Mealey's Emerging Insurance Disputes : Mealey's : Legal News & Analysis

Mealey's Emerging Insurance Disputes

December 11, 2023
2nd Circuit Dismisses Appeals In D&O Coverage Dispute For Want Of Jurisdiction

NEW YORK — The Second Circuit U.S. Court of Appeals on Dec. 11 dismissed an insurer’s appeal and an insured’s cross-appeal in a directors and officers liability coverage dispute arising from underlying proceedings brought by a bankruptcy trustee, finding that a lower federal court’s “Stipulated Conditional Final Judgment Subject to Reservation of Rights of Appeal” is not a “final decision” because it fails to resolve all claims of all of the parties to the lawsuit.
December 08, 2023
8th Circuit Reverses Ruling In Coverage Dispute Over Construction Site Accident

ST. LOUIS — The Eighth Circuit U.S. Court of Appeals reversed a lower court’s grant of partial summary judgment in favor of an engineer insured in an insurer’s lawsuit disputing coverage for an underlying $2.5 million construction worker injury settlement arising from a bridge deck collapse, finding that summary judgment is unavailable because coverage hangs on the resolution of a factual dispute over the insured’s role on the construction project.
December 08, 2023
2nd Circuit: Insurer Not Obligated To Defend Lawyer In Underlying Elder Abuse Suit

NEW YORK — The Second Circuit U.S. Court of Appeals on Dec. 7 affirmed a district court’s grant of judgment on the pleadings to an insurer seeking a declaration that it is not obligated to defend or indemnify a law firm and former partner accused of malpractice, breach of fiduciary duty, elder abuse and fraud in an underlying suit related to a land sale to the former partner’s company, finding that the lower court correctly determined that the policy exclusion related to activities of another business applied.
December 07, 2023
Majority: Insurance Code Does Not Bar Indemnification For Retaliation Settlement

LOS ANGELES — Addressing an “important” question of first impression “whose answer will influence enforcement of our employment laws,” a majority of a California appeals court held Dec. 6 that not all California Labor Code Section 1102.5 claims involve necessarily willful conduct and, therefore, a lower court erred in finding that California Insurance Code Section 533 barred indemnification for a $3 million underlying settlement of police officers’ retaliation lawsuit against a California city.
December 06, 2023
Federal Judges Tosses D&O Coverage Suit After Parties Move For Dismissal

WILMINGTON, Del. — A federal judge in Delaware dismissed a directors and offices coverage dispute arising from an underlying investigation by the Securities and Exchange Commission after the insured and the insurer stipulated to dismissal of the entire action.
December 06, 2023
COMMENTARY: The Seventh Circuit Affirms Landmark BIPA Decision In Illinois

By J. Andrew Moss and Jalen Brown
December 05, 2023
Insurer Seeks Reimbursement From Government For Losses Caused By Contaminated Water

HONOLULU — In a complaint filed in Hawaii federal court, an insurer claims that the U.S. government must reimburse it for more than $500,000 paid to its insured for business losses after a fuel spill at a jet fuel storage facility operated by the U.S, Navy contaminated local drinking water and forced the insured to close its fast food restaurants for approximately four months.
December 04, 2023
Wisconsin Panel Says Counterclaims Against Insured Arose Out Of An Occurrence

MADISON, Wis. — The Fourth District Wisconsin Court of Appeals reversed a trial court’s finding that counterclaims alleged against an insured do not state an occurrence because the factual bases for the counterclaims arose out of an occurrence for which coverage is afforded under the insured’s commercial general liability insurance policy.
December 04, 2023
Insured Failed To Timely Report Employee’s Claims, California Panel Affirms

RIVERSIDE, Calif. — A California appeals panel concluded that a lower court properly sustained an insurer’s demurrer in an insured’s breach of contract and bad faith lawsuit seeking coverage for underlying claims brought by a former employee, determining that the insured failed to timely report any of the employee’s claims to trigger coverage.
December 01, 2023
Delaware Judge Denies Assignees’ Motion To Compel In Wrongful Death Coverage Suit

NEW CASTLE, Del. — A Delaware judge refused to compel a homeowners insurer to produce the claim file of a convicted murderer’s parents in a breach of contract and bad faith lawsuit seeking coverage for an underlying wrongful death lawsuit that resulted in a $15,816,580 arbitration award, finding that the murderer’s assignees failed to demonstrate that the parents’ claim file is relevant to the coverage lawsuit.
December 01, 2023
Federal Judge Denies Insurer’s Motion To Certify Orders For Interlocutory Appeal

BOSTON — A federal judge in Massachusetts in a Nov. 30 electronic order denied a private company management liability insurer’s motion to certify orders for interlocutory appeal and to stay proceedings after ruling Nov. 9 that the insurer has a duty to defend against certain claims that fall under the “Former Directors and Officers” exception to the policy’s “Insured v. Insured” exclusion but other claims are barred by not falling within the “Shareholder Derivative” exception to the same exclusion.
December 01, 2023
No Coverage Owed For Unauthorized Timbering Suit, West Virginia Panel Affirms

CHARLESTON, W.Va. — A West Viriginia appeals panel affirmed a lower court’s ruling in favor of a homeowners insurer in an insured’s lawsuit seeking coverage for underlying claims for timber theft and property damage brought by her neighbors, finding that the policy’s business exclusion barred coverage.
November 30, 2023
Panel Refuses To Rehear Rulings In Favor Of Professional Liability Insurer, Engineer

