Asbestos Injury Continuous, Delaware Supreme Court Rules
Late Notice May Not Matter for Renewed Policy
Court Sides With Insurer on Coverage for Cyber Event
Court: Complaint's Allegations Potentially Triggered Coverage, Requiring Defense
Asbestos Injury Continuous, Delaware Supreme Court Rules
Why it matters
In the latest ruling in the long running asbestos litigation involving pump manufacturers in Delaware, the state's highest court declared, among other important holdings, that because asbestos-related disease results from gradual and continuous injurious processes, a claimant's first significant exposure to asbestos is not the only trigger for insurance coverage purposes. Instead, under New York law, bodily injury occurs not only upon initial exposure but continues afterwards, the court said. Thus, the trial court erred when it held that only those excess policies in place during a claimant's significant exposure to asbestos were on the hook.
In the 1980s, Viking Pump and Warren Pumps acquired pump manufacturing businesses from Houdaille Industries. As a result, the companies were forced to deal with potential liability from bodily injury claims made by plaintiffs alleging damages in connection with asbestos exposure claims dating back to Houdaille's ownership days.
Each year from 1972 through 1985, Houdaille purchased occurrence-based primary and umbrella general insurance from Liberty Mutual Insurance Company. Above the umbrella layer, Houdaille purchased various layers of excess insurance—a total of 35 excess policies through 20 different carriers. The insurance tower over that time period provided $17.5 million in primary coverage, $42 million in umbrella coverage, and $427.5 million in excess coverage.
Viking and Warren sought coverage for the Houdaille claims using the policies purchased by their predecessor. While Liberty stepped up, the excess insurers argued that Viking and Warren were not entitled to access the excess policies and disputed the extent of any coverage available, particularly with respect to defense costs.
Viking and Warren filed a coverage action in 2005 in Delaware state court. In the ensuing decade, the litigation moved up and down the Delaware court system. Ultimately, the trial jury returned a verdict largely in favor of Viking and Warren, and the excess insurers appealed. While the appeal was pending, New York's highest court answered certified questions from the Delaware Supreme Court, including that the proper method of allocation for the claims against Viking and Warren was "all sums," and that the excess policies were triggered by vertical exhaustion of the underlying available coverage within the same policy period.
Back in Delaware, the parties identified five issues for that state's highest court to decide: whether Warren and Viking obtained valid assignments of insurance rights; whether the aggregate product liability limits of certain Liberty primary policies were exhausted; whether the excess policies at issue provided coverage for defense costs and if some of the excess policies could count defense costs towards the reduction of their policy limits; and whether only those policies in place during a claimant's significant exposure to asbestos were triggered.
Considering each issue in the course of its 83-page opinion, the Delaware Supreme Court sided largely with Viking and Warren.
First, the court ruled that the lower court correctly held that Houdaille effectively assigned its rights in the policies to Viking and Warren, rejecting the excess insurers' argument that the transfer was invalid because the excess insurers did not consent.
The agreement between Warren and Houdaille explicitly assigned "the insurance coverage in excess of the primary casualty limits," the court said, and contained no language indicating that the parties intended the assignment be limited to the Liberty policies. As for Viking, the agreement employed "broad contractual language" to assign all assets (tangible and intangible) and liabilities, including "all outstanding contracts." This sweeping language manifested Houdaille's intent to transfer the excess policies, the court found.
A failure to obtain the consent of the insurer in advance of assigning coverage rights did not invalidate the efficacy of the transfer, the court said, because the anti-assignment provisions in the policy pertained only to pre-assignment losses. "Here, at the time of the assignment, the losses triggering the Excess Insurers' potential liability had already occurred within the policy periods," the court explained. "Warren and Viking therefore received Houdaille's accrued payment rights, which had vested in Houdaille prior to the assignments. Further, Houdaille's policies provided occurrence-based coverage, such that its claim to payment rights arose at the time of the injurious exposure to conditions that resulted in personal injury. Houdaille's insurance rights accrued once parties were injured by significant exposure to asbestos during the operative policy periods and prior to the assignments to Warren and Viking."
That the precise amount of liability was not identifiable at the time of assignment did not alter the excess insurers' obligation to insure the risks for which they contracted, the court added.
