As social media continues to grow, businesses have turned to different platforms to promote their products. This advertising strategy can have unintended consequences, including copyright infringement claims, if businesses fail to take certain steps when sharing photos and videos to promote their product.
For example, many multinational music companies have filed lawsuits against brands for copyright infringement. Given the frequency of these claims, businesses may think that infringement and similar intellectual property claims are covered by their liability insurance policies. But that is not always the case.
The most common source of coverage is “Coverage B” in commercial general liability policies, which protects against claims alleging personal and advertising injury. Those claims can include allegations of libel, slander, invasion of privacy, copyright infringement, false arrest, and wrongful eviction. All policies are not created equal, however, and references to advertising or intellectual property rights may not actually lead to coverage for social media missteps involving alleged infringement. As a result, it is important for an insured to understand the coverage afforded under their CGL policies and additional coverage options that may provide broader coverage.
There are several common limitations on coverage that may come into play for claims involving social media.
Human beings are social creatures. In today’s world, social media platforms are ever-growing and there are more users than ever before. But, at what cost? The use of social media has consequences. Policyholders should look to their CGL insurers for defense coverage, under Coverage A or Coverage B.
A federal court recently ruled that a carrier must defend its policyholder against a claim involving the treasurer’s erroneous payment to a scammer. The ruling shows that a “wrongful act” under a D&O policy need not be an egregious act of wrongdoing, that coverage may hinge on whether extrinsic evidence can establish coverage, and that breach of contract claims are not always uninsurable as a matter of law.
Companies face significant exposure from privacy related claims. An increasing number of these claims result from efforts at the state level to regulate use of personal data. One key focus is Illinois’ Biometric Information Privacy Act (“BIPA”), but as lawmakers in other states continue to introduce legislation aimed at regulating the use of biometric data, more court decisions may muddy the waters regarding what conduct may be covered under a general liability policy.
The Hawaii Supreme Court emphatically rejected insurer efforts to seek reimbursement of defense costs absent a provision in the policy providing for such reimbursement in St. Paul Fire & Marine Insurance Company v. Bodell Construction Company, No. SCCQ-22-0000658, 2023 WL 7517083, (Haw. Nov. 14, 2023). The state high court’s well-reasoned decision rests on bedrock law regarding insurance policy construction and application, follows the nationwide trend of courts compelling insurers to satisfy their contractual obligations in full, and should carry great weight as other jurisdictions continue to debate the same issue.
In HDI Global Specialty SE v. PF Holdings LLC, the Eleventh Circuit recently affirmed a district court ruling that the insurers of two apartment management companies did not have to cover a $54 million arbitration award against the companies for their alleged mismanagement of government-subsidized apartments. The Eleventh Circuit held that management companies’ failure to cooperate breached general liability insurance policies issued by the insurers.
When obtaining insurance coverage, businesses must be wary of policy exclusions that are so broad that they defeat the policy’s primary purpose and render coverage illusory. In Travelers Property Casualty Company of America v. H.E. Sutton Forwarding Co., LLC, No. 2:21-CV-719-JES-KCD, 2023 WL 5486746 (M.D. Fla. Aug. 24, 2023), the U.S. District Court for the Middle District of Florida considered this very issue in deciding when a policy exclusion goes too far.
The Fifth Circuit recently reaffirmed that an insurer’s duty to indemnify hinges on the facts determined in the underlying case, not the allegations. Thus, as confirmed by the Fifth Circuit’s July 31, 2023 decision in Liberty Mut. Fire Ins. Co. v. Copart of Conn., Inc., No. 21-10938, 2023 WL 4862793 (5th Cir. July 31, 2023), an adverse duty-to-defend decision may not foreclose a liability insurer’s indemnity obligations.
Whether an insurer has a right to reimburse defense costs after a finding that it has no duty to defend remains an open question in Georgia. However, in Continental Casualty Co., et al. v. Winder Laboratories, LLC, et al., Case No. 21-11758 (11th Cir. Jul. 13, 2023), the Eleventh Circuit Court of Appeals has weighed in with its prediction on the likely answer. Persuaded by the logic of other jurisdictions that, “wide-ranging reimbursement is necessarily inappropriate in a system—like Georgia’s—that is predicated on a broad duty to defend and a more limited duty to indemnify,” the Eleventh Circuit predicted that, “the Supreme Court of Georgia would follow that logic to adopt a ‘no recoupment’ rule to protect its insurance system.”
When is a catch-all provision too broad? When “a plain-text reading of that provision would swallow a substantial portion of the coverage that the policy otherwise explicitly purports to provide,” according to the Seventh Circuit Court of Appeals. Citizens Insurance Co. of America v. Wynndalco Enterprises LLC, Case No. 22-2313.
On March 20, 2023, the Southern District of New York denied a policyholder’s claim for coverage and granted the insurer’s motion for judgment on the pleadings in Pine Management, Inc. v. Colony Insurance Company. The parties disputed whether a real estate liability insurance policy provided defense and indemnification for Pine Management, Inc. in an underlying lawsuit brought by numerous companies that Pine managed. A simple question proved pivotal in the outcome: whether Pine had timely sought coverage for its claim.
PFAS Regulation
Per- and polyfluoroalkyl Substances (“PFAS”) are a class of substances that have increasingly become the target of federal and state regulation in everything from drinking water, groundwater, site contamination, waste, air emissions, firefighting foam, personal care products, food and food packaging, and now consumer and commercial products. PFAS are widely-used chemicals that have the unique ability to repel both oil and water, which led to their application in many products including items such as stain and water-repellent fabric, chemical-and oil-resistant coatings, food packaging materials, plastics, firefighting foam, solar panels and many others. The carbon-fluorine bond is the strongest in nature, making these compounds highly persistent in the environment.
In First Mercury Insurance Co. v. First Florida Building Corp., et al., a federal district court ordered that an insurer had a duty to defend its insured against an underlying personal injury lawsuit. 2023 WL 23116, at *1 (M.D. Fla. Jan. 3, 2023). First Mercury is a cautionary tale about how insurers may try to circumvent their obligations by improperly considering extrinsic evidence when determining whether they have a duty to defend their insureds.
In a recent opinion, the Northern District Court of Illinois reaffirmed the bedrock principle that an insurer’s duty to defend is broad and triggered by any allegations in a complaint that potentially fall within a policy’s coverage grant. In Harleysville Pref. Ins. Co. v. Dude Products Inc., et. al., Case No. 21-c-5249 (N.D. Ill. Dec. 21, 2022), the insured, Dude Products, Inc., sought coverage from its insurer, Harleysville Preferred Insurance Company, against a class action lawsuit that alleged Dude Products intentionally and falsely marketed its wipes as “flushable” even though the product allegedly did not break apart and caused “clogs and other sewage damage.”
On November 23, 2022, a federal court in Minnesota highlighted the importance of strategically approaching product liability claims, both in terms of their underlying defense and their insurability. In Federal Insurance Company v. 3M Company, No. 21-2093 (JRT/DTS), 2022 WL 17176889 (D. Minn. Nov. 23, 2022), the court rejected the insurer’s attempt to treat each underlying lawsuit as a separate occurrence, thereby maximizing per-occurrence deductibles, and instead found that the manufacture of the allegedly defective medical devices was the sole occurrence responsible for each of the lawsuits. 3M, therefore, was only required to pay a single deductible.
Last week, a New York federal court ruled that an insurer’s “exceedingly broad duty to defend the insured” extended to the policyholder’s indemnification of its landlords in an underlying tort claim. ConMed Corporation (“ConMed”), a medical technology company, filed suit against Federal Insurance Company (“Federal”), a division of Chubb, alleging that Federal breached the terms of its insurance contract when it refused to defend ConMed’s landlords in a Georgia lawsuit.
The coverage dispute stemmed from ConMed employees’ claims that they were exposed to unsafe levels of ethylene oxide, a chemical used to sterilize ConMed’s equipment. Initially, the employees sued ConMed and its contractor that conducted the sterilization, but in April of 2021 the employees initiated a separate suit against ConMed’s landlords (“Landlord Action”). In the Landlord Action, plaintiff employees alleged negligence, aiding and abetting tortious conduct, fraud, wrongful death, and vicarious liability/respondeat superior claims, all stemming from their exposure to ethylene oxide. Pursuant to the lease agreement with ConMed, the landlords tendered the defense and indemnity of the Landlord Action to ConMed, which subsequently tendered the defense to Federal. Federal failed to accept defense of the Landlord Action, and ConMed filed suit.
An oft-seen version of the insuring agreement in Commercial General Liability (CGL) policies provides that the insurance company will pay for “any and all sums” the policyholder is “legally obligated to pay” for liabilities “imposed by law” or “assumed under contract.” In an effort to disclaim coverage for liabilities arising out of or related to contract, insurers have argued that the prong for liabilities “imposed by law” refers to tort-based liabilities only, thus seeking to avoid liability with a relationship to contract. This argument, however, defies the plain insuring language defining how the CGL policies are triggered. This post explains why, under a proper reading of the insuring language, contract-based liabilities should qualify under the “imposed by law” prong of a CGL insuring agreement.
