Mealey's Insurance Pleadings : Mealey's : Legal News & Analysis

Mealey's Insurance Pleadings

April 09, 2024
Insureds Say Remand In Pollution Dispute Is Necessary, Appeal Is Premature

SAN FRANCISCO — Insureds involved in an environmental contamination coverage suit urge the Ninth Circuit U.S. Court of Appeals to remand its suit to the district court, contending that the insurer’s notice of appeal was premature because the district court did not rule on the insureds’ motion to alter or amend the judgment entered in favor of the insureds on the applicability of the pollution exclusion.
April 08, 2024
Insured Asks 5th Circuit To Rehear Professional Liability Coverage Dispute

NEW ORLEANS — An insured on April 5 filed a petition seeking rehearing en banc of the Fifth Circuit U.S. Court of Appeals’ March 21 per curiam opinion that affirmed a lower federal court’s summary judgment ruling in favor of a professional liability insurer in the insured’s lawsuit seeking coverage for underlying claims that she breached a subcontract by wrongfully soliciting the underlying plaintiff’s clients, asserting that the way the panel affirmed the lower court “without writing on the issues” “appears to approve a faulty process for determining the duty to Defend.”
April 08, 2024
Insurer Moves To Reargue Dismissal Of Breach Of Contract Claims In Subrogation Suit

WILMINGTON, Del. — An insurer asked a Delaware court if it can reargue the court’s dismissal of its breach of contract claims for pleading deficiencies and file an amended complaint before dismissal with prejudice is entered on the breach of contract claims in its subrogation lawsuit seeking recovery from an application service provider for the amount paid to nonprofit insureds for investigative and remediation steps arising from a ransomware attack.
April 05, 2024
Condo Developer Tells 10th Circuit It Should Affirm Insurance Dispute Ruling

DENVER — A condominium developer tells the 10th Circuit U.S. Court of Appeals that an insurer uses “semantic shell games” to argue that it does not owe the developer damages in its appeal of a jury’s $2.54 million award in the developer’s favor, saying the insurance policy at issue covered all costs associated with repair.
April 05, 2024
Insurer Tells 11th Circuit Coverage Barred For Contractor By Policy Exclusion

ATLANTA — A contractor’s insurer tells the 11th Circuit U.S. Court of Appeals that it should uphold a Florida federal judge’s ruling that it owed no duty to defend the contractor or a subcontractor due to a policy exclusion in a suit stemming from the subcontractor’s alleged faulty installation of cladding and glazing systems in a construction project in its answer to the contractor’s appeal.
April 04, 2024
Insured Appeals Court’s Ruling That Bump-Up Exclusion Bars D&O Coverage

ALEXANDRIA, Va. — An insured on April 3 filed a notice of appeal in a Virginia federal court asking the Fourth Circuit U.S. Court of Appeals to review the lower court’s holding that a “bump-up” exclusion unambiguously precludes directors and officers liability insurance coverage for the $90 million settlement of two underlying lawsuits arising from a 2015 merger.
April 04, 2024
Insurer Says District Court Properly Found Coverage Is Barred For Cleanup Costs

ATLANTA — A district court’s ruling that no coverage is owed to an insured for contamination cleanup costs caused by the release of petroleum and other contaminants from an underground storage tank at a gas station must be affirmed because the district court correctly found that the claim for contamination cleanup costs incepted prior to the issuance of the policy and is, therefore, barred from coverage, the insurer says in its appellee brief filed in the 11th Circuit Court of Appeal.
April 04, 2024
Coverage Owed For Mold Damages, Insureds Reiterate In Corrected Reply Brief

ATLANTA — In a corrected reply brief, filed with the permission of the 11th Circuit U.S. Court of Appeals, insureds reiterate their argument that a district court erred in finding that no coverage is owed for mold damage discovered in an insured hotel because the policy at issue provides coverage for losses caused by a construction defect even if the cost to fix the defect is not covered.
April 02, 2024
Parties Refile Stipulation Of Dismissal In Worker Injury Coverage Dispute

NEW YORK — Per a New York federal judge’s order, a subcontractor, a property owner and a construction manager on April 1 refiled their stipulation of dismissal of the claims between them in the subcontractor’s lawsuit arising from personal injury actions brought by two of its workers.
March 29, 2024
Insurer Defends Motion Seeking Appellate Review Of COVID-19 Coverage Dispute

SEATTLE — Replying to the University of Washington’s opposition to its motion to certify issues to the Washington Court of Appeals for discretionary review and to stay the university’s lawsuit seeking coverage for losses incurred by its medical and athletic properties due to the COVID-19 pandemic, an insurer argues that it is not seeking to delay the case but just wants “clear guidance” on the threshold legal question of whether commercial property insurance policies insure business income losses that are related to a pandemic.
March 28, 2024
GEICO Sues Radiology Clinics, Owner, Seeking More Than $290,000 For No-Fault Fraud

BROOKLYN, N.Y. — GEICO filed a complaint in New York federal court against multiple radiology clinics and their owner, seeking to recover $290,000 it paid on alleged fraudulent billing for services that were medically unnecessary and “otherwise non-reimbursable” and were purportedly provided to auto accident victims insured by GEICO.
March 27, 2024
Insurer Seeks High Court Review Of Remanded Class Action Challenging Its Practices

WASHINGTON, D.C. — An insurer filed a petition for a writ of certiorari asking the U.S. Supreme Court to review the Seventh Circuit U.S. Court of Appeals’ finding that a class action challenging its practices fits within the internal affairs and home state controversy exceptions to the Class Action Fairness Act (CAFA).
March 26, 2024
Companies Appeal Finding They Are Owed No Defense From Subcontractor’s Insurer

