Business Torts Insurance

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Do Not Pass Go. Do Not Collect $200?: D&O Insurance—Advance Warning on Fee Advancement

In a recent string of decisions, the Delaware Chancery Court has addressed the scope of the right of Directors and Officers to have their legal expenses paid while governmental investigations or legal proceedings against them...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending November 13 & 20, 2015

REAL PROPERTY UPDATE - Property Damage/Breach of Contract: insurer failed to prove that it provided insured with notification of its right to mediate at the time insured made his claim pursuant to Florida Statutes,...more

Michigan Court Dismisses Cross-Claim as Insurer Not Properly Subject to a Claim for Breach of Fiduciary Duty

In Van Loo v. Cajun Operating Co, No. 14-cv-10604 (E.D. Mich. Sept. 17, 2015), the Eastern District of Michigan, a Sixth Circuit district court, held that the requirement for evidence of insurability was triggered based on...more

Update from Wilson Elser’s D&O Insurance Digest

Litigation Developments and Mega Settlements - Dole Food, Inc. Derivative Action – Delaware Chancery Court Finds D&Os Engaged in Fraud - Dole Food, Inc. shareholders sued Dole Chairman and CEO David Murdock and Dole...more

Leading Cases on Chapter 93A

Nearly all business disputes in Massachusetts are governed by Chapter 93A. The winning plaintiff under Chapter 93A is entitled to an automatic award of its attorney's fees, and may be awarded up to three times its actual...more

Texas Court: No Prejudice Required to Deny for Late Reporting Under a Claims-Made Policy

This summer in Nicholas Petroleum, Inc. v. Mid-Continent Cas. Co., 2015 WL 4456185, 2015 Tex. App. LEXIS 7489 (Tex.App., Jul. 21, 2015), a Dallas panel of Texas’ intermediate level appellate court rejected policyholder...more

Insurer Rolls A Gutter Ball On Claim That Insured Bowling Alley Waived Replacement Coverage

In Bowlers’ Alley, Inc. v. Cincinnati Ins. Co., 2015 U.S. Dist. LEXIS 70090 (E.D. Mich. May 31, 2015), the insured bowling alley suffered flood damage that caused warping of several bowling alleys. The insured further claimed...more

Georgia Court Holds Coverage Triggered for Product Disparagement Claim

In its recent decision in Foliar Nutrients v. Nationwide Agribusiness Ins. Co., 2015 U.S. Dist. LEXIS 125528 (M.D. Ga. Sept. 21, 2015), the United States District Court for the Middle District of Georgia had occasion to...more

District of Colorado Grants Summary Judgment for Insurer on Bad Faith Claim Arising from Denial of Coverage Under E & O Policy

P&S LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., No. 14-cv-00735-LTB-CBS (D. Colo. July 29, 2015). District of Colorado grants summary judgment for insurer on bad faith claim where insurer established that an...more

Southern District of Ohio: No Coverage Equals No Bad Faith

Schmidt v. The Travelers Indem. Co. of Am., No. 1:13-CV-932, 2015 WL 4538118 (S.D. Ohio July 27, 2015). A law firm that lost more than $141,000 in an online scam lost its coverage dispute with its insurer but still tried...more

Court of Appeals of Wisconsin: Insured Must Be “Made Whole” For Total Loss Before Insurer Can Recover Subrogated Funds

Dufour v. Progressive Classic Ins. Co., No. 2014AP157, 2015 WL 4275292 (Wis. Ct. App. July 16, 2015). The Court of Appeals of Wisconsin reverses the Circuit Court for Dodge County and remands for proceedings on damages...more

Eastern District of Pennsylvania: Insureds’ Negligence And Unfair Trade Practices Claims Against Adjusters Are Colorable Under...

