Insurance Recovery Law - January 2016

In This Issue:

  • Despite Finding Policy Application Misrepresentation, Jury Rules Against Policy Rescission
  • Bad Faith Claim Against Uber's Excess Insurer Moves Forward
  • Personal Injury Provision Provides Coverage for Suit Alleging Privacy Violations
  • Ninth Circuit Finds Policy Provides Coverage for Dispute Between Competitors

Despite Finding Policy Application Misrepresentation, Jury Rules Against Policy Rescission

Why it matters: A federal jury concluded that Starr Surplus Lines Insurance Company did not have a valid basis to rescind the product contamination policy it issued to H.J. Heinz Company, notwithstanding misrepresentations the insured made during the application process. Moreover, Starr waived its right to rescind the product contamination policy issued to Heinz. When tests by the Chinese government revealed high levels of lead in Heinz baby cereal, the company recalled the cereal and submitted a claim to its insurer Starr. The insurer refused to pay, however, arguing that Heinz made multiple material misrepresentations on its insurance policy application such that rescission was appropriate. The question of rescission went to a federal jury in Pennsylvania and the jurors agreed with Starr that Heinz made misrepresentations of fact in its insurance application. But the jury found that the insurer could not rescind the policy because it failed to demonstrate Heinz deliberately omitted information that it knew would be material to Starr. Moreover, the jury determined that the policyholder proved by a preponderance of the evidence that the insurer waived the right to assert a rescission claim in any event.

Detailed discussion: In 2014, H.J. Heinz Company was forced to recall baby cereal it sold when tests conducted by the Chinese government revealed that the baby cereal contained levels of lead in excess of the allowable amount. To cover the costs of the recall and subsequent destruction of the products, the company filed a claim with Starr Surplus Lines Insurance Company pursuant to its product contamination policy.

Starr, however, refused to pay and Heinz filed suit in Pennsylvania federal court seeking coverage for damages estimated in excess of $30 million. Starr sought to rescind the policy, arguing that Heinz omitted material information from its policy application. After the court denied Starr's motion for summary judgment, trial began on the issue of rescission.

The insurer argued to the jury that Heinz omitted multiple material pieces of information, including a prior loss of baby cereal in China that was contaminated by nitrate; a recall of baby food in Canada; multiple product recalls in New Zealand involving pesto dip and canned spaghetti; and a fine imposed by a Chinese food safety agency.

Although the jurors determined that Starr proved by a preponderance of the evidence "that Heinz made a misrepresentation of fact(s) in its insurance application that was material," the jury answered "no" on the verdict form to the question of whether Starr proved by clear and convincing evidence that, during the insurance application process, Heinz deliberately omitted information and/or deliberately remained silent on information that Heinz knew would be material to Starr, so as to justify rescission of the policy.

Further, the jurors accepted Heinz's affirmative defense of waiver. The jurors answered in the affirmative the question, "Did Heinz prove by a preponderance of the evidence that Starr waived the right to assert a rescission claim by (1) agreeing to sell the Policy despite sufficient knowledge of the misrepresentation/omitted information/silence; or (2) failing to promptly assert rescission of the Policy after gaining sufficient knowledge of the grounds for rescission, and after a reasonable period of time in which to investigate all of the facts surrounding the potential basis for rescission and to deliberately decide whether it should rescind the Policy?"

With the issue of rescission now off the table, the case will turn to whether the insurer breached its duty to defend Heinz.

To read the verdict form in H.J. Heinz Company v. Starr Surplus Lines Insurance Company, click here.

Bad Faith Claim Against Uber's Excess Insurer Moves Forward

Why it matters: A federal court in California recently held that bad faith claims Uber Technologies and its wholly owned subsidiary Raiser, LLC, brought against their excess carrier can move forward, denying the insurer's motion to dismiss the allegations. Two drivers for the ride-sharing app got into accidents and their victims filed suit against Uber and Raiser. The two entities tendered the defense of the suits to their insurers. While the primary carrier agreed to provide coverage, the excess carrier, Evanston Insurance Company, filed a declaratory judgment action seeking an order that it owed no defense. Uber and Raiser filed bad faith counterclaims, which Evanston moved to dismiss. The court denied Evanston's motion to dismiss, holding that the policyholders' accusations were sufficient at the pleading stage to state a plausible claim that Evanston violated the implied covenant of good faith and fair dealing by unreasonably denying coverage.

Detailed discussion: Two different drivers using the Uber Technologies transportation app allegedly caused serious car accidents. In the first instance, an Uber driver hit three pedestrians in December 2013, killing one. In the second accident, another Uber driver struck a pedestrian in September 2013. Victims in both accidents filed state court lawsuits against Uber and Raiser, LLC, Uber's wholly owned subsidiary.

Uber had several layers of insurance in place. A primary layer contained two policies from National Union Fire Insurance Company: (1) a commercial general liability (CGL) policy (with a one million dollar per occurrence limit and two million dollar aggregate limit); and (2) a business auto policy (with a one million dollar total limit). Uber also purchased an excess policy from Evanston Insurance Company with a five million dollar total limit. The Evanston policy followed form to the National Union policies.

