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Ten Most Significant Insurance Decisions of 2010: Case Summaries and Core Search Terms from Lexis.com

The following ten cases were selected by White & Williams LLP partners Randy J. Maniloff and Joshua A. Mooney for analysis in their annual article Endurance Coverage 2010: The Year’s Ten Most Significant Insurance Decisions Reaches the Decade Mark. What follows are summaries and core search...

The June 2011 Release of New Appleman New York Insurance Law is Now Available on Lexis.com

The newest release of New Appleman New York Insurance Law is available on lexis.com as of June 23, 2011. The release contains updates to reflect recent case law and interpretations issued by the Department of Insurance and the Office of General Counsel, as well as recent statutory and regulatory amendments...

Jungleland: New Jersey and the Duty to Defend

Big Man ‐ ifesto From The Supreme Court Applying A Broad Duty to Defend Randy J. Maniloff, White and Williams, LLP "There's an old joke - um... two elderly women are at a Catskill mountain resort, and one of 'em says, 'Boy, the food at this place is really terrible.' The...

Blogs from the ILC Advisory Board: Richards v. Sequoia Insurance Co.: Liability Insurer Not Obliged to Compensate Insureds for Defending Themselves While Insurer Is Considering Whether To Provide Defense

By William T. Barker, Partner, SNR Denton In Richards v. Sequoia Insurance Co. ,[1] insured attorneys, who were instructed to arrange for their own defense pending Sequoia's coverage decision, retained counsel on the basis that the insureds would do most of the investigation, legal research,...

Arizona Appeals Court Takes Different Tack In Addressing Independent Counsel Fees

Will The Decision Now Go From Phoenix, Arizona All The Way To Tacoma, Philadelphia, Atlanta, L.A.? "I say put money in thy purse." Othello Act 1, scene 3 Randy J. Maniloff, White and Williams, LLP Don't be fooled by the Shakespeare quote. I'm not that smart. I wouldn't...

Perkins Coie LLP on It Is Time for Insurers to Get Off the Fence: New York Courts Reject Blanket Reservations

By Vivek Chopra, partner, and Laura Basford, associate , Perkins Coie LLP This commentary discusses an apparent shift in New York law limiting the effectiveness of an insurance company's blanket reservation of rights letter when it is aware of a rescission-based defense to coverage. The New York...

SNR Denton LLP on Maxwell v. Hartford Union High School District: Wisconsin Supreme Court Rejects Broadening Coverage by Estoppel but Approves Forfeiture of Coverage Defenses for Breach of Duty to Defend

By William T. Barker, Partner, SNR Denton Most jurisdictions hold that a liability insurer that assumes control of its insured's defense without reserving a right to deny indemnity can be estopped from asserting indemnity coverage defenses that it knew or should have known about but failed...

SNR Denton, US, LLP on Downhole Navigator, LLC v. Nautilus Insurance Co.: Fifth Circuit Concludes That Texas No Longer Allows a Policyholder to Demand Independent Counsel Merely Because the Insurer Offers a Defense under Reservation of Rights

By William T. Barker, Partner, SNR Denton Older Texas cases had indicated that, whenever a liability insurer offered a defense under reservation of rights, the insured was entitled to demand defense by independent counsel, at the insurer's expense. In Downhole Navigator, LLC v. Nautilus Insurance...

SNR Denton LLP on Hoover v. Maxum Indemnity Co.: Georgia Supreme Court Seems To Hold That Liability Insurance Disclaimer on One Ground Forfeits Other Grounds

By Ronald D. Kent, Partner, SNR Denton In Hoover v. Maxum Indemnity Co., the Georgia Supreme Court held that a liability insurance coverage disclaimer could not reserve a right to assert additional grounds later. If taken literally, this apparently places Georgia in a small minority of jurisdictions...

Pennsylvania Appellate Court Establishes New Approach To An Insurer's Offer Of A Defense Under A Reservation Of Rights

By Joshua Broudy and James Killelea A Pennsylvania intermediate appellate court recently prescribed new rules relative to the defense of insureds under a reservation of rights. In Babcock & Wilcox Company, et al. v. American Nuclear Insurers, et al., 2013 PA Super. 174, 2013 PA Super. LEXIS 1630...