In what is an unfortunate sign of the times, Springpoint Senior Living, Inc. recently sued its insurers in New Jersey federal court claiming they abruptly stopped covering Springpoint’s defense costs after doing so for nearly a decade. A copy of the complaint can be found here. Springpoint’s allegations are emblematic of a growing trend among insurers taking drastic measures to avoid coverage, which is no doubt in response to the tightening economic conditions and looming recession around the globe.
Texas is among the minority of states that permit few, if any, deviations from the “eight-corners rule,” which provides that an insurer’s duty to defend must be determined from the complaint and the policy, without regard to extrinsic evidence or facts. In Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., No. 19-51012, 2022 WL 1090800 (5th Cir. Apr. 12, 2022) (“Bitco”), the Fifth Circuit Court of Appeals declined to consider extrinsic evidence in determining Bitco’s duty to defend and outlined when a court applying Texas law can deviate from the state’s strict eight-corners rule under the Monroe exception.
One of the most valuable aspects of liability insurance is defense coverage, which protects policyholders from significant costs to defend against and litigate claims that may never result in a judgment or settlement. Companies and their directors and officers can incur thousands or even millions of dollars in defending against claims that are resolved long before trial. Even after purchasing robust defense coverage and getting an insurer to defend a claim, however, companies may be surprised when months or even years later the insurer reverses its position and not only withdraws from the defense but also demands repayment of all defense costs paid to date. A recent case, Evanston Insurance Co. v. Winstar Properties, Inc. No. 218CV07740RGKKES, 2022 WL 1309843 (C.D. Cal. Apr. 14, 2022), shows the perils of insurer “recoupment” and underscores the importance of assessing insurer recoupment rights, if any, throughout the claims process.
Law360 recently published a roundup of the biggest general liability rulings in the first quarter of 2022. As part of that roundup, it discussed Omega Protein, Inc. v. Evanston Insurance Company, which the Mississippi Supreme Court decided in January 2021. And it quoted Hunton Partner and practice group leader Syed Ahmad’s analysis of the opinion.
In an appeal to the Ninth Circuit, a private equity firm has asked the court to reverse an order finding there was no coverage for a suit alleging it concealed that a facility it sold was run by Joaquín “El Chapo” Guzmán. AKN Holdings had purchased a manufacturing facility in Reynosa, Mexico, from Thermo Fisher, unaware that the facility “was overrun” by the drug cartel of “El Chapo.” After discovering the concealment, AKN Holdings sued Thermo Fisher and, while that suit was pending, in turn sold the facility to FINSA, also without disclosing the cartel activities or its pending lawsuit.
A New Mexico court recently granted judgment on the pleadings against an insurer and found coverage, reminding the insurer that different words in a policy, indeed, have different meanings.
In Power of Grace, LLC v. Weatherby, Power of Grace, a policyholder, sued its insurer, Hudson Insurance Companies, and its insurance agent, Weatherby-Eisenrich Inc. Power of Grace alleged that Weatherby and Hudson were liable for damages it might incur in an underlying wrongful death lawsuit arising from a tractor-trailer accident.
The Central District of California recently rejected an attempt by Federal Insurance Company, a Chubb company, to avoid its duty to defend its insureds in an $8.5 million lawsuit with a former employee.
TriPacific Capital Advisors, LLC acquired Directors and Officers (D&O) coverage from Federal and Employment Practices Liability (EPL) coverage from Travelers Insurance Company. While those policies were in effect, a former TriPacific employee sued the company and its president, Geoffrey Fearns, for a variety of employment-related causes of action concerning his termination and compensation. TriPacific and Fearns tendered notice to both insurers, seeking indemnification and defense costs. Both policies contained a duty to defend. While Travelers agreed to defend under a reservation of rights, Federal denied coverage based on multiple grounds, including its policy’s “other insurance” provision, contending that the provision rendered its policy “excess” to the Travelers policy. Federal also argued that TriPacific had not satisfied the D&O policy’s $150,000 self-insured retention and, thus, coverage had not been implicated, in any event. TriPacific maintained that neither the SIR nor the “other insurance” provision pertained to Federal’s duty to defend and brought suit to enforce the duty to defend.
Last month, the US District Court for the District of Connecticut granted an insurer’s motion for summary judgment in the case of Connecticut Municipal Electric Energy Cooperative v. National Union Fire Insurance Company of Pittsburgh, PA, No. 3:19cv839 (JBA), finding that there was no coverage under a directors & officers policy for defense costs associated with responding to a government subpoena. Last week, in line with our commentary, which highlighted several critical flaws in the court’s initial ruling, the court reversed itself and granted reconsideration, finding that there actually is coverage.
The Superior Court of Delaware held that a directors and officers liability insurer must advance defense costs to a mortgage broker targeted in a federal government investigation of alleged False Claims Act violations. In Guaranteed Rate, Inc. v. ACE American Insurance Company, No. N20C-04-268 MMJ CCLD (Del. Sup. Ct. Aug. 18, 2021), Guaranteed Rate received a Civil Investigative Demand from federal authorities in June 2019 regarding the company’s underwriting and issuance of federally-insured mortgage loans. Eleven days later, Guaranteed Rate provided notice of the CID under a private company management liability policy issued by ACE American Insurance Company.
A California federal district court recently denied an insurer’s motion to dismiss a manufacturer’s insurance coverage suit on the grounds that an “unfair competition” exclusion barred coverage for a suit that alleged violations of the Colorado Consumer Protection Act. The court allowed the suit to proceed because the exclusion did not clearly, explicitly, and unambiguously apply to the product liability suit alleged against the manufacturer. The decision in Arovast Corporation v. Great American E&S Insurance Co., No. SACV 21-596-CJC (C.D. Cal. Aug. 2, 2021) highlights the broad range of activities that can be found in “unfair competition,” “antitrust,” and similar exclusions and how they can be cited as grounds to deny coverage in a variety of contexts beyond the anti-competitive claims those labels may suggest to most policyholders.
In September, we discussed a Florida district court’s finding that an insurer must defend a Miami strip club in a lawsuit filed by 17 models who alleged the club used their images to promote its business without authorization. Recently, an Illinois federal judge ruled similarly, ordering that First Mercury Insurance Company defend its insured, Triple Location, against a similar lawsuit.
In First Mercury Insurance Co. v. Triple Location LLC, three models sued the insured strip club after it allegedly published their images without consent. The models claimed the unauthorized postings created the false impression that they had agreed to promote the insured business, Club O, which harmed their image, brand, and marketability. The models also alleged that the club was negligent in failing to adopt and implement policies and procedures to prevent the misappropriation of images.
The Fifth Circuit recently rebuffed an attempt by Chubb subsidiary Ace American Insurance Co. (“Ace”) to evade liability from its excess insurer, Zurich North America subsidiary American Guarantee & Liability Insurance Co. (“AGLIC”), after Ace unreasonably rejected a settlement offer within its policy limits in violation of its Stowers duty. See Am. Guarantee & Liab. Ins. Co. v. ACE Am. Ins. Co., 19-20779, 2020 WL 7487067 (5th Cir. Dec. 21, 2020). As a result, Ace must now pay approximately $7.27 million in damages to AGLIC to cover its costs to settle the underlying lawsuit plus prejudgment interest and court costs.
On November 25, 2020, an Illinois federal judge ruled in Grinnell Mutual Reinsurance Co. v. S.B.C. Flood Waste Solutions, Inc., that an Iowa based insurance company must continue to defend a waste disposal company in an underlying trademark infringement and defamation lawsuit.
On November 19, 2020, a Delaware judge ruled in Indian Harbor Ins. Co. v. SharkNinja Operating LLC, et al., that insurer Indian Harbor must defend SharkNinja against underlying patent infringement and false advertising claims despite a patent infringement exclusion.
The Seventh Circuit affirmed a ruling from the Northern District of Illinois that a subcontractor’s insurer must defend the general contractor in a negligence suit brought by an employee of the subcontractor for injuries suffered on the job.
A Massachusetts intermediate appellate court recently found no coverage for a general contractor listed as an additional insured under a subcontractor’s general liability insurance policy. The general contractor sought coverage for a negligence action brought by an employee of the subcontractor regarding workplace injuries.
On August 28, Judge Stephen V. Wilson of the Central District of California, entered the latest ruling in the ongoing saga of the COVID-19 business interruption coverage dispute between celebrity plaintiff’s attorney Mark Geragos and Insurer Travelers.
A New York appeals court recently granted partial summary judgment in favor of the insureds, finding that excess directors and officers insurers, Westchester Fire Insurance Co., Aspen American Insurance Co. and RSUI Indemnity Co., must advance the defense costs for former executives of the insured entity. The decision is the most recent victory for policyholders in connection with D&O insurance claims asserted in the wake of alleged securities violations and accounting fraud at related real estate investment firms, which have resulted in millions of insurance recoveries for the company and its officers and directors (as previously reported here and here).
