CaseWatch: Insurance - Decisions from The Insurance and Reinsurance Report - March 2011

CaseWatch: Insurance - Decisions from The Insurance and Reinsurance Report - March 2011 subscribers may access the enhanced versions of the cases above. Non-subscribers may access the free, unenhanced versions on lexisONE, if available.


Actions and Proceedings


Kartman v. State Farm Mutual Automobile Insurance Company
634 F.3d 883 [ /LexisONE] (7th Cir. Ind. February 14, 2011)
Class Certification Inappropriate

Insureds who are dissatisfied with the payment for hail damage to the roofs sued for damages and for an injunction requiring the insurer to reinspect the roofs pursuant to a uniform, reasonable, and objective standard for evaluating hail damage.  The district court declined to certify a damages claim under Rule 23(b)(3) because each insured's underpayment claim required an individualized factual inquiry.  The district court certified a class claim for injunctive relief to determine if the insured should be required to reinspect the insureds' roofs pursuant to a uniformed and objective standard.  On appeal, the court found that the Rule 23(b)(2) certification was inappropriate.  The court found that the insureds essentially alleged breach of contract and bad faith denial of insurance benefits would be remedied by damages.  The insurer did not have a duty requiring its use a particular standard for assessing hail damages, and thus, there was no independent cognizable wrong to support injunctive relief. 


Additional Insureds

Carl E. Woodward, LLC v. Acceptance Indemnity Co.
2011 U.S. Dist. LEXIS 3121 [] (S.D.Miss., January 12, 2011)
Builder Entitled to Additional Insured Status

A builder was sued by the owner who alleged the builder performed shoddy work including installing concrete foundations that were off-spec. The concrete work had been performed by a subcontractor who was required by contract with the builder to name the builder as an additional insured on its CGL policy. The court held that allegations that the concrete subcontractor omitted steps from concrete slabs which in turn caused damage to exterior walls and doors may have been accidental so as to trigger coverage. Further, the complaint against the builder alleged damage that occurred during construction of the concrete work, thereby triggering the insurer's obligation to defend the builder as an additional insured for property damage arising during the subcontractor's operations for the builder.



Watertown Tire Recyclers, LLC v. Nortman and Robertson Ryan & Associates, Inc.
2011 Wisc. App. LEXIS 46 [ / LexisONE] (Wis. App., January 20, 2011)
Appellate Court Affirms Coverage for Clean-Up Costs
Plaintiff incurred clean-up costs following a stockpile fire at plaintiff's business.  The insurer denied coverage based on the policy's absolute pollution exclusion.  The court held that the sublimit exception to the exclusion provided coverage, but the lower court properly determined that a monetary judgment against the insurer was not appropriate because the court was not presented with sufficient evidence to determine a fixed sum appropriate for a monetary judgment. 


Duty to Defend/Trigger of Coverage

State Auto Property and Casualty Ins. Co. v. Kincaid
2011 U.S. Dist. LEXIS 9505 [] (C.D.Ill., February 1, 2011)
Duty to Defend Innocent Co-Insured
Two policyholders owned and operated a business which was also insured. One of the policyholder's molested a minor employee of the business who ultimately sued the other policyholder and the business in tort, alleging the other policyholder knew or should have known of the perpetrator's criminal propensities. The insurer sought a declaration that it was not obligated to defend any of the policyholders from the victim's suit. The court disagreed, finding there was no allegation or evidence that the co-policyholder or the business expected or intended the victim's injuries. Thus, they were accidental, not excluded, and were potentially covered. The insurer was required to defend the co-insured and the business.

Sigma Marble & Granite - Houston, Inc, v. Amerisure Mut. Ins. Co.
2010 U.S. Dist. LEXIS 137096 [](S.D.Tex., December 28, 2010)
Insurer Required to Defend Policyholder Against Construction Delay Claims
A hotel owner hired a contractor to perform a major renovation of the hotel. The contractor hired a subcontractor to perform tile work in hotel bathrooms. Due to major construction delays, the owner sued the contractor alleging, in part, cost increases and completion delays due to "incorrect installation" in bathrooms. The contractor filed a third party demand for arbitration against the subcontractor, who tendered the defense to its CGL insurer. The court found a duty to defend was triggered by the hotel owner's allegations of loss of use of the hotel due to delays, which constituted property damage within the meaning of the policy. Further, allegations of incorrect installations of bathroom fixtures met the definition of "occurrence" to trigger the duty to defend.


