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Category Archives: Recent Cases

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The Question of Allocation in Contribution Claims Between Insurers

Posted in Liability Coverage, Recent Cases
Often a number of insurers are involved in claims that concern damage that takes place over several years such as environmental damage claims.  Oregon law allows claims for contribution by non-settling insurers against settling insurers under certain circumstances, Certain Underwriters v. Mass. Bonding and Ins. Co., 235 Or. App. 99, 230 P.3d 103 (2010), and… Continue Reading

Colorado Court of Appeals follows national equitable subrogation trend rejecting excess carrier’s bad faith claim against primary carrier.

Posted in Bad Faith/Extra Contractual, Excess and Umbrella Insurance, Recent Cases
By Stacy Broman and Danielle Dobry on April 11, 2018 Recently, the Colorado Court of Appeals in Preferred Professional Ins. Co. v. The Doctors Co., No. 17CA0405, 2018 WL 1633269 (Colo. Ct. App. Apr. 5, 2018) determined whether an excess insurer pursuing recovery under an equitable subrogation theory for a primary insurer’s failure to settle… Continue Reading

Tenth Circuit finds no duty to defend alleged TCPA violations.

Posted in Duty to Defend, Liability Coverage, Recent Cases
By Stacy Broman and Danielle Dobry on March 7, 2018 Posted in Duty to Defend, Liability Coverage, Recent Cases The Tenth Circuit Court of Appeals recently decided ACE American Insurance Co. v. Dish Network, LLC, No. 17-1140, 2018 WL 988404 (10th Cir. Feb. 21, 2018), a case involving whether statutory damages and injunctive relief  under… 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 In an unpublished opinion,[1]… Continue Reading

Lessons learned from the Georgia Court of Appeals’ ruling in Hughes concerning an insurer’s good faith settlement obligations.

Posted in Bad Faith/Extra Contractual, Recent Cases
By Stacy Broman and Danielle Dobry on January 16, 2018 The Georgia Court of Appeals recently decided Hughes v. First Acceptance Ins. Co. of Georgia, No. A17A0735, 2017 WL 5013371 (Ga. Ct. App. Nov. 2, 2017), a case involving whether an insurer was liable for negligence or bad faith failure to settle. The Court of… Continue Reading

Washington Supreme Court decision raises questions for law firms that both represent insurers and defend the insurer’s policyholders

Posted in Duty to Defend, Liability Coverage, Recent Cases
The Washington Supreme Court recently decided Arden v. Forsberg & Umlauf, P.S., 2017 Wash. LEXIS 911 (September 14, 2017), a case involving the ethical obligations of law firms retained by an insurer to defend the insurer’s policyholder.  While the Court of Appeals had held that a law firm with an insurer for a client may… Continue Reading

Certain Underwriters v. Mass. Bonding and Ins. Co. Court of Appeals Decision

Posted in Appeals, Recent Cases
The Oregon Court of Appeals delivered a decision in the Certain Underwriters v. Mass. Bonding and Ins Co, 287 Or App 279 (2017).  The trial court’s decision to dismiss London’s contribution claims was affirmed.  The Court of Appeals decided that the trial court properly concluded that there had been “no final judgment after exhaustion of… Continue Reading

Noncumulation Clause Results in “All Sums” Allocation for Long-Tail Environmental Liabilities

Posted in Recent Cases
By David M. Knapp, Ward Greenberg Heller & Reidy LLP Applying the New York Court of Appeal’s landmark Viking Pump decision for the first time, the Second Circuit recently held that an “all sums” allocation applied to policies issued to Olin Corporation by OneBeacon American Insurance Company in a long-tail environmental coverage dispute. Olin Corp.… Continue Reading

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