The My Choice Decision
On August 19, 2020, the Ninth Circuit issued its decision in My Choice Software, LLC v. Travelers Casualty Insurance Co. of America, No. 19-56030, 2020 WL 4814235, holding that longstanding rules of insurance policy construction required reversal of a district court holding denying a duty to defend. Specifically, the Court determined that the Intellectual Property Exclusion in a Travelers policy did not unambiguously preclude the possibility of coverage for a claim against the Insured, My Choice, and that Travelers accordingly had a duty to defend.
Deciding that certain damages claimed by the underlying case plaintiff were covered “Loss” under a professional services policy, the Eleventh Circuit determined that AEGIS must pay to defend a Georgia landlord in a class action for wrongful failure to return tenants’ security deposits under O.C.G.A. § 44-7-35(c). The policy defined “Loss” as “a compensatory monetary amount for which the Insured may be held legally liable, including judgments . . . awards, or settlements,” but specifically excluded:
The Ohio Court of Appeals on June 24 enforced liability insurance for a company that had distributed opiates, finding that the insured had a duty to defend the insured in lawsuits filed by government agencies and pending in the Opioid Multidistrict Litigation. Acuity v. Masters Pharm., No. C-190176 (Ohio Ct. App. June 24, 2020). A unanimous three-judge panel overturned a trial court decision that had accepted arguments of insurers that, because the underlying suits were brought by government entities seeking to recover for “their own economic loss,” the damages sought did not qualify as “damages because of or for a ‘bodily injury.’” Relying on the Seventh Circuit’s decision in Cincinnati Ins. Co. v. H.D. Smith, L.L.C., 829 F.3d 771 (7th Cir. 2016), the Court of Appeals acknowledged that “[t]he governmental entities are seeking their own economic losses,” but concluded that some losses at issue “(such as medical expenses and treatment costs) are arguably ‘because of’ bodily injury,” bringing policyholder claims “potentially within the policies’ coverage.” Slip op. ¶ 30. The trial court thus had erred in finding that the insurer had no duty to defend in the underlying opioid cases.
An appeals court has overturned an insurer’s successful dismissal of an insurance coverage lawsuit arising from the insurer’s refusal to defend a North Carolina assisted living operator in a False Claims Act lawsuit alleging more than $60 million in damages. The court held that that the insurer improperly denied coverage under the operator’s professional liability policy (covering “damages resulting from a claim arising out of a medical incident”) because the alleged improper billing had a causal connection to the operator’s failure to render medical professional services and, therefore, “arose out of” a covered medical incident.
The Fourth Circuit recently held that an insurance company was obligated to cover millions in legal fees incurred in defending an employment suit against the owners of DARCARS, a DC-area based car dealership. The court ruled that the relevant policy exclusion was ambiguous and, as a result, construed the exclusion narrowly against the insurer and in favor of coverage.
Pennsylvania’s highest court recently rejected Erie Insurance Exchange’s argument that it had no duty to defend a claim arising out of a shooting because it did not involve an accident, and therefore, there was no “occurrence” under the policy. The court held that the duty to defend was triggered because the underlying allegations were not “patently outside the policy coverage.” This decision can have far reaching effects on other kinds of claims involving intentional conduct.
In responding to a certified question from the Fifth Circuit in Richards v. State Farm Lloyds, the Texas Supreme Court held that the “policy-language exception” to the eight-corners rule articulated by the federal district court is not a permissible exception under Texas law. See Richards v. State Farm Lloyds, 19-0802, 2020 WL 1313782, at *1 (Tex. Mar. 20, 2020). The eight-corners rule generally provides that Texas courts may only consider the four corners of the petition and the four corners of the applicable insurance policy when determining whether a duty to defend exists. State Farm argued that a “policy-language exception” prevents application of the eight-corners rule unless the insurance policy explicitly requires the insurer to defend “all actions against its insured no matter if the allegations of the suit are groundless, false or fraudulent,” relying on B. Hall Contracting Inc. v. Evanston Ins. Co., 447 F. Supp. 2d 634, 645 (N.D. Tex. 2006). The Texas Supreme Court rejected the insurer’s argument, citing Texas’ long history of applying the eight-corners rule without regard for the presence or absence of a “groundless-claims” clause.
In a prior post, we predicted that novel coronavirus (COVID-19) risks could implicate D&O and similar management liability coverage arising from so-called “event-driven” litigation, a new kind of securities class action that relies on specific adverse events, rather than fraudulent financial disclosures or accounting issues, as the catalyst for targeting both companies and their directors and officers for the resulting drop in stock price. It appears that ship has sailed, so to speak, as Kevin LaCroix at D&O Diary reported over the weekend that a plaintiff shareholder had filed a securities class action lawsuit against Norwegian Cruise Line Holdings, Ltd. alleging that the company employed misleading sales tactics related to the outbreak.
A Michigan federal court held recently in Great American Fidelity Ins. Co. v. Stout Risius Ross, Inc., et al., 2020 WL 601784, at *1 (E.D. Mich. Feb. 7, 2020), that an insurer must defend an investment advisor against lawsuits alleging that it fraudulently overvalued the stock of a company destined for bankruptcy. The court determined that the insurer failed to show that an exclusion barring coverage for claims arising out of ERISA and other securities laws violations was broad enough to bar coverage for accompanying common law claims of fraud and negligent misrepresentation.
Hunton Insurance partners Syed Ahmad and Michael Levine were interviewed by Law360 for its year-end article discussing the top insurance rulings in 2019, for their insights on two of the year’s biggest insurance decisions.
In an important decision for policyholders, a New York state appellate court rejected AIG’s effort to avoid defending McGraw-Hill in a series of copyright suits. In doing so, it reversed the trial court and rejected the insurer’s attempted use of the contract exclusion and fortuity doctrine as a bar to coverage under various multimedia liability insurance policies.
In Ferguson v. St. Paul Fire and Marine Insurance Co., the Missouri Court of Appeals, Western District, found that a public entity liability policy covered the injuries sustained by a man that had been wrongfully convicted, notwithstanding that the policy was issued years after the relevant prosecution. The court’s ruling is in stark contrast to the Illinois Supreme Court’s recent decision in Sanders v. Illinois Union Insurance Co., No. 124565, 2019 WL6199651 (Ill. Nov. 21, 2019), the subject of a prior blog, where the court found that it was the policies in place at the time of the wrongful prosecution that provided coverage for the offense. In our earlier blog, we discussed the costly consequences the Sanders decision could impose on policyholders in Illinois. Although reaching an opposite conclusion than Sanders, Ferguson is based on different policy language and, ultimately, does not appear to be inconsistent with the Sanders decision. While certainly a welcomed decision from a policyholder’s perspective, Ferguson and Sanders highlight the importance that policy wording can play in defining the scope of an insurance program and how similar factual scenarios can result in drastically different coverages based on seemingly minor differences in policy wording. A copy of the Ferguson decision can be found here.
Few areas of New York law as complex and nuanced as the law regarding an insurer’s duties to defend and indemnify. To help practitioners efficiently navigate this area of the law, Hunton Andrews Kurth insurance attorneys Michael S. Levine and Kevin V. Small authored a Q&A guide published by Practical Law. The full article is available here. In the Q&A guide, the authors identify questions practitioners are likely to encounter regarding an insurer’s duties to defend and indemnity and provide succinct answers and citations under New York law ...
In a recent decision, the Maryland Court of Special Appeals reiterated that the duty to defend broadly requires a liability insurer to defend an entire lawsuit against its insured, even where only some of the allegations are potentially covered. The court further held that the insured has no obligation to apportion defense costs among multiple implicated policies. The decision, Selective Way Insurance Company v. Nationwide Property and Casualty Insurance Company, et al., can be found here.
In Dunn, et al. v. Columbia National Insurance Company, No. 2:17-cv-0246 (N.D. Ga.), an insurance company refused to defend an insured in a personal injury claim contending that the insured failed to cooperate in the defense. The underlying claim stemmed from an automobile accident, where an employee of Lawson Air Conditioning and Plumbing, Inc. (“Lawson”), Ronald Patterson, struck members of the Dunn family with a pickup truck owned by Lawson as the family was walking out of a Walmart store. The Dunn family members suffered bodily injury as a proximate result of the accident. Patterson admitted fault.
A federal court in Illinois ruled recently, in Cincinnati Insurance Company v. H.D. Smith Wholesale Drug Company, that Cincinnati Insurance Company was required to indemnify H.D. Smith for a $3.5 million settlement it reached with the State of West Virginia. The settlement resolved an action in which West Virginia alleged that H.D. Smith contributed to the state’s opioid addiction epidemic through its negligent distribution of opioid prescription drugs.
