Most commercial general liability policies include coverage for personal and advertising injury claims by third parties. In a recent case, the Third Circuit Court of Appeals addressed the issue of whether claims of false advertising and unfair competition brought against a competitor entitled the policyholder to a defense under its personal and advertising injury coverage.… Continue Reading
Insurance policies often have general exclusions for known losses or prior acts. The reason for this is that most insurance is for fortuitous risks–risks that will take place in the future; not risks that already have taken place. For large policyholders that have ongoing litigation, it is not uncommon for a new carrier to craft … Continue Reading
Under New York law, the rules for a timely disclaimer arising out of an auto accident are found in Insurance Law section 3420(d)(2). That section requires an insurer to disclaim liability as soon as is reasonably possible or otherwise the disclaimer is ineffective. In a recent non-precedential appeal, the Second Circuit reversed the district court … Continue Reading
So what happens when you run over a gas line with a wheeled electronic recycling bin in a residential building and rupture the gas line? Does the building’s all risks insurance cover the cost of restoring the gas service? Not according to the federal courts in New York.… Continue Reading
How many times have you seen a court decision or commentary stating that the duty to defend is broader than the duty to indemnify? A lot I bet. Essentially, a policy with a duty to defend provides “litigation” insurance to the policyholder, even though the claim may never result in any indemnity payment. Most courts … Continue Reading
This is a repost from #TeamSPB’s TCPAWorld blog on a quick review on recent TCPA insurance coverage cases. You can read the post here on TCPAWorld or read below the break.… Continue Reading
The federal Liability Risk Retention Act allows for the creation of industry groups–Risk Retention Groups (“RRG”) or Purchasing Groups–that are exempt from certain state insurance regulation requirements outside the RRG’s state of charter. Most states, if not all, have unfair claims practices acts and those statutes are expressly applicable to RRGs. Many states also have statutes … Continue Reading
Claims-made and reported policies typically contain, as a condition precedent, fairly strict notice requirements. The entire point of a claims-made policy is to restrict the policy to claims made during the policy period and reported during the policy period or any extended reporting period. Giving notice early and often is a mantra that is often … Continue Reading
In a recent case, the 4th Circuit Court of Appeals affirmed the dismissal of a coverage dispute based on unambiguous exclusions barring coverage. Nothing dramatically unique here, but it serves as a good example of the need to read and understand the insurance policy and all of its exclusions. … Continue Reading
Where an insurance policy has an express exclusion for Telephone Consumer Protection Act (“TCPA”) claims it is pretty clear that coverage will not be available. But where the insurance policy does not have an express TCPA exclusion, does an Invasion of Privacy Exclusion bar coverage for alleged TCPA violations? A Florida federal court recently found … Continue Reading
The cooperation clause in an insurance policy is an essential part of the insurance bargain. If the policyholder does not cooperate in the reporting or investigation of a claim, the coverage the policyholder paid for may be lost. In a recent case, a policyholder whose employees lied to investigators was found to have breached the … Continue Reading
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
