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 2012 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FRESNO, Calif. - A business liability insurance policy's professional services exclusion precludes coverage for an insured's liability for underlying wrongful death claims that resulted in a $29 million judgment, a California appeals panel ruled May 14, affirming a lower court's ruling that the insurer has no duty to indemnify the portion of the judgment attributed to its insured (Golden Eagle Insurance Corporation v. Lemoore Real Estate and Property Management, Inc., et al., No. F061735, Calif. App., 5th Dist.; 2012 Cal. App. Unpub. LEXIS 3584). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank AKRON, Ohio - An Ohio appeals panel on May 14 found that a lower court erred in considering the affidavit of a business liability insurer's employee in ruling on the insurer's motion for summary judgment, reversing and remanding the lower court's summary judgment ruling in favor of the insurer in a suit seeking indemnification for underlying defense costs and a settlement (Maxum Indemnity Company v. Selective Insurance Company of South Carolina, No. 11CA0015, Ohio App., 9th Dist., Wayne Co.; 2012 Ohio App. LEXIS 1856). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank BATON ROUGE, La. - A majority of a Louisiana appeals panel on May 2 reversed and remanded a lower court's ruling in favor of a physicians' and surgeons' professional liability insurer, finding that there are opposing views as to whether a registered nurse agreed to allow an anesthesiologist to perform a manipulation of her joint that resulted in her alleged injuries (Robin Buelle, et al. v. Thomas Periou and Fireman's Fund Insurance Company, No. 2011 CA 1067, La. App., 1st Cir.; 2012 La. App. Unpub. LEXIS 266). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SEATTLE - Because a claimant was not acting in his official capacity when he executed a guaranty for a $3.5 million nonrevolving line of credit to a corporation, he failed to commit a "wrongful act" as defined by a directors and officers liability insurance policy, a Washington appeals panel ruled May 14, affirming a lower court's ruling that the policy does not provide coverage for the claimant's personal obligation under the guaranty (Carol Sauter v. Houston Casualty Company, No. 66809-9-I, Wash. App., Div. 1; 2012 Wash. App. LEXIS 1135). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ST. LOUIS - Proceeds of a Venture Capital Asset Protection Policy are not part of a receivership estate, and the insurer is not barred from disbursing insurance proceeds to pay defense costs in a lawsuit in which the Securities and Exchange Commission alleged misappropriation of $9 million in investments, a Missouri federal judge ruled May 8 (Securities and Exchange Commission v. Burton Douglas Morriss, et al., No. 4:12-CV-80 [CEJ], E.D. Mo.; 2012 U.S. Dist. LEXIS 64465). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN FRANCISCO - An insurer filed a declaratory judgment lawsuit in a California federal court on April 10, contending that four exclusions in its business and management indemnity policy preclude coverage for underlying lawsuits against the insured and its directors and officers arising from an alleged manufacturing defect in the insured's injectable dermal fillers (Scottsdale Insurance Co. v. Coapt Systems Inc., et al., No. 12-1780, N.D. Calif.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ST. PAUL, Minn. - A commercial general liability insurer has a duty to defend an additional insured against an underlying lawsuit arising from a worksite injury, a Minnesota appeals panel ruled May 14, reversing and remanding a lower court (Nor-Son Inc., et al v. Western National Mutual Insurance Company, et al., No. A11-2016, Minn. App.; 2012 Minn. App. Unpub. LEXIS 411). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ST. LOUIS - Underlying claimants' injuries did not "occur" during an insurer's policy period, the Eighth Circuit U.S. Court of Appeals found May 11, affirming a lower federal court's ruling that there is no coverage under the policy for malicious prosecution claims against the insureds (Genesis Insurance Company v. City of Council Bluffs, et al., No. 11-1277, No. 11-1741, 8th Cir.; 2012 U.S. App. LEXIS 9577). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank WEST PALM BEACH, Fla. - Summary judgment based on the question of an insured's lack of cooperation cannot be granted in favor of a professional liability insurer, a Florida federal judge ruled May 8, finding that there are genuine issues of material fact as to the materiality of the insured's lack of cooperation (Charity Amponsah, et al. v. Medmarc Casualty Insurance Company, et al., No. 11-61233-CIV-MARRA, S.D. Fla.; 2012 U.S. Dist. LEXIS 64268). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank VENTURA, Calif. - An insured has failed to demonstrate that an underlying lawsuit alleged potential "disparagement" or "misappropriation of style of doing business" within two liability insurance policies' definition of "advertising injury," a California appeals panel affirmed May 3, further finding that there was no extrinsic information that would have alerted the insurers of a further need to investigate the potential for coverage (Southern California Gold Products Inc. v. Zurich-American Insurance Group, et al., No. B234720, Calif. App., 2nd Dist., Div. 6; 2012 Cal. App. Unpub. LEXIS 3355). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LOS ANGELES - A California appeals panel on May 8 reversed a lower court's ruling that an insurer has no duty to defend the rock band Tool against an underlying lawsuit alleging copyright infringement and defamation (Tool Touring Inc., et al. v. The American Insurance Company, No. B230136, Calif. App., 2nd Dist., Div. 7; 2012 Cal. App. Unpub. LEXIS 3461). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank GAINESVILLE, Fla. - A Florida federal judge on May 8 granted an insurer's motion to abate three claims insofar as they relate to alleged bad faith by the insurer pending resolution of claims for declaratory judgment and breach of contract in a dispute over coverage for sexual abuse allegations against a former employee of the Roman Catholic Diocese of Savannah (John Doe v. OneBeacon America Insurance Company, No. 1:11cv275-MP-GRJ, N.D. Fla.; 2012 U.S. Dist. LEXIS 64843). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-10%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank By Alan P. Jacobus and Eric J. Knapp I. Abstract: Three 2011 United States Supreme Court Decisions Will Change The Way Insurance Class Actions Are Litigated http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - A directors and officers and corporate liability insurance policy indemnified an insured for shareholders' reasonable attorney fees in an underlying lawsuit regardless of how the fees were calculated, an Illinois federal judge ruled April 30, finding that although the insurer has a duty to pay the $3.15 million underlying attorney fee award, it did not vexatiously or unreasonably deny coverage for the multiplied portion of the award (Carolina Casualty Insurance Company v. Merge Healthcare Inc., f/k/a Amica Inc., No. 11 C 3844, N.D. Ill., Eastern Div.; 2012 U.S. Dist. LEXIS 60765). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW YORK - The federal bankruptcy judge presiding over the Chapter 11 proceeding of MF Global Holdings Ltd. (MFGH) on April 30 declined to grant a stay requested by a group of wealth management companies that objected to the bankruptcy court's decision to lift the automatic stay and permit certain insurers to pay the defense costs of current and former employees of MFGH (In Re: MF Global Holdings Ltd., No. 11-15059, Chapter 11, S.D. N.Y. Bkcy.; See 4/19/12, Page 18). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW ORLEANS - The Louisiana Supreme Court on April 20 granted a writ application challenging an appeals panel majority's reversal of a lower court's ruling maintaining the exception of prescription in a wrongful death and survival action alleging that a chemical company's executive officers intentionally or negligently breached their duty to provide a decedent with a reasonably safe workplace and directly caused his fatal brain cancer (Joann Sims and Brent Sims v. The American Insurance Company, et al., No. 2012-C -0204, La. Sup.; See 1/5/12, Page 15). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - Because underlying claims against a community association and two of its members alleged racketeering based on "deceptive or criminal intent," a Colorado federal judge on April 18 held that an insurer properly declined to provide a defense under either a commercial general liability (CGL) coverage form or a habitational association directors and officers liability (D&O) endorsement in the association's policy (Riverdale Peaks Homeowners Association, et al. v. Auto-Owners Insurance Co., No. 1:11-cv-01920, D. Colo.; 2012 U.S. Dist. LEXIS 54180). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank BOSTON - Damages arising from allegations of wrongdoing as well as actual wrongdoing are within an excess insurance policy's coverage, a Massachusetts appeals panel ruled April 30, further finding that the underlying defense and settlement costs incurred by an insured are potentially attributable in some proportion to the covered claims (Allmerica Financial Corporation & others v. Certain Underwriters at Lloyd's, London, No. 11-P-193, Mass. App.; 2012 Mass. App. LEXIS 178; See 8/15/07, Page 7). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank COLUMBUS, Ohio - Granting in part an insured's motion to conduct additional discovery, an Ohio federal judge on April 17 ordered a professional liability insurer to submit for in camera review 12 documents that were previously withheld or redacted as protected by the attorney-client privilege and/or the work product doctrine (Chubb Custom Insurance Co. v. Grange Mutual Casualty Company, et al., No. 2:07-cv-1285, S.D. Ohio, Eastern Div.; 2012 U.S. Dist. LEXIS 54305). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MIAMI - A Florida federal judge on April 16 dismissed a professional liability insurer's declaratory judgment and contribution claims against two other insurers but refused to dismiss its claim for indemnification (Interstate Fire & Casualty Company v. Kluger, Peretz, Kaplan & Berlin, P.L., et al., No. 11-22867, S.D. Fla., Miami Div.; 2012 U.S. Dist. LEXIS 59380). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FORT LAUDERDALE, Fla. - The liability insurer for the accounting firm of convicted Ponzi scheme operator Scott Rothstein, whose law firm Rothstein Rosenfeldt Adler (RRA) filed for Chapter 11 bankruptcy, on April 17 moved in the U.S. Bankruptcy Court for the Southern District of Florida for a new trial regarding the Bankruptcy Court's ruling that the insurer pay $10 million to settle claims against the accounting firm (In Re: Rothstein Rosenfeldt Adler, No. 09-34791, Chapter 11, S.D. Fla. Bkcy.; See 4/19/12, Page 12). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SACRAMENTO, Calif. - An insurer had no duty to name its insured as a co-plaintiff in seeking recovery from the manufacturer of a defective chair massager, a California appeals panel affirmed April 30, further finding that the insured's negligence claim against the insurer constituted a nonviable cause of action (James Sedlar v. USAA Casualty Insurance Company Inc., No. C066089, Calif. App., 3rd Dist.; 2012 Cal. App. Unpub. LEXIS 3226). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PORTLAND, Ore. - An insurance policy's professional service exclusion does not preclude a general contractor insured's actions from coverage, an Oregon federal judge found April 24, further finding that there is a genuine issue of material fact as to whether the insurer has a duty to indemnify the insured against an underlying lawsuit arising from alleged construction defects (State Farm and Casualty Co. v. Lorrick Pacific, LLC, et al., No. 03:11-CV-834-HZ, D. Ore.; 2012 U.S. Dist. LEXIS 57922). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HOUSTON - Insureds' losses did not result "directly" from their employees' misconduct but were the result of the insureds' contractual liability to third-party financial institutions, a Texas federal judge ruled April 23, finding that a commercial crime insurance policy does not provide coverage for the losses (BJ Services S.R.L., et al. v. Great American Insurance Co. No. H-11-2448, S.D. Texas). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - A Pennsylvania federal judge on April 17 granted in part an insurer's motion to dismiss a claim against it for breach of the duty of good faith and fair dealing and another seeking declaratory relief of indemnity, finding both to be duplicative of, and therefore precluded by, a corresponding breach of contract claim (Nova Financial Holdings Inc., et al. v. BancInsure Inc., No. 2:11-cv-07840, E.D. Pa.; 2012 U.S. Dist. LEXIS 53800). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RICHMOND, Va. - An underlying complaint alleges that damages were the "natural and probable consequence" of an insured's intentional actions, the Virginia Supreme Court said April 20, upholding its finding that a commercial general liability insurer has no duty to defend the insured against underlying claims that excessive carbon dioxide emissions caused global warming that led to the degradation of an Alaska town (The AES Corp. v. Steadfast Insurance Co., No. 100764, Va. Sup.; 2012 Va. LEXIS 81; See 2/16/12, Page 20). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank TRENTON, N.J. - Four insurers are not liable for an estate-planning investment entity insured's more than $16 million in alleged losses stemming from the insured's investment in the Bernard L. Madoff Investment Securities (BLMIS) Ponzi scheme, a New Jersey appeals panel affirmed April 20 (Bleznak Black LLC v. Allied World National Assurance Co., et al., No. A-6107-09T2, N.J. Super., App. Div.; 2012 N.J. Super. Unpub. LEXIS 879; See 8/6/09, Page 24). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HARRISBURG, Pa. - The Pennsylvania Superior Court on April 13 affirmed a lower court's finding that an underlying discrimination lawsuit is one claim under an employment practices liability insurance policy, regardless of the number and variety of employment law violations raised in the lawsuit (Superior Beverage Group, Ltd, et al. v. The Cincinnati Insurance Company, No. 1126 WDA 2010, Pa. Super.; 2012 Pa. Super. LEXIS 527). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2016%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN FRANCISCO - A California judge on April 24 found that coverage for underlying negligence claims against an insured and its officers is not precluded by a commercial general liability insurance policy's molestation exclusion, denying the insurers' motion for summary adjudication (Society for Creative Anachronism, et al. v. Fireman's Fund Ins. Co., et al., No. 10-498672, Calif. Super., San Francisco Co.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2017%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - Insureds on April 18 filed a notice of appeal to the Third Circuit U.S. Court of Appeals challenging a federal court's ruling that insurers have no duty to defend or indemnify against underlying lawsuits alleging that their insureds participated in a $2.6 million kickback scheme with two Pennsylvania judges (Alea London, et al. v. Pa Child Care LLC, et al., No. 12-2132, 3rd Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-9%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2018%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank By Barry Temkin and Robert Usinger In most duty to defend policies, the insurance carrier has the right to control the defense, including the appointment of counsel. Insurance carriers typically designate panels of approved law firms to defend policyholders in duty to defend cases, often at negotiated rates. Landmark decisions in New York and California obligate insurance carriers to pay for independent counsel, selected by the insured, in situations in which an insurance carrier has a conflict of interest with its insured such that the trial strategy employed by insurance defense counsel could affect coverage. As explained below, these authorities - the Cumis case in California,1 and the Goldfarb case in New York,2 have begotten numerous progeny over the decades which have expanded the right of insureds to select independent counsel and, in California, spawned a statute which limits and modifies the right to counsel. Moreover, recent developments in New York have raised the question of whether an insurance carrier must affirmatively advise its insureds of their right to select independent, off-panel counsel in the event of a conflict of interest. http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - Although a dryer manufacturer's arguments might call for separate trials or severing some claims at some point in time, none requires dismissal of three insurers' complaint seeking reimbursement of $12.25 million they have paid to insureds for claims arising from defective dryers, an Illinois federal judge ruled April 16 (State Farm Fire and Casualty Company, et al. v. Electrolux Home Products Inc., No. 11-8946, N.D. Ill.; Eastern Div.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LAKE CHARLES, La. - Finding that a lower court erred in failing to award claimants damages for the loss of use of their antique vehicles arising from a fire caused by a defective refrigeration unit, a Louisiana appeals panel on April 4 awarded an additional $20,000 in damages against the manufacturer of the unit and its excess liability insurers (State Farm Mutual Automobile Insurance Company, et al. v. Norcold Inc., et al., No. 11-1355, La. App., 3rd Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - The Seventh Circuit U.S. Court of Appeals on April 12 found that if an insured can obtain reimbursement of the $8.5 million it paid to settle underlying fraud claims, "it will have gotten away with fraud," affirming a lower federal court's ruling in favor of the insurer in the insured's suit seeking coverage for the settlement (Ryerson Inc. v. Federal Insurance Company, No. 10-3522, 7th Cir.; 2012 U.S. App. LEXIS 7372). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW YORK - The Second Circuit U.S. Court of Appeals on April 18 found that an underlying complaint fails to allege any personal or advertising injury against an insured, affirming a lower court's ruling that the insurer has no duty to defend an underlying lawsuit alleging that the insured committed copyright and trade dress violations (Feldman Law Group, P.C., as assignee of The Hyman Companies Inc. v. Liberty Mutual Insurance Company, No. 11-4483-cv, 2nd Cir.; 2012 U.S. App. LEXIS 7787). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SANTA ANA, Calif. - Because it has been previously determined that MGA Entertainment's primary insurers have a duty to defend an underlying Bratz Dolls trademark dispute, the excess insurance policies are not implicated, a California federal judge ruled April 12, further finding that the bad faith counterclaim against the excess insurers must be dismissed (MGA Entertainment, et al. v. The Hartford Insurance Group, et al., No. 08-0457, C.D. Calif.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CINCINNATI - The Sixth Circuit U.S. Court of Appeals on April 13 affirmed a district court's ruling that an insurer was entitled to rescind a lawyers professional liability insurance policy because the insured made material misrepresentations and omissions on the policy application, further finding that a May 20, 2010, Kentucky Supreme Court order disbarring the insured from practicing law further bars coverage under the policy's dishonesty exclusion clause (Continental Casualty Co. v. Law Offices of Melbourne Mills Jr. PLLC, et al., Nos. 10-5813 and 10-5814, 6th Cir.; 2012 U.S. App. LEXIS 7445). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HARTFORD, Conn. - All underlying claims against a lawyer insured are excluded from coverage under a professional liability insurance policy because they are alleged to have arisen out of the insured's activities on behalf of an entity other than his law firm, a Connecticut appeals panel found April 10, reversing and remanding a lower court's ruling that the insurer had a duty to defend (Maurizio D. Lancia v. State National Insurance Company, et al., No. AC 32987, Conn. App.; 2012 Conn. App. LEXIS 178). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FORT LAUDERDALE, Fla. - A Florida federal bankruptcy judge on April 9 granted a motion by the Chapter 11 trustee of the law firm once headed by convicted Ponzi scheme operator Scott Rothstein to compel the insurer of an accounting firm, which allegedly enabled the Ponzi scheme, to pay $10 million to the bankruptcy estate (In Re: Rothstein Rosenfeldt Adler, No. 09-34791, Chapter 11, S.D. Fla. Bkcy.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HOUSTON - A Texas federal judge on April 5 denied a law firm insured's motion to dismiss its professional liability insurer's declaratory judgment claims challenging coverage for underlying malpractice allegations (OneBeacon Insurance Company v. T. Wade Welch & Associates, et al., No. H-11-3061, S.D. Texas, Houston Div.; 2012 U.S. Dist. LEXIS 48280). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank TAMPA, Fla. - A Florida federal judge on April 5 dismissed an attorney insured's breach of contract and bad faith lawsuit seeking professional liability coverage for an underlying legal malpractice claim (David Band v. Twin City Fire Insurance Company, No. 8:11-cv-02332-EAK-TBM, M.D. Fla.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RICHMOND, Va. - The Fourth Circuit U.S. Court of Appeals on April 11 reversed and remanded a lower court's ruling that a general liability insurer had no duty to defend an insured's former executive director against a 2004 civil action filed by the State of West Virginia (Robert E. Graham v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 11-1222, 4th Cir.; 2012 U.S. App. LEXIS 7329). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SEATTLE - An excess directors and officers liability insurer fails to conclusively establish that its insured's former chief financial offer (CFO) anticipated a financial reporting fraud claim by the Securities and Exchange Commission before applying for insurance, a Washington federal judge found April 9, concluding that a fact issue as to whether the insurer was reasonable in denying coverage precludes summary judgment in favor of the insurer on two claims (Isilon Systems Inc. v. Twin City Fire Insurance Company, No. 10-1392 MJP, W.D. Wash.; 2012 U.S. Dist. LEXIS 50320). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW YORK - The federal bankruptcy judge presiding over the Chapter 11 proceeding of MF Global Holdings Ltd. (MFGH) in the U.S. Bankruptcy Court for the Southern District of New York on April 10 ruled that the automatic stay could be lifted in the case to allow the payment of certain defense costs using money from insurance policies (In Re: MF Global Holdings Ltd., No. 11-15059, Chapter 11, S.D. N.Y. Bkcy.; See 4/5/2012, Page 29). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DALLAS - A law firm established that an underlying claim against it related to a referral agreement with another firm constituted professional services that triggered its insurer's duty to defend under a professional liability policy, a Texas federal judge ruled April 11, granting in part the firm's motion for summary judgment (Shore Chan Bragalone DePumpo LLP, et al. v. Greenwich Insurance Co., No. 3:11-cv-00891, N.D. Texas; 2012 U.S. Dist. LEXIS 50811). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank TOLEDO, Ohio - Pursuant to a policy's professional services exclusion, an insurer has no duty to indemnify its insured for defective design claims, an Ohio appeals panel affirmed April 6 (D.I.C.E., Inc. v. State Farm Insurance Company, No. L-11-1006, Ohio App., 6th Dist., 2012 Ohio App. LEXIS 1376). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2016%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DETROIT - One day after ruling that a general liability insurance policy's amusement device exclusion bars coverage for an underlying lawsuit alleging injuries at a Cleveland Indians' fan festival, a Michigan federal judge on April 13 ordered the parties to mediation (National Pastime Sports LLC v. CSI Insurance Group, et al., No. 11-11378, E.D. Mich., Southern Div.; 2012 U.S. Dist. LEXIS 51497). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2017%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SCRANTON, Pa. - Insureds on April 9 filed a notice of appeal to the Third Circuit U.S. Court of Appeals challenging a Pennsylvania federal judge's March 7 finding that their insurer has no duty to defend or indemnify them against underlying lawsuits alleging the insureds' involvement in a $2.6 million kickback scheme with two Pennsylvania judges (Markel International Insurance Company v. Western PA Child Care LLC, et al., No. 3:10-CV-1156, M.D. Pa.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2018%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW ORLEANS - Breach of contract policy exclusions do not bar coverage of a copyright infringement claim against insureds, the Fifth Circuit U.S. Court of Appeals ruled April 4, reversing and remanding a lower court's ruling that no coverage existed (Looney Ricks Kiss Architects Incorporated v. State Farm Fire & Casualty Company, No. 11-30121, 5th Cir.; 2012 U.S. App. LEXIS 6730). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2019%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW ORLEANS - A Louisiana federal judge on April 2 dismissed claims against an insurer under the Louisiana Direct Action Statute and under the Michigan Uniform Trade Practices Act, but allowed a claim for aiding and abetting a breach of fiduciary duty to stand (Versai Management Corporation, et al. v. Progressive Casualty Insurance Company, No. 11-2717 SECTION I, E.D. La.; 2012 U.S. Dist. LEXIS 46757). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2020%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN FRANCISCO - A former employee's allegations against his employer insured raise the potential for coverage under an insurance policy's definition of "injury" that includes "common law claims for invasion of the right of privacy," a California federal judge ruled March 20, denying the insurer's motion for summary judgment in part (Twin Star Ventures Inc., et al. v. Universal Underwriters Insurance Co., No. 10-04284, N.D. Calif.; 2012 U.S. Dist. LEXIS 37628). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=17-8%20Mealey%27s%20Emerg.%20Ins.%20Disps.%2021%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - The Seventh Circuit U.S. Court of Appeals on March 16 affirmed a lower court's rulings in a dispute over law enforcement liability coverage for a $9 million jury verdict against an insured city and one of its police officers (American Safety Casualty Safety Insurance Co., et al. v. City of Waukegan, Nos. 11-2775, 11-2789 & 11-2961, 7th Cir.; 2012 U.S. App. LEXIS 5496).