The Seventh Circuit held last week that a manufacturer’s insurer must cover its insured, a designer and builder of anaerobic digesters, under its errors and omissions policy for claims alleging breach of contract, despite an exclusion in the policy for claims arising out of the breach of an express or oral contract. The decision in Crum & Forster Specialty Insurance Company v. DVO, Inc., No. 18-2571 (7th Cir. Sept. 23, 2019), illustrates the practical application of policy construction to avoid what would otherwise amount to an illusory promise of coverage.
A Florida district court recently held that an insurer wrongfully refused to defend a Miami-based strip club in a lawsuit filed by 17 models claiming that the club used their images to promote its business without their authorization. The insurer was required to defend the club for allegations of defamation under the policy’s personal and advertising coverage even though 16 of the 17 plaintiffs’ claims alleged conduct outside the covered policy period and no plaintiffs brought a cause of action for “defamation.” The decision highlights the broad duty to defend, in Florida and elsewhere, that policyholders should emphasize when pursuing coverage.
On September 18, 2019, a Texas federal court vacated its prior ruling and entered summary judgment for the insured, finding that after a hacker impersonating the customer convinced the insured to wire $1 million out of the customer’s account, the insurer had a duty to defend its insured against claims by its customer because the potential for coverage existed. See Quality Sausage Company, LLC, et al. v. Twin City Fire Insurance Co., Civil Action No. 4:17-CV-111 (S.D.TX) (Dkt. No. 110). The prior order was based on disputed extrinsic evidence, which the court considered in deciding the duty to defend, even though Texas’ narrow exception to the “eight corners” rule is limited to only undisputed extrinsic evidence.
In an insurance coverage action pending in the S.D.N.Y., Hunt Construction Group (Hunt) contends that Berkley Assurance Company wrongfully denied defense coverage for claims arising out of the renovation of Hard Rock Stadium (home to the Miami Dolphins and Miami Hurricanes football teams).
On August 27th, a California Appellate Court held that an employment practices liability insurance policy’s “wage and hour” exclusion must be construed narrowly to bar coverage only for claims related to “laws concerning duration worked and/or remuneration received in exchange for work.” In doing so, the court made clear that “wage and hour” exclusions do not preclude coverage for claims that go beyond the employee’s actual remuneration received in exchange for work.
A Massachusetts federal court ruled last week that Allied World Insurance Co. must pay for a Boston law firm’s defense of counterclaims asserted against it in a lawsuit over, among other things, the proper ownership of client files and materials.
California’s highest court held yesterday in Pitzer College v. Indian Harbor Insurance Co., that the state’s insurance notice-prejudice rule is a “fundamental public policy” for the purpose of choice of law analyses. This unanimous ruling, issued in response to certified questions from the Ninth Circuit, confirms and emphasizes California’s common law rule that policyholders who provide “late notice” may proceed with their insurance claim, absent a showing by the insurer of substantial prejudice. The California Supreme Court also extended the prejudice ...
On August 6, 2019, Hunton Andrews Kurth insurance lawyers Walter J. Andrews and Daniel Hentschel discussed the effect of eroding insurance policies in an article appearing in Florida’s Daily Business Review. The full article is available here. In the article, the authors discuss the potential risks associated with the use of eroding insurance policies and the obligations that the use of such policies imposes upon insurance companies based on their control over the policyholder’s liability defense ...
Increasing public concern over sexual misconduct, evidenced by the #MeToo movement and investigations into high-profile organizations such as USA Gymnastics, the Boy Scouts of America, various religious institutions, and the entertainment industry, has led to the enactment of laws that may have a major impact on the coverage litigation world. This year, eighteen states and the District of Columbia will enact laws modifying the statute of limitations for child sexual abuse cases, allowing victims to bring claims that otherwise would have been time-barred.
A Louisiana court recently denied an excess insurer’s bid for summary judgment, finding that the insurer’s interpretation of a pollution exclusion would lead to “absurd results.”
The U.S. District Court of Appeals for the First Circuit recently held that Zurich American Insurance Company was obligated to defend Electricity Maine, LLC in a class action lawsuit brought by its customers. The case stems from alleged misconduct by Electricity Maine that resulted in customers receiving higher bills than were previously represented. Plaintiffs Jennifer Chon and Katherine Veilleux sought to represent a class of approximately 200,000 customers seeking damages totaling approximately $35 million. Specifically, the complaint asserted claims for negligence, negligent misrepresentation, violations under the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18. U.S.C. §§ 1962, 1964, and the Maine Unfair Trade Practices Act.
A Delaware court held that an appraisal action, which includes $39 million in attorneys’ fees, prejudgment interest, and costs incurred in defending litigation that arose out of Solera Holdings Inc.’s acquisition by Vista Equity Partners LP, constitutes a covered “securities claim” under Solera’s directors and officers liability insurance policy.
Last week the Northern District of Illinois held in Magnetek, Inc. v. Travelers Indem. Co., 2019 WL 3037080 (N.D. Ill. July 11, 2019), that Travelers had a duty to defend Magnetek, Inc. under insurance policies issued to Magnetek’s predecessor, Fruit of the Loom (“FOTL”). A copy of the Magnetek decision can be found here.
The Georgia Court of Appeals recently affirmed a grant of summary judgment in favor of Mountain Express Oil Company on its breach of contract claim against liability insurer, Southern Trust Insurance Company. Empire Petroleum brought claims against Mountain Express for breach of contract, injunctive relief, and libel or slander, among others. Mountain Express sought a defense to that lawsuit under its insurance policy with Southern Trust. Southern Trust contended that the insurance policy did not cover Empire’s non-libel/slander claims, and therefore reimbursed Mountain Express for only a portion of its attorneys’ fees. After the Empire lawsuit settled, Mountain Express sued Southern Trust for breach of contract and bad faith for failing to pay the remaining defense costs, contending that Southern Trust had a duty to defend the entire lawsuit.
The United States District Court for the Southern District of Texas recently rejected a claim by a group of insurance companies (“Underwriters”) against American Global Maritime Inc. for more than $500 million that the Underwriters paid the named insured under an Off-Shore Construction Risk insurance policy for losses resulting from the an alleged off-shore oil rig failure.
A federal court has ruled in Catlin Specialty Ins. Co. v. J.J. White, Inc., that settlement of an underlying third-party lawsuit involving covered and uncovered claims requires consideration of two principles of proof. First, the factfinder must assume that the insured was actually liable in the underlying case. Second, the factfinder must resolve all factual issues necessary to deciding coverage. A copy of the decision can be found here; and a copy of a related summary-judgment opinion can be found here.
On July 2, 2019, the Fifth Circuit held in Frederking v. Cincinnati Ins. Co.., that Cincinnati Insurance Company was on the hook for injuries resulting from a drinking and driving collision because the collision amounted to an “accident” under its insurance policy. 2019 U.S. App. LEXIS 19796, __ F.3d __, 2019 WL 2751700.
The Delaware Superior Court recently held, in Conduent State Healthcare, LLC v. AIG Specialty Insurance Company, et al., that a government-conducted civil investigation constitutes a “Claim” sufficient to trigger coverage under a professional liability insurance policy. Conduent State Healthcare, LLC (“Conduent”) alleged that Defendant AIG Specialty Insurance Company (“AIG”) breached its obligations by refusing to defend and indemnify Conduent for costs incurred in connection with a Medicaid fraud investigation.
On June 17, 2019, the First Circuit held that an insurer’s duty to defend was triggered because the underlying complaint set forth claims that required a showing of intent as well as claims that sought recovery for conduct that “fits comfortably within the definition of an ‘accident.’” In Zurich American Ins. Co v. Electricity Maine, LLC, Zurich sought declaratory judgment that, under a D&O policy, it had no duty to defend the insured, Electricity Maine, an electrical utility company being sued in the underlying class action. Zurich argued it had no duty to defend because the underlying complaint failed to allege that Electricity Maine engaged in conduct that qualified as an “occurrence” or that caused “bodily injury” under the terms of the policy. The First Circuit disagreed.
A federal court in Pennsylvania has held that Liberty Mutual must defend its insured, Hershey Creamery Company, in an intellectual property infringement lawsuit because the suit raises claims that potentially implicate coverage under the policies’ personal and advertising injury coverages. The court further found that the alleged wrongful conduct was not subject to the policies’ IP infringement exclusion.
Upper Deck Co. has sued its general liability insurer, Liberty Mutual Fire Insurance Co., in California federal court last week, alleging that Liberty Mutual failed to satisfy its defense obligations in an antitrust lawsuit brought against Upper Deck by rival trading card maker Leaf Trading Cards LLC. According to the complaint, Liberty Mutual agreed that the allegations in Leaf’s suit triggered coverage under Upper Deck’s policy and acknowledged its duty to defend and Upper Deck’s right to independent counsel. However, Liberty Mutual stopped paying the defense fees of one of the firms Upper Deck hired, and also failed to pay the fees of a different firm.