LOS ANGELES — A building owner and a general contractor have appealed a California judge’s decision dismissing their lawsuit seeking payment from a subcontractor’s insurer after the judge agreed with the insurer that coverage was barred by a policy exclusion related to damage caused by the subcontractor’s faulty work.
March 25, 2024
Insurer Says Lower Court Erred In Placing Burden On Insurer In Pollution Dispute

SAN FRANCISCO — A district court erred in placing the burden on an insurer to prove that a pollution exclusion barred coverage for underlying environmental contamination lawsuits because the burden should have been placed on the insureds to prove that the exclusion did not apply as a bar to coverage, an insurer argues in its March 22 appellant brief filed in the Ninth Circuit U.S. Court of Appeals.
March 22, 2024
Insureds Urge 5th Circuit To Rehear Arbitration Row In $7M Hurricane Ida Dispute

NEW ORLEANS — Two New Orleans property owners urge the Fifth Circuit U.S. Court of Appeals to grant panel or en banc rehearing of their appeal challenging the arbitrability of their claims for $7 million in damages caused by Hurricane Ida and for bad faith against a group of foreign and domestic insurers.
March 21, 2024
AFFF Maker Seeks Ruling That Pollution Exclusions Do Not Bar Liability Claims

CHARLESTON, S.C. — A company that makes the firefighting agent known as aqueous film-forming foam (AFFF) has moved in South Carolina federal court for partial summary judgment against a group of insurers asking the court to find that the product liability and common-law causes of action alleging bodily injury and/or property damage that have been asserted against the company in the multidistrict litigation are not excluded from coverage by pollution exclusions.
March 20, 2024
Oral Arguments Held In NRA’s Free Speech Suit Arising From Insurance Program

WASHINGTON, D.C. — The U.S. Supreme Court heard oral arguments on the National Rifle Association of America (NRA)’s petition seeking review of the Second Circuit U.S. Court of Appeals’ finding that it failed to plausibly assert that the former superintendent of the New York State Department of Financial Services (DFS) unconstitutionally threatened or coerced an insurer or other entities to stifle its speech, addressing the NRA’s contention that it plausibly pleaded a First Amendment claim because the superintendent “chose coercion over persuasion.”
March 19, 2024
Amended Complaint Proposed In Delaware Suit Over Alleged Asset Dissipation

WILMINGTON, Del. — Plaintiffs in a suit over the “Agera transactions” — a complex asset-swap arrangement that they allege resulted in the “dissipation of at least $250 million” — have moved in Delaware Chancery Court for leave to amend the complaint “to clarify the record and make minimal amendments.”
March 15, 2024
11th Circuit Tosses Construction Insurance Appeal, Finds It Lacks Jurisdiction

ATLANTA — A panel of the 11th Circuit U.S. Court of Appeals dismissed an appeal brought by a subcontractor’s insurer arguing that it owed no duty to defend or indemnify its insured due to policy exclusions, finding that the judgment the insurer appealed was not final because it did not dispose of all claims against all parties.
March 14, 2024
Farmer, Regulators Brief Determination Row In Crop Insurance Case

LUBBOCK, Texas — In competing motions for summary judgment and judgment on the administrative record in a crop insurance case, a farmer and federal regulators are disputing whether an agency applied the right standard and correctly considered expert testimony in concluding that the farmer failed to follow good farming practices (GFP).
March 13, 2024
As Tax Penalty Row Over Microcaptives Nears Jury Trial, Parties Seek Exclusions

FORT MYERS, Fla. — After a Florida federal judge denied motions for summary judgment and to preclude the testimony of three experts in consolidated cases involving promotion of purported microcaptive insurance companies, the parties asked the court to exclude certain evidence and terms from the approaching jury trial.
March 13, 2024
Former CEO Of Modell’s Appeals Dismissal Of D&O Coverage Dispute

NEW YORK —The former chief executive officer of the now bankrupt Modell’s Sporting Goods Inc. filed a notice in a New York federal court indicating that he is asking the Second Circuit U.S. Court of Appeals to review the court’s Feb. 8 ruling that granted a directors and officers liability insurer’s motion to dismiss his breach of contract and declaratory judgment lawsuit, challenging the lower court’s finding that the policy does not give him the right to block coverage for the company’s former chief financial officer’s $2.8 million settlement of an underlying adversary proceeding filed by the liquidating trustee.
March 13, 2024
AT&T Retirees File Putative Class ERISA Suit Over Pension Risk Transfer Deal

BOSTON — Asserting in part that “reinsurance of ‘Pension Risk Transfer’ liabilities in Bermuda poses unique risks to pensioners,” four AT&T Inc. retirees who participated in a defined-benefit pension plan filed a class complaint in Massachusetts federal court challenging a “de-risking” transaction under the Employee Retirement Income Security Act.
March 12, 2024
Insurers Tell N.C. High Court To Apply 27-Year-Old Precedent To Coronavirus Dispute

RALEIGH, N.C. — Insurers argued to the North Carolina Supreme Court that it should affirm an appeals court’s reversal of a lower court’s grant of partial summary judgment in favor of restaurant insureds in a COVID-19 coverage dispute, responding to the insured’s appellant argument that the phrase “physical loss or physical damage” includes loss of the physical use of property under the state’s “long-standing principles of insurance contract interpretation.”
March 12, 2024
Insured Asks 3rd Circuit To Reject Insurers’ Late-Notice Argument In Asbestos Suit

PHILADELPHIA — The Third Circuit U.S. Court of Appeals should reject an attempt by insurers involved in an asbestos coverage suit to rewrite New Jersey’s late-notice law, an insured says in urging the Third Circuit to reverse a district court’s ruling entered in favor of the insurers.