Policy Observer - July 2013

Orrick, Herrington & Sutcliffe LLP

Getting Over the Bar: Second Circuit Requires Actual Payment of Underlying Limits In Order to Trigger Excess D&O Policies

In June, the Second Circuit held that two Federal Insurance Company ("FIC") excess D&O insurance policies would not be triggered until the full policy limits of the underlying insurance were paid. Ali et al. v. Federal Ins. Co. et al, 2013 U.S. App. LEXIS 11384 (2d Cir. June 4, 2013). The Second Circuit held that the language of the FIC excess insurance policies required the "payment of losses," not merely the accrual of liability, in order to reach the relevant attachment points and trigger the excess coverage. The result in Ali was a gap in coverage created by insolvent insurance companies, even though the insureds faced liability well above the solvent excess policy's attachment point. Although at first blush the Ali case appears to add the Second Circuit to those jurisdictions requiring that underlying insurers pay policy limits before excess policy limits may be attached, the result in Ali makes clear that the triggering and exhaustion requirements are a function of specific policy language. Ali highlights the importance of paying close attention to exhaustion language both in the placement process and when settling contested claims in a tower of coverage.

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Making Less Out of More: Valuing Plaintiff's Recoverable Damages When Its Insurer Settles a Subrogation Claim With the Responsible Party for Less Than the Claim's Full Amount

By Darren S. Teshima

A company that is alleged to be responsible for a loss often finds itself defending against two suits:  (i) a tort action filed by the injured party and (ii) a subrogation action brought by the injured party's insurer. This situation occurs when the injured party's insurer only partially compensates its policyholder for the loss. The injured party pursues its action for the uninsured amount, while its insurer seeks to recover the amount of the insurance benefits paid in subrogation.

While this situation requires the company to defend itself on two fronts, it also presents an opportunity.  The company may be able to limit its exposure to less than the full amount of the injured party's loss. The company may settle the subrogation claim for less than the amount of the policy benefits paid to the injured party, yet still claim the full amount of the subrogation claim as an offset in the tort action. That is holding of the California Court of Appeal in De Anza Interiors, et al. v. Hsu, et al., 2011 WL 6402146, No. CV-08-2550 (Cal. Ct. App. Dec. 21, 2011), the most recent decision on the subject.

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News Briefs
Florida Supreme Court:  Policy Ambiguities Should Be Construed in Favor of Coverage Without Resorting to Extrinsic Evidence

Responding to a question certified by the U.S. Court of Appeals for the Eleventh Circuit, the Supreme Court of Florida clarified that when policy language is ambiguous, courts should not consider extrinsic evidence to support an insurer's interpretation, but should resolve the ambiguity in favor of coverage. Washington Nat'l Ins. Corp. v. Ruderman, 2013 Fla. LEXIS 1388, No. SC12-323 (July 3, 2013). At issue was whether a clause that increased available limits for home health care in a life insurance policy applied only to available daily limits, or also to the lifetime maximum benefit amount. Finding the policy language ambiguous, the court held that the lower court was bound to accept a reasonable interpretation that the policyholder offered favoring greater coverage, without resort to evidence the insurer proffered to suggest a more restrictive construction. In so ruling, the court resolved a split in earlier Florida decisions, some of which had suggested that extrinsic evidence of the parties' intent could be considered in interpreting policy language, and that application of the rule of contra proferentem – automatically favoring the policyholder's interpretation of ambiguous language – should only be considered as a last resort.

New York High Court Holds Insurers Cannot Rely on Exclusions to Escape Duty to Indemnify After Denying Duty to Defend

In a strong reaffirmation of an insurer's broad duty to defend, the New York Court of Appeals held that an insurer that breaches the duty to defend may not later rely on policy exclusions to escape the duty to indemnify. K2 Inv. Grp., LLC, et al. v. Am. Guarantee & Liab. Ins. Co., --- N.E.2d ----, 2013 WL 2475869, 2013 N.Y. Slip Op. 04270 (June 11, 2013). In this case, a lawyer's malpractice insurer denied defense and indemnity coverage for a suit alleging malpractice in connection with unrecorded mortgages. After a default judgment in excess of the policy limits was entered against the lawyer, he assigned his coverage claims to the plaintiffs. In the coverage action, the trial court held the insurer owed the duty to defend, and having denied that duty, it was bound to pay the resulting judgment against its policyholder up to its limit of liability. The Court of Appeals affirmed, holding that once the insurer denied its broad duty to defend, it lost its right to rely on policy exclusions to avoid its indemnity obligation, even if those exclusions would have negated the duty to indemnify. "This rule will give insurers an incentive to defend the cases they are bound by law to defend, and thus to give insureds the full benefit of their bargain." Id. at 7.