Next, the court agreed with the policyholders that the 1980-1985 Liberty primary policies were exhausted (the excess insurers did not challenge the years between 1972 and 1980). According to the excess insurers, Warren and Viking failed to pay the required $100,000 per-occurrence deductibles during those years by separately entering into multi-million dollar settlements with Liberty. But the court agreed with the insureds that, under the policy language, exhaustion did not depend on who paid the deductible. Liberty reached an agreement with Warren and Viking whereby Liberty retroactively billed the policyholders for the deductibles and collected the amounts as an adjusted premium, the court said, so the insureds fulfilled their obligations under the policies.
Turning to the matter of defense costs, the unanimous court affirmed in part and reversed in part the rulings from the lower court. Dividing the excess insurers into four groups, the court determined that some of the excess policies contained a duty to pay for Viking and Warren's defense costs, while others made the duty contingent upon consent of the insurer.
Finally, the court considered whether the final judgment from the trial court erred with respect to the trigger of coverage. Specifically, the trial court opined that, "[a]s to a person who ultimately develops lung cancer, mesothelioma or non-malignant asbestos-related disease, bodily injury first occurs, for policy purposes, upon cellular and molecular damage caused by asbestos inhalation, and such cellular and molecular damage occurs during each and every period of asbestos claimant's significant exposure to asbestos. The duty to defend is based on the possibility of coverage, reflected in the pleadings' allegations. The duty to indemnify derives from whether the basis for Warren or Viking's liability to the injured claimant is actually covered by the policy."
At least arguably, the trial court's ruling meant that the excess policies were triggered only by injury during periods of significant exposure (as opposed injury during the policy period), effectively negating much of the coverage awarded by the jury. Warren and Viking argued that the trial court should have held that bodily injury occurs upon significant exposure to asbestos—and continues thereafter consistent with expert testimony presented at trial.
The Delaware Supreme Court agreed. "The record supports Warren's contention that this case was presented to the jury with the understanding that resolution of the issue of when bodily injury first occurred was all that was necessary because the parties agreed that bodily injury would continue until diagnosis," the court wrote.
Both sides' experts testified that "a person who ultimately develops asbestosis has undergone a continuous process from a person's first significant exposure to asbestos that continued until diagnosis." At trial, the parties only differed as to when bodily injury first occurs. "This dispute was resolved by the jury in Warren's favor, and the Excess Insurers did not appeal that factual finding by the jury," the court noted.
The excess insurers had adopted an inconsistent position on appeal by contending that only those policies in place while the claimant was actually exposed to asbestos were triggered, the court said, rejecting their argument that the insureds were essentially seeking a "continuous trigger."
"Plaintiffs did not rely on a presumption that asbestos-related injuries take place from exposure through manifestation," the court wrote. "Rather, they presented to the jury expert medical testimony that the cellular and molecular damage that leads to asbestos-related disease is a continuous process that is triggered after there is an injury-in-fact, i.e., the claimant's first significant exposure to asbestos."
At oral argument, both parties acknowledged that every asbestos claim involves a claimant who ultimately developed an asbestos-related disease and that asbestos-related diseases result from gradual and continuous injurious processes.
Accordingly, the court revised the final judgment to read: "As to a person who ultimately develops lung cancer, mesothelioma or non-malignant asbestos-related disease, bodily injury first occurs, for policy purposes, upon cellular and molecular damage caused by every asbestos inhalation, and such cellular and molecular damage occurs during each and every period of asbestos claimant's significant exposure to asbestos and continues thereafter. The duty to defend is based on the possibility of coverage, reflected in the pleadings' allegations. The duty to indemnify derives from whether the basis for Warren or Viking's liability to the injured claimant is actually covered by the policy."
To read the opinion in In re Viking Pump, Inc., click here.
Late Notice May Not Matter for Renewed Policy
Why it matters
Despite the insured's failure to provide notice of a claim during the claims-made policy period, coverage was still available, absent a showing of prejudice to the insurer, where the insured renewed the policy at issue and provided notice during the renewal policy period, a Delaware court recently held. A medical device company received a demand letter threatening a class action lawsuit during the initial policy period. The lawsuit also was filed during the policy period, but was not served on the insured until the renewal policy period, when the insured notified the insurer. The insurer balked when asked to provide a defense, arguing that the policyholder's late notice precluded coverage. Although the court agreed that the insured failed to comply strictly with the policy's notice requirements, the insurer was required to demonstrate prejudice in order to evade its coverage obligations on the basis of late notice, given the continuous nature of the parties' relationship due to the policy renewal, the court held. Importantly, this case serves as a reminder that certain circumstances may excuse late notice, and policyholders should aggressively assert circumstantial defenses to late notice where they exist.
