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Discovery of Reserve and Reinsurance Communications – Part I

In cases where an insurer is a party to an action, numerous discovery disputes have centered on a litigant’s ability to discover the insurer’s loss reserve information and communications with its reinsurers.  The litigant (generally the insured or a co-insurer) may request this information in discovery, hoping to find something in the insurer’s internal communications … Continue Reading

Caught Between a Rock and a Hard Place?

Elite Insurance (“Elite”) entered the UK insurance market in 2005 with a promise to address risk like no other insurer. It said that it would focus on individual insurance needs, rather than adopting a “one size fits all,” when writing property and construction professional indemnity and legal expenses risks.   Rapid expansion followed with Elite offices … Continue Reading

When the Court Picks Your Arbitrator

One of the criticisms leveled at arbitration is the length of time it takes to select the arbitration panel and specifically the third arbitrator or umpire.  Most arbitration clauses either specify an arbitral authority to assist the parties in selecting the arbitration panel or specify in the arbitration clause the method for selection and criteria … Continue Reading

Additional Insured Endorsement Clarified By New York Court of Appeals

The New York Court of Appeals recently issued an important decision on how the Additional Insured endorsement to a Commercial General Liability insurance policy should be interpreted.  It did  so in a split decision and by reversing a decision by the Appellate Division. A vigorous dissent accompanied the opinion.  Commentators are already discussing the ramifications of … Continue Reading

Ratification and Rescission of Insurance Policies

Rescission of an insurance contract is a drastic remedy. It generally requires a showing of fraud or material misrepresentation in the policy application and underwriting process.  Once an insurance company obtains the requisite knowledge of the policyholder’s fraud, it must seek rescission in a timely fashion. If, after obtaining that requisite knowledge, the insurance company commits … Continue Reading

The Constitutional Challenge to Florida Unclaimed Property Law

In 2016, the Florida legislature amended its unclaimed property law to require life insurance companies to conduct annual Death Master File (“DMF”) searches on active and terminated policies dating back to 1992. Fla. Stat, § 717.107.  One life insurer immediately filed suit against Florida’s Chief Financial Officer and the Florida Dept. of Financial Services to … Continue Reading

Battle of Other Insurance Clauses In CGL Policies for Contractors

A recent Summary Order from the Second Circuit Court of Appeals highlights the difficulties that often arise with other insurance clauses and additional insureds. Which carrier has the primary duty to defend and indemnify an underlying action is a question that turns up with frequency when there are multiple parties sued and multiple possible applicable insurance … Continue Reading

Lloyd’s of London Announces Opening of Brussels Office to Safeguard Business Post-Brexit

On 30 March 2017, Lloyd’s of London confirmed that it will establish a new subsidiary in Brussels, which will be operational for the 1 January renewal season in 2019. The announcement follows on immediately from the UK Government’s formal triggering of the Brexit process on 29 March 2017. Lloyd’s move is specifically designed to avoid the … Continue Reading

Notice to Carrier Means Notice to Carrier

Notice requirements in liability insurance policies typically require that notice of a claim or lawsuit be given as soon as practicable and in writing to the insurance company. While the exact language differs from policy to policy, the concept of written notice to the insurance company without delay is fairly common. In the normal circumstance, where … Continue Reading

The US/EU Covered Agreement — Why Is It Relevant to Disputes?

On January 13, 2017,  Federal Insurance Office (“FIO”) submitted to the US Congress a Covered Agreement negotiated with the EU  addressing:  (1) group supervision;  (2) reinsurance;  and (3) exchange of information between regulators.  Once fully implemented, the Covered Agreement eliminates EU collateral and local presence requirements for US insurers operating in the EU, and eliminates … Continue Reading

Important New Law in the UK Relating to Payment of Insurance Claims

At the moment, English law says that insurers and reinsurers are not under a positive duty to pay valid claims within a reasonable time.  If an insurer/reinsurer delays in paying a claim, or fails to pay at all, an insured/reinsured can only claim the sums due under the policy and interest.  An insured/reinsured cannot claim … Continue Reading

Breasting Dolphin Piles and Fortuity Under All-Risk Policies

An all-risk policy is meant to cover a loss triggered by any conceivable cause not excluded under the policy. While the burden is on the policyholder to establish a prima facie case for coverage, the policyholder need only show (1) the existence of an all-risk policy, (2) an insurable interest in the subject of the insurance contract, and … Continue Reading

Failure to Disclose Loss History Results in Rescission

When a policyholder, particularly a commercial policyholder, applies for insurance coverage, a key part of the application process is the disclosure of the policyholder’s relevant loss history. When an insurance company receives an application for insurance, that loss history is a critical part of the insurer’s underwriting process to determine whether it is willing to write … Continue Reading

Replacing a Roof Is Not Demolition

Many liability insurance policies exclude coverage for bodily injury or property damage arising out of structural alterations that involve changing the size of or moving buildings or other structures, new construction or demolition operations performed by or on behalf of the named insured. Construction insurance policies typically cover these risks, not general liability policies. A … Continue Reading

How To Void an Insurance Claim By Really Trying

Nearly every insurance policy has a clause that requires the insured to cooperate with the insurer in the investigation of the claim. Most insurance policies also provide that the insured should do everything necessary to secure, and do nothing to impair, the insurer’s subrogation rights. This is especially important when property damage is alleged. These … Continue Reading

Duty to Defend Does Not Extend to Claim Where No Suit Is Filed

Case law in nearly every state provides that the duty to defend is broader than the duty to indemnify. Typically courts look to the allegations in the complaint and compare those allegations to the coverage grants in the policy to determine if the allegations are sufficient to bring the claim within the possibility of coverage … Continue Reading

The Interplay Between Subrogation, Arbitration and Insurance Insolvency

When an insurance company pays a loss on a claim, the insurance company often exercises its equitable right of subrogation to stand in the shoes of the insured and seek compensation from a third-party alleged to have caused the loss. In the property context, there may be an underlying contract that requires arbitration between the insured … Continue Reading

Florida Property Insurers Must Pay All Losses If Any “Concurrent Cause” Is Covered

In the latest of a string of recent decisions adverse to insurers, the Florida Supreme Court held that, where a residential property incurs damage due to the cumulative or combined effects of multiple “concurrent” causes, any of which a homeowners policy covers, the insurer must pay the entire loss even if its policy expressly excludes … Continue Reading

Insurance Archaeology and the London Market

Long-tail coverage disputes often involve multiple policies issued over multiple policy periods over multiple layers of insurance. Sometimes the potential relevant policies go back decades or more. Locating these ancient policies is an enormous task. Locating the placing, underwriting and claims files that go along with these policies is even more difficult. Compound all of … Continue Reading
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