Directors & Officers Coverage

Wintermute v. The Kansas Bankers Surety Co.
630 F.3d 1063 [ /LexisONE] (8th Cir. (Mo.), January 6, 2011)
Acquitted Bank Director Entitled to Defense
A bank director was charged with multiple counts of fraudulent conduct in bank-related transactions. She tendered her criminal defense to the bank's D&O insurer, which denied coverage. She was acquitted of four of the six counts against her. The bank relied upon exclusions where a director would "gain in fact a personal profit or advantage to which [she was] not legally entitled," and where a claim is based on the dishonesty of the director. The Court of Appeals determined that applicability of these exclusions could not be determined based on allegations of the criminal indictments alone because the exclusions required the director to "in fact" realize a personal gain and to have actually engaged in the dishonest activity. The Court reversed summary judgment in favor of the insurer and remanded for a determination of whether or not the director actually realized a personal gain and whether she actually participated in the alleged dishonest activities, determinations which necessarily required factual determinations, not merely the allegations of the criminal indictments against the director.


Ichimoto v. Amer. Motorists Ins. Co.
2011 Cal. App. Unpub. LEXIS 774 [] (Cal. App., January 31, 2011)
No Coverage for Contamination Damages Under CGL Policy
Plaintiff sued its insurer when it refused to provide a defense for a lawsuit a neighboring property owner brought to recover response costs and damages from dry cleaning chemical contamination.   The court held that the "sudden and accidental" exception to the pollution exclusion did not apply because the complaint did not allege damage to personal property of others that occurred on the policyholder's property.

Rockhill Ins. Co. v. Coyote Land Co.
2011 U.S. Dist. LEXIS 11040 [] (N.D.Fla., February 4, 2011)
District Court Grants Summary Judgment To Insurer Holding Pollution Exclusions Barred Coverage For Landfill Exposure Claims
The policyholder, allegedly released hydrogen sulfide gas from its landfill and was sued.  The insurer defended the policyholder under a reservation of rights and sought a determination that it owed no duty to defend or indemnify under the policy due to specific pollution-related policy exclusions. The court held that the absolute pollution exclusion has previously been considered by the Supreme Court of Florida and found to be clear and unambiguous.  Moreover, hydrogen sulfide is known to be a hazardous air pollutant.  Therefore, the policy's pollution exclusion in the CGL coverage part of the policy barred coverage for the claims in the underlying suit.

Mt. Hawley Ins. Co. v. Dania Distrib. Centre Ltd.
2011 U.S. Dist. LEXIS 9007 [] (S.D.Fla., January 31, 2011)
District Court Grants Summary Judgment To Insurer
Approximately 90 plaintiffs sued the defendant policyholder for claims alleging negligence, nuisance and violation of the Florida Pollutant Discharge Prevention and Control Act as a result of the dispersal of pollutants from its property while being "cleaned" for sale.  The policyholder used machinery in the clean-up process. The pollution exclusion clause expressly excluded coverage for pollution; however, subsection (d) of the pollution exclusion contained a provision excepting the exclusion for injury arising out of the escape of fuels, lubricant or other operating fluids needed for the operation of "mobile equipment."  In ruling in favor of the insurer, the district court held that the policy's pollution exclusion applied to occurrences arising out of the discharge, dispersal or escape of pollutants and that the "arising out of" phrase was not ambiguous and should be interpreted broadly.

NGM Insurance Company v. Kuras
2011 U.S. App. LEXIS 512 [ /LexisONE] (4th Cir.(S.C.), January 11, 2011)
Fourth Circuit Affirms Ruling Against Insurer Holding Pollution Exclusion Was Ambiguous
Postal worker employees alleged exposure to paint products caused chemically induced asthma, chronic obstructive pulmonary disease and other injures. The insuer disclaimed coverage based on the pollution exclusion. The court of appeals held that, under the circumstances, the language of the pollution exclusion was subject to more than one reasonable interpretation, and therefore, ambiguous under South Carolina law.  In addition, the court of appeals held that the trial court properly considered the nationwide division of authority over whether the pollution exclusion applies only to traditional environmental damage and also properly applied the South Carolina rule requiring interpretation of an ambiguity in an insurance contract against an insurer.  Thus, the ruling of the trial court was affirmed.