Medical Depot, a manufacturer and distributor of medical devices, received a letter from a claimant, Tony Mezzadri, on June 18, 2013. The letter threatened to file a class action lawsuit if Medical Depot did not bring itself into compliance with California law, alleging the company misrepresented the quality of its full-body sling with claims such as "built to exacting standards" and "carefully inspected prior to shipment."
Mezzadri then filed a putative class action in California state court in March 2014, demanding injunctive and monetary relief. Although he failed to serve the lawsuit on Medical Depot, the company was aware of the action. The plaintiff then filed an amended complaint and served it on the company on September 2, 2014.
Medical Depot notified its directors and officers liability (D&O) insurer, RSUI Indemnity Company (RIC), of the lawsuit on September 9, 2014 and sought coverage for the action. But RIC denied coverage, arguing that Medical Depot failed to satisfy the notice requirements of the applicable policy. RIC provided D&O coverage to Medical Depot under two policies: the first from June 15, 2013 to June 15, 2014 (the policy) and the second from June 15, 2014 to June 15, 2015 (the renewal policy). Medical Depot failed to timely notify RIC of the demand letter, RIC argued, and the subsequent complaints related back to the demand letter. Thus, RIC argued, the complaints constituted a later, related claim for which notice was not timely.
Medical Depot responded to the denial with a declaratory action, and the parties filed cross motions for summary judgment.
Delaware Superior Court Judge Eric M. Davis began with the policy, which required written notice of claims "as soon as practicable after such Claim is first made, but in no event shall such notice be given later than thirty (30) days after either the expiration date or any earlier cancellation date of this policy." The policy also defined a "Claim" as "a written demand for monetary relief" or a "civil proceeding for monetary relief which is commenced by Service of a complaint or similar pleading."
Based on this definition, the demand letter was not a Claim, the court ruled. "The Demand Letter does demand that Medical Depot bring its operations into compliance with applicable state law," the judge wrote. "It also demands that Medical Depot stop marketing its products incorrectly. Mr. Mezzadri used the word demand four times in his Demand Letter. But, Mr. Mezzadri never demanded money."
Even though the letter suggested that one "appropriate remedy" could be a full refund of the sling's purchase price, shipping, and handling, Mezzadri did not state that payment be made, the court said, and the letter was clearly intended to satisfy California Civil Code Section 1782, which mandates a demand letter as a condition precedent to the filing of a civil suit.
"At most, the Court finds that the Demand Letter is a demand that constituted a fact or circumstance 'which may reasonably be expected to give rise to a Claim against' Medical Depot," Judge Davis said. "Such a 'fact or circumstance' does not implicate the notice deadline provisions of the Policy and, instead, deals with a situation where a 'Claim' made after the expiration date of the Policy and would relate back to a time during the Policy Period."
However, Mezzadri's initial complaint was clearly a Claim, the court said, even though it was not served on Medical Depot, because it was a written demand for monetary relief. Similarly, the amended complaint also satisfied the policy definition of a Claim.
While the policy was a claims-made policy, it also featured a New York Regulation 121 Disclosure Supplement, which contains provisions extending the relationship between the parties without a gap when a renewal occurs.
"The clear import of these two disclosures is that RIC agreed to extend coverage when there is a 'claims-made relationship' with Medical Depot," the court wrote. "The claims-made relationship between RIC and Medical Depot is June 15, 2013 through June 15, 2015. Accordingly, there should be no gap in coverage for Medical Depot between June 15, 2013 and June 15, 2015. Moreover, the … disclosure supplement provides that coverage exists if a Claim is made and reported to RIC by Medical Depot during the 'policy period, any subsequent renewal and any applicable discovery period.'"
With continuous coverage, the insurer could not rely on the timing of Medical Depot's notice to deny coverage, the court said. "Medical Depot did not provide RIC with notice of the written demand for monetary relief (the Initial Complaint) 'as soon as practicable' or within thirty (30) days—or even sixty (60) days—of the expiration date. But, Medical Depot did provide notice within 'any subsequent renewal.' As the Policy provides, RIC and Medical Depot are in a claims-made relationship, without gaps in coverage and Medical Depot did report Mr. Mezzadri's Claim during any 'subsequent renewal' of the Policy."