Insurer May Not Seek Reimbursement for Uncovered Defense Costs from Insured's Independent Counsel, California Court of Appeal Holds

A California appellate court rejected an insurer's attempt to seek reimbursement from its insured's independent counsel for uncovered defense costs after the insurer refused to acknowledge its duty to defend. J.R. Mktg., LLC, et al., v. Hartford Cas. Ins. Co., 216 Cal. App. 4th 1444 (May 17, 2013). The Court first reaffirmed that once an insurer refuses to defend its insured, it forfeits the protections of California's independent counsel statute, or "Cumis" statute. The statute provides, among other things, that when an insurer defends under a reservation of rights and independent counsel is retained for the insured, the insurer is only obligated to pay the rates it ordinarily pays in similar actions. The Court held that permitting an insurer to seek reimbursement for uncovered defense costs from the independent counsel selected by the insured after the insurer's denial of coverage would frustrate the policies behind the Cumis statute and the broad duty to defend.

Bank's Disgorgement Payment to SEC Not Excluded from D&O Coverage

On June 11, 2013, the New York Court of Appeal reinstated Bear Stearns's coverage action against its D&O insurers seeking coverage for a portion of a disgorgement payment made to the SEC in connection with a settlement regarding alleged late trading and deceptive market timing. J.P. Morgan Securities Inc., et al. v. Vigilant Ins. Co., et al., --- N.E.2d ----, 2013 WL 2475864, 2013 N.Y. Slip Op. 04272 (June 11, 2013). Bear Stearns sought coverage for the portion of a $160 million disgorgement payment that was attributable to the profits of its hedge fund customers, rather than revenue it received. The insurers denied coverage on the ground that coverage for the entire disgorgement payment was against public policy, which does not allow an insured to seek coverage when it engages in conduct with the intent to cause harm. The Court of Appeal rejected this argument, finding that the SEC order did not demonstrate that Bear Stearns had the requisite intent to cause harm. For more information, please click here to visit our Securities Litigation Group blog.

New York's High Court Finds Alleged Sexual Abuse by Priest Constituted Multiple Occurrences

Ruling against the Roman Catholic Diocese of Brooklyn, New York's Court of Appeal held that a priest's alleged acts of sexual molestation "that spanned a six-year period and transpired in multiple locations," did not constitute "a continuous or repeated exposure to substantially the same general harmful conditions," but rather, multiple occurrences subject to separate self-insured retentions under the Diocese's liability insurance policies. Roman Catholic Diocese of Brooklyn v. Nat'l Union Fire Ins. Co. of Pittsburgh, P.A., 87 A.D.3d 1057 (N.Y. May 7, 2013). The Diocese was seeking to avoid seeing the bulk of its coverage claims for a $2 million settlement consumed by the application of seven distinct self-insured retentions of $250,000. Unlike most other jurisdictions, the New York court applied neither the "cause" test, which determines the number of covered occurrences by determining whether damage resulted from a single proximate cause of loss, nor the minority "effects" test, which determines the number of occurrences by counting the number of persons harmed. Instead, the court declared that New York courts must apply the "unfortunate event test," which considers "whether there is a close temporal or spatial relationship between the incidents giving rise to injury or loss, and whether the incidents can be viewed as part of the same causal continuum, without intervening agents or factors." Here, the court concluded, sexual abuse that occurred in multiple locations over multiple policy periods "lack[ed] the requisite temporal and spatial closeness to join the incidents." 

Insurer Must Produce Post-Litigation Claim Documents in Bad Faith Suit

A New York trial court ordered insurer OneBeacon to turn over its claims handling documents created during the pendency of the coverage action, which were relevant to Estee Lauder's bad faith claim against the insurer. Estee Lauder, Inc. v. OneBeacon Ins. Grp., 213 N.Y. Misc. LEXIS 1550, 2013 N.Y. Slip Op. 30762 (April 15, 2013). In this coverage action, Estee Lauder sought coverage from OneBeacon for underlying environmental claims. After the appellate court held that OneBeacon had to defend Estee Lauder and pay all reasonable defense costs, Estee Lauder submitted defense cost invoices to the insurer. The insurer took nearly two years to pay the covered costs. Estee Lauder amended its complaint to add a bad faith claim related to this lengthy delay, and sought documents related to the insurer's claims handling during this period. OneBeacon claimed the documents were protected by the attorney-client privilege and attorney work product doctrine because they were created after the initiation of the coverage action. The trial court disagreed, correctly recognizing that payment of covered defense costs is an ordinary part of an insurer's business.

