National Insurance Law Forum

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Tag Archives: duty to defend

Second Circuit Deems Policy Ambiguous Regarding Post-Exhaustion Defense

Posted in Duty to Defend, Liability Coverage
By David M. Knapp, Ward Greenberg Heller & Reidy LLP In American Commercial Lines LLC, et al. v. Water Quality Insurance Syndicate, 16-91-cv(L) (2d Cir. Feb. 10, 2017), the Second Circuit reversed a decision from the Southern District of New York, which held that a maritime insurer was obligated to continue defending its policyholder in… 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

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

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

Extrinsic Evidence: when can it be considered in determining the duty to defend?

Posted in Duty to Defend
 Duty to defend:  Insurers cannot always rely on extrinsic evidence to determine a duty to defend.    While there are circumstances where Illinois courts will look at extrinsic evidence to determine the duty to defend, courts will not look at extrinsic evidence that contradicts the allegations of the complaint.   Nor, apparently, will Illinois courts look… 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

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

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

Extrinsic Evidence and the Duty to Defend

Posted in News
When does an insurer have a duty - or not - to defend an insured, and what facts can be used to make this determination? These are two of the most common, yet challenging questions faced by insurers. To help clarify the issue, the topic of today's post is the use of extrinsic evidence for purposes of determining the duty to defend in Oregon. As part of our discussion, we address the use of extrinsic evidence endorsements and their potential utility.… 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

Where A “Known Loss” Defense Fails, A CGL Insurer May Be Estopped from Relying on its Defenses To Coverage.

Posted in Liability Coverage
After writing on the known loss issue presented by the Nipponkoa case (which was the subject of my Feb. 21, 2012 blog),  I was alerted to a January 15, 2011 decision rendered by US District Court Judge Lefkow in Zurich Specialties London Ltd. v. Village of Bellwood, et. al, No. 07 CV 2171, US. Dist. Ct.,… Continue Reading

A Review Of Significant Oregon Appellate Decisions Of 2011

Posted in Recent Cases
2011 is not likely to be remembered as a year during which Oregon’s Supreme Court or Court of Appeals issued opinions that have a dramatic impact on insurance coverage litigation in Oregon. But two related environmental cases that have long histories continued to provide Oregon’s appellate courts with opportunities to address, if not necessarily answer, issues… Continue Reading

The Oregon Supreme Court Examines The Application Of An Statutory Amendment Excepting “Surplus Lines Insurance Policies” To Oregon’s Statute Allowing A Plaintiff Bringing An Action On An Insurance Policy To Recover Attorney Fees

Posted in Recent Cases
In ZRZ Realty Co., et al. v. Beneficial Fire and Casualty Insurance Company, et al. (OR SC S057155), the Oregon Supreme Court allowed the plaintiffs to recover part of their attorney fees incurred to establish insurance coverage in a dispute regarding environmental contamination resulting from the plaintiffs’ activities dismantling U.S. Navy and merchant marine vessels… Continue Reading

Ninth Circuit Affirms Ruling That Insurer Had No Duty To Defend Insured Against A Sexual Abuse Suit

Posted in Recent Cases
In Schorno v. State Farm Fire and Casualty Company, 2011 U.S. App. LEXIS 16211 (9th Cir August 3, 2011), the Ninth Circuit Court of Appeals in an unpublished opinion affirmed a ruling of the U.S. District Court for the Western District of Washington granting State Farm Fire & Casualty Co.’s motion for summary judgment that… Continue Reading

Division I Of The Washington State Court Of Appeals Answers, In The Negative, The Much Debated Issue Of Defense Costs Recoupment

Posted in Recent Cases
In March of this year, we noted that whether an insurer can seek reimbursement of defense costs paid, where it is later determined there was no duty to defend, is an open issue in Washington. While the issue has still not been addressed by the Washington Supreme Court, in National Surety Corp. v. Immunex, 2011 Wash.App.… Continue Reading

Ninth Circuit (Erroneously) Holds That An Insurer Which Breaches The Duty To Defend May Not Contest Indemnity

Posted in Recent Cases
In Desrosiers v. Hudson Specialty Ins. Co., 2011 U.S. App. LEXIS 12591 (9th Cir. Or. June 21, 2011), the Ninth Circuit found that an insurer had a duty to defend an insured against a complaint alleging negligence and intentional torts. The Ninth Circuit also found that the insurer had a duty to indemnify, stating that “an… Continue Reading

Oregon’s Court Of Appeals Finds No Duty To Defend Where The Underlying Complaint Does Not Plead Collateral Damages With Specificity

Posted in Recent Cases
In State Farm Fire and Casualty Co. v. American Family Mutual Ins. Co., A142944 (April 6, 2011), the Oregon Court of Appeals found that an insurer had no duty to defend its insured against a negligence claim where the unambiguous underlying complaint did not specially plead injury to property covered by the insurer’s policy.… Continue Reading

Without Alleging Insured’s Conduct Arose Out Of His Occupation As A Real Estate Broker The “Business Exclusion” Does Not Eliminate The Duty To Defend

Posted in Recent Cases
In Allstate Insurance Company v. O’Connell, 2010 U.S. Dist. LEXIS 117142 (D. Or. Nov 2, 2010), the court held the “business exclusion” of the policy did not eliminate the insurer’s duty to defend the insured against a negligence action arising out of personal injury in a duplex which the insured contracted to have built on… Continue Reading