LexisNexis is pleased to present a new publication, Insurance Coverage for Intellectual Property Claims: Personal and Advertising Injury, Media Liability and Cyber Claims. It brings clarity to several overlapping forms of insurance coverage that can potentially respond to a variety of intellectual property claims. The insurance products that are available may seem bewildering, or at least illogical, for those without...

If you do construction defect coverage work, then you’ve definitely seen an endorsement, on a general liability policy, that is along the lines of this (but with more detail): If liability arises out of the insured’s use of a sub-contractor, no coverage is owed to the insured if the sub-contractor did not agree to defend and indemnify the subcontractor; and the sub-contractor did not carry liability insurance...

It is a safe bet that if a person fires a gun, and then seeks coverage for any resulting injuries, coverage issues, especially “expected or intended,” will ensue. It is also a safe bet that the person seeking coverage will come up empty. When it comes to wayward guns, it can be a challenge to secure coverage. This is what makes Allstate v. Canell, No. 13-1182, [subscribers can access an enhanced version...

You would think that Thanksgiving is one of a few days a year when insurance coverage could just take a break. A day when insurance policies and claims could just sit down on the sofa and drift into a deep turkey-induced nap. But insurance coverage gets no rest – even on one of the most restful and lazy days of the year. Consider the amount of coverage litigation over the years involving Thanksgiving and its many...

In Rancho Tehama Ass’n v. Fed. Ins. Co. , the district court held that, under the facts of the case before it, relatedness of claims could not be properly addressed on a motion to dismiss because it entailed a premature factual inquiry. The insured, which operated as a homeowners association, had directors and officers liability coverage under a 2012-13 policy and a 2013-14 policy issued by the insurer. The underlying...

In Fluor v. Superior Court , the California Supreme Court overruled its prior decision in Henkel Corp. v. Hartford Accident & Indemnity Co. , 29 Cal. 4th 934 (2003), and held that an insurance company may not utilize a “consent-to-assignment” provision in its policy to deny coverage for a loss that occurred prior to the assignment. Fluor arose out of approximately 2500 underlying asbestos lawsuits ...

The reason why the first Thanksgiving was so successful was because the people sitting around the table didn’t know each other well enough to dislike one another. At lots of tables in America on Thursday that won’t be the case. There will be plenty of “pass the stuffing” [thought bubble – you pompous know-it-all] and “ooh, delicious sweet potatoes” [thought bubble – you...

In Taylor v. Fed. Ins. Co. , the court held that the insured, an accounting firm that performed business management services, account oversight and tax planning, could not show it was entitled to coverage because the losses of client funds did not qualify as “direct losses.” A client of the insured gave the insured power of attorney over money held in the client’s financial account. A hacker stole...

Two Lewis Brisbois Lawyers Superbly Explain What’s At Stake I’ve always liked “use of an auto” cases – be they in the context of coverage under an auto policy or the auto exclusion in a general liability or homeowners policy. It is usually a make or break issue for coverage and the cases have a way of involving peculiar facts. And there’s a reason for that. After all, since automobiles...

It is the proverbial “damned if you do and damned if you don’t” situation for insurers. An insurer is presented with a policy limits demand to settle for one insured – and it should be accepted based on liability and damages considerations -- but the settlement offered will not secure a release for all insureds. If the insurer accepts the settlement offer, and secures a release for one insured...

It is unquestionably one of the most challenging issues to confront an insurer – the demand to settle a claim within the insured’s limits of liability. We all know the drill. An insurer has been defending its insured for a while. The case is coming down to the end and trial is on the horizon. The insurer is at the point where it knows as much about the liability and damages issues as it ever will. And with...

Donovan's Children Share With Me Memories Of Their Father And Seeing His Life On The Biggest Screen In The World “I’m an insurance lawyer.” The first time I heard it, it didn’t really register. The television was on in the kitchen but I wasn’t watching. It was very early in the morning and I was hurriedly doing a host of things before leaving the house. The focus of my attention was...

Several solar panel manufacturers and their distributors have been sued in class actions alleging that certain models of panels are defective and need to be replaced. Class actions can be very expensive to defend, and the ultimate liability can also be significant, depending on the number of panels at issue and the facts. Fortunately, a manufacturer or distributor that is sued may have insurance to help defray these costs...

