In Petersen Arch Ins. Co. , the Central District of California granted the carrier’s motion to dismiss and held that the claimant’s assignee could not pursue a breach of contract claim against the carrier because the claimant did not make a claim against the insured attorney during the policy period. In Petersen , the plaintiff, an assignee of the underlying claimant’s default judgment against the...

In Braden P’ship, LP v. Twin City Fire Ins. Co. , the Northern District of California found that, under a general partners liability policy, a sealed and unserved complaint was not “first-made” against insured partner during the policy period, as the policy provided that a claim is first made “on the date that a summons or similar document is first served upon [an insured].” Braden P’ship...

In Evanston Ins. Co. v. N. Am. Capacity Ins. Co. , the Eastern District of California, which previously held that each home involved in four underlying construction defect actions constituted a separate claim, held that amounts incurred in those actions must be allocated evenly as between the multiple retentions owed by the insured unless it was established that an unequal allocation was appropriate. Evanston and North...

In Wright v. Allstate Ins. Co. of Cal. , the Northern District of California granted Allstate Insurance Company of California’s (“Allstate California”) motion to dismiss, agreeing with Allstate California’s argument that it could not be held liable for breach of contract and breach of the implied covenant of good faith and fair dealing because it was not a party to the insurance contract. Wright...

Originally published in California Insurance Law Review - 2015 11.03.15 In Rancho Tehama , 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...

Policyholders seeking insurance funds to settle a case often face an insurer’s demand that some amount should be allocated to uncovered claims or parties. The issue arises often under directors and officers liability (D&O) policies, when settlements resolve the liability of covered directors and the uncovered company. But general and professional liability and errors and omissions insurers also demand to allocate...

In its recent decision in Federal Ins. Co. v. Singing River Health System , 2015 U.S. Dist. LEXIS 134814 (S.D. Miss. October 2, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the United States District Court for the Southern District of Mississippi issued a decision that could potentially have a significant impact on burning limits insurance policies. The Singing River...

Although the Washington Industrial Insurance Act (WIIA) often provides the exclusive remedy for employees' tort claims against employers, there are exceptions. Attorneys filing asbestos personal injury claims have found creative ways to try to use those exceptions to their clients' advantage. Even if an employee's claims seem to fall within the exceptions to the exclusivity provision of the WIIA, employers...

In Fluor Corporation v. The Superior Court of Orange County (Hartford Accident & Indemnity Co., real party in interest), 2015 Cal. LEXIS 5631 (Aug. 20, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the California Supreme Court determined that California Insurance Code §520, [subscribers can access an enhanced version of this statute: lexis.com | Lexis Advance...

By Jason Frye , Associate, Neal, Gerber & Eisenberg LLP The California Supreme Court has issued its long-awaited ruling in Fluor Corp. v. Superior Court of Orange Co . and held that California Insurance Code section 520 – a statute tracing back to 1872, [subscribers can access an enhanced version of this statute: lexis.com | Lexis Advance ], – dictates “a result different from that reached...

In the August 26th issue of Coverage Opinions I wrote that, despite the fact that the insurer in The Babcock & Wilcox Company v. American Nuclear Insurers (Pa. July 21, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], lost the case, the Pennsylvania Supreme Court’s decision “will go down as a case that provided significant benefits for insurers as a whole...

Insurance coverage disputes can be resolved by the seeking a court’s order in a declaratory relief action. Both state and federal courts have procedures available for resolving such disputes. However, to provide a useful declaration it is necessary that both parties to the insurance contract are involved in the suit. In McCormack v. Scottsdale Insurance Company , Slip Copy, 2015 U.S. Dist. LEXIS 120240 (E.D.Mich...

In 2003, the California Supreme Court ruled, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], that a company’s contractual transfer of insurance rights to a subsequent purchaser was invalid, as it violated the policy condition against assignments without insurer consent. ( Henkel Corp. v. Harford Accident & Indemnity Co .) The decision was surprising to many, as Asset...