RLI Insurance Company v. Gonzalez
2011 U.S. App. LEXIS 472 [ /LexisONE] (5th Cir.(Tex.), January 7, 2011)
Fifth Circuit Affirms Ruling In Favor Of Insurer Holding Pollution Exclusion Barred Coverage For Silica Exposure Claims
An Umbrella Policy contained several endorsements, including a "Pollution Exclusion Absolute." The pollution exclusion stated that the Umbrella Policy did not cover bodily or personal injury arising as a result of the "contamination of the environment by pollutants that are introduced at any time, anywhere, in any way." It defined "pollutants" as "smoke, vapors, soot, fumes, acids, sounds, alkalis, chemicals, liquids, solids, gases, waste, . . . and all other irritants and contaminants."  The court of appeals held that the pollution exclusion on its face excludes injuries arising from exposure to "all . . . irritants and contaminants." Since the Occupational Safety and Health Administration has classified silica dust as an air contaminant under 29 C.F.R. § 1910.1000, and the language of the pollution exclusion unambiguously applied to claims from contamination of any environments by pollutants that were introduced at any time, anywhere, in any way. As such, the court of appeals affirmed the trial court ruling concluding that the insurer did not have a duty to indemnify the policyholder for the underlying claims.



Garrison Property and Casualty Ins. Co. v. Barco
2010 U.S. Dist. LEXIS 138035 [] (D.Col., January 3, 2011)
No Duty to Defend Policyholder Who Fired Gun Into Crowd
The insurer issued renter's and automobile policies which both excluded bodily injuries caused by intentional acts of the policyholder "that would reasonably be expected to result in bodily injury." After being escorted from a party, the policyholder drove by and fired the gun three times into a crowd outside, injuring one partygoer. The gunshot victim sued, alleging negligence. The insurer sought a declaration of no coverage due to the intentional act of the  policyholder which was reasonably expected to cause injury. The court ruled in favor of the insurer, holding that a person who points a gun into a crowd and pullss the trigger obviously intends or expects to injure someone. That the victim phrased her complaint as a negligence action did not alter the conclusion of no coverage based on the deliberate acts of the insured.

Panico v. State Farm Fire and Casualty Co.
2011 U.S. App. LEXIS 2216 [ /LexisONE] (10th Cir. (Co.), February 3, 2011)
Owned Property Exclusion Eliminates Coverage for Claims of Misrepresentation in Sale of House
A policyholder sold a house and was sued by the buyer for negligent misrepresentation after the buyer discovered serious defects, mold and other problems with the house. The policyholder tendered the defense under policies which covered property damage caused by an occurrence. The court determined the insurer had no duty to defend due to the owned property exclusion which excluded damage caused to property owned by the insured. The policyholder owned the property at all times when the buyer alleged the damage occurred, thus the exclusion applied.

Capitol Specialty Insurance v. Industrial Electronics LLC
2011 U.S. App. LEXIS 659 [ /LexisONE] (6th Cir.(Ky.), January 12, 2011)
Coverage to Employer Excluded Under a CGL Policy for Lawsuit Alleging Tortious Interference and Use of Trade Secrets
An employee and his new employer were sued by his former employer for tortious interference, breach of contract and violations of the Kentucky Uniform Trade Secrets Act.  The new employer sought coverage under a CGL policy for both it and its employee.  The Sixth Circuit federal appellate court held that breach of contract exclusion in the policy excluded coverage for all of the underlying claims because the former employer's claims arose directly from the employee's breach of contract and the new employer's use of the former employer's trade secret information, the basis of both the tortious interference and statutory claims, flowed from the employee's dissemination of such information to the new employer.

Allstate Ins. Co. v. Campbell
128 Ohio St. 3d 186 [ /LexisONE] (Ohio, December 30, 2010)
Insurers Required to Defend Teens Regarding Prank
In a misguided teenage prank, a group of teens placed a fake deer in a rural highway, which caused a car accident with serious injuries. The injured driver sued the teens and their parents. The insurers disclaimed based on intentional acts exclusions. The insurers argued the egregious nature of the teens' conduct allowed an automatic inference of intent to injure. The court determined that, while the doctrine of inferred intent is not limited to cases of sexual molestation or homicide, the doctrine only applies where the intentional act and the harm caused are intrinsically tied so that the act "has necessarily resulted in the harm."