National Union accepted coverage for the accidents under its business auto policy, but Evanston denied coverage under the excess policy. Evanston filed a declaratory judgment action seeking an order that it had no duty to provide coverage in the underlying state actions. Uber and Raiser filed counterclaims alleging breach of contract and breach of the implied covenant of good faith and fair dealing.

Upon Evanston's motion to dismiss the bad faith counterclaims, the court set out the following standard for a bad faith claim: (1) the benefits due under the policy must be withheld; and (2) the reason for withholding the benefits must be unreasonable or without proper cause.

The insureds asserted that coverage under the policy for the state court lawsuits was clear, and that Evanston ignored allegations in the complaints regarding use of the Uber app. In addition, the insureds argued that Evanston's interpretation of its policy would render its auto coverage illusory.

The court ultimately denied Evanston's motion to dismiss the bad faith claims, stating the allegations were sufficient to state a plausible claim of bad faith against Evanston. In doing so, the court rejected both of Evanston's arguments: that the policy (1) precluded coverage as a matter of law and (2) two limitations in its policy precluded coverage for the car accidents. First, the designated premises limitation stated that the policy only applies to losses arising out of operations in 12 office building locations, while the auto liability limitation excludes coverage for any loss resulting from automobile use away from Uber's office buildings.

The insurer's reading of the limitations misinterpreted the structure of its excess coverage, the court said, as its policy sits above two separate National Union policies. While it might be reasonable to assume the designated premises and auto liability limitations apply to the CGL policy, it was not reasonable to apply them to the business auto policy.

"Under Evanston's interpretation, the business auto policy would only apply to car accidents occurring in the hallways of Uber office buildings," the court stated. "This would be absurd and inconsistent with the California Supreme Court's directive that 'contracts are to be interpreted in a manner that makes them reasonable and capable of being carried into effect, and that is consistent with the parties' intent.' "

To read the order in Evanston Insurance Company v. Uber Technologies, Inc., click here.

Personal Injury Provision Provides Coverage for Suit Alleging Privacy Violations

Why it matters: The provision in a professional liability policy providing coverage for personal injury encompasses a class action alleging privacy violations, according to a federal court in Texas. Gene by Gene, a DNA analysis company, mistakenly published test results on its website without the permission of customers. A consumer class action ensued, alleging the company ran afoul of Alaska's Genetic Privacy Act. When Gene by Gene requested defense of the suit from Evanston Insurance Company, from which it had purchased its professional liability policy, the insurer denied coverage, claiming the privacy violations were not personal injuries, and also relying on a policy exclusion for claims based on statutory violations related to the transmission of information, such as the Telephone Consumer Protection Act. The court disagreed with Evanston, granting summary judgment to the policyholder. The personal injury provision of the policy provided coverage for the underlying litigation, and the exclusion was inapplicable.

Detailed discussion: Gene by Gene owns and operates a genetic genealogy website where users are offered the opportunity to test their genetic information. With DNA test results in hand, they can analyze their genetic information to learn more about their ancestry and connect with other users whose results match in varying degrees.

In May 2014, a putative class action suit was filed against Gene by Gene, accusing the company of improperly publishing DNA test results on its website without the prior consent of users in violation of Alaska's Genetic Privacy Act.

Gene by Gene demanded defense of the lawsuit from its insurer Evanston Insurance Company. Evanston denied coverage, claiming the claims did not constitute a "personal injury" and that a policy exclusion titled "Electronic Data and Distribution of Material in Violation of Statutes" barred coverage. Evanston shortly thereafter filed a declaratory judgment action, and Gene by Gene counterclaimed.

"Personal Injury"

Siding with the policyholder, U.S. District Court Judge David Hittner held that the underlying suit fell within the policy's personal injury coverage, and that the exclusion was inapplicable.

The professional liability policy defined "personal injury" to include "oral or written publication of material that violates a person's right of privacy." The sole claim in the underlying litigation was that Gene by Gene "made the results of [the customers'] DNA analyses publicly available on its own websites," and "disclosed Plaintiff's sensitive information to [a] third-party ancestry company." The court held that the claim in the underlying suits fell within the definition of personal injury because it included the publication of material—the DNA analysis—that allegedly violates a person's right to privacy."

Electronic Data and Distribution of Material in Violation of Statutes Exclusion

Evanston took the position that the "Electronic Data and Distribution of Material in Violation of Statutes" exclusion applied to preclude coverage. The provision eliminated coverage for a claim based upon or arising out of any violation of:

"(a) the Telephone Consumer Protection Act of 1991 (TCPA) and amendments thereto or any similar or related federal or state statute, law, rule, ordinance, or regulation;
(b) the CAN-SPAM Act of 2003 and amendments thereto or any similar or related federal or state statute, law, rule, ordinance, or regulation; or
(c) any other statute, law, rule, ordinance, or regulation that prohibits or limits the sending, transmitting, communication or distribution of information or other material."

