It is pretty common for D&O and E&O and other professional liability claims-made policies to have exclusions that preclude coverage for incidents that took place and were noticed prior to the inception of the policy. Unless the policyholder has purchased “nose” coverage or has a retroactive date that goes back far enough, a prior noticed … Continue Reading
Notice provisions in insurance policies are there to inform an insurer of a claim in a timely manner so that the insurance company can properly investigate and address the claim. Most notice provisions are conditions precedent to an insurer’s liability. While there has been some erosion to the defense of late-notice to coverage, a recent … Continue Reading
Once in a while an insurance company learns that its insured did not accurately portray its risk when applying for the insurance policy. In many cases, the insurance company will just cancel the policy, but sometimes the insurance company will want to rescind the policy so that no claims can be filed for the period … Continue Reading
When a business gets sued it looks to its various insurance policies for coverage and a defense. But sometimes the insurance policy purchased does not fit the coverage sought. That was the case in the Seventh Circuit where a restaurant company sought coverage for a claim brought by a television provider for damages when the … Continue Reading
Whether an activity is advertising such that it comes within the advertising injury coverage grant of a commercial general liability (CGL) policy is a difficult and complicated question. Maybe it shouldn’t be, but the coverage grant combined with exclusions to avoid coverage for intellectual property infringement claims and coverage write-backs within exclusions makes it complicated. … Continue Reading
Obtaining insurance coverage for a government investigation is often complicated by the type of investigation and the available coverage. Most policies that cover aspects of government investigations–directors and officers liability policies or errors and omissions policies–are written on a claims-made form and exclude claims that relate back to prior or pending claims. Very often the … Continue Reading
Nobody likes to get sued. When a lawsuit or a demand letter comes in, the first thing that crosses the mind of the party being sued (or claimed against) is how can I resolve this quickly? That may be a reasonable visceral reaction to the suit, but what happens when insurance is involved?… Continue Reading
The application of New York Insurance Law § 3420(d)(2), which requires notice of disclaimer as soon as reasonably possible under a liability policy, has resulted in quite a few cases testing its outer limits and proper implementation. In a recent case, a New York intermediate appellate court was asked to address § 3420(d)(2)’s application in the … Continue Reading
On March 27, 2018, New York’s highest court finally brought closure to an appeal of a 2014 decision denying an insurer’s motion for partial summary judgment in its coverage litigation with its policyholder. The Court of Appeals’ decision in Keyspan Gas East Corp. v. Munich Reinsurance America, Inc. is available here. In affirming the Appellate … Continue Reading
Most companies that provide specialized or professional services, like stock exchanges, carry both directors and officers liability insurance (“D&O”) and errors and omissions insurance (“E&O”). These coverages are meant to be complimentary and not overlapping. D&O covers “wrongful acts” by directors and officers. E&O covers negligent acts in performing professional services. D&O policies typically exclude … Continue Reading
Typically, courts are strict when it comes to insurance companies disclaiming coverage. Generally, a disclaimer must be specific and timely for it to have any chance of being effective. In many cases, an insurance policy has an exclusion that the insurance company contends precludes coverage. In other cases, the coverage alleged is just not provided … Continue Reading
There is a common misconception that suing everyone in sight is a good idea. Yes, if you don’t know exactly what related companies (or individuals) ultimately may be responsible for the loss it may make sense to cast a wider net (especially if the limitations period is approaching). But if it is obvious who the … Continue Reading
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
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
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
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
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
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
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 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
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
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
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
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
