http://www.lexisnexis.com/mealeys/news.aspx Headline Emerging Insurance Disputes Legal News from LexisNexis® en-us http://www.lexisnexis.com/mealeys/images/lexismealeyslogo.gif 130 29 http://www.lexisnexis.com/mealeys/news.aspx Copyright 2013 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%201%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - The 10th Circuit U.S. Court of Appeals on May 13 reversed a lower court's ruling that claims brought against an investment adviser insured in an arbitration did not relate back to earlier claims brought outside a professional liability insurance policy period, remanding for further proceedings (Brecek & Young Advisors Inc. v. Lloyds of London Syndicate 2003, No. 12-301, 10th Cir., 2013 U.S. App. LEXIS 9599; See 10/20/11, Page 8). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%202%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CONCORD, N.H. - Although a law firm insured has made a valiant effort to argue that an underlying malpractice claim against it was first "made" within a professional insurance policy period, its position is contrary to the policy's unambiguous language, a New Hampshire federal judge ruled May 13 (Clauson & Atwood v. Professionals Direct Insurance Co., No. 12-cv-199-JL, D. N.H.; 2013 U.S. Dist. LEXIS 68507). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%203%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' TACOMA, Wash. - Underlying False Claims Act (FCA) claims against an insured were for fraudulent billing practices, which are not considered professional services or negligent acts under a medical professional liability insurance policy, a Washington federal judge ruled May 8, dismissing with prejudice all claims against the insurer (MSO Washington Inc. v. RSUI Group Inc., et al., No. C12-6090 RJB, W.D. Wash.; 2013 U.S. Dist. LEXIS 65957). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%204%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' GAINESVILLE, Ga. - A lawsuit seeking recovery of an underlying $357,091.33 consent order and final judgment against a law firm insured is barred by collateral estoppel, a Georgia federal judge ruled May 8, granting the professional liability insurer's motion for summary judgment (Old Republic National Title Insurance Co. v. Hartford Accident and Indemnity Co., No. 2:12-CV-0004-RWS, N.D. Ga.; 2013 U.S. Dist. LEXIS 66075). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%205%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' BILLINGS, Mont. - A Montana federal judge on April 26 ruled that a professional liability insurer did not neglect to attempt settlement of an underlying debt collection dispute in good faith in violation of Montana's Unfair Trade Practices and Consumer Protection Act (UTPA), granting in part the insurer's motion for summary judgment (Timothy McCollough v. Minnesota Lawyers Mutual Insurance Co., et al., No. 1:09-cv-00095, D. Mont.; 2013 U.S. Dist. LEXIS 60183). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%206%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' HOUSTON - A law firm and others accused of mishandling Texas state court silica litigation claims oppose an insurer's motion for summary judgment on its duty to defend or indemnify, arguing in a March 14 brief that the policy's "prior notice" exclusion and the fortuity doctrine do not bar coverage for the underlying claims (Ironshore Indemnity Inc. v. John M. O'Quinn & Associates PPLC d/b/a The O'Quinn Law Firm, et al., No. 12-02850, S.D. Texas). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%207%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' FLORENCE, S.C. - A professional liability insurer on April 4 moved for reconsideration of a South Carolina federal judge's finding that the insurer's arguments as to the insured's claims for bad faith and attorney fees hinge upon the insurer prevailing in its declaratory judgment action (Greenwich Insurance Co. v. Joe Garrell, et al., No.: 4:11-cv-02743-RBH, D. S.C.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%208%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - The First District Illinois Appellate Court, Fifth Division, on May 10 affirmed a lower court's ruling that an insurer has no duty to defend its meat-producing insured against federal criminal allegations that it illegally used hormones in the production of veal (Indiana Insurance Co. v. Brown Packing Company Inc., et al., No. 1-11-3039, Ill. App., 1st Dist., 5th Div.; 2013 Ill. App. Unpub. LEXIS 988). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%209%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - Because material issues of fact exist in a coverage dispute arising out of an insured's recall of its products potentially contaminated with salmonella, an Ohio federal judge on May 1 denied both the insured's and insurer's motions for summary judgment (The Wornick Co. v. Houston Casualty Co., No. 11-00391, S.D. Ohio; 2013 U.S. Dist. LEXIS 62465). