Duty to Defend

News & Analysis as of

Don’t Let a Little Concealer Ruin Your Coverage Defenses

May an insurer in New York delay asserting (or conceal, according to Estee Lauder) a late notice defense without waiving it? According to the New York Court of Appeals a jury should decide whether the insurer manifested a...more

Superior Court of Delaware Grants Motion for Summary Judgment Regarding Duty to Defend Under Wisconsin Law

The Complex Commercial Litigation Division of the Superior Court of Delaware recently held that Travelers Indemnity Company (“Travelers”) breached its duty to defend and indemnify plaintiff CNH Industrial America LLC (“CNH”)...more

Contractual Indemnification

Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc., et al. - Court of Appeal, First Appellate District (August 16, 2016) - This case considered the applicability of a contract’s indemnification...more

New Jersey Court Confirms a PRP Letter Constitutes a “Suit” Triggering an Insurer’s Duty to Defend

A New Jersey Superior Court recently put to rest a tenuous coverage defense to which insurers stubbornly have clung in environmental coverage cases. The court held in Cooper Industries, LLC v. Employers Ins. of Wausau a...more

In Indiana, an Absolute Pollution Exclusion May Exclude Absolutely Nothing

A recent article in the Sports section of The Miami Herald read “Shooting coach helps Winslow.” Perhaps, but it probably didn’t help the coach much. The admonition to “eat every carrot and pea on your plate” undoubtedly...more

Duty to Defend: Surplus Line Brokers and Professional Liability

Negligent solicitation and placement of insurance policies and failure to conduct due diligence into the admitted insurance market are covered under E&O policy - In a decision with significant implications for surplus...more

Contract Interpretation: Whether The Contract Is A Non-Insurance Indemnity Agreement Or An Insurance Policy Makes A Big Difference...

In Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal. 4th 541, 187 P.3d 424, 79 Cal.Rptr.3d 721, the California Supreme Court addressed an indemnitor’s duty to defend the indemnitee under a non-insurance indemnity agreement...more

Wisconsin Supreme Court Reaffirms Four-Corners Rule for Insurers’ Duty to Defend

An insurer’s decision whether to defend a lawsuit against its insured can be a critical issue involving tens of thousands, if not millions, of dollars for Wisconsin companies who are sued. The Wisconsin Supreme Court recently...more

A Worrying Insurance Trend: Litigation, No Cooperation

An alarming trend is emerging in the first-party insurance claims process. This new approach attempts to dispose of the traditional claims process in favor of an abbreviated process (if any) followed immediately by...more

A Recent California Federal Court Decision Restores Coverage For Some Patent-Related Lawsuits

A California district court pushed back on the restrictive interpretation of a standard intellectual property exclusion and found coverage for a policyholder’s patent related lawsuit. The United States District Court...more

Insurers Beware: Defending Bad Faith Claim May Lead to Waiver of Privileged Communications

On July 27, 2016, the United States District Court for South Carolina ordered an insurer to turn over its privileged communications. The Court explained that the insurer waived the protections afforded under the...more

Groundhog Day for Massachusetts Non-Compete Reform

Once again, the Massachusetts legislature was unable to agree on non-compete reform legislation by the July 31, 2016, end of the current legislative session. The House and Senate had passed versions of non-compete reform that...more

Seventh Circuit: Insurer Has Duty To Defend West Virginia’s Suit Against Drug Distributor Seeking To Recover Amounts Expended By...

Based on the policy language before it, the U.S. Court of Appeals for the Seventh Circuit recently found that an insurer has a duty to defend a pharmaceutical distributor in a lawsuit brought by West Virginia’s attorney...more

Is There Coverage for The Pill Mill Lawsuits?

In an effort to deal with the terrible epidemic of drug abuse and the human and economic costs of this dilemma, the state of West Virginia has brought lawsuits in several jurisdictions against pharmaceutical companies and...more

What Are Insurers Using for Excuses Not to Pay Claims?

We have seen a recent rash of cases where defending insurers are stretching to new lengths to force their insureds to contribute substantially more that the deductible bargained for in the policy, often grasping at the straw...more

Fourth Circuit Affirms Denial of Coverage for Accidental Gunshot Injury

On April 14, the Fourth Circuit held that an insurer owed no defense or indemnity coverage for an underlying personal injury suit against the policyholder’s employee, a security guard who accidentally shot a friend while...more

Fourth Circuit Affirms CGL Coverage of Cyber Incident

In a recent, unpublished opinion, the Fourth Circuit held that an insurer had a duty to defend its insured under a CGL policy for a cyber incident. A class action complaint was filed against Portal Healthcare Solutions...more

Nevada Adopts Cumis Counsel Requirement – Who’s Next?

In September 2015, the Nevada Supreme Court issued a decision in State Farm Mut. Auto. Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74, which held that Nevada law requires an insurer to provide independent Cumis counsel when there...more

Mississippi Court Holds E&O Insurer Has No Duty to Defend Civil Rights Action

In its recent decision in Travelers Indem. Co. v. Forrest County, 2016 U.S. Dist. LEXIS 81826 (S.D. Miss. June 23, 2016), the United States District Court for the Southern District of Mississippi had occasion to consider...more

Insurer Held to Have Duty to Defend Allegations that Patients’ Medical Records Were Accessible Via Google Search

The Fourth Circuit Court of Appeals recently held that an insurer had a duty to defend an insured against class action allegations that the insured posted confidential medical records on the Internet. Two patients at Glen...more

Second Circuit Holds Insurers Have Duty to Defend Data Trap Lawsuit

In its recent decision in Nat’l Fire Ins. Co. v. E. Mishan & Sons, Inc., 2016 U.S. App. LEXIS 10151 (2d Cir. June 1, 2016), the United States Court of Appeals for the Second Circuit, applying New York law, had occasion to...more

Do You Know What’s In Your Portfolio Company’s D&O Insurance?

When a venture capital or private equity firm invests in a portfolio company (PC) and places a general partner on the PC’s board, they typically require that the PC agree to defend and indemnify the board member in any...more

Insurers Take Notice: Ninth Circuit Rules that EPA Request Letter Triggers Duty to Defend

On May 11, 2016, the Ninth Circuit Court of Appeals ruled that a general liability insurer owed a duty to defend an environmental matter even though no suit had technically been filed. Ash Grove Cement Co v. Liberty Mutual...more

5 Wishes for Securities Litigation Defense: Greater Insurer Involvement in Defense-Counsel Selection and Strategy

One of my “5 Wishes for Securities Litigation Defense” last month was for greater D&O insurer involvement in securities class action defense. This simple step would have extensive benefits for public companies and their...more

Portfolio Company Litigation: Some Practical Considerations for Board-Designees of Private Funds

Individuals affiliated with private fund managers are increasingly being named as defendants in lawsuits involving fund portfolio companies, particularly where the fund controls one or more seats on the portfolio company’s...more

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