Archives: Insurance Coverage

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Prior Publication Exclusion and the Duty to Defend

Remember my recent post on how broad the duty to defend was?  Well it’s still broad.  In a new opinion, the 4th Circuit Court of Appeals, under North Carolina law, reversed a district court’s order on a motion on the pleadings that had dismissed a policyholder’s complaint based on application of the “prior publication” exclusion.  … Continue Reading

The Consequences of Not Giving Notice of Disclaimer to Additional Insureds

Statutes and case law make it tough for insurance companies to disclaim coverage.  In most jurisdictions, if an insurance company receives a claim or tender it must respond quickly and with specificity to avoid losing the right to assert an exclusion or other basis to deny coverage.  Where the notice of claim comes in from … Continue Reading

Exclusion Relieves Insurer of Duty to Defend in Sex Trafficking Case

Human trafficking is a serious problem.  The current news cycle is filled with stories about human trafficking in the context of immigration and with recent criminal proceedings accusing the rich and famous of underage sex and sex trafficking.  In the mundane world of insurance, sex trafficking has become a coverage issue for insurance companies when … Continue Reading

War (Exclusions), What Is It Good For?

Back in the day, policyholders and insurers (and maybe everyone) understood what war was.  War was a military action between government forces of sovereign nations.  Today, not so much.  With the proliferation of terrorism and armed groups controlling various jurisdictions like pseudo-governments, it is often difficult to know when an attack is war or terrorism.  … Continue Reading

Faulty Excavation Support Not Covered By Contractor Controlled Insurance Plan

Construction projects are often subject to myriad claims.  Subcontractors can cause damage to third-parties and their property, the project can be delayed by municipal inspections or citations, workers can get injured, and property can be damaged by fire, collapse or weather.  To organize construction projects, sometimes insurance is purchased through a plan.  A contractor controlled … Continue Reading

Claims of False Advertising and Unfair Competition Are Not Disparagement or Defamation

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

How Specific Does a Specific Litigation Exclusion Have to Be?

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

Second Circuit Rules on Timely Disclaimers Where Two Insurance Companies Are Involved

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

New York Court of Appeals Holds Non-domiciliary RRG Not Covered Under New York Late Disclaimer Rules

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

Untimely Notice Causes Loss of Directors and Officers Coverage

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

When Seeking Coverage for Trademark Infringement Policy Exclusions Matter

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

Invasion of Privacy Exclusion Bars Coverage for TCPA Action and Settlement

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

Breach of Cooperation Clause Shields Carrier From Duty to Indemnify

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

English Court of Appeal Clarifies the Law on Notification of Circumstances

In Euro Pools Plc (in administration) v. Royal and Sun Alliance Plc [2019] EWCA Civ 808, the Court of Appeal considered the parameters and effect of a notification of a circumstance by an insured that could give rise to a subsequent claim under a professional indemnity insurance policy.  The court held that an insured could make … Continue Reading

No Coverage When Claims Relate Back to Notices Prior to Policy Inception

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

Superstorm Sandy Relaxed Rules Did Not Waive Proof of Loss Requirement Under NFIP

Superstorm Sandy was devastating to many people.  Those who had flood insurance through the National Flood Insurance Program (“NFIP”) obtained some additional relief.  But the NFIP, through the Standard Flood Insurance Policy (“SFIP”), has limits and requirements that cannot be ignored.  And apparently, the relaxation of some of those requirements for the purpose of expediting … Continue Reading

When a Loss Falls Within Policy Exclusions as a Matter of Law the Complaint Cannot Survive

The policyholder bears the burden of demonstrating that a loss suffered falls within the terms of the insurance policy.  In other words, the existence of coverage is an essential part of a policyholder’s claim.  Where the insurance company raises an exclusion, the initial burden is on the insurer to show that all the allegations within … Continue Reading

Proving Sudden and Accidental Discharge Requires an Expert With a Reliable Methodology

Environmental damage claims are often very technical.  Those technical aspects tend to permeate insurance coverage disputes.  This is especially true where the policyholder seeks coverage in the face of a pollution exclusion.  As we know, the pollution exclusion has evolved over the years.  Some pollution exclusions are not absolute and provide coverage for discharges that … Continue Reading

In a Battle of Conformity and Preemption, Arbitration Prevails

The Supremacy Clause of the U.S. Constitution nullifies state laws that conflict with federal law and treaties of the U.S.  But, under the McCarran-Ferguson Act, state insurance law reverse preempts federal law that interferes with the business of insurance as regulated by the states.  This issue comes up in conflicts between anti-arbitration provisions in certain … Continue Reading

Late-Notice Defense for Insurance Coverage Is Still a Thing

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
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