Companies often monitor or record conversations between their employees and customers for training or quality control purposes. You’ve probably heard messages to this effect yourself. These announcements are meant to satisfy laws that prohibit monitoring or recording unless both parties to the call consent. Despite such precautions, however, companies sometimes run afoul of these laws and find themselves facing...

In its recent decision in Endurance American Specialty Ins. Co. v. Utica First Ins. Co ., 2015 N.Y. App. Div. LEXIS 7272 (N.Y. 1 st Dep’t Oct. 8, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the New York Appellate Division, First Department, reinforced the rule that when the basis for a disclaimer of coverage for a bodily injury claim has been determined, an insurer...

Tapas: Small Dishes of Insurance Coverage News & Notes An insured settled a case and then gave notice to its insurer. As you may expect, the Supreme Court of Nebraska in Rent-A-Roofer, Inc. v. Farm Bureau Property & Casualty Ins. Co., No. S-14-895 (Neb. Sept. 11, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], did not deliver good news to the insured. On one...

In its recent decision in Innes v. St. Paul Fire & Marine Ins. Co ., 2015 U.S. Dist. LEXIS 121753, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], (D.N.J. Sept. 11, 2015), the United States District Court for the District of New Jersey had occasion to consider what constitutes a “claim” for the purpose of a claims-made and reported policy. The Innes decision...

I’m a big fan of cases involving disputes over the prizes awarded to golfers who make a hole-in-one. You know how this works. A golf tournament, such as a corporate outing or charity fundraiser, will designate one hole where any participant who gets a hole-in-one will win a big prize, such as a car or large sum of money. There is a great chance that nobody will get a hole-in-one. But, just in case, the prize will...

Some coverage decisions, addressing certain issues, never cease to amaze me. In fact, the more I see them the more my amazement grows. Acuity v. Reed & Associates, No. 15-2149, 2015 U.S. Dist. LEXIS 109412 (W.D. Tenn. Aug. 19, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], is such a case. Get ready to be amazed. Reed & Associates involves coverage under the...

In Bartkowiak v. Underwriters at Lloyd’s London , 2015 Ill. App. (1 st ) 133549 (Aug. 13, 2015), the Illinois Appellate Court, First District, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], affirmed the decision of the trial court in a declaratory judgment action that Lloyd’s had no duty to defend its insured, Jack Gray, a truck broker, because there was no possibility...

I’m sure many of us have had this situation. An insurer makes a coverage determination in a claim. We’ll call it claim one and determination A. Then, in claim two, involving indistinguishable facts as claim one, the insurer reaches determination B. But surely this can’t be allowed, someone will say, adding that they can’t reach inconsistent decisions. The insurer is estopped from reaching determination...

It sees to me that no one reads an insurance policy until a claim is made. Even insurers fail to read or apply the terms and conditions of the policy to the facts of a loss. In Western Heritage Ins. Co. v. Asphalt Wizards , — F.3d —-, 2015 U.S. App. LEXIS 13263 (C.A.8 (Mo.) 7/30/2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], both the insured and insurer seemed...

In its recent decision in Cox Operating, L.L.C. v. St. Paul Surplus Lines Ins. Co., 2015 U.S. App. LEXIS 13318 (5 th Cir. July 30, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the United States Court of Appeals for the Fifth Circuit, applying Texas law, had occasion to consider the consequences of an insured’s failure to comply with a one-year reporting requirement...

In Williams v. National Union Fire Insurance Company of Pittsburgh, PA , 2015 U.S. App. LEXIS 11642 (9 th Cir. July 7, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the Ninth Circuit Court of Appeals, applying California law, had the opportunity to consider whether a death from deep vein thrombosis (“DVT”) attributed to prolonged air travel was caused by an...

By Michael R. Kelley Many liability policies are triggered when an event giving rise to a covered claim occurs , rather than when the claim is asserted or filed with the court. This is often true of the most common type of liability coverage - the commercial general liability policy. For instance, a claim brought by a plaintiff against you now might be for an accident that occurred two years ago. If that happens...