Civil Procedure Insurance

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Retail Hospitality Newsletter - Late Fall 2016

Sudden cardiac arrest (“SCA”) is the largest cause of natural death in the United Statesand is responsible for approximately half of all heart disease deaths. SCA, however, is not a “heart attack” (i.e. an artery blockage)...more

What Is An Offer of Judgment And Can It Really Lower the Cost of or Shorten Litigation?

Insurance coverage litigation today is often time consuming and expensive. Many cases include claims for “bad faith” damages, and some cases seek punitive damages. To support their allegations, litigants will usually seek a...more

California Supreme Court Concludes Attorney Invoices Privileged During Ongoing Litigation

Attorney invoices may be protected in their entirety by the attorney-client privilege during ongoing litigation. After litigation has concluded, however, those same invoices may be discoverable. So concludes the California...more

Real Property & Title Insurance Update: Week Ending January 6, 2017

REAL PROPERTY UPDATE - Foreclosure – Involuntary Dismissal: although lender’s witnesses failed to explain lender’s loan payment history statement, the statement reflected the principal amount due and had been admitted...more

Blog: Commercial Court provides guidance on interaction between aggregation and excess clauses

In Spire Healthcare v Royal Sun Alliance Insurance plc [2016] EWHC 3278, the claimant sought declarations to the effect that an insurance policy it held with the defendant insurer contained no operative aggregation clause...more

NAIC Draws Line In CFPB Sand Box

The National Association of Insurance Commissioners has taken a firm stance on the Consumer Financial Protection Bureau’s proposed ban of “mandatory arbitration” clauses that make financial product consumers waive their right...more

Fifth Circuit Provides Road Map for Review and Trial of Bad Faith Claims in Mississippi

Mississippi essentially has three levels of claim when insurance is at issue: (1) mere breach of contract, allowing recovery of contract damages; (2) breach of contract + no arguable basis for breach, which entitles recovery...more

Pennsylvania District Court Rejects Effort to Certify Retained Asset Account Claims Against Prudential

In Huffman v. Prudential, a federal judge in the Eastern District of Pennsylvania recently rejected the plaintiffs’ effort to certify for class adjudication a claim for alleged breach of ERISA (alternatively, state law)...more

Appellate Court Notes

AC37979 - Meadowbrook Center, Inc. v. Buchman - Nursing home sued son/guarantor of patient and obtained a judgment for $45,000. The guarantee agreement allowed the nursing home to seek attorney fees. The son appealed...more

Insurable Interest Found in Life Insurance Policies Procured by Investors Through Fraudulent STOLI Scheme

The Florida Supreme Court recently held that life insurance policies procured by investors through a STOLI scheme did not violate Florida’s insurable interest statute and could not be challenged after the two-year...more

Complaint Against New York Life Dismissed in Action Testing Application of California’s Usury Laws

In a recent ruling, Lujan v. New York Life Insurance Company, a federal judge in the Northern District of California rejected the plaintiffs’ claim that New York Life violated California’s usury law by charging compound...more

NAIC Draws Line in CFPB Sandbox

The National Association of Insurance Commissioners has taken a firm stance on the Consumer Financial Protection Bureau’s proposed ban on "mandatory arbitration" clauses that make financial product consumers waive their right...more

Eleventh Circuit Refuses to Reinstate Auto Body Shop Antitrust Case that Was Dismissed on Procedural Grounds

In early December, the Eleventh Circuit Court of Appeals issued a one sentence decision refusing to reinstate the plaintiff/appellants' appeal in Parker Auto Body v. State Farm Automobile Insurance Company. The appeal had...more

Sixth Circuit Affirms Summary Judgment for Insurer on Bad Faith Claims Where Insurer Offered to Settle Claims for Policy Limit in...

United States Court of Appeals for the Sixth Circuit rules that insurer’s offer to settle claims for policy limit in exchange for release and indemnification of insured strikes proper balance between competing duties of good...more

Third Circuit Affirms Dismissal of Former Employee’s Bad Faith Claims Against Company’s Insurer

United States Court of Appeals for the Third Circuit affirms District Court’s ruling that company’s liability insurer does not owe a duty to settle to former employee in action against company. Steven LeBoon was...more

NY Highest Court Asked Certified Question On Reinsurer Liability Cap

The Second Circuit certified to the New York Court of Appeals the question of whether its 2004 decision (Excess Insurance Co. v. Factory Mutual Insurance Co., 3 N.Y.3d 577 (2004)) imposed “either a rule of construction, or...more

Insurance – Coverage – Pyrolysis as an “Occurrence”

Tidwell Enterprises, Inc., et al. v. Financial Pacific Ins. Co., Inc. - Court of Appeal, Third Appellate District (December 20, 2016) - According to Merriam-Webster’s Collegiate Dictionary, Pyrolysis is a “chemical...more

Lawsuit filed to set aside IRS Notice 2016-66

Two months ago, without any prior warning or public notice, the IRS issued Notice 2016-66 which defined a number of common captive insurance transactions as “transactions of interest.” The Notice is limited to captive...more

Too Soon! First Circuit Finds No Duty To Defend Before Suit Is Filed

Can something short of the filing of a complaint trigger an insurer’s duty to defend? It’s not an idle question. Uncertainty on this issue could produce an unintended breach, and, in some jurisdictions, breach of the duty to...more

Court Finds No Occurrence for Installation of Defective flooring and Explains Coverage for Attorney Fee Awards

In Navigators Specialty Ins. Co. v. Moorefield Const. (No.G050759, filed 12/27/16), a California appeals court held that the knowing installation of flooring over a vapor-emitting slab was not an accident or occurrence,...more

CMS Issues Alert Updating and Clarifying Mandatory Reporting Thresholds for Certain Liability Insurance Settlements, Judgments,...

On December 12, 2016, CMS issued a Technical Alert that announced a change in reporting requirements for several different types of settlements with total payment obligation to claimant (TPOC) dates on or after January 1,...more

Supreme Court Rejects Dismissal Requirement for FCA Seal Violations

In State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, the United States Supreme Court rejected State Farm’s argument that a relator’s violation of the automatic seal in a False Claims Act (“FCA”) case mandates...more

Appraisal is an Appraisal is an Appraisal, Except in Mass.

Like Gertrude Stein’s “rose”, an appraisal is an appraisal is an appraisal except in Massachusetts. Massachusetts’ version of appraisal is a statutory process named “reference.” Although a reference proceeding is very similar...more

The Ghost of Systems Past: “Big Data” Suits Loom, But Old Data Issues Remain Unresolved

2017 could be big for litigation over “Big Data” applications in insurance. This past year saw the filing of several “price optimization” class actions, and claims against a fraud detection tool, similar to the ones used by...more

Court Tosses Time-Barred Rico Claims Alleging Captive Reinsurance Kickback Scheme

Plaintiffs asserted class claims for RICO violations based on allegations that Bank of America referred borrowers to private mortgage insurance providers in exchange for kickbacks, funneled through a captive reinsurance...more

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