Admiral Ins. Co. v. H&W Industrial Servs., Inc.
2011 U.S. Dist. LEXIS 9417 [] (W.D.Tex., February 1, 2011)
No Duty to Defend Claims of Defective Signas
A suit was filed against an insured who manufactured and sold street signs. The suit alleged the signs were defective due to an improper coating applied by one of the policyholder's subcontractors, which defect caused traffic hazards requiring the replacement of the signs. The suit alleged breach of contract and warranties. The manufacturer's insurer refused to defend raising numerous exclusions in the CGL policy. The Court determined that the allegations fell within "your product" and "impaired product" exclusions. The insurer had no duty to defend.

Lenzke v. Brinkmann Pools, LLC
2010 Wisc. App. LEXIS 1037 [ / LexisONE] (Wis. Ct. of App., December 21, 2010)
No Coverage in Suit Where Only Damages Were For Repair
The policyholder pool distributor and installer installed an in-ground pool manufactured by another company, at the home of a customer. Within a year, cracks appeared in the pool and numerous serious problems arose. The customer sued the distributor alleging breach of contract, warranty, negligence, and other claims. The distributor tendered to its CGL carrier which sought a declaration that it was not required to defend its insured. Although the plaintiffs' complaint arguably contemplated damages to property other than the pool distributor's own work, the court considered a discovery response by plaintiffs which indicated they were seeking no compensatory damages other than the repair or replacement of the defendant's work. Therefore, the court concluded the entirety of the complaint sought damages which were excluded by the "your work" exclusion. The insurer had no duty to defend the pool distributor.

Capital City Ins. Co. v. Hurst
632 F.3d 898 [ / LexisONE] (5th Cir.(Miss.),  February 3, 2011)
Coverage Excluded Under a Commercial Automobile Policy Issued to Employer Where Employee was Convicted of Manslaughter.
An employee of a company that was issued a commercial automobile insurance policy collided with another car while driving a company vehicle after having an altercation with the driver of the other vehicle.  A jury convicted the employee of manslaughter, without malice aforethought, in the heat of passion, under Mississippi state law.  The employer and employee sought coverage under the policy for a wrongful death action brought by the other driver's widow.  The Fifth Circuit federal appellate court held that the manslaughter conviction collaterally estopped the parties from re-litigating the question of whether the employee intended to cause the other driver's death and the collision was excluded from coverage because the manslaughter conviction negated any finding that the decedent's death was an "accident."



Giambanco v. Sherrer
2010 N.J. Super. Unpub. LEXIS 3060 [] (N.J. App. Div., December 22, 2010)
Policyholders's Prior Fraudulent Statements Do Not Bar Subsequent Claims
After a 2003 accident, plaintiff fraudulently misrepresented his identity as that of his brother.  The insurer learned of the misrepresentation. In 2004, plaintiff was involved in another accident and filed a PIP claim. The insurer denied coverage based upon the Fraud and Concealment clause on the policy.  The court held that if the policy under which the misrepresentation was made is not the same policy under which the insured seeks coverage, the Fraud and Concealment clause is not enforceable.


Personal and Advertising Injury

Santa's Best Craft v. Zurich American Ins. Co.
941 N.E.2d 291 [ / LexisONE] (Ill. App. Ct., December 21, 2010)
In-person Form Of Promotion Does Not Count As Advertisement
"Advertisement" is defined as a notice that is broadcast or published to the general public or specific market segments about the policyholder's goods or services.  In order to qualify for coverage, the policyholder must demonstrate that the advertisement was widely disseminated to its intended audience, regardless of whether the audience was the general public or a specific market segment.  In-person forms of promotion do not constitute advertisement.