Emphasizing the principle that an insurance policy is to be read in accordance with the reasonable expectations of the insured, the court said the policy and renewal policy "clearly" create a two-year period of claims-made insurance coverage.
"Given the express language of the Policy and the fact that the Policy was renewed, Medical Depot has every right to expect that Claims made during the claims-made relationship will be covered," the judge said. "RIC's arguments about this particular Claim—discovered but not reported during the Policy period then reported during the Renewal Policy period but not covered under either—defeats Medical Depot's reasonable expectation that Medical Depot would have extended policy coverage if it renewed the Policy."
The court did find in "this factual scenario, RIC must demonstrate that it was prejudiced by the untimely notice." Because the parties had not briefed the issue of prejudice, the court declined to grant summary judgment to either side.
As for policy exclusions, Judge Davis held that the relation back exclusion did not apply to the initial complaint because the demand letter was not a Claim. He also rejected RIC's argument that the Mezzadri action related to four prior personal injury suits filed against Medical Depot after consumers were allegedly injured as a result of the full-body sling. "Mr. Mezzadri is seeking redress for buying the sling," the court said. "Mr. Mezzadri never claimed that the sling caused him physical harm. The [actions] are not fundamentally identical."
To read the decision in Medical Depot, Inc. v. RSUI Indemnity Company, click here.
Court Sides With Insurer on Coverage for Cyber Event
Why it matters
Another court has held that traditional general liability and property policies do not provide coverage for losses arising from a cyber attack. A grocery store in Alabama had its customers' credit and debit card information compromised, and was then sued by three credit unions for the cost of reissuing cards, reimbursing customers for fraud losses, and administrative expenses. When the grocer tendered defense of the suit to State Farm, the insurer refused to defend or indemnify the claims. The policy only provided coverage for direct loss to computer programs and electronic data, the Alabama federal court determined, and not the harm alleged by the third parties in the underlying complaint. This decision highlights the challenges facing policyholders when seeking to recover for cyber-related events under traditional general liability and property policies, and underscores the need for companies exposed to cyber-related risk to consider purchasing specialized cyber policies.
An Alabama grocery store, Camp's Grocery, Inc., was hit with a lawsuit by three credit unions. The credit unions alleged that Camp's computer network was hacked, compromising confidential data on its customers, including their credit card, debit card, and check card information.
As a result, the credit unions alleged, they were forced to reissue cards, reimburse customers for fraudulent activity, pay various administrative expenses. In addition, the credit unions asserted, they suffered losses such as diminished goodwill and lost customers. The suit asserted claims for negligence, wantonness, misrepresentation, and breach of contract.
Camp's sought coverage for the lawsuit from State Farm Fire & Casualty Company, but State Farm refused to defend. Camp's then filed a declaratory action suit against State Farm. The relevant policy provided coverage for both first-party property losses and general liability, but expressly excluded coverage for "electronic data." Moreover, a covered "accident" was defined as not including any "loss of 'electronic data,' … or other condition within or involving 'electronic data' of any kind."
Camp's pointed the court in the direction of two endorsements attached to the policy, the "FE-8743 Inland Marine Computer Property Form" (IMCPF) and the "FE-8739 Inland Marine Conditions" (IMC). The IMCPF included a general insuring provision that State Farm would pay for "accidental direct physical loss" to computer equipment and removable data storage media.
State Farm countered with a motion to dismiss, arguing that the IMCPF could not be read to provide defense or indemnity for the underlying lawsuit because it was a first-party insuring agreement that covered only losses sustained directly by the insured itself.
U.S. Magistrate Judge John E. Ott agreed. The Alabama Supreme Court has recognized a distinction between first-party insurance and third-party insurance, he explained, and neither the IMCPF nor the IMC contained language in which State Farm promised to "defend" or "indemnify" Camp's "whether in regard to claims involving computer equipment, electronic data, or anything else, for that matter." Rather, the general insuring agreement of the IMCPF provided that State Farm "will pay for accidental direct physical loss."
