National Insurance Law Forum

National Insurance Law Forum

Published By The Attorneys of the National Insurance Law Forum

Category Archives: Liability Coverage

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Exhausting Policy Limits

Posted in Duty to Indemnify, Excess and Umbrella Insurance, Liability Coverage, Recent Cases
As insurance is depleted for ongoing claims like asbestos bodily injury and long-term environmental pollution, how an insured is to use its layers of insurance is an issue.  The California Supreme Court has been asked to weigh in on the question of whether “horizontal exhaustion” or “vertical exhaustion” principles should apply to excess and umbrella… Continue Reading

FountainCourt

Posted in Liability Coverage, News, Recent Cases
The Oregon Supreme Court held yesterday that an insurer may be liable for a full jury award for property damages against its insured if the insurer fails to refute the insured’s factual position that it was impossible to determine what portion of the damage occurred during the policy period, if some damage took place during… Continue Reading

American Law Institute Votes to Approve Restatement of Liability Insurance

Posted in Liability Coverage
Houston, we have an insurance Restatement.  Well, almost. The American Law Institute voted at its annual meeting in Washington, D.C. yesterday  to approve Chapters One, Two and Three of the Restatement of the Law of Liability Insurance.  The final vote came at 5:42 p.m. after three hours of debate and nearly a dozen substantive motions by… Continue Reading

Potential Uncertainty Regarding Liability Coverage for Bodily Injury and Property Damage Caused by Cyber Attacks

Posted in Liability Coverage, News
While liability insurance for cyber risks was initially created to address the risk of privacy breaches, evolving cyber threats pose risks of bodily injury and property damage that may test the scope of coverage under existing cyber liability insurance. The traditional risk addressed by cyber liability insurance includes, for example, unauthorized access to a business’s… Continue Reading

Third Circuit: “Caused, In Whole Or In Part, By” Wording in AI Endorsements Requires Only But-For Causation

Posted in Liability Coverage, Recent Cases
A recent decision from the Third Circuit highlights the continuing struggle that courts have had in understanding and applying the “caused, in whole or in part, by” wording found in many additional insured endorsements.  In Ramara, Inc. v. Westfield Ins. Co., 2016 U.S. App. LEXIS 2656 (3d Cir. Feb. 17, 2016), the court addressed whether a parking garage owner was… Continue Reading

New York Court of Appeals Addresses Class Action “Occurrence” and Bad Faith

Posted in Bad Faith/Extra Contractual, Duty to Indemnify, Liability Coverage
A provocative new opinion from the New York Court of Appeals revisits the issue of when individual losses may be treated as involving one “occurrence” as well as novel issues with respect to whether an insurer may be liable in bad faith for negotiating a settlement that effectively strips the insured of coverage and whether… Continue Reading

WHILE SLOGANS CAN BE TRADEMARKS, NOT ALL TRADEMARKS ARE SLOGANS.

Posted in Duty to Defend, Liability Coverage
There has been a trend among policyholders to recast trademark infringement claims as infringement of slogan, in order to trigger a duty to defend under the “personal and advertising injury” liability coverage of the CGL policy. This is driven, in large part, by the intellectual property exclusion which expressly excludes coverage for trademark claims, but… Continue Reading

When can an Insurer’s Representations during Policy Negotiations Prevent Enforcement of the Written Policy Terms? Recent Oregon case Deardorff v. Farnsworth offers insight.

Posted in Liability Coverage, Recent Cases
In Oregon, under certain circumstances when an insurer denies a defense, an insured may rely upon the doctrines of estoppel and oral binder to avoid the written terms of the policy.  Estoppel precludes an insurer, based on its acts, conduct, or silence when there is a duty to speak, from asserting a right that otherwise… Continue Reading

A Coverage Buy Out Can Preclude Coverage for TCPA Claimants Who Had Already Sustained Injury at the Time of the Agreement, As Long As They Had Not Yet Filed Suit.

