LexisNexis® Legal Newsroom
Mealey's IP/Tech - Illinois Federal Judge: Television Commercials Not Substantially Similar

CHICAGO - Allegations that Steak n Shake Inc. infringed the copyrighted television advertisement of a competitor were rejected Aug. 5 by an Illinois federal judge, who deemed the commercials dissimilar (Culver Franchising System Inc. v. Steak n Shake Inc., No. 16-75, N.D. Ill.; 2016 U.S. Dist. LEXIS 103091).

Mealey's Insurance - Faulty Work's Consequential Damages Are Insured, New Jersey High Court Finds

TRENTON, N.J. - Consequential damages caused by the subcontractors' faulty workmanship constitute "property damage," and water damage from rain flowing into the interior of the property due to that faulty work is an "occurrence" under a commercial general liability insurance policy, the New Jersey Supreme Court ruled Aug. 4 (Cypress Point Condominium Association Inc. v. Adria Towers LLC, et al., No. A-13/14, N.J. Sup.; 2016 N.J. LEXIS 847).

Mealey's Insurance - Panel Certifies Question On Meaning Of 'Suit' For Insurance Policy Under Florida Statute

ATLANTA - The 11th Circuit U.S. Court of Appeals on Aug. 2 certified a question to the Florida Supreme Court regarding whether the notice and repair process set forth in Florida Statutes Chapter 558 constitutes a "suit" within the meaning of commercial general liability insurance policies (Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Co., No. 15-12816, 11th Cir.; 2016 U.S. App. LEXIS 14005).

Mealey's Labor & Employment - Insurer Has Duty To Defend Employment Practices Dispute 9th Circuit Says, Reverses

PASADENA, Calif. - In reversing a lower federal court's no coverage ruling, the Ninth Circuit U.S. Court of Appeals found July 27 that a commercial general liability insurer has a duty to defend its insured against an underlying lawsuit because the insured may not have acted with the requisite intent to trigger the policy's "intentional acts" exclusion (Steven J. Berns v. Sentry Select Insurance Co., No. 14-55996, 9th Cir.; 2016 U.S. App. LEXIS 13684).

Mealey's Banking & Finance - 9th Circuit Affirms Award Against Cabela's For Breach Of Contract

SEATTLE - The Ninth U.S. Circuit Court of Appeals on July 27 affirmed a district court's award of damages to the owner of a commercial property that was sold to a bank, with the exception of a portion that was granted to a bank in a bankruptcy settlement, finding that a retailer breached the underlying agreement by building another store within a restricted area (Cabela's Wholesale Inc. v. Hawks Prairie Investment LLC, No. 14-35157, 9th Cir.; 2016 U.S. App. LEXIS 13683).

Mealey's Insurance - Insurer Has Duty To Defend Employment Practices Dispute 9th Circuit Says, Reverses

PASADENA, Calif. - In reversing a lower federal court's no coverage ruling, the Ninth Circuit U.S. Court of Appeals found July 27 that a commercial general liability insurer has a duty to defend its insured against an underlying lawsuit because the insured may not have acted with the requisite intent to trigger the policy's "intentional acts" exclusion (Steven J. Berns v. Sentry Select Insurance Co., No. 14-55996, 9th Cir.; 2016 U.S. App. LEXIS 13684).

Mealey's Insurance - Panel: Insured Fails To Show 'Theft By Deception' In Dispute Over $90M Fuel Loss

NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on July 29 held that a petroleum refiner insured failed to provide any evidence that it would have acted differently had it known that a petroleum distributor's credit account was not secured, affirming a lower court's ruling that there was no "unlawful taking" to trigger commercial crime coverage for the loss of approximately $90 million worth of fuel (Tesoro Refining and Marketing Company, L.L.C. v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, No. 15-50405, 5th Cir.; 2016 U.S. App. LEXIS 13838).

Mealey's Insurance - Insured Won't Present Evidence, Testimony In Making Bad Faith Claim, Judge Rules

HATTIESBURG, Miss. - A federal judge in Mississippi on July 18 granted three motions in limine filed by an insurer in an insurance breach of contract and bad faith lawsuit, precluding an insured from presenting evidence, damages testimony and other testimony to show that the insurer acted in bad faith in conducting an investigation into a claim for coverage under a commercial property insurance policy (JCKP LLC v. Berkley Regional Specialty Insurance Co, et al., No. 14-0117, S.D. Miss.; 2016 U.S. Dist. LEXIS 93049).

Mealey's Insurance - Coverage Barred By CGL Policy's Professional Services Exclusion, Panel Affirms

TRENTON, N.J. - A New Jersey panel affirmed July 20 that commercial general liability coverage for an underlying negligence lawsuit against an engineering firm insured is barred by the policy's professional services exclusion (EIC Group LLC v. The Travelers Indemnity Company of America, No. A-2590-14T1, N.J. Super., App. Div.; 2016 N.J. Super. Unpub. LEXIS 1683).