The Eleventh Circuit has reversed an insurer’s award of summary judgment after finding that uncertainty about when the alleged property damage occurred raised questions about whether the damage came within the scope of the “Your Work” exclusion. More specifically, the court found unclear whether the damage occurred before or after the contractor abandoned the job, thereby triggering an exception to the “Your Work” exclusion for damage to work that had “not yet been completed or abandoned.” The decision illustrates how timing can be a critical factor when it comes to triggering coverage for work and completed operations.
The Southern District of Georgia recently ruled that Evanston Insurance Company is not entitled to summary judgment on whether its policies’ pollution exclusion bars coverage for the release of nitrogen into a warehouse. The case stems from an incident at Xytex Tissue Services, LLC’s warehouse, where Xytex stored biological material at low temperatures. Xytex used an on-site “liquid nitrogen delivery system” to keep the material properly cooled. This system releases liquid nitrogen, which would vaporize into nitrogen gas and cool the biological material. On February 5, 2017, a Xytex employee, Deputy Greg Meagher, entered the warehouse to investigate activated motion detectors and burglar alarms. Deputy Meagher was overcome by nitrogen gas and died as a result. Following Deputy Meagher’s death, his heirs filed suit against Xytex and other defendants. Evanston denied coverage based on the pollution exclusion in its policy. Evanston then brought a declaratory judgment action to confirm its coverage position.
In a March 6, 2019 article appearing in Law360, Hunton insurance team partner, Syed Ahmad, commented on the Wisconsin Supreme Court’s recent reinforcement of a general liability insurer’s broad duty to defend in West Bend Mut. Ins. Co. v. Ixthus Med. Supply, Inc. In the article, Ahmad noted that “the ruling puts some real teeth into the broad duty to defend standard." A deeper analysis of the decision is discussed in our March 8, 2019 blog post, in which we analyze the court’s reasoning behind its refusal to allow the insurer to escape its duty to defend by relying on the knowing ...
The Georgia Supreme Court ruled this week that First Acceptance Insurance Co. need not pay a $5.3 million excess judgment against its insured, Ronald Jackson. First Acceptance Ins. Co. of Georgia, Inc. v. Hughes, No. S18G0517, 2019 WL 1103831 (Ga. Mar. 11, 2019), even though Jackson’s insurer could have settled the claim for Jackson’s $50,000 policy limits.
In a March 13, 2019 article appearing in Law360, Hunton Insurance team head, Walter Andrews, explains the adverse impact of a Georgia Supreme Court ruling that attempts to clarify the rules governing settlement of insured liability claims under Georgia law. As Walter explains, however, the decision stands to hinder settlements and potentially subject innocent insureds to staggering liability beyond that covered by their insurance. In First Acceptance Ins. Co. of Georgia, Inc. v. Hughes, the Georgia Supreme Court ruled that policyholders must make a “valid offer” – that is, one that contains definite time limits and other terms - before an insurance company is required to settle. As Walter told Law360, the court took “an overly narrow approach” that is “disturbing and is likely to act as a deterrent to settlements in the future.” He goes on to explain that insurance companies will actually have less incentive to settle, “which means that fewer cases will settle and cases will linger longer in court, which is not in the interests of either the injured parties or the insured defendants.”
The Wisconsin Supreme Court held last week in West Bend Mut. Ins. Co. v. Ixthus Med. Supply, Inc., that West Bend Mutual Insurance Co. (“West Bend”) could not escape its duty to defend by relying on the knowing violation and criminal acts exclusions in a commercial general liability policy issued to Ixthus Medical Supply, Inc. (“Ixthus”). The court required the insurer to defend notwithstanding underlying allegations that Ixthus acted wrongfully and knowingly in defrauding Abbott Laboratories (“Abbott”).
In January we wrote about Rosen Millennium Inc.’s (“Millennium”) appeal to the Eleventh Circuit, whereby Millennium took the position that a Florida federal court ignored well established Florida insurance law when it ruled that St. Paul Fire & Marine Insurance Co. had no duty to defend it against a multimillion dollar claim arising out of a 2016 cybersecurity breach.
In an article appearing in Electric Light & Power, Hunton insurance recovery lawyers, Lawrence Bracken, Sergio Oehninger and Alexander Russo discuss the insurability of losses resulting from the recent wildfires in California. Many affected by the tragedy have tried to shift responsibility to utility and power companies, which also may face subrogation claims from insurers that paid property and business owners for first-party losses. In addition, liability insurance programs may help defray costs imposed upon those believed to be at fault, including costs resulting from ...
The Wisconsin Supreme Court held last week in Steadfast Ins. Co. v. Greenwich Ins. Co. that two insurers must contribute proportionally to the defense of an additional insured under their comprehensive liability policies.
The Texas Supreme Court has reversed a lower appellate court decision and found that insurers of Anadarko Petroleum Corp. cannot use their own policy wording to avoid coverage for more than $100 million of Anadarko’s defense costs stemming from the 2010 Deepwater Horizon disaster. Law360 interviewed Hunton’s Sergio F. Oehninger about the substantial impact the decision will have for policyholders in Texas and elsewhere. Oehninger explained how the decision corrects fundamental errors by the lower court in the construction of insurance policies and how it illustrates the proper way to construe words chosen by the insurer that operate to limit or preclude coverage. In the Anadarko matter, the London market policy contained a “joint venture” provision that capped joint venture liabilities at $37.5 million. The insures applied the cap after paying that amount to Anadarko. The Texas Supreme Court rejected the insurers’ argument and the decision of the court below, finding that the joint venture provision applies only to “liabilities” – that is, amounts Anadarko becomes legally obligated to pay to a third party. Defense costs, in contrast, are not amounts paid to a third party and, thus, are not “liabilities” within the context of the joint venture provision. The Court also drew on other policy provisions to support the distinction, including provisions that specifically refer separately to “liabilities” and “defense expenses.” “The Texas Supreme Court’s reversal of the appellate panel’s ruling serves as a clear pronouncement of both insurance policy construction rules and proper appellate review in Texas,” Oehninger said. “In this regard, the Supreme Court’s opinion serves to ‘right the ship’ and bring Texas case law back in line with precedent.”
Summary
Reversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured. Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019).
Rosen Millennium Inc. (“Millennium”), the cyber security and IT support subsidiary of Rosen Hotels & Resorts, Inc., has appealed to the Eleventh Circuit contending that a Florida federal court ignored Florida insurance law when it ruled that Travelers Insurance Company has no duty to defend it against a multimillion dollar claim arising out of a cybersecurity breach.
Policyholders facing any type of products liability scored a win in a recent decision from the District Court for the Northern District of Illinois. The court found that an insurance company must defend its insured against claims arising out of a recall while simultaneously funding the insured’s affirmative claims for recovery.
In Zurich American Insurance Co. v. Don Buchwald & Associates, Inc., 2018 N.Y. Slip. Op. 33325(U) (Sup. Ct. N.Y. County, Dec. 21, 2017), the Supreme Court of New York held that Zurich was obligated to defend a talent and literary agency against claims brought by Hulk Hogan alleging that the agency aided and abetted one of its agents—Tony Burton—in publishing racist and sexual footage of Hulk Hogan online. The decision also gives ammunition to policyholders seeking to recover their fees incurred while litigating against an insurer’s improper denial of coverage. The court found that the insureds had “been cast in a defensive posture” due to the insurer’s claims seeking a declaratory judgment, and that this justified a fee-shifting award.
The Second Circuit has ruled a claim alleging an “offer for sale” infringed on a patent constitutes an advertising injury sufficient to trigger a defense under commercial general liability insurance. In High Point Design LLC v LM Insurance Corporation, the plaintiff High Point brought a declaratory-judgment action against Buyer’s Direct, Inc. after the latter directed High Point to cease-and-desist in the sale of its Fuzzy Babba slippers. Buyer’s Direct responded with a counterclaim alleging trade dress infringement, claiming that High Point’s offers for sale in retail catalogs infringed on Buyer’s Direct’s own slipper trade dress. Buyer’s Direct sought discovery of all advertising, marketing and promotional materials related to High Point’s fuzzy footwear to substantiate its claims.
The United States District Court for the Middle District of Florida recently granted summary judgment in favor of developer, KB Homes, ruling that Southern Owners Insurance Co. must defend KB Homes under various Commercial General Liability policies.
In a prior post, we discussed a New York trial-court decision that found an insurance policy issued in 1966, to insure the construction of the World Trade Center, continues to cover modern-day asbestos claims, with each claim constituting an individual occurrence. Last week, in American Home Assurance Co. v. The Port Authority of N.Y. and N.J., 7628-7628A (1st Dep’t Nov. 15, 2018), an intermediate appellate court affirmed that decision, agreeing that coverage is triggered for claims tied to alleged asbestos exposure at the WTC site in the 1960s and ’70s.
