Duty to Defend

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Sublimit in Primary Policy Quashes Excess Insurer’s Obligation to Follow

You would think that a following form excess liability policy simply follows the primary liability policy’s terms and conditions.  That may well be true, but excess policies may contain exclusions or provisions that limit the following requirements under certain conditions.  Recently, the Eleventh Circuit addressed this issue concerning an assault or battery claim.… Continue Reading

“Please” Is Not a Material Condition of an Insurance Policy’s Notice of Claim Provision

It is fundamental that a policyholder has to notify its insurance company about a claim if it expects the insurer to defend and indemnify the policyholder against that claim.  When and where that notice has to be given, however, varies.  Sometimes the notice requirement is expressed as a mandatory condition and sometimes the policy wording … Continue Reading

Broad Insurance Policy Construction Puts False Claims Act Claim Within Coverage for Medical Incidents

Court have always construed the duty to defend more broadly than the duty to indemnify.  That broad construction becomes amplified when coupled with an equally broad construction of the phrase “arising out of” in an insurance policy.  Recently, the Fourth Circuit Court of Appeals found such a broad construction under North Carolina law, leading to … Continue Reading

Is Shoddy Work an Occurrence Under CGL Policies? Not in Missouri

Commercial general liability (“CGL”) policies protect the policyholder against property damage caused by an occurrence.  Where the policyholder is sued for breach of contract and related claims because of shoddy design and construction issues, do those claims come within the scope of coverage as an occurrence?  The Eighth Circuit Court of Appeals recently addressed this … Continue Reading

New York Appellate Court Holds Bankruptcy Exception to Insured vs. Insured Exclusion Restores Directors and Officers Insurance Coverage

Directors and Officers (“D&O”) liability policies, like many other liability policies, often have an exclusion that precludes coverage when one insured sues another insured.  Coverage, however, can be restored under certain exceptions.  One of those exceptions is the bankruptcy exception, which allows a bankruptcy trustee or comparable authority to sue on behalf of the estate … 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

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

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

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

Businesses Scramble to Assess Insurance Coverage for COVID-19

COVID-19 has sickened hundreds of thousands of people and resulted in the deaths of thousands. Millions will likely be affected. Up until very recently, there was widespread belief that some countries may be spared the level of disruption seen earlier this year. Recent events have shown this is no longer a reasonable assumption. The WHO … Continue Reading

Duty to Defend Found on Claims Under California Credit Card Act

Among the various consumer data privacy laws are laws precluding companies from collecting and selling consumer credit card information.  When a company is accused of selling its customers’ credit card information to third-parties in a class action, does it have insurance coverage to defend it from that class action?  The Ninth Circuit recently addressed this … Continue Reading

The Facts Matter in Prospective Coverage Disputes Over COVID-19

There are two main questions in every insurance coverage dispute.  First, what are the actual facts that gave rise to the claim?  Second, what are the actual words contained in the specific insurance policy provisions relevant to the claim?  The facts and words matter because, more often than not, each claim and each policy has … Continue Reading

Privacy Exclusion Precludes Coverage for Claims of Breach of Driver’s Privacy Protection Act

As data privacy statutes proliferate, insurance coverage disputes are rising concerning whether liability policies cover the defense and indemnification of violations of data privacy statutes.  Many of these consumer data privacy statutes predate the mass electronic collection and storage of personally identifiable information.  The analysis is similar about whether there is coverage against lawsuits arising … Continue Reading

Breach of Fiduciary Duty and Negligent Misrepresentation Is Not Property Damage

To obtain coverage under a property insurance policy there has to be property damage caused by an occurrence during the policy period.  Seems simple, but as we have seen, sometimes the round peg just does not fit in the square hole.  In a recent case, the Ninth Circuit addressed whether allegations of breach of fiduciary … Continue Reading

It Is Tough to Avoid the Duty to Defend

Most states view the duty to defend more broadly than the duty to indemnify.  Some people call the duty to defend “litigation insurance” because it often applies even where the allegations are slim, conclusory and ultimately untrue.  A recent Fifth Circuit case reemphasizes how many courts address the duty to defend.… Continue Reading
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