Hoffman, LLC v. Community Living Solutions, LLC
2010 Wisc. App. LEXIS 1049 [ /LexisONE] (Wis. Ct. of App., December 28, 2010)
No Coverage For Claims Based on Non-disparaging Statements
The policyholder defendant employed numerous former employees of plaintiff. Its website identified prior industry experience of the plaintiff's former employees but did not identify that such experience was obtained while the employees worked for the plaintiff. The plaintiff alleged such statements were untrue and deceptive. The defendant settled the suit then tendered the suit to its CGL carrier under Coverage B, for "personal and advertising injury." The insurer sought a declaration that there was no duty to indemnify on the basis that there was no alleged personal and advertising injury. The court agreed that there was no coverage finding that the plaintiff had established no libelous, slanderous, or disparaging statements made by the policyholder that would trigger Coverage B.


Policy Term and Conditions

Rolyn Companies, Inc. v. R&J Sales of Texas, Inc.
2011 U.S. App. LEXIS 2131 [ / LexisONE] (11th Cir.(Fla.), February 2, 2011)
Coverage Precluded Under a CGL Policy's Voluntary Payment Exclusion for a Contractor's Repair of Damage Caused by a Sub-contractor's Faulty Work
After a roofing subcontractor's faulty workmanship resulted in interior water damage to a client's property, a general contractor made extensive repairs to the property.  The general contractor then filed an action against the subcontractor and its insurer seeking reimbursement for the cost of those repairs and coverage under a CGL policy.  The Eleventh Circuit federal appellate court held that the policy's "voluntary payment" provision precluded the general contractor from recovering costs it incurred when it repaired the building because it did not seek the insurer's consent before voluntarily incurring those costs.

VRV Development L.P. v. Mid-Continent Casualty Co.
630 F.3d 451 [ /LexisONE] (5th Cir. (Tex.), January 7, 2011)
Coverage for Damage to Negligently Designed Retaining Walls Precluded Under CGL Policy's Exclusion for Damage to Work Completed by the Contractor
A contractor was sued for negligently designing and building retaining walls resulting in damage to the walls and consequential property damage to backyards after they collapsed in 2007.  The contractor sought coverage under a CGL policy that was effect at the time the work was performed but expired in May 2006.  The Fifth Circuit federal appellate court held that coverage for the damage to the retaining walls was precluded under an exclusion for damage to work completed by the policyholder and their subcontractors and the damage to backyards was precluded because it occurred well after the expiration of the CGL policy.


No Fault

Cannino v. Progressive Express Ins. Co.
2010 Fla. App. LEXIS 19397 [ /LexisONE] (Fla. Ct. of App., 2d Dist., December 17, 2010)
Plaintiff Allowed No-Fault Benefits Despite WC Claim
A Florida intermediate appellate court has held that a policyholder who entered into a policy limit settlement with the tortfeasor and subsequently settled with his workers' compensation carrier could pursue his personal auto carrier for no-fault benefits. Under the workers' compensation settlement, he resigned from his employment and released his employer and its insurer from any and all claims related to workers' compensation benefits, including his future medical care and treatment. In exchange, the insurer paid him a lump sum and waived its statutory workers' compensation lien. The plaintiff then sought payment of his no-fault benefits from his insurer, which denied that it was responsible for them because it was entitled to a credit for the workers' compensation benefits and the plaintiff had never eliminated the credit by actually paying out-of-pocket to satisfy the workers' compensation lien, arguing that to hold otherwise would give him an impermissible windfall. The appellate court rejected the no-fault insurer's argument and held that the plaintiff, who had become obligated to reimburse the workers' compensation carrier for the benefits it had paid once when he recovered from the tortfeasor, had satisfied the workers' compensation lien, had effectively paid out-of-pocket by giving consideration (i.e., by giving up his right to seek future workers' compensation benefits in exchange for a negotiated cash payment and the waiver of the lien) when settling with the workers' compensation carrier.


Title Insurance

Pavilion Park LLC v. First American Title Ins. Co.
2011 U.S. Dist. LEXIS 1273 [] (W.D.Ky., January 6, 2011)
Prior Use of Property as a Waste Disposal Site Does Not Affect Title
Plaintiff purchased land at a foreclosure sale.  Following the purchase, plaintiff became aware of a restrictive covenant documenting the use of the property as a solid waste disposal site.  Plaintiff sought coverage from its title insurer.  The court held there was no entitlement to coverage because the policy only coverage encumbrances that affect title.  It does not insure against general unmarketability.  The covenant does not affect the ability to pass title and is not covered. 



