National Insurance Law Forum

National Insurance Law Forum

Published By The Attorneys of the National Insurance Law Forum

Tag Archives: Recent Cases

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

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

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

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

New Washington Supreme Court Decision

Posted in Recent Cases
We wanted to alert you to a recent Washington Supreme Court case that alters the scope of the attorney client relationship between an insurer and coverage counsel.  In Cedell v. Farmers Ins. Co. of Washington, –Wn. – (February 21, 2013), the Washington Supreme Court created a presumption of no attorney-client privilege for "first party" insured’s… Continue Reading

NFL Bi-Coastal Insurance Coverage Litigation – Mired in Procedural Quagmires

Posted in Recent Cases
  Starting in July of 2011, the NFL and Riddell, the helmet manufacturer, began facing a barrage of suits from more than 3700 former NFL players who have alleged that concussions and other injuries sustained during their NFL careers had resulted in brain and other neurological damage and that the defendants failed to warn them… Continue Reading

The Next Insurance Storm Is In The Cloud

Posted in Recent Cases
The highest profile cyber incidents – such as major data breaches at Sony, Zappos, Global Payments, and Nationwide Insurance, and the disruption to Netflix’s service on Christmas Eve due to problems with Amazon’s cloud service – may dominate the news, but the bigger issue is just how pervasive such problems are.    … Continue Reading

Washington Rejects Binding Arbitration For Insurance Disputes

Posted in Recent Cases
Insurers who include binding arbitration provisions in policies delivered in Washington State will not be able to rely on those provisions.  In WSDOT v. James River Ins. Co., No. 87644-4, the Washington Supreme Court ruled that such provisions deprive Washington courts “of the jurisdiction of action against the insurer” in violation of RCW 48.18.200(1)(b).… Continue Reading

Total Prior Work Exclusion Is Unambiguous And Defeats The Duty To Defend

Posted in Recent Cases
The Ninth Circuit recently overturned the Northern District of California and found the insurer, American Safety Indemnity Company (“ASIC”), had no duty to defend its insured under the policy’s Total Prior Work Exclusion (“TPWE”).  Ghilotti Bros., Inc. v. American Safety Indemn. Co., 2012 WL 3745624 (9th Cir. Aug. 30, 2012) (unpublished).… Continue Reading

EPL Policies Should Be Reviewed With FLSA Damages In Mind

Posted in Recent Cases
Employers—who are often sued for discrimination, retaliation, breach of contract, and statutory violations—have increasingly turned to Employment Practices Liability Insurance (EPL) to protect themselves against a coverage gap for employment-related claims.  In turn, coverage disputes under EPL policies have led to litigation over how the policies should be interpreted and administered.  It should come as… Continue Reading

Alabama District Court Applies Financial Interest Exclusion To Defeat The Duty To Defend Under Real Estate Professional Errors And Omissions Policy

Posted in Recent Cases
The financial interest exclusion was recently applied to defeat an insurer’s duty to defend under a real estate professional errors and omissions policy – and explained through a memorably simple analogy – in Cont’l Cas. Co. v. Homecorp Mgmt., Inc., 2012 U.S. Dist. LEXIS 43210 (M.D. Al., March 29, 2012). … Continue Reading

The Fortuity And Known Loss Doctrines In Oregon

Posted in Recent Cases
With respect to the fortuity doctrine, Oregon courts generally recognize that there is a public policy against providing insurance for intentionally inflicted injury.  A-1 Sandblasting v. Baiden, 293 Or. 17, 26, 643 P.2d 1260 (1982) (although painter acted intentionally, his act was not the kind of purposeful infliction of injury that public policy places outside… Continue Reading

Does an Insurer “Waive” the Fortuity Requirement under an All Risk Policy By Failing to Exclude a Risk It Knows About?

Posted in Property Insurance, Recent Cases
  It is black letter law that in order to recover under an all risk policy, the insured has the burden of showing that its loss resulted from a fortuitous event. "Fortuitous" means happening by chance or accident, or occurring unexpectedly or without known cause. Black’s Law Dictionary 664 (7th ed. 1999).   If the insurer knows of… 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