A Georgia Court of Appeals judge recently ruled that Scapa Dryer Fabrics was entitled to $17.4 million worth of primary coverage from National Union Fire Insurance Company of Pittsburgh, PA for claims of injurious exposure to Scapa’s asbestos-containing dryer felts. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Scapa Dryer Fabrics, Inc., No. A18A1173, 2018 WL 5306693, at *1 (Ga. Ct. App. Oct. 26, 2018). Scapa sought coverage under five National Union policies issued from 1983–1987. The 1983, 1984 and 1985 National Union policies had limits of $1 million per occurrence and $1 million in the aggregate. The liability limits for the 1986 and 1987 renewal policies were amended by endorsement to $7.2 million. Scapa sought to recover the full $17.4 million from all five policies. National Union argued that a “Non-Cumulative Limits of Liability Endorsement” in the 1986 and 1987 policies limited Scapa’s recovery to only $7.2 million. Scapa sued National Union and its sister company, New Hampshire Insurance Company (from which Scapa purchased excess liability coverage), in Georgia state court.
The Second Circuit recently held that competing “anti-concurrent cause” provisions in a commercial property policy present a potential ambiguity that could result in favor of coverage for losses sustained by Madelaine Chocolate after storm surge from Hurricane Sandy combined to cause substantial damage to Madelaine’s property and a resulting loss of income.
A California federal court found coverage under AIG’s general liability policy for the defense and indemnity of email scanning suits against Yahoo!. Those suits generally alleged that Yahoo! profited off of scanning its users’ emails. Because the allegations gave rise to the possibility that Yahoo! disclosed private content to a third party, the court found that the suit potentially fell within the coverage for “oral or written publication, in any manner, of material that violates a person’s right of privacy.” Thus, AIG’s duty to defend was triggered.
The court also ...
The Massachusetts Supreme Judicial Court recently construed the undefined term “advertising idea” in a case of first impression in the Commonwealth, holding that a footwear company’s insurers must provide a defense against an underlying claim alleging unfair use of a former Olympian’s name to promote a line of running shoes.
Hunton Andrews Kurth insurance practice head, Walter Andrews, recently commented to the Global Data Review regarding the infirmities underlying an Orlando, Florida federal district court’s ruling that an insurer does not have to defend its insured for damage caused by a third-party data breach.
North Dakota’s highest court delivered a blow to Mid-Continent Casualty Company in Borsheim Builders Supply, Inc. v. Manger Insurance Co., ruling that a contract between a policyholder and general contractor fit the insured contract exception of contractual liability.
A District Court Judge for the District of Massachusetts recently ruled that Ace Property and Casualty Insurance Co. breached its duty to defend its insured in a lawsuit brought by Plaistow Project, LLC, after a family owned laundromat leaked chemicals onto Plaistow Project’s property. Plaistow Project, LLC v. ACE Prop. & Cas. Ins. Co., No. 16-CV-11385-IT, 2018 WL 4357480, (D. Mass. Sept. 13, 2018). Plaistow Project sued State Line Laundry Services in state court, and ACE denied coverage under the pollution exclusion in State Line Laundry’s insurance policy. Plaistow Project then settled with State Line Laundry. Under the settlement terms, Plaistow Project was assigned State Line Laundry’s rights against ACE.
In a victory for policyholders, a New York trial court rejected insurers’ summary judgment arguments, ruling that an insurer must establish a common “fact, circumstance, situation, transaction or event” underlying an investigation before it can rely on a prior and pending litigation and investigation (“PPLI”) exclusion based on that earlier investigation. The court further ruled that the insurer cannot base its coverage denial on a common “fact, circumstance, situation, transaction or event” learned during the investigation.
In a victory for policyholders, and an honorable mention for Merriam-Webster’s Dictionary, a federal judge in Virginia ruled that the dispersal of concrete dust that damaged inventory stored in an aircraft part distributor’s warehouse was a pollutant, as defined by the policy, but that it also constituted “smoke” as that term was defined in the dictionary, thereby implicating an exception to the policy’s pollution exclusion. The Court then granted summary judgment for the policyholder, who had suffered a $3.2 million loss.[1]
The Sixth Circuit has rejected Travelers Casualty & Surety Company’s request for reconsideration of the court’s July 13, 2018 decision, confirming that the insured’s transfer of more than $800,000 to a fraudster after receipt of spoofed e-mails was a direct loss" that was "directly caused by" the use of a computer under the terms of ATC’s crime policy. In doing so, the court likewise confirmed that intervening steps by the insured, such as following the directions contained in the bogus e-mails, did not break the causal chain so as to defeat coverage for “direct” losses.
In a victory for policyholders, a recent decision from the Western District of Texas narrowly construed a common breach-of-contract exclusion and held that the insurer had a duty to defend its insured against an underlying lawsuit over construction defects. The allegations potentially supported a covered claim, as the conduct of the insured’s subcontractor could have been an independent, “but for” cause of the property damage at issue, thereby triggering the insurer’s duty to defend.
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- Koorosh Talieh
- LA
- Labor
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- Landslide
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- Licensing
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- Lockton
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- London
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- Los Angeles Lakers
- Loss
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- Louisiana
- Lyft
- M&A
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- Maersk
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- Marsh & McLennan
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- Medidata
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- mergers
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- Merriam Webster’s Dictionary
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- mesothelioma
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- Miami Dade Bar Young Lawyers Section
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- Michigan
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- Mississippi
- Missouri Court of Appeals
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- Mitsui Sumitomo Insurance Company of America
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- Mondelez International
- Mondelez International Inc.
- Money
- Monica L. Hansen
- Monroe
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- Montrose Chemical Corporation
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- Motorist
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- NationalUnion
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- Neil K. Gilman
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- Noranda Aluminum Holding Corp.
- Norfolk Southern Railway Company
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- Norovirus
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- North River Insurance Company
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- Notice
- Notice 2014-21
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- NotPetya
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- Nuisance
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- NY
- O.C.G.A. § 44-7-35(C)
- O.J. Simpson
- OCC
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- Occurrence
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- Ocean View LLC
- Odell Beckham Jr
- OFAC
- Offenses
- Office Depot
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- Officers
- OH
- Ohio
- Oil
- Oil & Gas
- Oil and Gas
- Oil and Gas Petroleum
- Oil Categories: Defense Costs
- Oklahoma
- Olin
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- Omission
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- OneBeacon
- Online Banking
- Operations
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- Opioids
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- Orders
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- Oroville
- Other Insurance
- Other Insurance Clauses
- Other Insurance Provision
- Otsuka America Inc.
- Out West
- Overvalued Stock
- Owners Insurance Company
- P.F. Chang's
- Pacific Management
- Palestine
- Pamrapo Bancorp
- Pandemic
- Paperweight Development Corp.
- Parametric
- Partnership
- Party Line Arguments
- Passaic River
- Patent
- Patent Infringement
- Patriarch Partners
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- Patrick M. McDermott
- Paycheck Protection Program
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- Pella
- Peloton
- Penalties
- Penalty
- Pending or Prior Claim
- Pennsylvania
- People’s Trust Insurance Co.
- Performance Trans. Inc.
- Period of Liability
- Period of Restoration
- Permanent Property Insurance
- Permissible Evidence
- Personal and Advertising Injury
- Personal Catastrophe Policy
- Personal Information
- Personal Injury
- Personal Jurisdiction
- Personal Lines Insurance
- Personal Property
- Petrochemical
- Petroterminal de Panama
- PFAS
- Pfizer
- Pfizer Inc.
- PG&E Corp.
- Pharrell Williams
- Philadelphia Indemnity
- Philadelphia Indemnity Insurance Co. Pennsylvania
- Phishing
- Physical Alteration
- physical damage
- Physical Injury
- Physical Loss
- Physical Loss or Damage
- PICC Property and Casualty Company Limited Suzhou Branch
- Piggly Wiggly
- Pilkington North America Inc.