Indiana Senate Bill 293
(Intro:  Jan. 6, 2011; Last Action:  Jan. 26, 2011)
Relates to license branch contractor insurance; limits the liability insurance coverage requirement for a partial service license branch contractor to $ 2 million and requires indemnification of the bureau of motor vehicles commission for additional liability.


Massachusetts House Docket 2382
(Intro:  Jan. 20, 2011; Last Action:  Jan. 20, 2011)
Limits indemnity and insurance responsibility for general contractors and subcontractors in construction work.


Mississippi House Bill 2240
(Intro:  Jan. 17, 2011; Last Action:  Jan. 26, 2011)
Requires liability insurers to disclose the limits of a policy to a third-party claimant.


New York Senate Bill 402
(Intro:  Dec. 20, 2010; Last Action:  Jan. 5, 2011)
Amends provisions requiring persons who obtain a permit for construction or demolition operations to procure insurance for possible damage to adjacent property; includes excavation in such provisions; requires proof of insurance to be provided to the owners of adjoining property within a specified time period prior to the commencement of the construction, excavation or demolition work.


Oregon Senate Bill 422
(Intro:  Jan. 10, 2011; Last Action Jan. 10, 2011)
Prohibits contracting agency from requiring contractor in contract for architectural, engineering and land surveying services or related services to obtain and maintain in force liability insurance with combined single limit that exceeds $ 1 million unless contracting agency makes determination after considering certain factors or unless contracting agency pays portion of premium cost that is attributable to increased combined single limit; becomes operative January 1, 2012.


South Carolina House Bill 3449
(Intro:  Jan. 26, 2011; Last Action:  Jan. 26, 2011)
Provides that a liability insurance policy issued by an insurer and covering a construction professional in this state must be broadly construed in favor of coverage; provides that work of a construction professional resulting in property damage in certain circumstances constitutes an occurrence as commonly defined in liability insurance and is not the intended or expected consequence of the work of the construction professional.


South Carolina Senate Bill 421
(Intro:  Jan. 25, 2011:  Last Action:  Jan. 25, 2011)
Provides a provision in an insurance contract issued to a construction professional excluding or limiting coverage for one or more claims for personal injury, death, or damage to property based upon or arising out of the defective or unsafe condition of an improvement to real property that occurs prior to a policy's inception date and continues, worsens, or progresses while the policy is in effect is void and unenforceable.


South Carolina Senate Bill 431
(Intro: Jan. 26, 2011:  Last Action:  Jan. 26, 2011)
Provides that a liability insurance policy issued by an insurer and covering a construction professional in this state must be broadly construed in favor of coverage; provides that work of a construction professional resulting in property damage in certain circumstances constitutes an occurrence as commonly defined in liability insurance and is not the intended or expected consequence of the work of the construction professional.


Virginia House Bill 2274
(Intro:  Jan. 12, 2011; Last Action:  Jan. 12, 2011)
Prohibits an insurer from denying coverage under a claims-made liability insurance policy for a claim based on the insured's failure to notify the insurer that a claim might be made under the policy, unless the insured's failure to notify the insurer of the potential claim prejudices the insurer or the insured understood that the claim would be made under the policy.


This edition of CaseWatch: Insurance was originally published in the The Insurance and Reinsurance Report blog.

CaseWatch: Insurance provides timely summaries of and access to insurance law decisions and legislation. It is distributed bi-weekly. For ease of reference, the cases are organized by topic. CaseWatch is the collaborative effort of Goldberg Segalla LLP's Global Insurance Services Practice Group, as is its blog The Insurance and Reinsurance Report. Goldberg Segalla's Global Insurance Service Group is comprised of over 25 attorneys throughout 10 offices in the firm's four states (New York, New Jersey, Connecticut, and Pennsylvania). The Global Insurance Services Group routinely handles matter of national and international importance for both domestic and foreign insurers, cedents and reinsurers. This includes: comprehensive audits, policy reviews, regulatory advice,  positioning dispute for resolution at the business level (either through interim funding or non-waiver agreements), negotiations among counsel, mediation or fully-involved arbitration or litigation.


   The editors, Daniel W. Gerber and Sarah J. Delaney appreciate your interest and welcome your feedback.