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Aggregating Losses From the COVID-19 Crisis for Reinsurance Purposes

The question of whether hundreds or even thousands of COVID-19-related losses can be aggregated together as one “loss” or “occurrence” for reinsurance purposes is one that both ceding companies and reinsurers are pondering.  Expressly putting aside whether COVID-19-related business interruption losses are covered by underlying insurance policies (see our other blog posts), this post discusses … 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

COVID-19 Losses from a Reinsurer’s Perspective

This blog post provides some thoughts on addressing COVID-19 losses from the reinsurer’s perspective.  A reinsurer does not issue the underlying policies and does not handle the underlying claims.  A reinsurer relies upon its reinsured to adjust claims within the terms and conditions of the reinsured policies and the reinsurance contract.  Just like the ceding … 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

Can Fear or Emotional Distress Associated With COVID-19 Be a “Bodily Injury”?

With the United States now having the highest number of confirmed infections in the world, the nation now finds itself in the throes of the COVID-19 pandemic. In this blog post, we continue to explore potential COVID-19 insurance coverage issues, this time focusing on whether fear of contracting COVID-19 alone or emotional damages caused by … Continue Reading

The Facts Matter in Prospective Coverage Disputes Over COVID-19

There are two main questions in every insurance coverage dispute.  First, what are the actual facts that gave rise to the claim?  Second, what are the actual words contained in the specific insurance policy provisions relevant to the claim?  The facts and words matter because, more often than not, each claim and each policy has … Continue Reading

Breach of Fiduciary Duty and Negligent Misrepresentation Is Not Property Damage

To obtain coverage under a property insurance policy there has to be property damage caused by an occurrence during the policy period.  Seems simple, but as we have seen, sometimes the round peg just does not fit in the square hole.  In a recent case, the Ninth Circuit addressed whether allegations of breach of fiduciary … Continue Reading

Extrinsic Evidence Leads to Summary Judgment on Aggregate Corridor Deductible

Some insurance programs are simple:  one primary policy, one excess policy.  Easy.  Some insurance programs are complex and contain many layers and coverages.  In the case discussed below, the court had to interpret how an Aggregate Corridor Deductible (ACD) in one policy worked and how it affected when the second policy came on risk.… Continue Reading

The Top 10 InReDisputesBlog Posts for 2019

Below are the top 10 blog posts from our Insurance & Reinsurance Disputes Blog for 2019.  These are the ones our readers viewed the most last year on our blog. The compilation is diverse as is the topic of insurance and reinsurance disputes.  Please enjoy this stroll down memory lane.  If you like these and … 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

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

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

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

New York Court of Appeals Looks to Policy Language Again to Allocate Risk Proportionately to Insurers

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

Delaware Supreme Court Clarifies New York’s Injury-in-Fact Trigger of Coverage for Asbestos Losses

Whether coverage for asbestos personal injuries is triggered under an injury-in-fact theory or under an exposure theory makes a world of difference to which insurance policies must respond to the asbestos losses. Asbestos, as we know, causes asbestos-related diseases that often manifest 20 or 30-years after the initial significant exposure to asbestos fibers. Most experts … Continue Reading

New York Appeals Court Holds No Allocation of Environmental Losses to Insurers for Uninsured Years

In a case of first impression, a New York intermediate appellate court has held that the policyholder, rather than existing insurers, must be allocated  environmental cleanup costs for periods of time when environmental cleanup insurance was not available in the marketplace. The decision reverses the denial of the insurer’s partial motion for summary judgment.… Continue Reading

New York Court of Appeals Reaffirms Contract Language Controls Allocation and Exhaustion Methodologies

Long-tail claims from asbestos and other toxic exposures have plagued policyholders and their insurers for decades. Myriad issues arise when trying to determine when injuries are incurred, how policies are triggered, how liability should be allocated among multiple policies and when excess policies are required to cover the losses. None of this is easy and … Continue Reading

Timing Is Everything for Late Notice In New York

Nearly every liability policy has a provision that requires the policyholder to notify the insurer promptly of any accident or incident that might become a claim and of any lawsuit or other claim filed against the policyholder by a claimant. And many of these notice provisions are couched in language that the courts have construed … Continue Reading

Claims-Made Policies, Sophisticated Insureds and Late Notice of Claim

Everyone has chimed in on the recent New Jersey Supreme Court decision upholding a finding that an insurer need not demonstrate prejudice to disclaim coverage for late notice of a claim under a claims-made directors and officers liability policy issued to a sophisticated insured. Templo Fuente De Vida Corp., v. Nat’l Union Fire Ins. Co. of … Continue Reading

The Dichotomy Between Intent to Injure and Intentional Conduct

Most liability policies require that the claim arise from an accident or occurrence typically defined in a way that the accident or occurrence is a fortuitous event and not an intentional act. The typical automobile accident or slip and fall are accidents; nothing premeditated or planned, no intent to cause harm, no intent to drive … Continue Reading

The Unfortunate Event Test – Aggregating Incidents

Much has been written about the judicial inquiry into whether separate incidents may be aggregated as a single accident or occurrence under various formulations of accident or occurrence language in insurance policies. This issue has been litigated heavily in the asbestos context and in other latent and continuous injury settings. But sometimes looking at the issue … Continue Reading
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