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Benefits Litigation Update – July 2015

Welcome to the new, rejuvenated version of the Benefits Litigation Update, which we bring you jointly with the law firm of Epstein Becker Green. Our goal is to provide a concise and, we hope, insightful glimpse into recent...more

Potential Erosion of the Distinction Between Benefits Denials and Breach of Fiduciary Duty under ERISA in the Tenth Circuit

A recent decision from a federal district court in the Tenth Circuit provides an example of the potential erosion of the distinction between claims for wrongful denial of benefits and breach of fiduciary duty under the...more

Tenth Circuit Addresses ERISA Limitations Provision in Class Action Decision

In Fulghum v. Embarq. Corp., 785 F.3d 395 (10th Cir. 2015), the Tenth Circuit Court of Appeals considered the claims of a class of telephone company retirees whose life and health insurance benefits were reduced or eliminated...more

Rules Against Title Insurer on Date of Loss Issue

In the recent decision in First American Title Insurance Co. v. Johnson Bank, 1 CA-CV 14-0190, 2015 WL 3965740 filed June 30, 2015, the Arizona Court of Appeals held that the date for calculating a loss under a lender’s title...more

Maryland District Court Grants Insurer’s Motion to Dismiss Payee’s Counterclaims and Awards Attorney Fees in Interpleader

On July 1, 2015, the United States District Court for the District of Maryland issued an opinion granting Connecticut General Life Insurance Company’s (“CGLIC”) motion to dismiss a payee’s claims for breach of contract and...more

Proper Measure of Medical Damages, Admissibility Of Evidence, and Sufficiency of Evidence in Tort Cases Involving an Uninsured...

Omar Bermudez v. Faith Ciolek - Court of Appeal, Fourth Appellate District (June 22, 2015) - Issues that remained unanswered after the Howell and Corenbaum decisions included: (1) what is the proper measure of...more

Louisiana Supreme Court Holds That Statute May Confer Broad Duties On Insurers

In Kelly v. State Farm Fire & Casualty Co., the Supreme Court of Louisiana recently held that an insurer can be liable for bad faith failure to settle a claim even if it has not received a firm offer to settle the claim. The...more

New Jersey Supreme Court Holds Award of Counsel Fees to “Successful Claimant” in Coverage Dispute is Not Contingent Upon Award of...

On May 7, 2015, in Occhifinto v. Olivo Constr. Co., LLC, 2015 N.J. LEXIS 508 (2015), the Supreme Court of New Jersey considered whether a party who prevailed against an insurer in a declaratory judgment coverage but did not...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

Appraisers’ Failure to Perform Assessment of Property’s Existence or Damage is Reversible Error

In Lee v. California Capital Insurance Co. (No. A136280; filed 6/18/15), a California Court of Appeal held that it was error for an appraisal panel to assign loss values to items simply because they were listed in the...more

Third Circuit Holds That Under Pennsylvania Law An Insured Against Whom Punitive Damages Have Been Imposed May Not Recover Those...

As a matter of public policy, Pennsylvania (like a number of other states) prohibits insuring against punitive damages. But what happens if an insurer refuses to settle a case against a policyholder within policy limits and...more

CFPB Asserts Sweeping RESPA Enforcement Authority In First Appellate Decision

In a decision asserting broad authority for the CFPB and which is certain to set the tone for future CFPB appellate rulings, Bureau director Richard Cordray recently issued the Bureau’s first decision from an appeal of a...more

Court Confirms Reinsurance Arbitration Award Without Objection

A federal district court has entered judgment confirming an arbitration award entered in favor of Employers Insurance Company of Wausau against Continental Casualty. The dispute arose out of a certificate of casualty...more

IREG Update

State insurance commissioners take on price optimization - To date, four states—California, Florida, Maryland and Ohio—have issued formal bulletins and memoranda, prohibiting the practice of “price optimization” by...more

Even if You Lose You May Win (Attorneys’ Fees That Is)

In New Jersey, if a policyholder is required to sue its insurance company for coverage, Court Rule R.4:42-9 allows a policyholder to recover attorneys’ fees if it is successful in obtaining coverage. The purpose of this...more

Colorado Supreme Court: Indefinite, Future Assignment of Insurance Proceeds Unenforceable Against Insurer

It is not uncommon for injured persons to assign their rights to insurance proceeds to a third party, and the enforceability of those assignments has been the subject of frequent litigation around the country. In the most...more

CFPB Director Cordray Issues First-Ever Agency Appellate Decision in RESPA Case

The Director of the Federal Consumer Financial Protection Bureau (CFPB), Richard Cordray, issued a decision yesterday in the first appeal of a Bureau administrative enforcement action. Cordray’s decision upholds in part,...more

Wisconsin Supreme Court Accepts New Cases: Occurrences, 12% Interest, and Donning and Doffing

Last Friday, Wisconsin’s supreme court announced that it had accepted seven new cases. Three of them are of particular interest to Wisconsin businesses. In Wis. Pharmacal Co. v. Nebraska Cultures of Cal.,...more

The Crummey trust: Keeping both the IRS and the creditors at bay is taking some fancy footwork

Since Crummey v. Commissioner was decided in 1968, the IRS has been making life difficult for the settlors of Crummey trusts. Only recently the parties again skirmished, this time over whether an in terrorem clause in the...more

Is an Underinsured Motorist Policy Subject to the Automatic Bankruptcy Stay?

Imagine: an employee is injured in a car accident with another driver who is at fault. The employee settles with the at-fault driver for the limits of her liability policy. The employee, whose injuries exceed the at-fault...more

Minding Your (Policy) Language – Indiana Supreme Court Certifies Pro Rata Allocation Ruling From Lower Court

Courts have struggled between two approaches on how to allocate damages when multiple, consecutive CGL policies have been triggered in situations involving continuous injury or property damage. The majority approach, pro rata...more

Arizona Reduces Punitive Damages in Insurance Bad Faith Case Again: Arellano v. Primerica Life Insurance

In Arellano v. Primerica Life Insurance Company, 235 Ariz. 371, 332 P.3d 597 (App. 2014), despite finding an insurer’s conduct moderately to highly reprehensible, the Arizona Court of Appeals recently reduced a punitive...more

ERISA (3rd Circuit): Even a Voluntary Settlement Can Mean “Some Success on the Merits” When Awarding Attorney Fees?

You know that a court has discretion to award attorney fees under ERISA if a party shows “some degree of success on the merits.” But how do you define “success”? A new third circuit case reminds one of that old Milton...more

Florida High Court Set to Clarify When an Insured Is Entitled to Attorneys’ Fees When an Insurer Initially Denies a Sinkhole...

On April 15, 2015, the Florida Supreme Court accepted review of Omega Insurance Co. v. Johnson, No. 5D13-1701, 2014 WL 4375189 (Fla. 5th DCA Sept. 5, 2014), which found that an insured was not entitled to an award of...more

High Court to clarify proportionate liability – judgment imminent

Those of you following our coverage regarding the proceedings of Selig & Anor v Wealthsure Pty Ltd & Ors, presently before the High Court of Australia, will be pleased to hear that judgment is set to be delivered at 10am on...more

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