Mealey's Insurance - Insured's Faulty Work Is Not Covered 'Property Damage,' Panel Upholds

TRENTON, N.J. - Allegations of an insured's negligent work that caused a collapse do not constitute covered "property damage" under commercial general liability insurance policies, a New Jersey appeals panel affirmed July 15 (New Jersey-American Water Co., Inc. v. Watchung Square Associates, LLC and Fidelity Corp. v. Vollers Excavating & Construction, Inc. and Frank Ferraro v. Salvatore Davino, et al. and Travelers Insurance Co., et al., Nos. A3436-13T1 & A-3445-13T1, N.J. Super. App. Div.; 2016 N.J. Super. Unpub. LEXIS 1639).

Mealey's Litigation Procedure - Federal Magistrate Judge Excludes Partial Expert Testimony In Admiralty Suit

CHICAGO - In an admiralty case, an Illinois federal magistrate judge on July 14 excluded an expert from testifying that boat captains could have requested that gates again be closed as they were approaching the protection cells (In the matter of the complaint of Ingram Barge Co. as owner of the M/V Dale A. Heller and the IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, and IN117513, petitioning for exoneration from or limitation of liability, No. 13-3453 c/w In the matter of American Commercial Lines, LLC, as owner and Inland Marine Service, Inc., as owner pro hac vice of the M/V Loyd Murphy for exoneration from or limitation of liability, No. 13-4292, N.D. Ill.; 2016 U.S. Dist. LEXIS 91411).

Mealey's Litigation Procedure - Judge Allows Expert To Testify In Part On Commercial Premises Safety, Security

AUGUSTA, Ga. - An expert for plaintiffs in a negligence lawsuit is qualified as an expert to testify on most of his opinions concerning commercial premises safety and security, a Georgia federal judge ruled July 8, granting and denying in part a motion to exclude (Tammy Padgett and Joey Padgett v. Kmart Corp. and Colony Mill Enterprises, LLC, No. 15-048, S.D. Ga.; 2016 U.S. Dist. LEXIS 88734).

Mealey's IP/Tech - En Banc Federal Circuit Clarifies Standard For On-Sale Bar In Patent Cases

WASHINGTON, D.C. - To trigger the "on-sale" bar set forth at 35 U.S. Code Section 102(b), a product "must be the subject of a commercial sale or offer for sale," and a commercial sale is "one that bears the general hallmarks of a sale pursuant to Section 2-106 of the Uniform Commercial Code," a unanimous, en banc Federal Circuit U.S. Court of Appeals ruled July 12 (The Medicines Company v. Hospira Inc., et al., Nos. 14-1469, -1504, Fed. Cir.; 2016 U.S. App. LEXIS 12667).

Mealey's Insurance - 5th Circuit Affirms Ruling In Insurer's Favor In Hurricane Ike Coverage Dispute

NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on July 7 affirmed a lower court's ruling in favor of a commercial property insurer in a breach of contract and bad faith dispute arising from Hurricane Ike damage to the insured's daycare center and warehouse (Steve Quibodeaux and the Kids Safari Inc., d/b/a Wee Care Childcare and Preschool v. Nautilus Insurance Co., No. 15-40567, 5th Cir.).

Mealey's Insurance - Insurers Have No Duty To Defend, Indemnify Faulty Work, Magistrate Judge Says

PITTSBURGH - Under Pennsylvania law, commercial general liability insurers have no duty to defend or indemnify insureds for a negligent performance of contract claim arising out of alleged faulty workmanship, a Pennsylvania federal magistrate judge ruled June 30 (Peerless Insurance Co. and Ohio Security Insurance Co. v. Manown Builders, et al., No. 15-281, W.D. Pa.; 2016 U.S. Dist. LEXIS 85261).

Mealey's IP/Tech - CGL Insurer Has No Duty To Defend Against Copyright Claims, Federal Judge Rules

AUSTIN, Texas - A Texas federal judge on June 17 held that a commercial general liability insurer has no duty to defend its insureds against copyright claims because the underlying complaint fails to allege any unauthorized use of an adult entertainment company's copyrighted advertising materials, slogan or title in the insureds' advertising (St. Paul Fire and Marine Insurance Co. v. Giganews Inc., et al., No. 15-89, W.D. Texas; 2016 U.S. Dist. LEXIS 79535).