Kennedy v. Allstate, No. 15-2221 (E.D. Pa. July 8, 2015). District Court recognizes possibility that insurance adjusters owe a duty of care to insureds that would be breached by failing to conduct a reasonable...more

Fifth Circuit Court of Appeals: Establishing an Arguable Basis for Delay or Denial of a Claim Precludes a Finding of Bad Faith

Dey v. State Farm Mut. Auto. Ins. Co., No. 14-60300, 2015 WL 3772762 (5th Cir. June 17, 2015). Fifth Circuit holds that “pocketbook dispute” between insured and insurer over value of the insured’s claim and insurer’s...more

California Supreme Court Permits Restitution Claim By Insurer Against Independent Counsel

In its recent decision in Hartford Casualty Ins. Co. v. J.R. Marketing, L.L.C., — (Cal. Aug. 10, 2015), the Supreme Court of California had occasion to consider an insurer’s right to reimbursement from Cumis counsel for...more

Eighth Circuit: No Bad Faith Where Insured Failed to Make a Sufficient Demand and Insurer Refused to Entertain Settlement Offer...

Purscell v. Tico Ins. Co., No. 13-2362, 2015 WL 3855253 (8th Cir. June 22, 2015). Court holds it was not bad faith for insurer to pursue investigation into underlying lawsuit before considering settlement...more

Hawaii Supreme Court Holds a Primary Insurer Cannot Gamble with the Excess Insurer’s Money

On June 29, 2015, in responding to a certified question from the U.S. District Court for the District of Hawaii, the Hawaii Supreme Court held in St. Paul Fire & Marine Ins. Co. v. Liberty Mutual Ins. Co., SCCQ-14-0000727,...more

Standing in the Shoes or Freeing Evil Zombies? The Public Policy of Applying the In Pari Delicto Defense to Actions Brought by a...

In pari delicto is an equitable defense asserted when a defendant claims that a plaintiff is equally at fault for the wrong that has befallen him. The doctrine is “rooted in the common-law notion that a plaintiff’s recovery...more

Court Reverses Dismissal Of Insured’s Claim Against Reinsurer Asserting Tortious Interference With Insurance Settlement Agreement

Gardner Denver, Inc. (“Gardner”), had entered into a settlement agreement with its liability insurer, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“NUF”) to resolve a dispute over Gardner’s coverage...more

Insurance Recovery Law - July 2015

In the Context of a Bad Faith Claim, Insurer’s Defense That Coverage Denial Was Reasonable Put at Issue Otherwise Protected Attorney-Client and Work Product Communications - Why it matters: Recognizing the “conflicting...more

Eleventh Circuit Holds No Duty to Defend Directors Serving in Mixed Capacities

On June 22, 2015, the 11th Circuit affirmed a Georgia federal court decision that there was no coverage under a director’s and officer’s (D&O) insurance policy for claims asserted by beneficiaries of a family trust against a...more

Bank Bond Covers Third-Party Losses Arising out of Bank Employee’s Fraud, Eighth Circuit Holds

Fidelity bonds are purchased primarily to protect against loss to the policyholder’s own assets, from things like employee theft or embezzlement. In Avon State Bank v. BancInsure, Inc., however, the Eighth Circuit interpreted...more

Eleventh Circuit Denies Coverage for Wrongful Acts of Directors and Officers That Arose Out of Their Wrongful Acts as Trustees, an...

On Monday, June 22, 2015, the Eleventh Circuit, in The Langdale Company v. National Union Fire Insurance Company of Pittsburgh, PA, No. 14-12723 (11th Cir. 2015), ruled for the insurer on a “capacity” exclusion in a director...more

Eleventh Circuit Affirms Summary Judgment for Insurer Based on "Other Capacity" Exclusion

On June 22, the Eleventh Circuit affirmed the grant of summary judgment in favor of National Union Insurance Company of Pittsburgh, Pa., in an action where the insured sought $10 million in coverage under a D&O policy. The...more

Has Exposure To Punitive Damages Increased In Arizona?

Until recently, it was generally accepted that punitive damages awards are to track awards of compensatory damages on a 1:1 ratio. This ratio was convenient for defendants, as it provided some amount of certainty when...more

To Be or Not to Be – an Insured Contract: Coverage for Breach of Warranty Claims

In Bituminous Casualty Corporation v. Plano Molding Company, 2015 IL App (2d) 140292, the Illinois Appellate Court tackled one of the most misunderstood issues in the commercial general liability policy: does an obligation to...more

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