Mealey's Insurance
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June 19, 2023
Magistrate Judge Recommends Denial Of Motion To Dismiss In Fentanyl Overdose Suit
WEST PALM BEACH, Fla. — A Florida federal magistrate judge recommended denying a motion to dismiss pertaining to an insurer’s claims seeking declarations that its policy’s exclusions for liquor liability, expected or intended injury and failure to maintain bar coverage for an underlying negligence suit arising out of a fentanyl overdose at an insured inn because the insurer alleges sufficient facts in support of its contention that the exclusions could apply as a bar to coverage.
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June 19, 2023
Professors Call For Review Of Insurer Standing Ruling In Asbestos Bankruptcy Case
WASHINGTON, D.C. — A request for the U.S. Supreme Court to decide whether the primary insurer for asbestos debtors Kaiser Gypsum Co. Inc. and Hanson Permanente Cement Inc. has standing to challenge the debtors’ reorganization plan should be granted “to resolve an entrenched circuit split and restore uniformity to bankruptcy proceedings,” eight law professors say in an amicus curiae brief in support of the insurer.
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June 15, 2023
Insurer’s Suit Properly Dismissed For Lack Of Jurisdiction, Panel Says
CINCINNATI — An district court properly dismissed an insurer’s suit seeking a declaration that no coverage is owed for underlying bodily injury suits alleging that the insured’s manufacture of fire protective gear caused a diagnosis of various cancers, the Sixth Circuit U.S. Court of Appeals said in agreeing with the lower court’s conclusion that the application of the policies’ occupational disease exclusion and total pollution exclusion presents novel issues of Ohio law that weigh against the federal court exercising jurisdiction.
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June 14, 2023
COMMENTARY: Does Follow The Form And Follow The Settlements Trump Contrary Governing Law In Facultative Certificates?
By Robert M. Hall
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June 14, 2023
N.J. Panel Affirms Ruling In Insurers’ Favor In Coronavirus Coverage Suit
TRENTON, N.J. — A New Jersey appeals court on June 13 affirmed a lower court’s grant of summary judgment in favor of primary and excess insurers in insureds’ lawsuit seeking coverage for its business losses arising from governmental orders closing the operation of their boardwalk amusement and entertainment businesses in response to the coronavirus, finding that the insureds did not satisfy the coverage prerequisite that they incurred “direct physical loss or damage” to their property and coverage is separately barred under the policies' pollution/contamination exclusion.
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June 13, 2023
Insureds Failed To Show Motion To Strike Is Warranted In Mold Suit
HARRISBURG, Pa. — A Pennsylvania federal magistrate judge denied a motion to strike’s a homeowners insurer’s motion to deem the insureds’ motion for interlocutory appeal withdrawn in a water and mold damage suit after determining that the insureds failed to show that they would be prejudiced if the motion to strike were denied.
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June 12, 2023
Umbrella Insurer Says Only 1 $5M Limit Applies To 3-Year Policy
DETROIT — An umbrella insurer contends in a response to its insured’s cross-motion for summary judgment filed in Michigan federal court that its three-year policy includes only one $5 million limit for underlying environmental contamination suits filed against the insured and not separate $5 million limits for each year of the policy.
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June 12, 2023
Pollution Liability Insurer Cannot Withhold Documents Prepared In Insured’s Defense
NEWARK, N.J. — A pollution liability insurer cannot assert attorney-client privilege or work product doctrine as a basis to withhold documents prepared while still involved in the defense of an underlying suit filed against its insured, a New Jersey federal magistrate judge said in partially granting the insured’s motion to compel.
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June 12, 2023
Pollution Exclusion Does Not Bar Coverage For Underlying Water Contamination Suit
ELGIN, Ill. — The Second District Illinois Appellate Court reversed and remanded a trial court’s ruling that an insurer has no duty to defend its insured city in an underlying suit alleging that the city provided unsafe drinking water to its residents because the policies’ pollution exclusion applies only to traditional environmental contamination claims and the underlying suit against the insured does not allege a claim involving traditional environmental contamination.
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June 09, 2023
11th Circuit Rejects Subrogee Insurer’s Reliance On Concurrent Cause Doctrine
ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a federal district court’s grant of summary judgment in favor of an insurer in a subrogee insurer’s lawsuit seeking indemnification for their mutual insured’s nearly $3.5 million in losses and remediation expenses arising from a joint venture that oversaw a construction project at a water reclamation facility, rejecting the subrogee insurer’s reliance on the concurrent cause doctrine.
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June 08, 2023
Panel Denies English Reinsurer’s Rehearing Bid In All-Sums Allocation Case
NEW YORK — A Second Circuit U.S. Court of Appeals panel denied a petition for panel rehearing in which an English facultative reinsurer argued that the opinion “misreads the context” of one English case and “overlooked an English appellate decision reaching exactly the opposite conclusion” in a case concerning all-sums allocation of an environmental claims settlement.
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June 05, 2023
Insurer Responds To Condo Owner’s Washington High Court Appeal In Collapse Dispute
OLYMPIA, Wash. — A commercial property insurer asked the Washington Supreme Court to affirm an appeals court’s finding that a condominium owners association insured failed to provide evidence of an “abrupt or sudden falling down of any part of a building such that it could not be occupied for its intended purpose” to trigger policy coverage, arguing that the insured does not explain how previous state and federal court decisions create a conflict with the appeals court’s ruling.
