National Insurance Law Forum

National Insurance Law Forum

Published By The Attorneys of the National Insurance Law Forum

Tag Archives: Liability Coverage


Posted in Duty to Defend
Defending under a policy with a wasting limit is rife with pitfalls for both the insurer and defense counsel.  Provisions that transform a policy into a “wasting limits policy” often appear in professional liability policies, drop-down coverage situations, and excess policies. Policies with such wasting limits provisions go by many names: wasting, eroding, burning, exhausting,… 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 In an unpublished opinion,[1]… Continue Reading

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

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

Is It Time for a Codified Insured-Insurer Privilege?

Posted in Liability Coverage
There is no common law “Insured-Insurer privilege” that protects communications between them, such as the privilege that exists for spousal communications or attorney client communications. Did you know that in some jurisdictions an insured who is being provided a defense by an insurer under a reservation of rights could risk the waiver of attorney client… Continue Reading


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

Busy Month for NY Court of Appeals

Posted in Liability Coverage
  There’s been a good deal of activity in New York’s high court this February. Here’s the round-up: K2 Investment Group, LLC v. American Guarantee & Liability Ins. Co.: In this much-anticipated decision, the Court of Appeals declined to overrule Servidone Const. Corp. v. Security Ins. Co. of Hartford, 64 NY2d 419 (1985), by holding that an… Continue Reading

Can only the named insured satisfy the SIR, or can it be satisfied by other insurance or by the payment of a contractual indemnitor?

Posted in Liability Coverage
In its simplest terms, a self insured retention (“SIR”)  is an agreed sum that the insured agrees to pay before the insurance policy is required to respond to the loss.    Can only the named insured satisfy the SIR, or can it be satisfied by other insurance, by the payment of a contractual indemnitor or by a… Continue Reading

Missouri Bar Against Negligence Claims Against Churches Bars Coverage For Clergy Abuse Suit

Posted in Liability Coverage
When is it unreasonable for an insurer to benefit from a policyholder’s legal strategy in defending the underlying claim that the insurer is contesting coverage for? That was the question posed to the U.S. Court of Appeals for the Eighth Circuit in its consideration of a recent Missouri sexual abuse case in Chicago Ins. Co. v.… 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

More on Insurance and Indemnity Contracts

Posted in Liability Coverage
Diane’s October 18 post points up the distinction between insurance and indemnity contracts, and calls to mind another important point about these risk transfer mechanisms: to the extent that insurance and indemnity contracts operate independently of each other (a question apparently to be taken up by the Texas Supreme Court), they may not be co-extensive… Continue Reading

Additional Insured Status And Contractual Indemnity Provisions: Are You Really Covered?

Posted in Liability Coverage
“Additional insured” provisions are one of the most prevalent risk shifting techniques used in the insurance field today. Yet surprisingly, they remain one of the least understood for insurers, courts, and insureds. While debate in Oregon case law over the legal status of additional insured provisions has quieted down since the Oregon Supreme Court’s decision… Continue Reading

TCPA Damages are Remedial, Not Penal, According to Illinois Supreme Court

Posted in Liability Coverage
  The Illinois Supreme Court issued a ruling today, in Standard Mutual Insurance Company v. Lay, 2013 IL 114617 (2013), finding that a TCPA statutory award is remedial in nature, and not penal. Therefore, it reversed the Appellate Court’s determination that the TCPA-prescribed damages of $500 per violation constitutes punitive damages which are not insurable as… Continue Reading

Horizontal exhaustion bumps up against anti-stacking

Posted in Liability Coverage
Asbestos claims coverage litigation pits policyholders against insurers, and insurers against insurers, and raises novel issues and complex interaction between insurance concepts, policy language, and common sense. In the latest from the ongoing saga of Kaiser Cement and Truck Insurance – Kaiser Cement & Gypsum Corp. v. Ins. Co. of the State of PA / Truck… Continue Reading

Are TCPA Penalties Uninsurable? How about Punitive Damages?

Posted in Liability Coverage
    The Illinois Supreme Court will soon be addressing whether the statutory penalty of $500 per faxed advertisement allowed under the TCPA is in the nature of punitive damages and uninsurable. It is anticipated that the Supreme Court will  also address the insurability of punitive damages generally, an issue never squarely addressed by the Supreme Court.… Continue Reading

The Case of the Vanishing Self-Insured Retention

Posted in Liability Coverage
Rather than declaring that self-insurance is void as against the public policy of Rhode Island, the Supreme Court instead interpreted 42-14.1-2(a) as only allowing self-insurance to the extent that it is permitted by regulations issued by the Department of Business Regulation. As the DBR has not promulgated any such regulations to date, the court declined to give effect to the SIR provisions in the Columbia Casualty policy.… Continue Reading