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2010%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - A majority of a New York appeals court on April 16 affirmed that a commercial general liability insurer has a duty to defend its spiral freezer system manufacturer insured against a third party's lawsuit arising from an alleged defect in the freezer (I.J. White Corp. v. Columbia Casualty Co., Nos. 8419-651505/11, 8420, N.Y. Sup., App. Div., 1st Dept.; 2013 N.Y. App. Div. LEXIS 2433). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2011%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' HELENA, Mont. - A majority of the Montana Supreme Court on May 7 reversed a lower court's $1,188,399.45 attorney fee award against a commercial general liability insurer and an excess insurer in a coverage dispute arising from a teen suicide but affirmed the lower court's finding that the insurers breached their duty to defend and were liable for the underlying $3 million judgment (Judith Newman v. Scottsdale Insurance Company, et al., No. 12-0200, Mont. Sup.; 2013 Mont. LEXIS 146). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2012%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - An Illinois appeals panel on May 13 reversed a lower court's summary judgment ruling in favor of a Catholic religious order's general liability insurer in a coverage dispute arising from a priest's alleged molestation of minors but affirmed the lower court's grant of summary judgment in favor of the insured's nonprofit multiple-peril and excess insurers (Empire Indemnity Insurance Co. v. The Chicago Province of the Society of Jesus, et al., Nos. 1-11-2346 and 1-11-2653 $(cons.$), Ill. App., 1st Dist., 1st Div.; 2013 Ill. App. LEXIS 306; See 2/16/12, Page 15). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2013%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ALBANY, N.Y. - A majority of New York's highest court held May 7 that incidents of alleged sexual abuse by a priest constituted multiple occurrences and any potential liability should be apportioned pro rata among several insurance policies issued to the Roman Catholic Diocese of Brooklyn, N.Y. (Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Company of Pittsburgh PA., et al., No. 69, N.Y., App., 2013 N.Y. LEXIS 1186). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2014%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on May 10 affirmed a lower federal court's ruling that insureds' alleged loss of 880 bales of cotton in China was excluded from coverage under a marine insurance policy (State National Insurance Co. v. Marketing Services Inc., et al., No. 12-60148, 5th Cir.; 2013 U.S. App. LEXIS 9530). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2015%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - Underlying claims that an insured made false statements about a competitor's prescription patch trigger an insurer's duty to defend under the policy's "advertising injury" coverage resulting from disparagement, an Illinois federal judge ruled May 10, rejecting the insurer's contention that two policy exclusions bar coverage (JAR Laboratories LLC v. Great American E&S Insurance Co., No. 12 C 7134, N.D. Ill.; 2013 U.S. Dist. LEXIS 67516). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2016%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - A law firm insured did not fraudulently misjoin an insurer in its lawsuit seeking coverage for underlying counterclaims by its former employee, a Colorado federal judge ruled May 6, granting the insured's motion to remand the action to state court (Franklin D. Azar & Associates v. Farmers Insurance Exchange, et al., No. 13-cv-00658-CMA-CBS, D. Colo.; 2013 U.S. Dist. LEXIS 64344). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2017%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' LOS ANGELES - A California appeals panel found May 1 that an insurer cannot avoid its contractual duty to defend a medical director insured against federal criminal charges by relying on California Insurance Code Section 533.5, subdivision (b), reversing a lower court's summary judgment ruling in favor of the insurer (Mt. Hawley Insurance Co. v. Richard R. Lopez Jr., No. B234082, Calif. App., 2nd Dist.; Div. 7; 2013 Cal. App. LEXIS 346). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2018%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - Two former executives with bankrupt law firm Dewey & LeBoeuf on May 2 filed a brief objecting to the more than $19.5 million settlement reached among the Dewey & LeBoeuf Liquidation Trust, XL Specialty Insurance Co. and Steven H. Davis, on grounds that the liquidating trustee has failed to provide any evidence in supporting the deal other than his own "self-serving, conclusory statements" that the agreement is favorable to the liquidation trust (In Re: Dewey & LeBoeuf, No. 12-12321, Chapter 11, S.D. N.Y. Bkcy.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2019%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' DALLAS - An insured "is attempting to transform its D&O $(directors and officers$) liability policy into a first-party policy to provide coverage for its own loss," a Texas federal judge ruled April 29, granting an insurer's motion to dismiss breach of contract and bad faith claims against it (American Construction Benefits Group LLC v. Zurich American Insurance Co., No. 3:12-cv-02726, N.D. Texas; 2013 U.S. Dist. LEXIS 60308). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2020%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - The Sixth Circuit U.S. Court of Appeals on April 30 affirmed a lower court's finding that an insurance policy's exclusion for coverage of "Public Officials' Errors and Omissions arising out of . . . breach of a contractual obligation" applies to preclude coverage for defense costs related to an underlying $5,975,000 settlement reached between the insured and a maintenance company (City of Warren, et al. v. International Insurance Company of Hannover Ltd., No. 12-2201, 6th Cir.; 2013 U.S. App. LEXIS 8942; See 6/7/2012, Page 27). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2021%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SHREVEPORT, La. - A Louisiana federal judge on May 2 denied an insured's motion to dismiss its insurers' lawsuit seeking a declaration that they have no duty to defend or indemnify the insured for underlying claims and remediation costs arising out of an October 2012 explosion and subsequent evacuation of a Louisiana town (Crum & Forster Specialty Insurance Co. v. Explo Systems Inc., No. 12-3080, W.D. La., Shreveport Div.; 2013 U.S. Dist. LEXIS 63896). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2022%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. LOUIS - A general liability insurer has no duty to defend its city insured against a school board's claims that the insured wrongfully withheld tax revenues, an Illinois federal magistrate judge ruled April 30, granting the insurer's motion for summary judgment (City of Marion, Ill. v. U.S. Specialty Ins. Co., No. 12-cv-0999-SCW, S.D. Ill.; 2013 U.S. Dist. LEXIS 61900). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%201%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. LOUIS - A majority of the Eighth Circuit U.S. Court of Appeals on April 30 found that because the reasonable expectations doctrine applies, an insured is entitled to coverage under a 1977-78 special excess liability insurance policy for underlying malicious prosecution claims, reversing and remanding a lower federal court in part (Chicago Insurance Co. v. The City of Council Bluffs, et al., Nos. 12-1918 and 12-1922, 8th Cir.; 2013 U.S. App. LEXIS 8817). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%202%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - The Sixth Circuit U.S. Court of Appeals on April 30 held that a "claim" did not arise until January 2011 when the Federal Trade Commission initiated administrative and civil actions against an insured for allegedly violating Section 7 of the Clayton Act and, therefore, the insured's notification of the claim was timely, vacating a lower federal court's grant of summary judgment in favor of an insurer and remanding for further proceedings (Employers' Fire Insurance Co. v. ProMedica Health Systems Inc., No. 12-3104, 6th Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%203%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' OTTAWA, Ill. - An insurer has a duty to defend its insureds because not all of the defamatory statements counterclaimed in an underlying lawsuit were employment-related, a majority of the Third District Illinois Appellate Court affirmed April 23 (American Economy Insurance Co. v. Haley Mansion Inc., et al., No. 3-12-0368, Ill. App., 3rd Dist.; 2013 Ill. App. Unpub. LEXIS 836; See related story in this issue). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%204%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CAMDEN, N.J. - A New Jersey federal judge on April 22 denied an insurer's motion to dismiss a breach of contract claim in an insured's lawsuit seeking coverage for an underlying gender discrimination lawsuit brought by a former employee but granted the insurer's motion to dismiss the insured's claim for declaratory judgment (Regal-Pinnacle Integrations Industries Inc. v. PIIC, No. 12-5465, D. N.J.; 2013 U.S. Dist. LEXIS 56941). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%205%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on April 26 reversed and remanded an errors and omissions liability insurance coverage suit for reconsideration of the insured's breach of contract claim against the insurer and the proper interpretation of a policy exclusion (Ticketmaster LLC v. Illinois Union Insurance Co., No. 11-56285, 9th Cir.; 2013 U.S. App. LEXIS 8554). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%206%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' HATTIESBURG, Miss. - An insurer has no duty to defend or indemnify its property owners association insured and members of the insured's board of directors against underlying claims that the members used their positions for self-dealing and to facilitate a takeover by a gaming corporation that sought to build a casino in or near a neighborhood that sustained damage from Hurricane Katrina, a Mississippi federal judge ruled April 23 (State Farm Fire and Casualty Co. v. Tom Anderson, et al., No. 1:11-CV-304-KS-JMR. S. D. Miss., Southern Div.; 2013 U.S. Dist. LEXIS 57837). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%207%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. LOUIS - A Missouri appeals panel on April 23 affirmed a lower court's finding that a 2009 insurance policy did not apply to the causes of action in an underlying legal malpractice action, further affirming that the insurer did not act in bad faith in refusing to settle the suit (The Bar Plan Mutual Insurance Co. v. Chesterfield Management Associates, et al., No. ED98826, Mo. App., Eastern Dist., Div. 1; 2013 Mo. App. LEXIS 485). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%208%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' RICHMOND, Va. - A majority of the Virginia Supreme Court on April 18 affirmed a lower court's finding that a professional liability insurer has duty to defend and indemnify its insured against an underlying breach of contract lawsuit stemming from the insured's alleged failure to participate in the Virginia Birth-Related Neurological Injury Compensation Act (the Birth Injury Fund) (The Doctors Company v. Women's Healthcare Associates Inc., et al., No. 120702, Va. Sup.; 2013 Va. LEXIS 50). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%209%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SACRAMENTO, Calif. - Final judgment was entered in favor of an insurer on April 15, three days after a California federal chief judge held that an insurance policy's bond exclusion bars professional liability coverage for underlying claims against a management and consulting firm insured (VierraMoore Inc. v. Continental Casualty Co., No. 2:12-cv-01926-MCE-EFB, E.D. Calif.; 2013 U.S. Dist. LEXIS 53739). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2010%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' BIRMINGHAM, Ala. - A professional liability insurer is entitled to rescind a policy based on an insured's material misrepresentations on the policy application, an Alabama federal judge ruled April 10 (Carolina Casualty Insurance Co. v. Law Offices of Robert M. Pears, P.C., et al., No. 2:12-CV-01828, N.D. Ala.; 2013 U.S. Dist. LEXIS 51526). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2011%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ATLANTA - The 11th Circuit U.S. Court of Appeals on April 23 found that an insurance policy allows for betterment charges, affirming a lower federal court's ruling dismissing a lawsuit questioning the insurer's practices regarding "betterment adjustment" (Eric O. Silvin v. Geico General Insurance Co., et al., No. 12-14430, 11th Cir.; 2013 U.S. App. LEXIS 8119). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2012%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' OTTAWA, Ill. - A majority of the Third District Illinois Appellate Court on April 23 held that a policy's business pursuit exclusion did not apply to relieve an insurer of its duty to defend its insured against an underlying defamation lawsuit brought by the insured's former employer (Country Mutual Insurance Co v. Jullya Molburg, et al., No. 3-12-0364, Ill. App., 3rd Dist.; 2013 Ill. App. Unpub. LEXIS 840; See related story in this issue). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2013%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CONCORD, N.H. - A claimant has failed to establish that his alleged disparaging conduct was in his capacity as an insured, a New Hampshire federal judge ruled April 22, denying the claimant's motion for partial summary judgment in a breach of contract suit against a commercial general liability insurer (Mark A. Hansen v. Sentry Insurance Co., No. 12-cv-466-JD, D. N.H.; 2013 U.S. Dist. LEXIS 57275). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2014%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' LOS ANGELES - A California federal judge on April 19 entered judgment in favor of a primary and an excess insurer in a coverage dispute arising from an alcohol-related fraternity hazing death, finding that the insurers have no duty to indemnify the members of a local chapter of a fraternity for their responsibility in the hazing death (Liberty Corporate Capital Ltd. v. California Tau Chapter of Sigma Alpha Epsilon Fraternity at California Polytechnic State University, et al., No. 2:11-cv-02626-ODW $(FFMx$)), C.D. Calif.; 2013 U.S. Dist. LEXIS 56697). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2015%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' RICHMOND, Va. - A Virginia federal judge on April 19 granted an insurer's motion to file exhibits under seal as evidence in support of its motion for a protective order in a lawsuit brought by Ford Motor Co. challenging the insurer's handling of more than $20 million in product liability claims (Ford Motor Co. v. National Indemnity Co., No. 12-839, E.D. Va.; See 11/29/12, Page 16). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2016%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' BROOKLYN, N.Y. - A New York appeals panel on April 17 affirmed a lower court's dismissal of an insurance agency's third-party complaint seeking contractual indemnification from an insurer in a dispute over claims that the agency failed to inform an insured of a change in employee dishonesty coverage (South Bay Cardiovascular Associates v SCS Agency, Inc., et al., Nos. 2012-01964, 2012-05203, N.Y. Sup., App. Div.; 2nd Dept.; 2013 N.Y. App. Div. LEXIS 2503). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2017%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - Because an insured was deceived and its confidence was abused when it entrusted its property to a thief, its claimed property damage loss falls squarely within an insurance policy's entrustment exclusion, a New York judge ruled March 26, dismissing a breach of contract lawsuit against the insurer (Lexington Park Realty, et al. v. National Union Fire Insurance Company of Pittsburgh, PA., No. 651322/2011, N.Y. Sup., New York Co.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%201%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - Claims that an insured violated the Consumer Fraud Act by intending to put its competitors out of business so that it could dominate the diagnostic testing market fail to assert accidental conduct or consequences and, therefore, do not constitute an "occurrence" under a general liability insurance policy, an Illinois appeals panel held April 16, affirming a lower court's ruling in favor of the insurer (West American Insurance Co. v. Midwest Open MRI Inc., No. 1-12-1034, Ill. App., 1st Dist., 2nd Div.; 2013 Ill. App. LEXIS 235). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%202%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ATLANTA - The 11th Circuit U.S. Court of Appeals on April 15 certified three questions to the Florida Supreme Court in a third party's lawsuit seeking employers liability coverage for an underlying $9.5 million wrongful death judgment against an insured (Leticia Morales v. Zenith Insurance Co., No. 12-11755, 11th Cir.; 2013 U.S. App. LEXIS 7469). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%203%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on April 15 held that Section 554 of the California Insurance Code does not bar a professional liability insurer from enforcing its policy's no-voluntary payments provision, affirming a lower court's ruling in favor of the insurer in a breach of contract lawsuit brought by an independent public adjuster insured (Dietz International Public Adjusters of California Inc. v. Evanston Insurance Co., No. 11-56267, 9th Cir.; 2013 U.S. App. LEXIS 7491). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%204%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' GRETNA, La. - A malpractice lawsuit against an attorney and his liability insurer is perempted, a Louisiana appeals panel affirmed April 10 (Michael G. Lewis v. Jerald L. Album, et al., No. 12-854, La. App., 5th Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%205%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CLEVELAND - An Ohio federal judge on April 8 refused to dismiss a law firm insured's declaratory judgment and breach of contract claims against its legal malpractice insurer in a coverage dispute arising from an alleged phishing scam but granted the insurer's motion to dismiss the bad faith claim (Stark & Knoll Co. L.P.A. v. ProAssurance Casualty Co., No. 12 CV 2669, N.D. Ohio, Eastern Div.; 2013 U.S. Dist. LEXIS 50326). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%206%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' PHOENIX - An Arizona federal judge on April 4 denied an insurer's motion for entry of final judgment on his previous ruling that a corporate agreement's "general exclusions" did not apply to the potential liability of a company and its president for the alleged conduct of one of its employees (National Fire Insurance Company of Hartford, et al. v. Richard Jay Lewis, M.D., et al., No. 11-1220, D. Ariz.; 2012 U.S. Dist. LEXIS 187484). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%207%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' OAKLAND, Calif. - Underlying complaints against an attorney insured do not create the potential for coverage under a lawyers' professional liability insurance policy because they are not based on providing legal services, a California federal judge ruled April 3, granting the insurer's motion for summary judgment in a coverage dispute arising from allegations that the insured misrepresented the amount of attorney fees and costs that he was permitted to charge (Colony Insurance Co. v. Douglas Fladseth, et al., No. C 12-1157 CW, N.D. Calif.; 2013 U.S. Dist. LEXIS 48552). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%208%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SEATTLE - A Washington federal judge on April 12 granted in part and denied in part an insured's motion to compel discovery from its insurer in a dispute over coverage for claims that the insured violated the False Claims Act by wrongfully discharging its chief financial officer and retaliating against him for blowing the whistle (Carolina Casualty Insurance Co. v. Omeros Corporation, et al., No. C12-287RAJ, W.D. Wash.; 2013 U.S. Dist. LEXIS 53225). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%209%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' RICHMOND, Va. - Criminally convicted former Taylor Bean and Whitaker Mortgage Corp. (Taylor Bean) chairman Lee Bentley Farkas must repay the defenses fees the company's directors and officers (D&O) insurer advanced on his behalf, the Fourth Circuit U.S. Court of Appeals ruled April 11, agreeing with a lower court that Farkas' criminal conviction triggered the policy's "in fact" conduct exclusions, which then triggered the insurer's right to recoup the defense fees (Lee Bentley Farkas v. National Union Fire Insurance Co. of Pittsburgh, PA, No. 12-1481, 4th Cir.; 2013 U.S. App. LEXIS 7318; See 7/21/2011, Page 8). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2010%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - Finding that certain of an insurer's claim file documents pertained to claims investigation, rather than legal counsel, a Colorado federal magistrate judge on April 2 held that the documents were not protected from discovery under the attorney-client privilege, granting in part a policyholder's motion to compel in an insurance bad faith dispute (Colorado Mills LLC v. Philadelphia Indemnity Insurance Co., No. 1:12-cv-01830, D. Colo.; 2013 U.S. Dist. LEXIS 47601). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2011%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ATLANTA - The 11th Circuit U.S. Court of Appeals on April 9 affirmed a lower court's finding that coverage for an insurance premium financing company's $7 million fraud losses is barred by the retroactive date rider in a financial institution bond (ABCO Premium Finance LLC v. American International Group Inc., et al., No. 12-14780, 11th Cir.; See 8/16/12, Page 4). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2012%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - The Seventh Circuit U.S. Court of Appeals on April 5 affirmed a lower federal court's ruling that an insurer has no duty to defend or indemnify a bank insured in its lawsuit against a corporation to determine who is responsible for the embezzlement of $17.4 million by the corporation's vice president of accounting (Bankmanagers Corporation, et al. v. Federal Insurance Co., Nos. 12-3202 & 13-1506, 7th Cir.; 2013 U.S. App. LEXIS 6877). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2013%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' GULFPORT, Miss. - A Mississippi federal jury in the first phase of a trial determined on April 8 that relators have successfully proven that damages to the U.S. government under the False Claims Act (FCA) in connection with an insurer's fraudulent federal flood claim were $250,000 (United States of America ex rel. Cori Rigsby and Kerri Rigsby v. State Farm, et al., No. 06-433, S.D. Miss., Southern Div.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2014%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' INDIANAPOLIS - An Indiana appeals panel on April 8 found that, due to an umbrella insurance policy's ambiguity, there is coverage for a manufacturer insured as to products-completed operations claims, reversing and remanding a lower court's summary judgment ruling in favor of an excess insurer (Gary Hammerstone, et al. v. Indiana Insurance Co., No. 06A04-1211-PL-595, Ind. App.; 2013 Ind. App. LEXIS 159). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2015%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SPARTANBURG, S.C. - An insured on March 22 filed a notice in federal court to voluntarily dismiss its lawsuit seeking coverage from its excess insurer for underlying bodily injury claims allegedly caused by products purchased at its South Carolina stores (The Fresh Market Inc. v. Continental Casualty Company, No. 12-03289, D. S.C. See 11/29/12, Page 17). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2016%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SEATTLE - Having previously held that an insurer properly denied coverage for a claim related to sexual abuse of a minor, a Washington federal judge on April 11 granted the insurer's subsequent motion for summary judgment on bad faith, negligence and other state law claims against it (Sitlalit Ramirez-Yanez v. Allstate Insurance Co., No. 2:12-cv-00732, W.D. Wash.; 2013 U.S. Dist. LEXIS 52563; See 11/15/12, Page 13). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2017%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' MOBILE, Ala. - An Alabama federal judge on April 1 rejected a commercial general liability insurer's motion to reconsider her ruling that it failed to show that its policy's funeral services exclusion bars coverage for underlying claims against its cemetery insured (QBE Insurance Corporation v. Whispering Pines Cemetery, et al., No. 12-0054-KD-C, S.D. Ala., Southern Div.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=18-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2018%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' TAMPA, Fla. - An insurer's motion to reconsider a denial of summary judgment regarding coverage matters and bad faith surrounding repair of a sinkhole is merely an attempt "to refute the basis for the Court's earlier decision," a Florida federal judge ruled April 4, denying the motion (Elieser Lumpuy v. Scottsdale Insurance Co., No. 8:11-cv-02455, M.D. Fla.; 2013 U.S. Dist. LEXIS 49016; See 2/21/13, Page 21).