National Insurance Law Forum : Insurance Litigation Lawyer & Attorney : National Insurance Law Forum : Insurance Coverage, Bad Faith Litigation

A federal district court in Miami ruled earlier today in Amerisure Ins. Co. v. Albanese Popkin, . No. 09-81213 (S.D. Fla. November 30, 2010) that the liability insurer of a property developer had no duty to provide coverage for Chinese Drywall claims that had manifested prior to the issuance of the policy.  Notwithstanding the fact that the insured argued that the presence of the drywall had caused continuing injuries to the homeownwer that had persisted during Amerisure's 2008-2009 policy, Judge Marra declared that the loss had manifested in 2006, when the homeowners first complained of odors and that the continuing nature of the injuries thereafter was "irrelevant."

Congrats to Don Elder of the Tressler firm for this win.

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In Shilo Inn v. Maryland Cas. Co., 2010 U.S. App. LEXIS 24086 (9th Cir. Or. Nov. 23, 2010), an unpublished opinion, the Ninth Circuit Court of Appeals affirmed the decision of an Oregon District Court by ruling that a policy of insurance issued by Maryland Casualty to its insured did not cover the damages claimed by Shilo because the record contained no evidence that “property damage” took place during the policy period as required by the Maryland policy.

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In 1998, the California Supreme Court, consistent with contract interpretation rules, took a literal approach to what is meant by “suit” in liability insurance policies, ruling that when not otherwise defined, “suit” means a proceeding brought in a court of law by the filing of a complaint. Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857. The Supreme Court went on from there in subsequent decisions to hold that policies that pay when the insured is “legally obligated to pay damages” require money damages ordered by a court. Certain Underwriters at Lloyd’s v. Superior Court (“Powerine I”) 24 Cal.4th 945. California is in the minority in this approach.

Justice Joyce Kennard has long criticized these rulings, and in her comments in her concurring opinion to the latest on this topic from California’s highest court, notes that “the decision here is a step in the right direction.” However, this new case is not an erosion of the “suit” rule so much as a finer drawing of the "bright line" around the rule.

In Ameron International Corp. v. Ins. Co. of State of Pa., __ Cal.4th __ (2010) (2010 Cal.Lexis 11679), the California Supreme Court held that where the insurance policies did not define the term “suit,” there was a duty to defend and indemnify a contractor that settled a government claim in an administrative adjudicative proceeding before the United States Department of Interior Board of Contract Appeals (“IBCA”).  The California Supreme Court, on the narrow issue before it, found Foster-Gardner did not apply because there was a complaint requirement and trial-like features in the administrative adjudicatory proceeding.

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As social networking plays an increasingly important role in the way we publicly and privately communicate and interact, it necessarily will influence the practice of law. An article to be published in a forthcoming issue of Pace Law Review examines how social networking might influence workers’ compensation proceedings, and, thus, provides a glimpse into social networking’s potential impact on legal proceedings generally. The article, Social Networking and Workers’ Compensation Law at the Crossroads by Gregory M. Duhl and Jaclyn S. Millner, examines the legal and professional responsibility issues implicated by review and collection of information from social networking sites, and its potential use as evidence in workers’ compensation proceedings. It’s an interesting read.

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