Connecticut Supreme Court Holds Property Damage Caused by Construction Defects Covered by CGL Policies

Answering a certified question of first impression, the Connecticut Supreme Court held that damage caused by a subcontractor's defective construction may constitute property damage under a commercial general liability policy. Capstone Building Corp., et al. v. Am. Motorists Ins. Co., 308 Conn. 760 (June 11, 2013). The case involved the construction of a student housing complex at the University of Connecticut ("UConn"). The contractor, Capstone, tendered a claim under UConn's owner-controlled insurance program ("OCIP") commercial general liability policy. The insurer denied coverage, asserting that the alleged defective construction was not an "accident" covered by the policy, and that the "your work" exclusion barred coverage. The Connecticut Supreme Court disagreed, holding that the negligent work of a sub-contractor is unintentional from the perspective of the contractor policyholder, and thus may constitute an "accident" within the policy's definition of "occurrence." Coverage is available where the construction defects cause damage to other non-defective property. The Court also held that the sub-contractor's work fell within an exception to the "your work" exclusion.

Oregon Strengthens Legislation Securing Policyholder Rights in Environmental Coverage Cases

On June 10, 2013, Governor John Kitzhaber signed Oregon Senate Bill 814 into law, amending the Oregon Environmental Cleanup Assistance Act, Or. Rev. Stat. § 465.478. The law implements significant claims management and policy interpretation rules to ensure more efficient resolution of environmental claims that insurers typically dispute. For environmental claims that have not yet been resolved by a final judgment in litigation, the law (1) clarifies that the owned property exclusion does not bar coverage for remediation of pollution that threatens groundwater or neighboring property; (2) entitles policyholders to select independent counsel at the insurer's expense to defend pollution claims; (3) bars insurers from enforcing policy provisions prohibiting policyholders from assigning their rights to coverage without the insurer's consent; (4) insulates insurers that settle policyholder claims from suits for contribution by non-settling insurers; (5) broadens the grounds for policyholders to sue insurers for unfair environmental claims settlement practices (including untimely claims investigation or payment, or improper denial of a claim); and (6) allows recovery for treble damages when bad faith is proven. While insurer groups are expected to challenge the new law as a retroactive impairment of contracts, proponents of the bill note (among other things) that the bill's "savings clause," which renders the law inapplicable when it conflicts with the demonstrated intent of the parties, preserves its constitutionality.

New York Assembly Passes Bill Providing New Rights to Policyholders in the Wake of Superstorm Sandy

Reacting to negative policyholder claims experience in the aftermath of Superstorm Sandy, on June 24, 2013 New York's Assembly passed a series of bills designed to strengthen policyholders' rights against their insurers. Most importantly, Assembly Bill 7455A would amend New York's Insurance Law by prohibiting insurers from using "anti-concurrent causation" clauses in first party policies to nullify coverage for flood claims. Such anti-concurrent causation clauses often bar coverage altogether when a loss results from both covered and excluded causes of loss (such as wind and flood). The bill would prohibit insurers from denying coverage based on an exclusion (such as a flood exclusion) when a covered cause of loss (such as wind) is a contributing factor. Senate action on the legislation is awaited.

Lumbermens Mutual Group Ordered into Liquidation

On May 10, 2013 the Illinois Department of Insurance declared the Lumbermens Mutual Group companies (formerly known as the Kemper Insurance Companies) insolvent and ordered their liquidation. The liquidation order affects Lumbermens Mutual Casualty Company, American Manufacturers Mutual Insurance Company, and American Motorist Insurance Company.

Claims Bar Dates Impending for Atlantic Mutual, Centennial, HIH and Nassau Insurance Companies

Several insurers in liquidation proceedings have upcoming claims bar dates:

The liquidator for Atlantic Mutual Insurance Company and Centennial Insurance Company have set September 30, 2013 as the final bar date for creditors, including policyholders, to submit their claim in order to share in the distribution of assets. The New York State Superintendant of Insurance order Atlantic Mutual and Centennial into liquidation on April 27, 2011. Details can be found in the claims bar notice here.

The final claims bar date for the Australian insurer, HIH Insurance Companies, which has been in liquidation proceedings for over a decade, is September 2, 2013. The company and its subsidiaries, which formerly participated in policies issued through the London Insurance Market, are subject to schemes of arrangement in both England and Australia. HIH insurers within the scope of the schemes include HIH Casualty & General Insurance Limited, FAI General Insurance Company Limited, CIC Insurance Limited, FAI Trader's Insurance Company Pty. Limited, FAI Reinsurances Pty. Limited, FAI Insurances Limited, World Marine & General Insurances Pty. Limited (formerly known as Vanguard Insurance Company Limited and sometimes identified in London security as "C.F. and A.U." when participating in the B.D. Cooke Pools), and HIH Underwriting & Insurance (Australia) Pty. Limited. More information can be found on the scheme webpage.

The liquidator for Nassau Insurance Company, a general liability insurer, has proposed August 31, 2013 as the final bar date to present claims and share in any distribution of assets. A hearing on the matter will be held on September 12, 2013, to have retroactive effect. New York’s Superintendant of Insurance placed Nassau into liquidation on June 22, 1984. The notice of the proposed claims bar date can be found by clicking 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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