Our Insurance Recovery Group is often asked to help emerging companies understand their insurance program and assist with claims. This is the first in a series of posts that will address the insurance issues impacting growing companies. The series will cover everything from how to analyze the coverage you have and placement issues, to contractual indemnity and insurance requirements, and how to proceed if you have a claim...

Insurance, like every other contract, is formed when there is an offer made, that offer is accepted, and consideration (payment or a promise to pay premium) is given. In a diversity action, a federal court must apply the choice-of-law rules of the forum state. The parties agree that Florida’s rule of lex loci contractus governs the Court’s choice-of-law determination in this contract dispute. This rule...

By Andrew B. Downs and Heather J. Zacharia In a sharp U-Turn, the California Supreme Court has decided that rights under liability insurance policies for harm that has already happened are assignable without the insurer's consent. In California, pre-loss assignments without the insurer's consent are invalid under California Insurance Code § 520, [subscribers can access an enhanced version of this statute...

By Monique M. Fuentes and Michael McCarthy Hartford Casualty Ins. Co. v. J.R. Marketing, L.L.C. , California Supreme Court Case No. S211645 (Filed August 10, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]: In JR Marketing , the California Supreme Court held that a liability carrier could seek reimbursement of excessive legal fees incurred defending the insured...

Tapas: Small Dishes of Insurance Coverage News & Notes A New York federal court, addressing an issue of first impression, held in SI Venture Holdings, LLC v. Catlin Specialty Ins., No. 14-2261 (S.D.N.Y. July 10, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], that a Pollution Clean Up policy, that requires an insured to seek approval from its insurer, before expending...

Tapas: Small Dishes of Insurance Coverage News & Notes The Open Mic column in the last issue of CO – July 15th -- was titled “Barry Manilow And Cyber Coverage: Court Writes The Songs For Policyholders.” It addressed an Oregon case concerning cyber/data breach coverage under a CGL policy. A music server was hacked and the identity of all of its users, and the contents of their music libraries...

(Co-written with Tina Zheng -- summer associate at White and Williams and second year student at Cornell Law School) Try as we might, none of us are immune from making a mistake on the job. It matters not our effort nor how much experience we have. It is just, well, life. Mistakes vary in their severity. And that is likely tied to their consequences – both for the employee and employer. But one consequence for...

You know the rule of evidence. Mentioning the availability of insurance, during a personal injury trial, is a big N-O. The rule is designed to prevent prejudice in the verdict, which might result if the jury is aware that an insurance company, and not the defendant, will be responsible for paying the verdict. But the Alaska Supreme Court allowed evidence of insurance in Ray v. Draeger, No. S-15347 (Alaska July 17, 2015...

On July 21, 2015, the Pennsylvania Supreme Court in The Babcock & Wilcox Company v. American Nuclear Insurers , No. 2 WAP 2014, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], adopted a variation of the test set forth in United Services Auto. Ass'n v. Morris , 741 P .2d 246 (Ariz. 1987), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance...

Although rescission issues most frequently arise in connection with health and life insurance policies, they can appear in virtually any context. See, e.g. , Unionamerica Ins. Co. v. Fort Miller Group, Inc. (N.D. Cal. 2008) 590 F. Supp. 2d 1254 (commercial general liability policy), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]; Blum Collins LLP v. NCG Prof’l Risks, Ltd...

In Oahu Air , [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the Eastern District of California refused to recognize the claim file privilege, finding that federal privilege law did not recognize that privilege as a proper ground for withholding documents during discovery. Oahu Air was a lawsuit filed by the insurer against third party defendants to obtain reimbursement of...

Justice Stanley Feldman (Ret.) Of The Arizona Supreme Court -- Author of Morris -- Provides Comment [Disclosure: I, along with two colleagues, filed an amicus brief with the Pennsylvania Supreme Court, in Babcock & Wilcox Company v. American Nuclear Insurers, on behalf of an insurance industry trade association, in support of ANI’s position.] Barring something very unusual, it is a simple matter to...