- Pipeline
- Pitzer College
- Pizza Hut
- Places of Public Accommodations
- Plain Language
- Plaistow Project LLC
- Plantation Pipe Line Company
- Plantation Pipeline
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- Players Disability Insurance
- Pleading
- Pleading Standard
- Plitt
- Point-of -Sale
- Policy
- Policy Application
- Policy Buyback
- Policy Construction
- Policy Interpretation
- Policy Interpretation Principles
- Policy Limit
- Policy Limits - Bad Faith
- Policy Limits Demands
- Policy Premium Payment
- Policy Release
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- Policy Terms
- Policy Wording
- Policy-Language Exception
- Policyholder
- Policyholders
- Political News
- Political Risk Insurance
- Political Risks Insurance Policy
- Pollutant
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- Pollution Condition
- Pollution Exclusion
- Pollution Liability
- Ponzi Scheme
- Port Authority
- Portal Healthcare
- Posco Daewoo
- Post-Close Dispute
- Post-judgment Interest
- Potential for Coverage
- Potentiality
- Potentiality Rule
- Potentially Covered
- Poultry Farm
- Poultry Industry
- Poway Academy
- Power
- Power Cell LLC
- Power Loss
- Power of Grace
- Power Outage
- PPLI
- PPP
- Practicable
- Practical Law Q&A Guide
- Pre-Judgment Interest
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- Premiums
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- Principal Solutions Group
- Principle Solution Group LLC
- Principle Solutions
- Prior Acts
- Prior And Pending
- Prior Consent/Consent To Settle
- Prior Insurance Provision
- Prior Knowledge
- Prior Knowledge Exclusion
- Priority of Coverage
- Privacy
- Privacy Breach
- Privacy Insurance
- Private Company
- Private Equity
- Private Power
- Privilege
- Privilege Protection
- Pro Bono
- Pro Rata
- ProBuilders Specialty Insurance
- Product
- Product Contamination
- Product Contamination Coverage
- Product Defect
- Product Disparagement
- Product Liability
- Product Manufacturer
- Product Recall
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- Product-Completed Operations Hazard
- Products
- Products Liability
- Products-Completed Operations Hazard
- Professional Excellence Award
- Professional Liability
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- Professional Malpractice
- Professional Services
- Professional Services Exclusion
- Professional Services Policy
- Professional Sports
- Professional Sports Insurance
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- Prop. 65
- Property
- Property Coverage
- Property Damage
- Property Insurance
- Property Manager
- Property Policies
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- Proposition 64
- Proposition 65
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- Proximate Causation
- Proximate Cause
- PRP letter
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- Public Access
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- Public Entity
- Public Policy
- Public Safety Orders
- Publication
- Published Information
- Puerto Rico
- Punitive Damages
- punitive wrap insurance
- Quality Sausage Co. LLC
- Quantification
- Queensridge Towers LLC
- Qui Tam
- R&W
- R&W Coverage
- R-T Specialty
- R.T. Vanderbilt
- R.T. Vanderbilt Co. Inc.
- Rachel E. Hudgins
- Rachel Hudgins
- Racing Accident
- Railroad Liability
- Randy S. Parks
- Rankings
- Ransom and Extortion
- Ransomware
- Ransomware Attacks
- Ransomware Policies
- Rapid-American
- Ravenswood
- Ray Duerr Logging
- real estate
- Real Estate Investment Trust
- Real Property
- Reasonable Expectation
- Reasonable Interpretation
- Reasonable Investigation
- Reasonable Settlement
- Reasonableness
- Recall
- Recall Coverage
- Recall Insurance
- Recall Roundup
- Recalled Product Exclusion
- Recalls
- Receivership
- Reconsideration
- Recoupment
- Recoverable Damages
- Reformation
- Refunds
- Registered Agent
- Regulation
- Regulations
- Regulatory
- Regulatory Coverage
- Regulatory Investigation
- Regulatory Investigations
- Reimbursement
- Reinsurance
- Reinsurance Accepted Amount
- Reinsurance Limits
- REIT
- Related
- Related Acts
- Related Claim
- Related Claims
- Relief and Economic Security Act
- Relitigate
- Relocation
- Remand
- Remediation
- Remediation Costs
- Removal Insurance
- Renewal
- Renewals
- Rensselaer
- Renters Insurance
- Repair Expenses
- repairs
- Replacement Cost
- Replacement Expenses
- Reporting Requirements
- Representations & Warranties
- Representations and Warranties
- Reps & Warranties
- Reps and Warranties
- Reputational Harm
- Rescission
- Reservation of Rights
- Residential Insurance
- Restatement
- Restatement of the Law
- Restitution
- Resulting Directly
- Retail
- Retail Year in Review
- Retention
- Retrac
- Retroactive Date
- Return of Funds
- Revco D.S. Inc.
- Richardo Lara
- Riddell
- Ride-Sharing
- Ridesharing
- Ridley Park Fitness
- Right of Privacy
- Right of Publicity
- RIMS
- RIMS Atlanta Chapter
- Ringling Bros. Barnum and Bailey
- Riot
- Ripeness
- Ripple
- Ripple and Zcash
- Rising Stars
- Risk
- Risk Insurance
- Risk Management
- Risk Management Magazine
- Risk Mitigation
- Risk Modeling
- RISKWORLD
- RLI
- Robert Pepper
- Robert W. Hughes
- Rockefeller University
- Roger Clemens
- Rolling Stones
- RollingStone
- Romantik Seehotel Jaegerwirt
- Rookie of the Year
- Roses 1 LLC
- RSUI Indemnity Co.
- Rule 26
- Runoff
- Runoff Coverage
- RWI
- Ryan A. Glasgow
- S.A. de C.V.
- S.B.C. Flood Waste Solutions Inc. f/k/a Flood Waste Solutions Inc.
- Saddleback Inn
- SAFE Banking Act
- SAFETY Act
- Sales Practice Risks
- Salmonella
- Same Condition
- San Antonio Fire & Police Pension Fund and Fire & Police Health Care Fund
- San Jose
- Sanctions
- Sanders v. Illinois Union Insurance Co.
- Sandersville Railroad
- Santam Hollard Insurance Company
- Sapa Extrusions Inc.
- SARS-CoV-2
- Saudi Arabia
- SBS Insurance
- Scapa Dryer Fabrics
- Schleicher & Stebbins Hotels LLC
- Schneider Electric
- Schur
- Scope Of Coverage
- Scott Kimpel
- Scottsdale Insurance Co.
- Scottsdale Insurance Company
- SDNY
- Seattle Times Company
- Sebo
- SEC
- Second Circuit
- Second-Guess
- Secondary Evidence
- Section 2802
- Section 533
- Secura
- Secura Insurance
- Securities
- Securities and Exchange Commission
- Securities Claim
- Securities Claims
- Securities Law
- Securities Lawsuits
- Securities Liability
- Securities Litigation
- Securities Regulation
- Securities Violations
- Security Breach
- Security Failure
- Securityroundtable.org
- Seguros Afirme
- Selective
- Selective Insurance Company of America
- Selective Way Insurance Company
- Self-Insured
- Self-Insured Retention
- Separation of Insureds
- Service Interruption
- Service of Process
- Service Provider
- Settlement
- Seung Park
- Seventh Circuit
- Sexual Abuse
- Sexual Assault
- Sexual Harassment
- Sexual Misconduct
- SFBJ Influential Business Women
- Shannon Shaw
- Shareholder Actions
- Shareholder Lawsuits
- Shareholder Liability
- Shareholder Litigation
- Shareholder Suit
- Shareholder Suits
- Sharing Economy
- Shawn Flood
- Shawn P. Regan
- Sheraton Hotels & Resorts
- Shipping
- shoes
- Shooting
- Side A Coverage
- Sideco
- SIFI
- Silent Cyber
- single occurrence
- SIR
- SITW
- Sixth Circuit
- Skyjet
- Slice
- Slogan
- Smart Contracts
- Smartphone
- Smith Drug Company Inc.
- Smoke
- Snap Removal
- sneaker culture
- Sneakers
- Social Distancing
- Social Engineering
- Social Engineering Scheme
- Social Media
- Software
- Solera Holdings Inc.
- Something In The Water
- Sompo Japan Insurance Company of America
- SonicWall
- Sonoma
- Sony Corp.
- Sout Risius Ross Inc.
- South Africa
- South Carolina
- South Carolina Law
- South Florida Business Journal
- Southern California Pizza Co.
- Southern District of New York
- Southern Owners Insurance
- Southern Trust Insurance Company
- Southern-Owners Insurance Company
- Sovereign
- SP Plus
- Sparta Insurance Co.
- Special Hazard Endorsement
- Specific versus General
- Spoliation
- Spoof Email
- Spoofing
- Sports
- Sports & Entertainment
- Sports Injuries
- Sports Injury
- Spring Window Fashions LLC
- Springpoint
- Sr.
- SS&C
- SS&C Technology Holdings Inc.
- St. Paul
- St. Paul Fire and Marine Insurance Co.
- St. Paul Fire and Marine Insurance Company
- St. Paul Mercury
- St. Paul Mercury Insurance Co.
- Stacking
- Stadium
- Star Insurance
- Stardock Systems Inc.
- Starr Indemnity
- Starr Surplus Lines Insurance Companies
- Starr Surplus Lines Insurance Company
- Starstone Specialty Insurance Company
- State Auto Property and Casualty Insurance Company
- State Farm
- State Farm Lloyds
- State Line Laundry Services
- State of Louisiana
- State-Sponsored
- Statute
- Statute of Limitations
- Statutory Damages
- Statutory Merger
- Statutory Schemes
- Steadfast Insurance Company
- Sterling
- Stock Valuation
- Stone-E-Brick Inc.
- Storm
- Storm Damage
- Storm Loss
- Storm Surge
- Stout Risius Ross LLC
- Stowers
- Stowers Demand
- Strafford
- Strategic
- Strategy
- Strathmore Insurance Company
- Strip Club
- Strip Search
- Structural Alteration
- Studio 417 Inc.
