National Insurance Law Forum

National Insurance Law Forum

Published By The Attorneys of the National Insurance Law Forum

Tag Archives: diane polscer

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

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

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

Client Questions About Settlement

Posted in Client Questions About Settlement
One of the most common mistakes that insurance adjusters, and even some attorney practitioners, make during settlement negotiations is failing to anticipate all of the essential elements of the settlement agreement. Such oversights may result in significant negative consequences for insurers and their insureds. This is particularly true in the context of negotiating casualty claims.… 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

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

Extrinsic evidence, the duty to defend, and environmental claims.

Posted in Duty to Defend
A federal district court applying Washington law recently ruled that an insurer had no duty to defend its insured against environmental “claims” and, in doing so, may have considered evidence extrinsic to the agency communications for which the insured sought a defense.  The Jorgensen Forge Corp. v. Illinois Union Ins. Co., 2016 WL 409822 (W.D.… Continue Reading

Three Cases You Need to Know for Northwest Insurance Law

Posted in Bad Faith/Extra Contractual, Duty to Defend, Duty to Indemnify, Uncategorized
1. Reasonable or Questionable? Generally, to establish bad faith, the insured must show that the insurer’s breach of the insurance contract was “unreasonable, frivolous or unfounded.”  Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 561, 951 P.2d 1124 (1998).  However, under Washington law, an insurer that fails to defend based on “a questionable interpretation… Continue Reading

Excess Insurance: Issues Regarding Exhausting the Underlying Policy Limits

Posted in Duty to Indemnify, Excess and Umbrella Insurance
A basic premise of excess insurance coverage is that it applies only after the underlying insurance limits have been exhausted.  Problems may arise, however, when a primary insurer refuses to pay the full limits toward a claim that exceeds the underlying policy limits.  An insured may be left with either (1) settling with the primary… Continue Reading

West Hills Development Company v. Chartis Claims, Inc., et al., 273 Or App 155 (2015)

Posted in Duty to Defend
In the recent case West Hills Development Company v. Chartis Claims, Inc., et al., 273 Or App 155 (2015) (“West Hills”), the Oregon Court of Appeals provided further guidance to Oregon insurers on their handling of tenders of defense from parties who contend that they are additional insureds. In particular, the court addressed the scope… Continue Reading

Hawai’i declines to adopt Cedell, for now . . .

Posted in Uncategorized
It has been more than two years since Washington’s Supreme Court issued its opinion in Cedell v. Farmers Ins. Co. of Washington, 176 Wash.2d 686, 295 P.3d 239 (2013), radically changing the attorney-client privilege for insurers in Washington. In Cedell, the court held that there is a presumption of no attorney-client privilege in “first party… Continue Reading

Has SCOTUS Signaled Putative Class Action Defendants to More Aggressively Challenge the Merits of Plaintiff’s Case at the Class Certification Stage?

Posted in Declaratory Judgment Strategy
The holding in a recent opinion of the Supreme Court of the United States in a securities class action case raises broader questions regarding whether defendants should more aggressively challenge the merits of plaintiff’s case at the certification stage in other types of cases.  This includes product defects, energy, and health care, but also, of… 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

Recent Oregon Case Describes Burdens of Proof Applicable to Claims for Liability Coverage for Claims Involving Continuous or Progressive Property Damage

Posted in Uncategorized
The Oregon Court of Appeals recently issued a decision impacting burdens of proof and allocation of damages in cases involving liability insurance claims for coverage of progressive or continuous property damage.  The case, FountainCourt Homeowners Ass’n v. FountainCourt Development, LLC, 264 Or. App. 468, 334 P.3d 973 (2014), arose from a construction defect lawsuit that… Continue Reading

Additional Insured Status under Excess and Umbrella Policies

Posted in Excess and Umbrella Insurance
Blanket additional insured endorsements often require examination of a contract between the named insured and the purported additional insured, as many of these endorsements provide insured status contingent on the named insured being required by contract to add the person or entity as an additional insured to an insurance policy.  As shown by a recent… Continue Reading

Insurance for Technology Problems

Posted in Uncategorized
In our increasingly digital age, we should expect a corresponding increase in the number of insurance claims involving lost data, security breaches, inadvertent dissemination of private information, and similar issues related to technology.  However, the usual insurance policies – such as general liability, first-party property insurance and errors and omissions coverage – are not a… 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