault & Battery Is Not Illusory

Tapas: Small Dishes of Insurance Coverage News & Notes It is not surprising that a bar owner, who did not pay a lot of attention to the ins and outs of his insurance, would be surprised to learn that his commercial general liability policy contained an Assault & Battery exclusion, as many...

7th Circuit Rules That Title Insurer Is Not Liable for Construction Liens Resulting From Lender’s Failure to Fund

The 7th Circuit has ruled that a lender is not insured by a title company for liens that arise after a construction loan became significantly out of balance and the lender stopped funding. In BB Syndication Services, Inc v. First American Title Insurance Company , decided March 12, 2015 by the Unites...

“Warriors . . . come out to playyyyyy” (or "What Are The Insurance Implications Of Driving Your Mom's Car To A Street Fight?")

By Peter J. Gallagher ( @pjsgallagher ) One of the most ridiculously entertaining movies of the late-1970’s/early-1980’s was “ The Warriors .” You need to watch it to fully appreciate how ridiculous and entertaining it was but it involves a running battle between street...

Third-Party Debt Cancellation Insurance Is Insurance in West Virginia

Debt cancellation insurance, such as GAP Insurance for car loans, is considered insurance in West Virginia when issued by an entity other than the lender. Only if a lender offers a debt cancellation contract directly to a product’s purchaser is that contract not considered insurance. When the debt...

Excess Insurance: Questions Raised By Qualcomm And Issues Relating To The Duty To Defend

Partner Seth Lamden will be presenting a program entitled "Excess Insurance: Questions Raised by Qualcomm and Issues Relating to the Duty to Defend" at the American Conference Institute's 2nd National Forum on Insurance Allocation at the Omni Chicago Hotel on the Magnificent Mile June 25...

How To Maintain A 'Sterling' Reputation With Your Clients: What You Need To Know About CGL Coverage For Unauthorized Recording Claims

By Colin B. Willmott and Jonathan L. Schwartz One of the most remarkable and memorable scandals of 2014 involved Donald Sterling, the longtime owner of the Los Angeles Clippers, who received a lifetime ban from the National Basketball Association. What triggered this scandal? A bigotry-laced audio...

Insured v. Insured Exclusion Held Ambiguous With Regard to Claims by the FDIC as Receiver

St. Paul Mercury Ins. Co. v. Hahn , 2014 U.S. Dist. LEXIS 153643 (C.D. Cal. October 8, 2014), [ enhanced version available to lexis.com subscribers ]. In Hahn, the Central District of California ruled that the claims of the FDIC as receiver for a failed bank against the bank’s former officers...

Randy Spencer’s Open Mic: The Coverage Opinions Interview With Tom Brady

For the past two weeks or so talk in the sports world has been dominated by one story – Deflate-gate. For the six people in America who do not know what this is, the New England Patriots were accused of using footballs, during the 2015 AFC Championship Game, that contained less air pressure than...

Under California Law, Absent Extraordinary Circumstances, Insurers Have No Obligation to Pay for Pre-Tender Fees and Costs under Duty to Defend or Reimbursement Policies

Disputes between policyholders and insurance carriers often arise in the context of an insured’s payments made before providing notice of a claim to its carrier. However, California courts routinely hold that, absent special circumstances discussed in more detail below, when the policy at issue...

Payments by Other Insureds Held to Satisfy Policy’s SIR Endorsement

Centex Homes v. Lexington Ins. Co. , 2014 U.S. Dist. LEXIS 164472 (C.D. Cal. Nov. 24, 2014), [ enhanced version available to lexis.com subscribers ]. In Centex , the Central District of California held that unless a policy clearly states that a self-insured retention can only be satisfied through...

Insurance Broker Was Not Liable for Failing to Timely Tender an Insured’s Claim Because the Policy Would Not Have Covered the Claim Even if it Were Timely Tendered

Ecolite Concrete USA, Inc. v. G.S. Levine Ins. Services, Inc ., 2014 Cal. App. Unpub. LEXIS 9271 (Cal. App. Dec. 31, 2014), [ enhanced version available to lexis.com subscribers ]. In Ecolite Concrete , the California Court of Appeal affirmed the trial court’s ruling that an insurance broker...

Injured Worker Deported From U.S. Could Testify Via Skype: Cal. Comp. Cases May/June Advanced Postings (5/27/2015)

Here are the fifth batch of advanced postings for the May 2015 issue and the first batch of advanced postings for the June 2015 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2015 LexisNexis...

Acts Held to Constitute Intentional Intimidation and Harassment in an Underlying Action do not Constitute an “Occurrence” Under Insured’s Homeowner’s Policy

Allstate Ins. Co. v. Van Scyoc , 2014 U.S. Dist. LEXIS 177366 (C.D. Cal. Dec. 19, 2014), [ enhanced version available to lexis.com subscribers ]. In Van Scyoc , the Central District of California held that the insureds’ intentional attempts to prevent their neighbors from accessing or leaving...

Make Sure You're Covered - Report All Claims And Potential Claims

By Ashley Moss Professional liability insurance carriers require their insureds to report claims timely as a condition to coverage. This is especially important at the time for renewal of insurance coverage, when the carrier will ask about knowledge of any claims or potential claims. Professionals...