- Subcontractor
- Subcontractors Cyber
- Sublimit
- Subpoena
- Subrogation
- Subsidiary
- Successor Coverage
- Successor Liability
- Successor Rights
- Sudden and Accidental
- Sue and Labor
- Suit Limitations
- Summary Judgment
- Sunoco
- Super Lawyers
- Superfluous
- Superfund
- Supervision
- Supplementary Payments
- Suppliers
- Supply-Chain
- Supreme Court
- Supreme Court of California
- Supreme Court of Texas
- Surety Bond
- Surviving Entity
- Suspension of Operations
- Sweetgreen
- Swiss Re
- Sydney Embe
- Syed S. Ahmad
- T-Mobile Northeast LLC
- T-Mobile USA Inc.
- Tactic Security Enforcement
- Tail Coverage
- talc
- Tangible Alteration
- Tapestry Inc.
- Taps & Bourbon on Terrace LLC
- Target Corp.
- Tax Avoidance
- TCPA
- Telephone Consumer Protection Act
- Television
- Tenants and Neighbors Provision
- Tender of Policy Limits
- Tennessee Supreme Court
- Terrorism
- Terrorism Insurance
- Terry Bollea
- Tesco
- Texas
- Texas Insurance Code
- Texas Insurance Law
- Texas Prompt Payment of Claims Act
- Texas Supreme Court
- Texting
- Thailand
- The Cincinnati Insurance Co.
- The Cincinnati Insurance Company
- The Great Recession
- The National Black Lawyers Top 40 Under 40
- The National Law Review
- The North River Insurance Company
- The Traveler's Property Casualty Company of America
- The Travelers Indemnity Company of Connecticut
- The Wattles Company
- Thee Sombrero Inc.
- Theft
- Third Circuit
- Third Party
- Third Party Beneficiary
- Third Party Liability
- Third-Party
- Third-Party Consultants
- Third-Party Coverage
- Third-Party Insurance
- Third-Party Property
- Thomas F. Segalla Service Award
- Thruway
- Time Element
- Timely Notice
- Timothy Monahan
- Title III
- Title Insurance
- TNCs
- Tobacco
- Todd Clem
- Token
- Tom Taylor
- Top 50 Women's List
- Top Insurance Cases
- Top Insurance Ruling
- Tort Reform
- Tourism
- Toxic Chemicals
- Toxics
- Trade Dress
- Trade Secret
- Trademark
- Trademark Infringement
- Transatlantic
- TransCanada
- Transfer
- Transportation
- Travel Insurance
- Travelers
- Travelers Casualty & Surety
- Travelers Casualty and Surety Company
- Travelers Casualty and Surety Company of America
- Travelers Casualty Insurance Company of America
- Travelers Property Casualty Company of America
- Treasure Island LLC
- Treble Damages
- Trevor Maynard
- Trial Record
- Triconex
- Trigger
- Trigger of Coverage
- Triton
- Trucking Liability
- Turbine
- Twin City Fire Ins. Co.
- Twin City Fire Insurance Company
- Twombly
- U.S Department of Health and Human Services
- U.S. District Court for the Eastern District of Virginia
- U.S. Environmental Protection Agency
- U.S. Fire Insurance Co.
- U.S.D.C. Western District of Texas
- Uber
- UK
- Ultimate Net Loss
- Umbrella
- Umbrella Coverage
- Umbrella Insurance
- Umbrella Liability
- Umbrella Policy
- Unavailability Exception
- Unavailability of Insurance
- Under 40 Hotlist
- Underinsured
- Underlying Adjudication
- Underwriters and Lloyd's
- Underwriters at Lloyd's London
- Underwriting
- Underwriting Manual
- Unfair Competition
- Unfair Trade Practices
- Unilateral Settlement
- Uninsurable Loss
- Uninsured Periods
- Uninsured/Underinsured
- Unintended Consequences
- United Church of Marco Island
- United Kingdom
- United Specialty Insurance Company
- United States Court of Appeals for the Ninth Circuit
- United States Fire Insurance Company
- United Water Services Milwaukee
- Universal Cable Productions LLC
- Universal Manufacturing Corp.
- Universal Photonics Inc.
- Universities
- University of New Hampshire Franklin Pierce Law Center’s Alumni CLE Program
- Unjust Enrichment
- Unmanned Aerial Vehicles
- Unmanned Systems
- Up and Coming Lawyers
- Upper Deck Co.
- Upper-Layer Policies
- UPS
- Uriel A. Mendieta
- US Department of Justice (DOJ)
- US News & World Report
- US Securities and Exchange Commission
- US Supreme Court
- USAA
- USAA Texas Lloyd's Co.
- Utilities
- utility
- Vacate
- Valuation
- Vandalism
- Vendor Service Agreement
- Vendors
- Venmo
- Venue
- Veolia Water Milwaukee
- verdicts
- VEREIT Inc.
- Vermont Supreme Court
- Vertical Exhaustion
- Very Good Touring Inc.
- Vibram
- Viking Pump
- Vineyard
- Violation of Law Exclusion
- Virginia
- Virginia Beach
- Virginia Court of Appeals
- Virginia Lawyer Magazine
- Virginia Lawyers Weekly
- Virus
- Virus Exclusion
- Voluntary Parting
- Voluntary Recall
- Voss
- W. Jeffery Edwards
- Wage and Hour
- Wage and Hour Exclusion
- Wage-And-Hour
- Waiver
- Wall Street Journal
- Walmart
- Walter J. Andrews
- Wanda Kaye Lancaster
- War
- War Exclusion
- Wardlaw Claims Service Inc.
- Warlike
- WARN Act
- Warren Pumps
- Washington
- Washington DC
- Washington DC 2018 Top 100
- Washington Post
- Washington Supreme Court
- Watson Laboratories Inc.
- Watson Pharma Inc.
- Watson Pharmaceuticals Inc.
- Wayne Mutual
- weather-related cancellation
- Weather-Related Losses
- Weatherby-Eisenrich Inc.
- Webinar
- Website Accessibility
- Well Blowout
- West Bend Mutual
- West Bend Mutual Insurance Company
- West Virginia
- Westchester Fire Insurance Co.
- Westchester Fire Insurance Company
- Western Litigation Inc.
- Western Truck Insurance Services Inc.
- Western World Insurance Company
- Westfield Insurance Company
- Westlaw
- Westlaw Journal: Computer and Internet
- Whaling
- Whistleblower
- White Pine Insurance Company
- Wilderness Oaks Cutters LLC;
- Wildfire
- Wildfire Insurance Coverage Series
- Wildfires
- Wiley Rein
- Willful Misconduct Exclusion
- Willfulness
- William P. White Racing Stables
- Willis Re
- Wind Damage
- Windstorm
- Windstorm Insurance
- Wine
- Wing
- Winter Storm Uri
- Wire Transfer
- Wisconsin
- Wisconsin Supreme Court
- Withdraw
- Women in Business Law Awards 2021
- Women's Bar Association
- Women’s Bar Association of DC
- Work Product Doctrine
- Workers' Compensation Insurance
- Workplace
- World Trade Center
- Written Consent and Cooperation
- Wrongful Act
- Wrongful Acts
- Wrongful Death
- Wrongful Employment Practices
- Wuhan
- Xia
- XL Catlin
- XL Insurance America Inc..
- XL Insurance Company Ltd.
- XL Specialty Insurance Co.
- Xytex Tissue Services LLC
- Yahoo
- Yahoo Inc.
- Yahoo!
- Yaniel Abreu
- Yates Memo
- Year In Review
- Young Lawyers Network Leadership Council
- Your Product Exclusion
- Your Work Exclusion
- Zeig
- Zenith Aviation
- Zero Day
- Zeus Battery Products
- Zika
- Zurich
- Zurich America Insurance Company
- Zurich American
- Zurich American Insurance Company
Authors
- Yaniel Abreu
- Veronica P. Adams
- Syed S. Ahmad
- Walter J. Andrews
- Jorge R. Aviles
- Lawrence J. Bracken II
- Olivia G. Bushman
- Lara Degenhart Cassidy
- Casey L. Coffey
- Christopher J. Cunio
- Andrea DeField
- Scott P. DeVries
- Mayme Donohue
- Latosha M. Ellis
- Geoffrey B. Fehling
- Philip M. Guffy
- Jae Lynn Huckaba
- Rachel E. Hudgins
- Yosef Itkin
- Kevin W. Jones
- Andrew S. Koelz
- Charlotte Leszinske
- Michael S. Levine
- Lorelie S. Masters
- Patrick M. McDermott
- Leah B. Nommensen
- Justin F. Paget
- Alex D. Pappas
- Christopher M. Pardo
- Adriana A. Perez
- Matthew J. Revis
- Madison W. Sherrill
- Elizabeth L. Sherwood
- Kevin V. Small
- Cary D. Steklof
- Nicholas D. Stellakis
- Koorosh Talieh
- Javaneh S. Tarter
- Thomas W. Taylor
- Shauna R. Twohig
- Laura Thayer Wagner
- S. Alice Weeks
- Malcolm C. Weiss
- Alexandrea Haskell Young
- Torrye Zullo