J. Stephen Berry

J. Stephen Berry

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SC Supreme Court holds reservation of rights letters must be specific to be effective

The Supreme Court of South Carolina has issued a decision that could have a great impact on how insurers issue reservation of rights letters. In Harleysville Group Ins. v. Heritage Group Communities, Inc., No. 27698,...more

3/20/2017 - Contract Drafting Insurance Litigation Reservation of Rights SC Supreme Court

Likelihood of success a prerequisite to insurer's duty to appeal, Mass. court rules

On August 27, 2016, Judge Mitchell Kaplan of the Massachusetts Superior Court for Suffolk County - Business Litigation Session, which handles only complex business litigation matters, issued a decision holding that an...more

10/13/2016 - Appeals Complex Litigation Duty to Defend Insurance Litigation Insureds Likelihood of Success Settlement Summary Judgment

Eleventh Circuit affirms ruling of no coverage based on insured’s failure to cooperate

As a condition to coverage under standard liability policies, the insured is required to cooperate with its insurer. The provision, termed the “cooperation clause,” typically requires the insured to assist with and...more

8/24/2016 - Breach of Contract Contract Terms Defense Strategies Insurance Litigation Liability Insurance

New Jersey high court follows nationwide majority on CGL coverage for general contractor

On August 4, 2016, the New Jersey Supreme Court affirmed an intermediate court's ruling that where a subcontractor's defective work causes physical damage to other, nondefective parts of a general contractor’s project, it...more

8/10/2016 - Commercial General Liability Policies Construction Defects General Contractors Insurance Litigation Occurrence Property Damage Subcontractors

California's First District holding closes loophole for evading removal jurisdiction in insurance coverage declaratory relief...

California law has long held that the parent and controlling shareholder of an insured corporation has no standing to sue for breach of contract or bad faith under an insurance policy issued to the corporation. In a published...more

7/7/2016 - Asbestos Litigation Bad Faith Breach of Contract Commercial Insurance Policies Declaratory Relief Limited Liability Company (LLC) Shareholders Standing

Industry and trade groups challenge the Department of Labor’s Fiduciary Rule

Earlier this month, eight industry and trade groups launched a broad challenge to the US Department of Labor’s (DOL) Fiduciary Rule (Rule) and related prohibited transaction exemptions that were released on April 6, 2016. ...more

6/30/2016 - Best Interest Standard Class Action Arbitration Waivers DOL ERISA Fiduciary Duty First Amendment Injunctions Investment Adviser Retirement Plan

Eighth Circuit to insurers: Settlement evaluation must constantly adapt to litigation developments

A recent decision of the US Court of Appeals for the Eighth Circuit taught an insurer a costly lesson about trying to avoid extra-contractual liability: Insurers must constantly reevaluate their settlement position throughout...more

6/28/2016 - Auto Insurance Bad Faith Calculation of Damages Insurance Industry Settlement

Arizona court applies traditional exclusion in modern “cyber” coverage form

In one of the first published rulings on coverage under a stand-alone “cyber” insurance policy, a federal court in Arizona recently applied old-school coverage analysis to a new-school cybersecurity policy in P.F. Chang’s...more

6/23/2016 - Commercial General Liability Policies Contract Interpretation Credit Cards Cyber Insurance PF Chang's Policy Exclusions

Insurance Insight - Texas Supreme Court clarifies extent of coverage for construction defects under CGL policies

In a matter of first impression, the United States Court of Appeals for the Fifth Circuit certified four questions to the Texas Supreme Court arising from an insured’s claims that its liability for a refinery owner’s...more

3/23/2016 - Commercial General Liability Policies Construction Defects First Impression Policy Exclusions Refineries TX Supreme Court

Insurance Insight - Broad duty to defend applied despite late notice

Even when an insurer receives very belated notice of a suit against its insured, it can face harsh consequences if it does not take action to provide a defense. ...more

3/10/2016 - Assignments Default Judgment Duty to Defend Insurance Industry Notice Requirements

Insurance Insight - California: Appellate rulings highlight importance of understanding auto coverage

Two recent decisions from the California Court of Appeal highlight the importance of understanding one’s auto insurance. Both cases left the policyholders without coverage for serious injuries that a simple policy review...more

2/11/2016 - Auto Insurance Excess Policies Uninsured and Under-Insured Motorists

Pennsylvania: Public policy prevents punitive damages from being recoverable as compensable damages in bad faith or breach of...