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June 05, 2023
Primary Insurers Say Insured Interfered With Settlement Of Asbestos Claims
FORT WORTH, Texas — Primary insurers of an insured named in underlying asbestos bodily injury lawsuits allege in an amended complaint filed in Texas federal court that their insured breached its contracts of insurance by interfering with the primary insurers’ duty to indemnify the insured for settlements of some of the underlying suits in an attempt to force the primary insurers to continue defending the insured for the underlying claims.
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June 01, 2023
3rd Circuit Says Faulty Workmanship Is Not Occurrence, No Coverage Owed To Insured
PHILADELPHIA — The Third Circuit U.S. Court of Appeal on May 31 reversed a district court’s ruling that an insurer must indemnify its insured for damages to natural gas wells caused by the insured’s fracking work because neither faulty workmanship nor failure to perform a contract in a workmanlike manner can be construed as an occurrence under the policy at issue.
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May 31, 2023
Appraisal Award For Mold Damages Confirmed By New York Federal Judge
NEW YORK — A New York federal judge on May 30 confirmed an appraisal award of approximately $5,000 entered in favor of insureds whose home sustained mold damage following Superstorm Sandy, rejecting the insureds’ argument that the appraisal failed to comply with the court’s prior order regarding the terms of the appraisal.
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May 31, 2023
Court Properly Found No Coverage Owed For Raw Sewage Injury Suit, Insurer Says
BOSTON — A district court properly found that an insurer is entitled to reimbursement for defense costs paid on behalf of its insureds and has no duty to contribute to the settlement of a bodily injury suit stemming from an employee’s contact with raw sewage because the policy’s fungi and bacteria exclusion clearly precludes coverage, the insurer says in an appellee brief filed in the First Circuit U.S. Court of Appeals.
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May 30, 2023
Policy Clearly Excludes Damages Caused By Surface Water, Federal Judge Says
DETROIT — No coverage is afforded for water damage in an insured home because the homeowners policy at issue clearly excludes coverage for damages caused by surface water, a Michigan federal judge said in granting the insurer’s motion for summary judgment and dismissing the suit against the insurer.
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May 25, 2023
Counterclaims Against Excess Insurer In Explosion Coverage Suit Must Be Dismissed
TRENTON, N.J. — An insured’s counterclaims for breach of contract and bad faith alleged against its excess insurer, which relied on its policy’s total pollution exclusion to deny coverage for underlying suits arising out of an explosion set off by the use of the insured’s magnesium powder, must be dismissed for failure to allege sufficient facts in support of the claims, a New Jersey federal judge said in granting the insurer’s motion to dismiss.
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May 24, 2023
No Coverage Owed For Home’s Foundation Collapse, New Jersey Panel Affirms
TRENTON, N.J. — A trial court did not err in determining that an insured’s claim for the collapse of his home’s foundation is not covered because experts hired by both the homeowners insurer and the insured determined that the collapse was caused by water seepage and earth movement, both of which are excluded causes of loss under the policy, the New Jersey Superior Court Appellate Division said May 23.
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May 24, 2023
Insurer Seeks JMOL Or New Trial After $170,000 Verdict In Water Damage Suit
MOBILE, Ala. — In the wake of a nearly $170,000 verdict against it in an insurance dispute over the handling of a property damage claim after Hurricane Sally, an insurer has filed a renewed motion for judgment as a matter of law or a new trial, arguing that an insured church failed to establish that its claimed losses were covered under the policy, that the insured’s expert testimony was not reliable and that the “jury instructions were incomplete.”
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May 23, 2023
No Coverage Owed For Discharges Into City Sewer System, Panel Says
NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on May 22 affirmed a district court’s ruling that a pollution liability insurer owes no coverage to an insured for an underlying lawsuit alleging that the insured illegally discharged wastewater into a city sewage treatment facility because the underlying suit does not allege an occurrence for which coverage exists.
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May 23, 2023
2nd Circuit Upholds Ruling Against English Reinsurer In All-Sums Allocation Row
NEW YORK — In a May 22 ruling that represents its best guess as to what the United Kingdom Supreme Court would do, a Second Circuit U.S. Court of Appeals panel upheld a decision against an English facultative reinsurer over all-sums allocation of an environmental claims settlement.
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May 22, 2023
Homeowners Appeal Ruling That Contractor’s Insurer Owes No Coverage For Mold Injuries
PHILADELPHIA — Homeowners and a contractor are appealing to the Third Circuit U.S. Court of Appeals a federal judge in Pennsylvania’s determination that the contractor’s insurer owes them no coverage for personal injuries one of the homeowners sustained as a result of a mold infestation caused by the contractor’s negligent workmanship.
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May 22, 2023
Panel Affirms Dismissal Of Consolidated Class Actions Seeking Coronavirus Coverage
SEATTLE — In three rulings, the Ninth Circuit U.S. Court of Appeals on May 19 affirmed a Washington federal judge’s ruling that granted insurers’ motion to dismiss consolidated class actions brought by western Washington businesses seeking coverage for lost income stemming from the coronavirus pandemic, agreeing that COVID-19 does not cause the physical loss or damage to the insureds’ property that is required to trigger coverage.
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May 22, 2023
Insured Says Policy Limit Applies For Each Year Of Policy For Environmental Claims
DETROIT — An insured counters in a response to an umbrella liability insurer’s motion for summary judgment filed in Michigan federal court that the plain language of a three-year policy provides that the policy’s $5 million limit applies separately to each of the policy’s three years for underlying environmental contamination suits filed against the insured and does not only provide one $5 million policy limit for all three years.