National Insurance Law Forum

National Insurance Law Forum

Published By The Attorneys of the National Insurance Law Forum

Tag Archives: merriman

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

Notice of Disclaimer Sent Only to Additional Insured’s Carrier Ineffective under NY Statute Requiring Timely Disclaimer to Insured

Posted in Additional Insured
New York’s Appellate Division, Second Department, holds that a disclaimer or denial of coverage sent to an additional insured’s carrier, which was not an agent for receiving such notice, was ineffective to disclaim coverage under N.Y. Ins. Law Section 3420(d). In Harco Construction, LLC v. First Mercury Insurance Company, Harco had entered into a construction… Continue Reading

Contractor’s Tools Exclusion Bars Coverage for Crane Collapse under Builder’s Risk Policy

Posted in Builder's Risk
In Lend Lease (US) Construction LMB Inc. v. Zurich American Insurance Company, New York’s high court holds that the contractor’s tools exclusion barred coverage for a tower crane collapse caused by Superstorm Sandy under a builder’s risk policy. The crane was installed on a reinforce slab on the 20th floor of the building, and was… Continue Reading

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

Unsigned Purchase Order Deemed Written Contract under AI Endorsement

Posted in Additional Insured, Liability Coverage
The written contract requirement in an additional insured endorsement does not require that the contract be signed unless the endorsement so provides, holds New York’s Appellate Division, First Department in Zurich American Insurance Company v. Endurance American Specialty Insurance Company. The endorsement provided that additional insureds included “[a]ny entity required by written contract … to… 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

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

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

Erosion of the Attorney-Client Privilege in NY?

Posted in Practice and Procedure
In National Union Fire Ins. Co. of Pittsburgh, Pa. v. TransCanada Energy USA, Inc., a New York appellate court holds that documents prepared in the ordinary course of an insurer’s investigation of whether to pay or deny a claim—documents pre-dating an insurer’s rejection of the claim—are not protected from disclosure by the attorney client privilege,… Continue Reading

Policyholder’s Claim against Insurer for Consequential Damages Survives Motion for Summary Dismissal

Posted in Bad Faith/Extra Contractual
In Mutual Association Administrators, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, a New York appellate court affirmed a lower court order denying summary dismissal of a claim for consequential damages against an insurer arising from an alleged breach of the insurer’s obligation to defend and indemnify its policyholder in an underlying ERISA… 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

NY Legislature Passes Bill Regulating Insurance Certificates

Posted in News
Recently passed legislation, if signed by New York’s governor, will regulate the use of insurance certificates in New York. A top legislative priority for the Independent Insurance Agents & Brokers of New York, Inc., the bill would, among other things, clarify that insurance certificates don’t alter the scope of coverage provided by insurance policies, and would… