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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

Resulting-Loss Exception Does Not Restore Coverage For Faulty Workmanship

The faulty workmanship exclusion precludes coverage where the claimed damage is caused by or resulting from an act, error or omission (negligent or not) that relates to the design, specifications, construction, materials or workmanship.  Can coverage nevertheless be restored by the resulting-loss exception to the exclusion?  The Tenth Circuit recently addressed this question.… 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

A Word About Business Interruption Claims From Vandalism, Riot and Civil Commotion

The death of George Floyd is a national tragedy that should never have happened.  The winds of change are in the air and we can only hope that peace, understanding, justice and fairness for all will prevail.  What happened to George Floyd and the cries to end racial injustice, however, have been overshadowed in the … Continue Reading

Arbitration Should Play a Key Role in Resolving COVID-19 Insurance and Reinsurance Disputes

There are nearly 400 disputes in the courts about whether loss of business income because of the novel coronavirus is covered by the business income, extra expense and civil authority coverage grants found in many commercial property insurance policies.  Other disputes exist or will arise over different insurance coverage issues stemming from COVID-19.  Additionally, as … 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

Arbitration Prevails in Coverage Dispute

In a recent coverage dispute, an Indiana federal court addressed a two-pronged issue.  First, in the case of a multi-tiered ADR clause, who decides whether the dispute should be conducted under the arbitration section of the clause?  Second, where there are several arbitration clauses, who decides which one prevails?  You’ll have to read more to … 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

The Novel Coronavirus and Reinsurance

I have updated my musings on insurance losses arising from the novel coronavirus and the issues that may arise should those losses become cessions to reinsurance contracts in my latest IRMI.com quarterly Reinsurance Commentary.  I hope you find it useful and would welcome comments and feedback.  You can access the Reinsurance Commentary by clicking the … Continue Reading

What to Make of the Early COVID-19 Insurance Coverage Court Rulings

There are been at least two court rulings on the COVID-19 insurance coverage litigation.  In Pennsylvania, the Supreme Court denied the extraordinary request to consolidate COVID-19 cases under what is called Kings Bench Powers.  In New York, a federal court denied an emergency request for a preliminary injunction requiring an insurer to pay its policyholder … Continue Reading

COVID-19 and the Exclusion for Virus and Bacteria

Insurance policies contain coverage grants and exclusions.  Generally, the burden is on the insured in the first instance to prove that the insured’s loss comes within the insurance policy’s coverage grants.  If the insured proves that the policy covers the insured’s loss, then the burden shifts to the insurer to prove that a policy exclusion … Continue Reading

Anti-concurrent Clause and Faulty Workmanship Exclusion

Anti-concurrent clauses preclude coverage even where the loss is partially caused by a covered cause of loss.  This clause received considerable attention in hurricane-related coverage litigation following Hurricane Katrina.  In a recent case, the Eighth Circuit Court of Appeals addressed the anti-concurrent clause in the context of damage allegedly caused in part by faulty workmanship.… 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

Is a COVID-19 Stay-Home Order Alone Enough to Trigger Business Interruption Coverage?

Back in March, when the novel coronavirus was spreading and local and state governments were issuing stay-home orders, we published a blog post on Civil Authority Orders and COVID-19 Coverage.  Since that time, there have been over 125 lawsuits filed by insured businesses, many of them arguing that the economic damages caused by these COVID-19 … Continue Reading

COVID-19 Insurance-Related Blogs and Articles for March and April 2020

During March and April, the Squire Patton Boggs insurance group has authored several blog posts, alerts and articles on the insurance and reinsurance issues arising from the novel coronavirus pandemic.  These range from regulatory updates, to business interruption coverage analysis, to reinsurance issues.  We thought it might be good to list them here in one … 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

The COVID-19 DJ Wars Are Escalating

For several weeks we have seen straightforward declaratory judgment actions filed by policyholders seeking coverage for COVID-19 business interruption-type losses.  As time went on, new cases were filed by policyholders alleging bad faith and violations of claims handling and other consumer statutes along with the request for declaratory relief.  Those cases were followed by putative … 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
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