In an issue of first impression, the Third Circuit Court of Appeals held that punitive damages awarded against an insured in a prior personal injury suit are not recoverable as compensable damages in a later breach of...more

1/29/2016 - Auto Insurance Bad Faith First Impression Personally Identifiable Information Punitive Damages

Insurance Insight - Florida: Claimant’s bad-faith claim doomed by insured’s failure to cooperate during settlement negotiations

A federal District Court applying Florida law recently ratified an insurer’s diligent responses to a claimant’s cat-and-mouse attempt to manufacture a bad-faith set-up claim. The ruling is interesting because it addresses two...more

1/14/2016 - Appeals Car Accident Defense Strategies Excess Policies Policy Limits

Kansas: Safe harbor for insurer faced with settlement demand to only one insured

What should an insurance company do when liability of the insured is clear, the damages clearly exceed the limits, and the claimant sends a settlement demand that would exhaust policy limits while releasing only one out of...more

11/5/2015 - Auto Insurance Bad Faith Demand Letter Drunk Driving Duty to Settle Good Faith Insurance Industry Insureds Policy Limits Releases Safe Harbors Settlement Offer

Can an insurer be liable for bad faith failure to settle without a settlement demand?

The Tenth Circuit, applying Oklahoma law, recently became the latest court to rule on this frequently-disputed issue. The court ruled that, while a primary insurer has an affirmative duty to initiate settlement negotiations...more

10/5/2015 - Appeals Bad Faith Fiduciary Duty Insurance Industry Insurance Litigation Policy Limits Settlement Negotiations

Federal court in Florida provides helpful case study in insurance “choice of law” tactics

The Southern District of Florida recently issued an opinion that addresses some rarely discussed nuances of insurance choice of law disputes. Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., No. 12-CV-81397, 2015 WL...more

9/30/2015 - Choice-of-Law Discovery Excess Policies Insurance Industry Insurance Litigation Liability Insurance Professional Liability

Pennsylvania Supreme Court allows insured to settle without consent of insurer defending under reservation of rights

Bad faith claims can have major consequences for insurers. Stopping the Setup gets into the minds of plaintiffs' lawyers and addresses the ways they try to create bad-faith claims against insurance companies. This overview...more

9/17/2015 - Babcock & Wilcox Construction Bad Faith Breach of Contract Breach of Duty Consent Duty to Defend Insurance Litigation Insureds Non-Judicial Settlement Agreements PA Supreme Court Reasonableness Factors Reservation of Rights

The Tenth Circuit rejects excess insurers’ implied duty to investigate and initiate settlement negotiations

Interpreting Oklahoma law, the US Court of Appeals for the Tenth Circuit recently held that the duty of good faith and fair dealing does not require that an excess insurer, unlike a primary insurer, affirmatively investigate...more

9/2/2015 - Appeals Commercial Insurance Policies Covenant of Good Faith and Fair Dealing Duty to Defend Excess Policies Insurance Litigation Policy Limits Settlement Negotiations Trucking Accident Trucking Industry

11th Circuit to decide whether construction defect notice under Florida repair statute is a “suit”

Recently, the United States District Court for the Southern District of Florida addressed what constitutes a “suit” within the context of Florida’s right-to-repair procedure for construction defect disputes. In Altman...more

8/25/2015 - Commercial General Liability Policies Construction Defects Construction Disputes Construction Industry Contractors Duty to Defend Insurance Industry Right to Repair

Georgia Courts Reject Two Common Setup Tactics

In a recent decision, the Eleventh Circuit sought and then applied the Georgia Supreme Court’s answers to two certified questions about policyholder settlements made without the insurer’s consent. Piedmont Office Realty...more

7/22/2015 - Class Action Commercial General Liability Policies Consent Contracts Clause Excess Policies GA Supreme Court Insurance Litigation Settlement Negotiations

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