"Such promises to pay the insured's 'direct loss' unambiguously afford first-party coverage only and do not impose a duty to defend or indemnify the insured against legal claims for harm allegedly suffered by others, as in third-party coverage," the court wrote, citing similar decisions from California, Colorado, Florida, New York, and the Ninth U.S. Circuit Court of Appeals. "Therefore, the terms of the IMCPF itself impose no obligation on State Farm to either defend or indemnify Camp's in the underlying action."
Judge Ott was not persuaded by Camp's alternative argument that the IMC provides that in the event of a covered loss, the insurer "may elect to defend [the insured] at [State Farm's] expense." While the policyholder read this language to mean that State Farm has assumed a duty to defend, the court disagreed. "On its face, a policy provision that the insurer 'may elect to defend' an insured unambiguously gives the insurer a discretionary choice or right to defend; it does not create a duty, that is a nondiscretionary legal obligation, to do so."
The insured then urged the court to declare the elective language in the IMC ambiguous in light of other provisions of the policy. The endorsements expanded the scope of liability under the policy, Camp's said, requiring State Farm to render a defense and indemnity for claims based on losses involving computers and electronic data. But the court again disagreed, finding the argument "fatally flawed." Because the credit unions did not allege "property damage" covered by the policy, the suit was therefore excluded from coverage, and the policy provisions and the endorsements did not render the policy ambiguous.
"Camp's suggests that it is merely interpreting the different coverages of the Policy as an integrated whole," Judge Ott wrote. "But what Camp's is actually doing is selectively reading the Policy in a piecemeal fashion, picking and choosing parts of different coverages while conveniently ignoring other terms from those same coverages that would preclude or exclude their application to the Credit Unions' claims."
The provisions of the endorsements "stand distinctly separate and apart from the business liability insurance afforded" by the policy and do not expand it, the court concluded. "In the end, the … endorsements afford only first-party coverage for certain computer equipment and electronic data, as specified in the IMCPF," the judge said. "Those endorsements do not create, recognize, or assume the existence of a duty to defend or indemnify against claims brought by third parties."
Finding the policy language was not ambiguous, the court held State Farm did not have a duty to defend or indemnify Camp's in the underlying action, granting the insurer's motion for summary judgment.
To read the memorandum opinion in Camp's Grocery, Inc. v. State Farm Fire & Casualty Co., click here.
Court: Complaint's Allegations Potentially Triggered Coverage, Requiring Defense
Why it matters
Where an underlying complaint alleged claims potentially covered by the policy, the insurer must provide coverage, a California appellate panel determined in a recent unpublished decision. The case involved Health Net, facing three consolidated class actions alleging violations of the Employee Retirement Income Security Act (ERISA) for failing to pay for services by out-of-network medical providers to members of the insured health plans. Health Net asked its primary and excess carriers for defense of the suits, but they refused. Coverage was not available for Health Net's alleged failure to pay contractually owed damages, the insurers said, and the trial court agreed. On appeal, the panel affirmed that contract damages were not covered, but also found that the complaints in the underlying lawsuits potentially sought noncontractual damages, triggering coverage and requiring reversal of summary judgment in favor of the insurer. For example, a provision of ERISA provides for "appropriate equitable relief" that did not preclude an award of damages separate from the contract claims; in addition, the plaintiffs made other claims for violations of fiduciary duty that would require payment of an amount not based on contract, the court said.
A managed care company that administers employer-sponsored health plans subject to the requirements of ERISA, California-based Health Net was sued in three separate actions by plan beneficiaries. The members of the consolidated classes alleged Health Net violated ERISA by using an "inherently flawed" database that compiled data about provider charges for healthcare services using outdated information that resulted in lower benefit reimbursements. The plaintiffs also charged the company with failing to make required disclosures, failing to provide full and fair reviews of adverse benefit determinations, and otherwise breaching fiduciary duties.
In 2006, the parties settled, with Health Net agreeing to pay a total of $215 million for the release of "any and all claims" by the plaintiffs.
Prior to settling the class actions, Health Net filed suit against four insurers: primary carrier American International Specialty Lines Insurance Company, which provided coverage for the first $25 million in losses, and excess carriers Executive Risk Specialty Insurance Company, RLI Insurance Company, and Lloyd's of London, which insured losses in $25 million increments up to a total of $100 million.
