Civil Procedure Insurance

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California Supreme Court Defines Scope of Advertising Injury Coverage

Hartford v. Swift imposes “specificity” requirements that may provide comfort to companies facing disparagement claims while requiring careful navigation to trigger CGL policies. The California Supreme Court recently...more

Law Firms Are Not Body Shops: An Insurer’s Duty to Defend Requires it to Pay Only the Defense Costs the Insured Actually Paid

In the course of discharging their coverage obligations, insurers often benefit from bargains they strike with service providers. Healthcare insurers pay in-network caregivers rates that are dramatically lower than the...more

You May Have Stolen the Advertising Database, But You Still Have No Advertising Idea

In Liberty Corporate Capital Ltd. v. Security Safe Outlet, 2014 WL 3973726 (6th Cir. August 15, 2014), the Sixth Circuit Court of Appeals held that where a stolen customer database is used as the basis of an advertising...more

Northern District of Ohio: No Reasonable Jury Could Conclude That Insurer’s Denial of Coverage For Two Arsons Was Not Justified

Givens v. West Bend Mut. Ins. Co., No. 4:13 CV 1287, 2014 WL 2946672 (N.D. Ohio Jul. 1, 2014) - The Northern District of Ohio concludes that insurer was justified in denying claim for two fires that were undisputedly...more

Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd – more claims against building practitioners?

On 6 August 2014, the Victorian Court of Appeal handed its decision in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165. The decision clarified the operation of limitation periods in...more

“Mend the Hold”: A Nineteenth-Century Wrestling Doctrine Keeps its Grip on Coverage Litigation in the WWE Era

The issue confronting an Illinois appellate court in BNSF Railway Company v. Probuild North LLC, No. 1-12-3648 (Ill. App. Ct. June 11, 2014), was not uncommon. The plaintiff sought coverage from its insurer under a...more

Court Denies Petition To Appoint Arbitration Umpire In Retrocession Dispute

Odyssey Reinsurance Co. petitioned the court to appoint an umpire to serve in arbitration with its retrocessionaries, certain Lloyd’s underwriters and Reliastar Reinsurance Group, over a disputed reinsurance claim. Odyssey...more

Ask the Public Adjustor: Covering Life with Wisdom*

In December 2010, after sharing a few drinks with his classmates, Josh began driving a dump truck that didn’t belong to him. The police of Stow, Ohio, asked Josh to pull over, but he led them on a 50-mile chase at speeds up...more

Florida DFS Unclaimed Property Grab “Clearly Erroneous”

Florida’s First District Court of Appeal filed an opinion yesterday in Thrivent Financial for Lutheran’s appeal from a declaratory statement issued by the Florida Department of Financial Services interpreting Florida’s...more

The Absolute Pollution Exclusion May Not Be That “Absolute”

The Absolute Pollution Exclusion (“APE”) contained in current general liability insurance policies excludes coverage for costs related to the cleanup of environmental pollution. Insurance companies have taken the position...more

Louisiana’s Direct Action Statute Does Not Modify Terms of Coverage

“Direct action” statutes permit an injured plaintiff to sue an insurer for coverage under someone else’s policy — the liability insurance policy of the tortfeasor who caused the injury. They have been enacted in only a...more

Class Action Alleging Mortgage Kickback Captive Reinsurance Survives Dismissal Pending Discovery On Tolling Of Limitations

A court denied dismissal of a putative class action involving claims against Suntrust Bank subsidiaries and a captive reinsurer for an alleged illegal kickback scheme arising out of captive reinsurance covering Suntrust’s...more

Third Circuit Reaffirms the Difficulty of Binding a Non-Signatory to Arbitration

Federal law’s much-talked-about presumption in favor of enforcing arbitration clauses has its limits. On August 11, 2014, the United States Court of Appeals for the Third Circuit identified one of those limitations: the...more

Real Property, Financial Services & Title Insurance Update: August 2014 #1

Trial court erred in granting lender’s motion to vacate an order dismissing its foreclosure complaint for lack of prosecution without first giving borrower an opportunity to be heard at an evidentiary hearing. – Arcila v. BAC...more

District of South Dakota: Denying a Claim for Reasons Known to be False is Not a Reasonable Basis to Deny a Claim

Lewison v. W. Nat’l Mut. Ins. Co., Civ. No. 13-4031-KES, 2014 WL 3573403 (D.S.D. July 21, 2014). The District of South Dakota grants in part and denies in part an insurer’s motion for summary judgment on two...more

Vermont: There is No Cause of Action for Negligence in Adjusting a Property Loss

Last week, the Vermont Supreme Court firmly rejected the notion that an insured can bring a cognizable claim for negligence against his or her carrier in connection with the inspection and handling of a first-party property...more

California Supreme Court Halts Creeping Expansion of Advertising Injury

Commercial general liability policies typically provide coverage for claims based on “personal and advertising injury.” Increasingly, enterprising insureds have invoked this coverage in connection with a variety of legal...more

A Flood by Any Other Name is Still a Flood – or Why Losses Caused by Flood Are Subject to Flood Sublimits

In New Sea Crest Healthcare Center, LLC v. Lexington Ins. Co., No. 12-CV 6414(RJD)(RLM), 2014 WL 2879839 (E.D.N.Y. June 24, 2014), the insureds suffered losses to nursing homes in two locations as a result of Hurricane Sandy....more

Northern District of Texas Dismisses Bad Faith Claims in Well-Control Policy Dispute

Eagle Oil & Gas Co. v. Travelers Prop. Cas. Co. of Am., No. 7:12-cv-00133-O (N.D. Tex. Jul. 14, 2014) - Northern District of Texas dismisses bad faith claims against insurer and adjuster in dispute over coverage for...more

Florida Court Rejects "Date of Death" Trigger for Escheating Life Insurance Death Benefits Under Florida's Unclaimed Property Act

On August 5, Florida's First District Court of Appeal reversed a ruling issued by Florida's Department of Financial Services ("DFS") that would have triggered an insurer's duty to escheat life insurance benefits under...more

Calderbank offers – Getting more bang for your buck

The cost-protective benefits of Calderbank offers are often more illusory than real. Courts will only award indemnity costs to the party making the offer where the party demonstrates that it was unreasonable for the other...more

West Virginia High Court Examines Number Of Occurrences Under Liability Insurance Policy

This year, the Supreme Court of Appeals of West Virginia issued an important decision concerning whether a carbon monoxide leak is a single or multiple occurrence under a liability insurance policy. Kosnoski, et al. v....more

City May Be Liable for Damage to Home Caused by Falling Tree in Inverse Condemnation and Nuisance

During a windstorm, a tree owned by the City of Pasadena fell on Mr. O’Halloran’s residence, causing damage to his home. Mercury Casualty Company paid Mr. O’Halloran for the damage pursuant to his homeowner’s insurance...more

One Step Closer to the Supreme Court: The Fate of Obamacare Premium Tax Credits in the Face of the Circuit Split

Last month, two federal courts of appeals issued opposing decisions on whether the Patient Protection and Affordable Care Act (the “ACA”) permitted subsidies, in the form of premium tax credits, to health coverage bought...more

New York’s High Court Finds Contractual Limitation Period Unenforceable, Where it Places Policyholder in Impossible Catch-22...

How is a policyholder supposed to obtain coverage under a policy that requires the insured to bring its claim within two years of the loss and also imposes preconditions on bringing a claim that cannot reasonably be satisfied...more

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