Posted in Liability Coverage, Recent Cases
I addressed a portion of Central Mutual Insurance Company v. Tracy’s Treasures, Inc., 2014 IL App (1st) 123339 (September 30, 2014), in my last blog.   As you may recall, in that case the insured, Tracy’s, was sued for TCPA violations in March of 2007.  The Illinois Appellate Court  discussed the standards for evaluating whether the… Continue Reading

TCPA Class Settlement Collectible Only Against the Insurer “Smells” Collusive…

Posted in Liability Coverage, Recent Cases
In Central Mutual Insurance Company v. Tracy’s Treasures, Inc., 2014 IL App (1st) 123339 (September 30, 2014), the Illinois Appellate Court  shared its suspicions that  the insured’s entry into a consent judgment in a TCPA class action suit that was collectible only against its insurer was collusive, but found questions of fact that precluded such… Continue Reading

Is It Time for a Codified Insured-Insurer Privilege?

Posted in Liability Coverage
There is no common law “Insured-Insurer privilege” that protects communications between them, such as the privilege that exists for spousal communications or attorney client communications. Did you know that in some jurisdictions an insured who is being provided a defense by an insurer under a reservation of rights could risk the waiver of attorney client… Continue Reading

CLIENT QUESTIONS REGARDING POLICY INTERPRETATIONS

Posted in Liability Coverage
One of the more common questions that clients ask coverage counsel is how a court will interpret a new policy provision. This is especially true of clients that make a point of using the latest endorsements which may not have been tested in a particular state's courts. The issue is complicated by the different policy interpretation approaches taken by different states, which make it difficult to apply out of state law even when the particular policy provision at issue is identical to one interpreted in a case from another jurisdiction. In states like Oregon and Washington, where case law interpreting newer policy language may be scarce, insurers can put themselves at increased risk if they rely too heavily on their own interpretation of the policy's "plain meaning" or their experience in other jurisdictions.… Continue Reading

Busy Month for NY Court of Appeals

Posted in Liability Coverage
  There’s been a good deal of activity in New York’s high court this February. Here’s the round-up: K2 Investment Group, LLC v. American Guarantee & Liability Ins. Co.: In this much-anticipated decision, the Court of Appeals declined to overrule Servidone Const. Corp. v. Security Ins. Co. of Hartford, 64 NY2d 419 (1985), by holding that an… Continue Reading

Can only the named insured satisfy the SIR, or can it be satisfied by other insurance or by the payment of a contractual indemnitor?

Posted in Liability Coverage
In its simplest terms, a self insured retention (“SIR”)  is an agreed sum that the insured agrees to pay before the insurance policy is required to respond to the loss.    Can only the named insured satisfy the SIR, or can it be satisfied by other insurance, by the payment of a contractual indemnitor or by a… Continue Reading

Missouri Bar Against Negligence Claims Against Churches Bars Coverage For Clergy Abuse Suit

Posted in Liability Coverage
When is it unreasonable for an insurer to benefit from a policyholder’s legal strategy in defending the underlying claim that the insurer is contesting coverage for? That was the question posed to the U.S. Court of Appeals for the Eighth Circuit in its consideration of a recent Missouri sexual abuse case in Chicago Ins. Co. v.… Continue Reading

Excess Insurance and Umbrella Coverage: When Is the Defense Duty Triggered?

Posted in Liability Coverage
          Pure Excess and Umbrella liability insurance are often confused for the same thing, and the terms routinely are used interchangeably.  In fact, umbrella coverage is often just a type of excess insurance that provides coverage different than pure excess insurance.  Usually, an umbrella policy may provide pure excess insurance under… Continue Reading

More on Insurance and Indemnity Contracts

Posted in Liability Coverage
Diane’s October 18 post points up the distinction between insurance and indemnity contracts, and calls to mind another important point about these risk transfer mechanisms: to the extent that insurance and indemnity contracts operate independently of each other (a question apparently to be taken up by the Texas Supreme Court), they may not be co-extensive… Continue Reading

Additional Insured Status And Contractual Indemnity Provisions: Are You Really Covered?

Posted in Liability Coverage
“Additional insured” provisions are one of the most prevalent risk shifting techniques used in the insurance field today. Yet surprisingly, they remain one of the least understood for insurers, courts, and insureds. While debate in Oregon case law over the legal status of additional insured provisions has quieted down since the Oregon Supreme Court’s decision… Continue Reading