Appeals Court Provides Detailed Discussion Of Allocation Between Covered And Uncovered Claims

I have said this so many times. But given the huge importance of the issue, it is restated here. If you’ve read this before please forgive me. You have just written the greatest reservation of rights letter ever. If Felix Unger handled claims, this is what his letter would look like. If there were...

Insurer Has No Duty to Pay for Independent Counsel and May Reassert Its Right to Control the Defense When the Insurer Withdraws the Reservation of Rights Triggering the Insured’s Right to Independent Counsel

Swanson v. State Farm General Insurance Co., 2013 Cal. App. LEXIS 759 [ enhanced version available to lexis.com subscribers ], presented an issue of first impression regarding whether an insurer has a duty to provide an insured with independent counsel, pursuant to California Civil Code section 2860...

Chickens And Eggs: What Comes First – Underlying Case Or Coverage Case?

It is one of the most frequently occurring and important issues on the coverage landscape. Yet, for some reason, guidance can sometimes be unclear, inconsistent or just plain elusive. Here is the scenario. An insurer is defending its insured in an underlying action under a reservation of rights. Uncertainty...

Federal Court Lists 10 Requirements For A Reservation Of Rights Letter

“What’s in a name? That which we call a rose by any other name would smell as sweet.” William Shakespeare, “Romeo and Juliet,” Act II, Scene 2. [Well, actually, Wikipedia.] But the same cannot be said of reservation of rights letters. In fact, just the opposite. A letter...

MUST READ Reservation Of Rights Case (A Top 10 Case Of 2014)

I’m capable of writing a hyperbolic headline in Coverage Opinions now and then. Really, I am. But this isn’t one of them. If you read only one article in this issue of CO , make it this one. In Builders & Exteriors, Inc. v. Mid-Continent Casualty Co., No. WD 76880 (Mo. Ct. App. Sept...

Court’s Solution To Determining the Hourly Rate For Independent Counsel: Put It In The Policy

It is an issue that has confronted us all and one with no easy answers. An insurer determines that, on account of a defense being provided under a reservation of rights, the insured is entitled to independent counsel, to be paid for by the insurer (or a court makes this decision for the insurer). Now...

Setting Up a Successful Negotiation Regarding “2860 Rates”

By Erica Villanueva “The insurer’s obligation to pay fees to the independent counsel selected by the insured is limited to the rates which are actually paid by the insurer to attorneys retained by it in the ordinary course of business in the defense of similar actions in the community...

Is That Covered? Reservation of Rights

By Michael R. Kelley If a policyholder is sued, she can tender the defense of that suit to her insurance company. If the insurance company believes that there may not be coverage, but cannot make a clear determination based upon the complaint filed, the insurer can issue a "reservation of...

PA Supreme Court Gives Policy Holders Right to Settle Without Insurer Approval

By Michael R. Kelley Insurance coverage counsel have been anxiously awaiting the Pennsylvania Supreme Court's decision in Babcock & Wilcox Co. v. Am. Nuclear Insurers , 2015 Pa. Lexis 1551 (July 21, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance...

Pennsylvania Supreme Court Holds Insured Entitled to Settle Underlying Claim Even Absent Insurer Consent

In its recent decision in Babcock & Wilcox Co. v. American Nuclear Insurers , 2015 Pa. LEXIS 1551 (Pa. July 21, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the Supreme Court of Pennsylvania, deciding a matter of first impression within the Commonwealth...

Why Failure To Read Policy Hurts Both Insured and Insurer – Per Claim Deductible Defeats Cover for Bad Faith Suit

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...

Babcock & Wilcox v. American Nuclear Insurers: Why Insurers Are The Real Winners In Pennsylvania High Court’s Adoption Of Arizona’s Morris Rule

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...

PA Supreme Court Rules Insured May Enter Settlement Despite Insurer’s Objections

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...

Letter To The Editor: Bill Barker, Coverage Lawyer and Scholar, Says I Got It Wrong About Babcock & Wilcox

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...

Mississippi Court Holds Defense Costs Outside of Limits

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...