The underlying lawsuit was brought pursuant to a statute—the Genetic Privacy Act—that prohibits the transmitting, communication, or distribution of other material in the form of public disclosure of a person's DNA analysis, Evanston argued. Gene by Gene countered that this interpretation of Section (c) of the exclusion was overbroad and unreasonable in the context of the rest of the exclusion and the policy as a whole. Judge Hittner again agreed with Gene by Gene, looking to the canon of construction of ejusdem generis for guidance. The ejusdem generis principle provides that where general words follow specific words in a statutory enumeration and the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. The court explained that the TCPA generally regulates the use of unsolicited telephone calls and fax transmissions while CAN-SPAM generally regulates the use of unsolicited, fraudulent, abusive, and deceptive e-mails to consumers. Applying this canon to Section (c), it was therefore reasonable to construe the "or any similar or related" language in Sections (a) and (b) of the exclusion as "meaning any similar or related statutes or laws that govern communication over the phone or fax machine (Section (a)) or e-mail (Section (b)), while Section (c) covers other, similarly unsolicited forms of communication that may be regulated by statute, law, rule, ordinance, or regulation."

Moreover, the court noted that adopting Evanston's construction of Section (c) would render parts of the policy illusory. The advertising injury provision provided coverage for claims arising out of the written publication of material that libels or slanders a person while the personal injury provision included claims arising out of the written publication of material that violates a person's right to privacy.

Finally, even considering Evanston's position as reasonable would lead the court to find the exclusion ambiguous, Judge Hittner said, and the court would then have to apply the alternative reasonable construction offered by the insured.

Having determined that the insurer had a duty to defend and indemnify Gene by Gene under the policies, the court found Evanston breached its contract when it refused to provide coverage to Gene by Gene.

To read the order in Evanston Insurance Company v. Gene by Gene, Ltd., click here.

Ninth Circuit Finds Policy Provides Coverage for Dispute Between Competitors

Why it matters: The Ninth Circuit recently ruled that a dispute between two competitors fell within a liability policy issued by St. Paul Mercury Insurance Company to Tessera, Inc. Competitor Powertech Technology Inc. (PTI) sued Tessera for breach of contract and fraud, asserting that Tessera misled consumers by claiming PTI's products infringed on Tessera's patents. Tessera turned to its insurer St. Paul. The insurer initially provided a defense but later filed suit seeking a declaration that it had no duty to defend. The Ninth Circuit, overruling the district court, ruled in favor of Tessera. The Ninth Circuit noted that the allegations in PTI's suit could reasonably be considered a claim for disparagement and therefore fell within the policy. Furthermore, the lower court improperly looked to the merits of the underlying claims, the Ninth Circuit added. "The existence of a slam-dunk defense, immunity or privilege with respect to the underlying claim against the insured does not affect an insurance company's duty to defend," the panel wrote.

Detailed discussion: Tessera, Inc., licensed the use of its patents to Powertech Technology Inc. (PTI). But in 2011, PTI filed suit against Tessera, asserting that Tessera initiated an investigation by the U.S. International Trade Commission (ITC) into the business activities of a PTI customer. That tip-off breached the licensing agreement between PTI and Tessera, PTI alleged, because its business was negatively impacted.

Tessera requested a defense from its insurer St. Paul Mercury Insurance Company. Although initially St. Paul accepted the defense, it later changed its mind and filed suit against Tessera. The insurer argued that PTI's claims of breach of contract and fraud were not covered by the policies.

Tessera offered a different read on the complaint. PTI's claims were not limited to breach of contract and fraud, the insured argued, but also included allegations of defamation, disparagement, malicious prosecution, and abuse of process—all of which required coverage under the St. Paul policies.

Although the district court granted summary judgment in favor of St. Paul, a three-judge panel of the Ninth Circuit Court of Appeals reversed, holding that the complaint potentially alleged a covered claim. The Ninth Circuit held the following:

"The district court erred when it held PTI's allegations against Tessera did not allege a potential disparagement claim," the panel wrote. "The facts alleged in PTI's complaint that Tessera made untrue accusations to PTI's customers that PTI's products infringed Tessera's patents could potentially allege a claim for disparagement."

Moreover, the Ninth Circuit noted that the district court improperly considered the merits of the underlying claims. California law holds that an insurer "may terminate its defense obligation by proving that the underlying claim falls outside the scope of policy coverage, but not by demonstrating that the claim lacks merit," the court noted, citing California's highest court in Montrose Chemical Corporation of California v. Superior Court, 861 P.2d 1153 (Cal. 1993).

"The existence of a slam-dunk defense, immunity, or privilege with respect to the underlying claim against the insured does not affect an insurance company's duty to defend," the Ninth Circuit explained. Insurers should not analyze and evaluate the underlying claim of liability in order to reject the defense of any claim that is not meritorious, the court noted.

The panel remanded the case to the district court to consider whether an intellectual property exclusion applied to the dispute.

To read the decision in St. Paul Mercury Insurance Company v. Tessera, Inc., click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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