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Category Archives: Recent Cases

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Xia v. ProBuilders Specialty

Posted in Bad Faith/Extra Contractual, Liability Coverage, Recent Cases
Insurers should be aware of the recent Washington State Supreme Court decision in Xia v. ProBuilders Specialty, No. 92436-8 ___ Wn.2d ____ (2017) handed down on April 27, 2017. The decision may have significant impacts not only in coverage litigation regarding environmental contamination, but across a broad spectrum of liability claims under CGL policies. In short, the Washington State Supreme Court… Continue Reading

THE OREGON COURT OF APPEALS ADDRESSES ESTOPPEL REGARDING THE ENFORCEMENT OF SUIT LIMITATION PROVISIONS AND AN INSURER’S DUTY OF GOOD FAITH AND FAIR DEALING IMPLIED IN THE INSURANCE CONTRACT

Posted in Appeals, Recent Cases
The Oregon Court of Appeals, in Brockway v. Allstate Prop. And Cas. Ins. Co., 284 Or.App. 83 (March 1, 2017), recently ruled in favor of an insurance company’s reliance on a suit limitation policy provision, issuing an opinion that reinforces the value for an insurance company in the practice of reserving all of  its rights… Continue Reading

Washington’s Insurance Fair Conduct Act Does Not Create a Cause of Action for Regulatory Violations

Posted in Auto Liability Coverage, Liability Coverage, News, Recent Cases, Uncategorized
Today, in Isidoro Perez-Crisantos v. State Farm Fire & Casualty Company, the Washington Supreme Court held the Insurance Fair Conduct Act (IFCA) did not “create[] a new and independent private cause of action for violation” of  the Washington Administrative Code (WAC) “in the absence of any unreasonable denial of coverage or benefits.” This case arose… Continue Reading

Criminal Acts Exclusion and Joint Obligations Clauses Bar Coverage for Claims Arising from Insured’s Criminal Act

Posted in Personal and Advertising Injury, Property Insurance, Recent Cases
Criminal Acts Exclusion and Joint Obligations Clauses Bar Coverage for Claims Arising from Insured’s Criminal Act In Allstate Insurance Company v. Morgan, 123 F. Supp. 3d 1266 (D. Or. 2015), the District of Oregon held an insurer was not obligated to defend their insured’s son against tort claims arising out of the son’s assault on… Continue Reading

Is It A Flash Or A Trend? “Disparagement” limited to Communications that Assert or Imply the Inferiority of a Competitor’s Products.

Posted in Duty to Defend, Personal and Advertising Injury, Recent Cases
The “personal and advertising injury” coverage applies to injury arising out of “oral or written publication of material that…disparages a person’s or organization’s goods, products or services.”  The term “disparages” is not defined.   Accordingly, it provides fertile ground for creative arguments by policyholders seeking to broaden the meaning to cover trademark infringement,   false advertising and “passing off”… Continue Reading

Additional Insured Status

Posted in Additional Insured, Duty to Defend, Recent Cases
In Homeland Insurance Company of New York v. AAM, Inc., 2016 U.S. Dist. LEXIS 633033 (D. Or. May 13, 2016), the District Court for the District of Oregon held that a construction subcontract and accompanying additional insured endorsements were partially enforceable for purposes of the insurer’s duty to defend, despite the subcontract’s noncompliance with Oregon’s… Continue Reading

Arden v. Forsberg & Umlauf

Posted in Appeals, Recent Cases
Washington’s Supreme Court Grants Review of Court of Appeals’ Decision Finding No Conflict of Interest for Law Firms that Represent Insurers and Defend Insurers’ Policyholders   We previously reported here on the Court of Appeals’ decision in Arden v. Forsberg & Umlauf, 193 Wn. App. 731, 373 P.3d (2016) on May 5, 2015. On September… Continue Reading

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

Attorney-Client Privilege

Posted in Attorney-Client Privilege, Recent Cases
The Washington Court of Appeals’ recent decision in Steel v. Philadelphia Indemnity Insurance Co., 2016 WL 4001431 (2016) should be of interest to those seeking (or seeking to preclude) the production of attorney-client privileged and work product documents from the underlying attorneys in the context of settlement reasonableness hearings under RCW 4.22.060 (Effect of Settlement… Continue Reading

