Archives: Duty to Indemnify

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Misrepresentation Results in Loss of Coverage

One of the best ways for a policyholder to lose its insurance coverage is to conceal or misrepresent material facts and circumstances about the claim.  In a recent case, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of the insurance company dismissing a policyholder’s claims against its insurance carrier for not paying … Continue Reading

Court Finds No Insurance Coverage for TCPA Settlement

What happens when the Expected or Intended Exclusion and the Information Exclusion bump up against a policyholder’s suit for breach of contract, bad faith and improper denial of a claim based on an alleged TCPA violation?  You’ll have to visit our blog post on TCPAWorld.com to find out.  Suffice it to say that the insurance … Continue Reading

Binding Arbitration Award In Coverage Dispute Ends Later Coverage Litigation

Many insurance policies have binding arbitration clauses along with other provisions that address whether a lawsuit may be brought against the insurance company.  What happens when the arbitration goes against the policyholder?  Can the policyholder then sue the insurance company over the same coverage dispute even if the arbitrator ruled against the policyholder?… Continue Reading

Claims By Tort Claimants Against Municipal Insurer Over Coverage for Sexual Abuse Dismissed By Federal Court

Typically, a claimant has no direct right of action against an insurance company especially prior to a judgment against the insured.  Even more typically, a claimant has no right to “cut-through” to the reinsurers based on an alter ego or fronting claim when the claimant is not the insured and is not in contractual privity.  … Continue Reading

The (Rock) Finer Points of the Absolute Pollution Exclusion

The pollution exclusion has had a long history of being interpreted by the courts throughout the US.  Many substances have been held to come within the pollution exclusion, resulting in a bar of insurance coverage for costs sustained by policyholders addressing those substances in waterways and the air.  In a recent case, the Fifth Circuit … Continue Reading

No Coverage to Builder for Beetle-Infested Logs

Nearly all construction jobs require that the contractor purchase insurance.  Commercial general liability insurance (“CGL”) is often what is purchased.  CGL policies also typically have an exclusion for property damage to “your work.” In a recent case, the Ninth Circuit Court of Appeals addressed this exclusion in a case of damage caused by beetle-infested logs … Continue Reading

Lawyer Not Covered for Claim By Client to Recover Disputed Legal Fees

Did you hear the one about the lawyer and client fighting over paid legal fees?  When this happens lawyers often turn to their lawyers professional liability insurance policies for coverage.  In a recent case, under Connecticut law, the Second Circuit ruled against the lawyer and found no coverage.… Continue Reading

Appellate Court Grants Summary Judgment Obligating Coverage for Underlying Copyright Actions

In a recent cryptic coverage decision, a New York state intermediate appellate court reversed an order denying summary judgment to a media policyholder and held that the insurance companies were obligated to provide insurance coverage for underlying copyright infringement actions.  Although cryptic, the decision addresses exclusions and their applicability to media insurance policies.… Continue Reading

Security! Professional Services Exclusion Bars Coverage

In my experience, companies (and people) who buy insurance often do not understand what they bought.  Policyholders often confuse directors and officers insurance with professional liability insurance.  The assumption is that the purchase of insurance (often through a broker) should cover all of the policyholder’s risks.  Sadly, that is not the case.  In a recent … Continue Reading

Absolute Liquor Liability Exclusion Is Not Illusory

General liability policies sometimes contain exclusions that preclude coverage for losses that relate to the business insured.  Whether that renders the policy coverage illusory is a question for the courts.  In a recent case, the 11th Circuit addressed an Absolute Liquor Liability Exclusion involving a night club.… Continue Reading

Phishing and Fraudulent Instructions Under a Commercial Crime Policy

Warnings are plentiful about phishing schemes where a bad actor pretends to be an officer of a company and directs an employee to wire transfer funds to a foreign bank.  Despite these warnings, employees regularly fall for these phishing schemes and wire funds to off-shore accounts never to be seen again.  Companies that fall victim … Continue Reading

Strict Conditions Doom Flood Insurance Claim

The National Flood Insurance Program has been controversial to say the least.  Part of the program allows commercial insurance companies to act as agents for the federal government in producing Standard Flood Insurance policies and managing claims under a write your own program (“WYO”).  The program, under its enabling law, the National Flood Insurance Act, … Continue Reading

Late Notice and Timely Disclaimer Sink Claim to Recover Judgment From Insurers

Under New York law (and the law of other jurisdictions), an unsatisfied judgment against an insured may be the subject of an action to recover the judgment against the insurance company.   Sounds simple, but the claimant, standing in the shoes of the policyholder, will be subject to all the defenses the insurance company can bring … Continue Reading

Appraisal Award Ends Property Damage Dispute

Property insurance policies contain provisions to resolve disputes between the policyholder and the insurer over damage claims.  These provisions provide for an independent appraisal of the alleged damaged property with the appraiser’s final award binding the parties.  An appraisal award is akin to an arbitration award in many respects.  In a recent case, a policyholder … Continue Reading

Outside Business Exclusion Precludes Coverage Under a Professional Liability Policy

Professional liability and other errors and omissions policies are purchased to protect the insured from claims brought against the insured by third-parties alleging breaches of professional duties and other failures to perform professional or other services appropriately.  Stated another way a professional liability policy issued to a law firm protects the law firm and its … Continue Reading

Nothing Cheesy About Needing to Allege Personal Injury for Coverage

Nearly all commercial general liability and excess liability insurance policies require in their coverage grants that the damages the insureds are legally obligated to pay are because of bodily injury or property damage.  It may seem simple, but for insurance to apply, the allegations made have to fit reasonably within the coverage provided.   In a … Continue Reading

Contra Proferentem and Ambiguity Preclude Subrogation Recovery

Here’s a typical scenario.  The general contractor or owner takes out a all-risk builder’s policy to cover a construction project.  Subcontractors are included as additional insureds where required by their subcontracts, but only “as their respective interests may appear.”  The policy has a subrogation clause, but the clause includes a provision precluding subrogation against additional … Continue Reading

Appellate Court Clears Up Confusion About Exclusions In Commercial Auto Policies

Like most liability policies, commercial auto policies have exclusions meant to preclude claims by employees against the employer-policyholder.  In a recent case in the Fourth Circuit, under West Virginia law, the court vacated a district court’s judgment of no coverage in favor of the insurer based on exclusions.… Continue Reading

Not an Accident When Victim is Intentionally Dragged By the Hair

When someone gets injured and sues, sometimes the defendant defaults and the claimant is left to pursue its remedies against the defendant’s insurance policy.  It’s basically a coverage suit, but brought by the claimant instead of the policyholder.  The same defenses to coverage also apply.  Paramount, however, is that the loss complained of has to … Continue Reading

The 5th Amendment and Insurance Coverage

When a property is destroyed by fire, the property owner’s property insurance likely will cover the loss all things being equal.  But if the fire was intentionally set, coverage likely will be denied.  In the case of a residential property, policies often condition coverage on occupation of the premises.  In a recent case before the … Continue Reading

Is Faulty Workmanship an “Occurrence” Under a CGL Policy?

Manufacturers often face multiple lawsuits when their products fail to perform as expected.  Sometimes, the cause of the product’s failure is the faulty workmanship of a component manufacturer.  When that is the case, the product manufacturer will seek damages from the component manufacturer for the underlying product defect claims.  The component manufacturer will then turn … Continue Reading
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