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Category Archives: News

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Perspectives on the ALI Restatement: The Plain Meaning Rule or Presumption?

Posted in Liability Coverage, News
The American Law Institute (ALI) voted to approve the Restatement of the Law of Liability Insurance (Restatement) at its annual meeting on Tuesday, May 22, 2018, with sections of the Restatement being debated until the final vote.[1] The debate had resulted in many different drafts of the Restatement, with the Council of Advisors to the… Continue Reading

A Theoretical Safety on the Trigger of the Duty to Defend

Posted in Duty to Defend, Liability Coverage, News, Recent Cases
The Eleventh Circuit of the United States Court of Appeals recently decided Selective Insurance Company of the Southeast v. William P. White Racing Stables, Inc., et al., 2017 WL 6368843 (December 13, 2017), a case addressing limits upon what facts and legal theories may give rise to a duty to defend. In an unpublished opinion,[1]… Continue Reading

ALI Reinsurance Restatement Takes Another Step Towards Approval

Posted in Liability Coverage, News
Following last May’s tumultuous decision by the American Law Institute to defer a final vote on its proposed Restatement of Law, Liability Insurance, the Restatement reporters have been busy drafting new text to meet the concerns that were expressed by defense lawyers, state regulators and other groups in the weeks leading up to last May’s… Continue Reading

New Challenge to the ALI Restatement (Part Two)

Posted in News
In my post earlier today, I referenced the April 5 letter that the ALI has received from the Idaho Insurance Commissioner urging delay so that state regulators can have input concerning the final text of the Restatement of the Law of Liability Insurance.   I neglected to add that the ALI had earlier also posted a… Continue Reading

New Challenge to the ALI Restatement of the Law of Liability Insurance?

Posted in Bad Faith/Extra Contractual, Legislation, Liability Coverage, News
After seven years and countless drafts and revisions, the American Law Institute’s Restatement of the Law of Liability Insurance is scheduled for a final vote at the ALI’s Annual Meeting in Washington, D.C. on May 23, 2017.  Even as the project Reporters (Professors Tom Baker and Kyle Logue) start to contemplate life after this Restatement,… 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

2016: A Year of Anniversaries

Posted in Continuous or Progressive Property Damage, News, Uncategorized
Even as this annus horribilus passes into oblivion, we note several important anniversaries in 2016. Fifty years ago saw a confluence of legal theory, case law and insurance industry developments that  led ineluctably to the storm of mass tort litigation that crashed upon the insurance industry within a few years and that continues to plague us fifty… Continue Reading


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

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

Upcoming ALI CLE

Posted in News
Please join me for an upcoming American Law Institute CLE (ALI CLE) program–Additional Insured Coverage: Avoid Liability and Indemnification Pitfalls. The program is broadcasting live on April 20, 2016 from 1:00 — 2:30 p.m. ET, as a webcast and telephone seminar. ALI CLE is extending a 50% discount to referrals registering for this course. Please contact… 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

Boston College Law School Initiates Scholarship Colloquium

Posted in News
A few weeks ago, I co-chaired a symposium on the New Face of Insurance at the Boston College Law School.   The program was organized by the American College of Coverage and Extra-Contractual Counsel and presented in conjunction with the law school’s insurance studies program. Hot on the heels of that successful symposium, BC Law has announced a… Continue Reading

ILIA Launches Website

Posted in News
I’m pleased to announce that the Insurance Litigation Institute of America has launched a new website: ILIA, an institute of the Litigation Counsel of America, was founded by Diane Polscer, Julia Molander, Stacy Broman and me to provide a nationwide, but limited, network of highly skilled and experienced insurer and policyholder counsel to offer… Continue Reading

New Publication Addresses Critical CGL Issues

Posted in News
I’m pleased to report that fellow bloggers, Mike Aylward and Shaun Baldwin, were contributing authors of Critical Issues in CGL, 3d Edition, published by National Underwriter. This edition has been fully revised and updated, and provides keen insights and practical guidance on a number of complex topics, including: additional insured and contractual liability, business risk… Continue Reading

More Tripartite Trouble In Big Sky Country?

Posted in News
Fourteen years ago, the Montana Supreme Court heard a legal challenge that defense lawyers had brought against efforts by insurers to impose greater controls over case handling and billing.  The resulting decision in In Re Rules of Professional Conduct 2 P.3d 806 (Mont. 2000) put Montana at the forefront of the tripartite wars that were raging at… 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

The Most Important Coverage Rulings of 2013: Part I

Posted in News
 2013 was a year of triumph and tragedy for insurers. Positive financial results and the absence of domestic natural catastrophes such as Superstorm Sandy help to buoy the bottom line while the Marathon bombings in Boston and growing data concerning global warming raised the spectre of future uncertainty in underwriting risk. Disputes over the scope… Continue Reading