Washington Appellate Court Finds No Conflict of Interest for Law Firms that Represent Insurers and Defend Insurer’s Policyholders

Posted in News, Recent Cases
In a matter of first impression in Washington, the Washington Court of Appeals in a published decision, Arden v. Forsberg & Umlauf, et al., Washington Court of Appeals Division II, May 3, 2016, held a law firm with an insurer for a client may defend that insurer’s policyholder in an unrelated matter without creating a… Continue Reading

Where There’s Smoke, There May Be Coverage: Marijuana Meets the Law

Posted in Property Insurance, Recent Cases
A provocative new opinion from Colorado (where else) has explored the potential scope of first-party property insurance coverage for a loss of marijuana plants. The opinion highlights some of the problems that first party insurers face in evaluating losses in an area that is emerging into the mainstream but has not yet entirely lost its… Continue Reading

McCarran-Ferguson Not Implicated by Application of FAA to Policies Violating California Insurance Code §11658

Posted in Recent Cases
In Matter of Monarch Consulting, Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, the New York Court of Appeals was asked to consider whether the McCarran-Ferguson Act—which precludes application of federal law in the face of state law regulating the business of insurance under certain circumstances—precluded application of the Federal Arbitration Act in… 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

TRADEMARK AND TRADE DRESS ARE DIFFERENT BEASTS (or are they???)

Posted in Recent Cases
Some policyholders are seeking to recast trademark infringement claims as trade dress  claims so as  to fall within the “personal and advertising injury” liability coverage of the CGL policy.    In that way, the claim may constitute a potentially covered offense and also fall within the exception to the Intellectual Property exclusion for infringement, in… Continue Reading

Many States Do Not Allow Insurers or Insureds To Consider Extrinsic Evidence in Determining the Duty To Defend

Posted in Duty to Defend, Recent Cases
Yesterday’s blog addressed Illinois law, which allows consideration of extrinsic evidence in determining an insurer’s duty to defend.   However, many courts still adhere to the “Four Corners” approach  (or the “Eight Corners” approach if you count looking at the policy too)  in determining the duty to defend.  In other words, the courts in the following states  look… Continue Reading

Breach of the Duty To Cooperate or Not…

Posted in Auto Liability Coverage, Duty to Defend, Recent Cases
The Illinois Supreme Court has recognized that a cooperation clause prevents collusion between the insured and injured and enables an insurer to prepare its defense to a claim. M.F.A. Mutual Ins. Co. v. Cheek, 66 Ill. 2d 492, 496 (1977).  It has also acknowledged that: “Any condition in the policy requiring cooperation on the part… 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

WASHINGTON COURT OF APPEALS DECIDES WHAT CONSTITUTES A “SUIT” TRIGGERING THE DUTY TO DEFEND IN THE ENVIRONMENTAL LIABILITY CLAIMS CONTEXT

Posted in Recent Cases
In Gull Industries, Inc. v. State Farm Fire and Casualty Company, et al., Court of Appeals of the State of Washington, Division I, No. 69569-0-I (June 2, 2014), a Washington Appellate Court, for the first time, addressed the question of "what constitutes a 'suit' for the purpose of triggering the insurer's duty to defend environmental liability claims against the insured." Id. at 10. In Gull, Gull undertook voluntary remediation of a gasoline service station site. Gull notified the Washington Department of Ecology ("DOE") regarding a release of petroleum at the site, and DOE sent a letter to Gull acknowledging the notice. The letter from DOE acknowledged that "Gull's report reveals the soil and groundwater are above the MTCA 'Method A Cleanup levels' and that DOE placed the property on the leaking underground storage tank list with an 'Awaiting Cleanup' status. The letter also advised Gull to be 'aware that there are requirements in state law which must be adhered to' but did not advise of any consequences that might attach to the failure to adhere to those requirements." Id. at 14. Gull then continued with its voluntary investigation and remediation of the site. No Potentially Liable Party (PLP) letter was issued.… Continue Reading