Archives: Duty to Defend

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Failure to Comply With Protective Safeguards Endorsement Results in Loss of Coverage

A Protective Safeguards Endorsement (“PSE”), as defined by my friends at IRMI, is “[a] property insurance endorsement that makes it a condition of coverage that the protective safeguards cited in the endorsement (such as an automatic sprinkler system or night watch guard) be in operation at all times except when the insurer has been notified of … Continue Reading

The Peril of Settling Without Insurer Consent

In an earlier blog post we discussed a Georgia case where settlement occurred without consent from the insured.  In that case, the court held that when a policyholder settles without consent in the face of a consent to settle clause, the policyholder will not succeed in seeking a recovery for that settlement from the insurance … Continue Reading

When Notice of Claim Is a Condition Precedent a Default Judgment May Not Help

Notice of claim or suit requirements in insurance policies are often viewed as a condition precedent to coverage.  If the insured’s carrier is not given notice of the claim in a timely manner, the insurer may have no obligation to defend or indemnify the insured.  But what happens if a claimant sues an insured defendant … Continue Reading

New York’s 3420(d)(2) Cannot Be Used Between Insurers

We have written a number of blog posts involving New York Insurance Law Section 3420(d)(2), which requires insurance companies to disclaim quickly or waive the right to disclaim.  Parties have tried to rely on 3420(d)(2) in a variety of ways.  In a recent case, the Second Circuit Court of Appeals was asked to address the … Continue Reading

Privity and Additional Insured Coverage

When a worker is injured on a construction job and sues the relevant parties, a side battle often ensues over which carrier has the duty to defend and indemnify the owner, general contractor or subcontractor based on the language in the various construction contracts requiring some or all of those parties to be named as … 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

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

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

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

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 Distinction Between the Duty to Pay Defense Costs and the Duty to Indemnify Defense Costs

Common forms of commercial general liability policies typically include provisions requiring the insurer to defend the insured regardless of whether the claim is valid or not, as long as the claim is within the coverage grant of the insurance policy. The typical language provides that the insurance company has the right and duty to defend … Continue Reading

California Weighs In on Enforcement of Other Insurance Clauses

On Monday, in Certain Underwriters at Lloyd’s, London v. Arch Specialty Ins. Co., 16 C.D.O.S. 3833 (Cal. Ct. App. Apr. 11, 2016), the California Court of Appeal (Third District) rejected Arch Specialty Insurance’s attempt to enforce “other insurance” clauses in the conditions and coverage grant of the relevant policies.… Continue Reading

The Dichotomy Between Intent to Injure and Intentional Conduct

Most liability policies require that the claim arise from an accident or occurrence typically defined in a way that the accident or occurrence is a fortuitous event and not an intentional act. The typical automobile accident or slip and fall are accidents; nothing premeditated or planned, no intent to cause harm, no intent to drive … Continue Reading

Texas Supreme Court Rules On An Insurer’s Duty to Defend EPA Proceedings

In McGinnes Indus. Main’t Corp. v. The Phoenix Ins. Co. (Case No. 14-0465), the Texas Supreme Court by a 5-4 vote joined the majority of other courts to have considered the issue and  answered in the affirmative a question certified to it by the Fifth Circuit Court of Appeals: Whether the EPA’s PRP letters and/or unilateral … Continue Reading

OCIP and CCIP Policies and the Duty to Reimburse for Defense Costs

I have run across a number of interesting situations involving owner controlled or contractor controlled insurance programs (“OCIP” or “CCIP”) that have developed into actual coverage disputes or potential disputes (can’t talk about the potential one!). For those who don’t know, an owner controlled or contractor controlled insurance policy or program is essentially a way … Continue Reading
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