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What to Make of the Early COVID-19 Insurance Coverage Court Rulings

There are been at least two court rulings on the COVID-19 insurance coverage litigation.  In Pennsylvania, the Supreme Court denied the extraordinary request to consolidate COVID-19 cases under what is called Kings Bench Powers.  In New York, a federal court denied an emergency request for a preliminary injunction requiring an insurer to pay its policyholder … Continue Reading

COVID-19 and the Exclusion for Virus and Bacteria

Insurance policies contain coverage grants and exclusions.  Generally, the burden is on the insured in the first instance to prove that the insured’s loss comes within the insurance policy’s coverage grants.  If the insured proves that the policy covers the insured’s loss, then the burden shifts to the insurer to prove that a policy exclusion … Continue Reading

Anti-concurrent Clause and Faulty Workmanship Exclusion

Anti-concurrent clauses preclude coverage even where the loss is partially caused by a covered cause of loss.  This clause received considerable attention in hurricane-related coverage litigation following Hurricane Katrina.  In a recent case, the Eighth Circuit Court of Appeals addressed the anti-concurrent clause in the context of damage allegedly caused in part by faulty workmanship.… Continue Reading

It Is All Relative When Determining Which Insurer Covers a Subsequent Lawsuit

Successive lawsuits with similar facts often give rise to fights between insurers over which insurance policy must defend the lawsuit.  Why?  Because many insurance policies have provisions that define losses to include those that relate to an earlier claim.  This may mean that if a claim was brought two years ago and noticed to that … Continue Reading

No Coverage for Breach of Contract Claim Under Commercial General Liability Insurance Policy

One of the most difficult things to understand as a policyholder is that a commercial general liability insurance policy (“CGL”) does not provide coverage for everything that might happen to the insured business, including being sued.  While the CGL policy has often been described as providing “litigation insurance” in addition to coverage for occurrences and … Continue Reading

Is a COVID-19 Stay-Home Order Alone Enough to Trigger Business Interruption Coverage?

Back in March, when the novel coronavirus was spreading and local and state governments were issuing stay-home orders, we published a blog post on Civil Authority Orders and COVID-19 Coverage.  Since that time, there have been over 125 lawsuits filed by insured businesses, many of them arguing that the economic damages caused by these COVID-19 … Continue Reading

COVID-19 Insurance-Related Blogs and Articles for March and April 2020

During March and April, the Squire Patton Boggs insurance group has authored several blog posts, alerts and articles on the insurance and reinsurance issues arising from the novel coronavirus pandemic.  These range from regulatory updates, to business interruption coverage analysis, to reinsurance issues.  We thought it might be good to list them here in one … Continue Reading

Does the Novel Coronavirus Cause Direct Physical Loss of or Damage to Property?

In previous blog posts and articles, we have discussed “business interruption” insurance and the typical requirement that there be “direct physical loss of or damage to property” for that coverage potentially to apply.  In this blog post, we examine the physical damage trigger further.  Why?  Because it is a central issue in the rapidly multiplying … Continue Reading

Fighting State COVID-19-Related Insurance Coverage Mandates

The novel conronavirus pandemic and the massive number of COVID-19 diagnoses have led to governmental orders closing down most non-essential businesses throughout the country.  These closures have also brought about thousands of business interruption claims by these businesses against their commercial property insurance policies.  Because most of these policies do not provide coverage for a … Continue Reading

The COVID-19 DJ Wars Are Escalating

For several weeks we have seen straightforward declaratory judgment actions filed by policyholders seeking coverage for COVID-19 business interruption-type losses.  As time went on, new cases were filed by policyholders alleging bad faith and violations of claims handling and other consumer statutes along with the request for declaratory relief.  Those cases were followed by putative … Continue Reading

No Coverage for Telemarketing Litigation Under Commercial Umbrella Policies

Lawsuits brought against satellite and other television broadcasters for telemarketing violations typically spark requests for insurance coverage to defend and ultimately indemnify the broadcaster in those lawsuits.  More often than not, the request for coverage ends up in litigation over whether the insurance policy covers the allegations in the underlying lawsuit.  A Colorado federal court … Continue Reading

Is a Failure-to-Accommodate Discrimination Claim an Occurrence for Duty to Defend Purposes?

General liability policies insure against fortuitous events, otherwise known as accidents or occurrences.  Intentional acts generally are not covered except under limited circumstances.  But what about discrimination claims?  Is a discrimination claim an occurrence under a general liability policy?  The Second Circuit recently had that question and, instead, decided to certify the question to to … Continue Reading

Breakaway Church Denied Coverage Under Directors and Officers Policy of Original Congregation

To obtain insurance coverage, you have to be an insured under the insurance policy. Pretty fundamental.  Successor and affiliate rights to coverage under the existing insurance policy is a big issue.  Determining who is an insured is fundamental to coverage.  In a recent case, the First Circuit had to decide whether a new church, which … Continue Reading

Sixth Circuit Holds Insurers Have Duty to Defend City in Malicious Prosecution Action

Many municipalities protect their police force by purchasing insurance for law enforcement liability.  This coverage protects the municipality against law suits seeking damages for injuries resulting from law enforcement activities or operations caused by a wrongful act that is commented while conducting law enforcement activities.  Just exactly what is an injury that triggers coverage was … Continue Reading

California Supreme Court Holds Horizontal Exhaustion Not Needed – Vertical Exhaustion Rules

On April 6, 2020, the California Supreme Court issued its decision in Montrose Chemical Corp. of California v. Superior Court, No. S244737.  It ruled that in the continuing loss context, California law permits a policyholder to seek indemnification under any excess policy once it has exhausted the underlying excess policies in the same policy period.  … Continue Reading

No Professional Liability Coverage for Bank After DOJ Settlement of Mortgage Certification Violations

Professional liability policies provide coverage for wrongful acts undertaken by the insured in the performance of professional services.  In the medical and legal fields, professional services are generally clear.  In other professional contexts professional services may not be as clear.  In a recent case, the Fifth Circuit Court of Appeals addressed whether professional liability coverage … Continue Reading

A Split Eighth Circuit Affirms Insurer Had a Duty to Defend County Against a 1983 Case

Liability insurance policies, especially directors and officers and other types of errors and omissions policies, often have provisions that deem related acts to constitute one wrongful act.  How that provision applies is fact specific, but its application can make a difference in determining which insurance policy must defend an underlying claim.  In a recent case, … Continue Reading

No Coverage Under Directors and Officers Policy For TCPA Law Suit Settlement

Companies that bring marketing campaigns using unsolicited faxes tend to end up in putative class actions under the Telephone Consumer Protection Act (“TCPA”).  Many companies use vendors to design and implement those campaigns.  Those vendors are not always named in the TCPA action.  What happens when the TCPA action settles and the vendor contributed to … Continue Reading

Can Fear or Emotional Distress Associated With COVID-19 Be a “Bodily Injury”?

With the United States now having the highest number of confirmed infections in the world, the nation now finds itself in the throes of the COVID-19 pandemic. In this blog post, we continue to explore potential COVID-19 insurance coverage issues, this time focusing on whether fear of contracting COVID-19 alone or emotional damages caused by … Continue Reading

No Coverage for Insured’s TCPA Defense Says Pennsylvania Federal Court

Policyholders will look to their insurers when they are sued for unsolicited faxing under the Telephone Consumer Protection Act (“TCPA”).  Do they have insurance coverage?  That depends on the policy, but TCPA coverage is hard to come by.  That doesn’t stop policyholders from trying.  In a recent case, a Pennsylvania federal court put an end … Continue Reading

COVID-19 Coverage Litigation Escalates

As the COVID-19 pandemic brings about more shutdown orders, non-essential businesses that have been shut because of government orders are fighting to obtain insurance coverage.  The first four cases brought were declaratory judgment actions seeing orders that their policies covered the suspension of their businesses.  The latest case, however, goes a two steps further and … Continue Reading

Whether a Partial or Complete Cessation of Business Is Required for BI Coverage – COVID-19

With the COVID-19 pandemic showing few signs of slowing down in the immediate future, reality is starting to settle in on businesses and governments. As Congress and various state legislatures continue to discuss legislation aimed at remedying the economic damage caused by the pandemic, many businesses are grappling with extensive interruptions to their operations. In … Continue Reading

Actual Cash Value: Is the Cost of Labor Part of Depreciation? The Courts Are Divided

Depreciation typically is deducted from the actual cash value (“ACV”) of property when the insured elects to have its property damage claim paid on an ACV basis.  No one doubts that depreciation includes the cost of materials.  The question is, however, whether the cost of labor can be depreciated as well.  In a few recent … Continue Reading

COVID-19 and Waiting Periods Under Business Interruption Coverage

As the COVID-19 pandemic continues, businesses and governments are acting to flatten the curve.  Recently, California, the largest state by population, implemented an extensive quarantine statewide, affecting over 40 million people.  New York and other states and municipalities also have issued similar closure orders.  In this blog post, we continue to examine the issues surrounding … Continue Reading
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