Mealey's Banking & Finance - Federal Judge: Insured Did Not 'Own' Lost Earnings Under Commercial Crime Policy

HOUSTON - A Texas federal judge on June 21 held that an insured did not "own" its lost earnings stemming from a Ponzi scheme within the meaning of a commercial crime insurance policy (Cooper Industries, Ltd., et al v. National Union Fire Insurance Company of Pittsburgh Pa., No. 12-01591, S.D. Texas; 2016 U.S. Dist. LEXIS 80342).

Mealey's Insurance - CGL Insurer Has No Duty To Defend Against Copyright Claims, Federal Judge Rules

AUSTIN, Texas - A Texas federal judge on June 17 held that a commercial general liability insurer has no duty to defend its insureds against copyright claims because the underlying complaint fails to allege any unauthorized use of an adult entertainment company's copyrighted advertising materials, slogan or title in the insureds' advertising (St. Paul Fire and Marine Insurance Co. v. Giganews Inc., et al., No. 15-89, W.D. Texas; 2016 U.S. Dist. LEXIS 79535).

Mealey's Insurance - Federal Judge: Insured Did Not 'Own' Lost Earnings Under Commercial Crime Policy

HOUSTON - A Texas federal judge on June 21 held that an insured did not "own" its lost earnings stemming from a Ponzi scheme within the meaning of a commercial crime insurance policy (Cooper Industries, Ltd., et al v. National Union Fire Insurance Company of Pittsburgh Pa., No. 12-01591, S.D. Texas; 2016 U.S. Dist. LEXIS 80342).

Mealey's Insurance - Federal Magistrate Recommends Default Judgment Be Entered Against Insured

SACRAMENTO, Calif. - A federal magistrate judge in a California on June 16 recommend that a commercial general liability insurer's motion for a default judgment be granted and that a judgment be issued declaring that the insurer has no duty to defend or indemnify its insured against an underlying breach of contract and negligence lawsuit alleging the insured's pilot car services were performed "in an unworkmanlike manner" (Atain Specialty Insurance Co. v. Richard Szetela d/b/a D&D Pilot Car Services, et al., No. 14-2991, E.D. Calif.; 2016 U.S. Dist. LEXIS 78855).

Mealey's Insurance - Ruling Did Not Create New Standard For All Flood Policies, Delaware Judge Says

WILMINGTON, Del. - A Delaware judge on June 20 denied a commercial general liability insurer's request for certification of interlocutory appeal of a Jan. 27 ruling involving what falls under a policy's $25 million flood sublimit in a Superstorm Sandy coverage dispute (Almah LLC, et al. v. Lexington Insurance Co., No. N15C-01-237 EMD, Del. Super.).

Mealey's Insurance - Texas High Court Refuses To Rehear Coverage Suit Over Defective Flanges

AUSTIN, Texas - The Texas Supreme Court denied two motions to rehear a commercial general liability coverage dispute arising from faulty flanges that resulted in an underlying $6,345,824 settlement against the insured, according to its June 17 orders pronounced list (U.S. Metals Inc. v. Liberty Mutual Group Inc., et al., No. 14-0753, Texas Sup.).

Mealey's Insurance - Judge: Insurers Have No Duty To Indemnify As No Covered Property Damage Exists

SALT LAKE CITY - Homeowners failed to establish evidence that they suffered any property damage as a result of a contractor or subcontractor's work on their home that is covered under two commercial general liability insurance policies, a Utah federal judge ruled June 15, finding that the insurers have no duty to indemnify for underlying judgments (Auto-Owners Insurance Co. v. Timbersmith, Inc., et al. & George Fleming and Janis Fleming v. The Charter Oak Fire Insurance Co., No. 12-00786, D. Utah; 2016 U.S. Dist. LEXIS 78748).

Mealey's Insurance - Insured's Defective Work Is An 'Occurrence' Under CGL Policy, Iowa High Court Says

DES MOINES, Iowa - An insured's faulty work may constitute an "occurrence" under an excess commercial general liability insurance policy, a majority of the Iowa Supreme Court affirmed June 10, also finding that a trial court did not err in instructing a jury to determine whether damages arose due to an "accident" constituting an "occurrence" by considering the insured's viewpoint and what it intended or should reasonably have expected (National Surety Corp. v. Westlake Investments, LLC, No. 14-1274, Iowa Sup.; 2016 Iowa Sup. LEXIS 71).

Mealey's Insurance - Pollution Exclusion Bars Coverage For Contamination Claims, Federal Judge Says

SAN FRANCISCO - A California federal judge on June 3 determined that a commercial general liability policy's pollution exclusion clearly bars coverage for underlying environmental contamination claims filed against an insured; however, the judge said a potential for coverage exists under the applicable business auto policies (American Guarantee and Liability Insurance Co., et al. v. Technichem Inc., et al., No. 15-03611, N.D. Calif.; 2016 U.S. Dist. LEXIS 72793).