Following summary judgment motions by the insurers, dismissal by the trial court, reversal by the California Court of Appeal, and a subsequent remand, the trial court again sided with the insurers, granting summary judgment in their favor. The trial court found that no coverage was available because ERISA Section 502(a)(3) did not authorize an award of extracontractual monetary damages. Health Net appealed again, and for the second time an appellate panel reversed.
Monetary relief for extracontractual harm is legally recoverable under ERISA section 502(a)(3), the court said. The U.S. Supreme Court has ruled that the provision "allows a participant, beneficiary, or fiduciary 'to obtain other appropriate equitable relief,'" the court noted, including in the form of damages. As the justices explained, "[T]he fact that this relief takes the form of a money payment does not remove it from the category of traditionally equitable relief. Equity courts possessed the power to provide relief in the form of monetary 'compensation' for a loss resulting from a trustee's breach of duty, or to prevent the trustee's unjust enrichment."
"The Supreme Court thus clarified that equitable relief may come in the form of money damages when the defendant is a trustee in breach of a fiduciary duty, even though the plaintiff is not entitled to payment under the contract establishing the trust," the appellate panel said. Several courts—including the Fourth, Fifth, Seventh, and Eighth U.S. Circuit Courts of Appeals—have similarly allowed plaintiffs to pursue extracontractual monetary relief under ERISA section 502(a)(3).
Having concluded that extracontractual damages are recoverable as a matter of law under ERISA section 502(a)(3), the court then turned to the issue of whether a factual basis existed upon which the underlying plaintiffs potentially could have recovered such damages.
The court answered in the affirmative. The underlying complaint alleged violations of Health Net's fiduciary disclosure obligations as well as breaches of fiduciary duty with its use of the database, facts "sufficient to trigger the Insurers' duty to reimburse Health Net's defense costs," the panel wrote. An insured need only show that the underlying claim may fall within policy coverage, the court emphasized, while the insurer must prove it cannot—something the carriers failed to do.
"While it is true that the underlying plaintiffs principally sought unpaid plan benefits based on facts indicating Health Net's use of the [database] violated the terms of their health plans, those allegations do not conclusively negate the duty to defend if the facts also present the possibility that covered damages could be recovered," the court said. "As explained, where the facts alleged or known to the insurer admit of more than one possible basis for liability, '[f]acts merely tending to show that the claim is not covered, or may not be covered, but [which] are insufficient to eliminate the possibility that resultant damages … will fall within the scope of coverage,' do not negate the duty to defend."
ERISA imposes on fiduciaries an extracontractual duty of loyalty and a duty of care to plan participants. "In this case, the distinction between contractual duties and fiduciary duties is manifested in the language of the health plans at issue and the underlying plaintiffs' allegations concerning Health Net's breach of fiduciary duty," the court said. For example, the underlying plaintiffs claimed that "Health Net implemented cost-saving reimbursement policies without regard to the best interests of the beneficiaries," an allegation that did not depend upon a determination of the terms of the plan, but if true would constitute a breach of fiduciary duties.
"The potential that Health Net could have been found liable for unjustly enriching itself through reimbursement practices that, though conforming to the terms of the health plan contracts, fell below the fiduciary standard of care was sufficient to trigger the duty to defend," the panel wrote, as the plaintiffs could potentially recover monetary relief in the form of a surcharge for the breach of fiduciary duty.
In response, the insurers argued that the plaintiffs had a perfectly good avenue of relief under ERISA section 502(a)(1)(B) for recovery of the benefit payments under the plan and that the extracontractual monetary relief was merely theoretical. But this premise is contrary to the state of the law and "ignores the breadth of the duty to defend," the court said.
The court was not providing the plaintiffs with the means to pursue duplicate recoveries, the panel explained, but simply allowing the pursuit of alternate remedies. "Though the underlying plaintiffs sought recovery of unpaid plan benefits under ERISA section 502(a)(1)(B), the facts alleged regarding Health Net's purported breaches of fiduciary duty presented the possibility that it would be held liable for extracontractual monetary damages under ERISA section 502(a)(3) in the event the claims for plan benefits failed," the court said. "This was sufficient to trigger the Insurers' duty to defend or reimburse defense costs under the policies."
Triable factual issues remained concerning the allocation of defense costs between covered and uncovered claims, as well as whether (and to what extent) the settlement embraced any indemnifiable damages, the panel noted, remanding the case for consideration of these issues.
To read the decision in Health Net, Inc. v. American International Specialty Lines Insurance Co., click here.