BATON ROUGE, La. — A Louisiana appeals panel refused to reconsider its affirmation of a lower court’s summary judgment rulings in favor of the insurer and engineer in a lawsuit arising from a contractor’s claims that plans, specifications and bidding documents were inadequate and insufficient to properly construct a road in Terrebonne Parish, standing by its conclusion that because an engineer insured has no liability to Terrebonne Parish Consolidated Government (TPCG) as a matter of law, the engineer’s professional liability insurer also cannot be held liable to TPCG.
November 30, 2023
Judge Refuses To Reconsider Ruling Allowing Law Firm To Intervene In D&O Dispute

SAN JOSE, Calif. — A federal judge in California refused to reconsider its Nov. 3 ruling that granted a law firm’s motion to intervene in an insurer’s lawsuit seeking a declaration that a directors and officers employment practices liability and fiduciary liability policy is rescinded because of the insureds’ material misrepresentations, standing by its decision to permit the firm to enforce a charging lien against the proceeds of the policy.
November 30, 2023
No Coverage Owed For Breach Of Franchise Agreement, Trademark Infringement Claims

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals affirmed a lower federal court’s ruling in favor of insurers in an insured’s breach of contract and bad faith lawsuit seeking coverage for an underlying action alleging that it breached a franchise agreement and infringed on trademarks, finding that some of the underlying claims “clearly fell outside the policy's coverage” and that the policy’s intellectual property (IP) exclusion also barred coverage.
November 28, 2023
Michigan Panel Affirms Ruling In Favor Of Insurance Agency

DETROIT — A Michigan appeals panel affirmed a lower court’s dismissal of an insured’s negligence and misrepresentation claims against its insurance agency, finding that the insured failed to submit adequate evidence of causation.
November 28, 2023
No Coverage Owed For Clothing Retailer’s COVID-19 Losses, N.C. Panel Affirms

RALEIGH, N.C. — The North Carolina Court of Appeals affirmed a lower court’s dismissal of an insured’s lawsuit seeking coverage for its losses arising from the coronavirus pandemic, finding that the insured failed to allege a tangible alteration to its more than 1,300 clothing stores to trigger coverage.
November 27, 2023
2nd Circuit Refuses To Rehear Professional Liability Coverage Dispute

NEW YORK — The Second Circuit U.S. Court of Appeals issued a mandate on Nov. 27 after it denied a lawyer insured’s petition for rehearing en banc seeking to reverse its ruling that a professional liability insurer has no duty to defend the insured’s construction management company against a lawsuit arising from a home renovation project, standing by its conclusion that the underlying complaint fails to allege professional services that the insured provided as a lawyer to trigger coverage.
November 27, 2023
U.S. High Court Refuses To Review Insurance Bad Faith Suit Over Worker Injury

WASHINGTON, D.C. — The U.S. Supreme Court denied an insurer’s petition seeking review of the 11th Circuit U.S. Court of Appeals’ finding that there is enough evidence for a jury to reasonably conclude that it acted in bad faith because it delayed acting on its duty to investigate and settle an underlying worker injury claim, refusing to address the insurer’s argument that the appeals court’s holding “sharply conflicts” with the high court’s recent ruling in Dupree v. Younger and warrants grant of its petition for writ of certiorari, vacatur of the lower court’s judgment and remand for further consideration.
November 21, 2023
Judge: No Professional Liability Coverage Owed For Suit Against Fertility Doctor

HARTFORD, Conn. — A Connecticut judge held that a professional liability insurer has no duty to defend its fertility doctor insured against underlying allegations that he used his own sperm to impregnate two of his patients without their knowledge or consent, finding that the policy’s intentional conduct and sexual misconduct exclusions bar coverage.
November 20, 2023
Louisiana High Court Refuses To Review Ruling In Suit Alleging Insured Stole Files

NEW ORLEANS — The Louisiana Supreme Court refused to disturb a Louisiana appeals court’s finding that a residential mortgage broker’s electronic loan files are “tangible” under state law and, therefore, can be defined as “‘property’ that is susceptible to ‘loss of use’” under a competitor’s business liability insurance policy, allowing to stand the lower court’s reversal of a summary judgment ruling in favor of an insurer that intervened in the broker’s lawsuit alleging that its insured used stolen files to broker mortgage loans for its customers.
November 20, 2023
U.S. High Court Denies Insurance Regulator’s Review Bid In Corporate Privacy Row

WASHINGTON, D.C. — As urged by the U.S. government, the U.S. Supreme Court on Nov. 20 denied a petition by the Delaware Department of Insurance (DDOI) for review of a corporate privacy case involving microcaptive insurance company information and the McCarran-Ferguson Act (MFA).
November 20, 2023
Judge Issues Opinion Reaffirming Order In Landlord’s Coronavirus Coverage Suit

NEW YORK — A federal judge in New York issued an opinion reaffirming its Sept. 29 order granting a commercial property insurer’s motion for summary judgment in a coronavirus coverage suit, finding that a commercial landlord insured failed to meet the contractual prerequisites to recover under the insurance policy’s two communicable disease provisions.
November 17, 2023
Real Estate Law Firm Sues Cyber Security Insurer For Breach Of Contract

ASHEVILLE, N.C. — A real estate law firm sued its insurer and a third-party administrator in a North Carolina court, seeking cyber security coverage for gross negligence and obstruction of justice cross-claims arising from a “cyber incident” in 2021 that resulted in the misdirection of funds.
November 17, 2023
Federal Judge Refuses To Dismiss Professional Liability Coverage Dispute

GREENBELT, Md. — A Maryland federal judge denied a professional liability insurer’s motion to dismiss an insured’s breach of contract and lack of good faith lawsuit seeking coverage for underlying negligent misrepresentation claims, concluding that the insured alleged facts that plausibly demonstrate a potential for coverage.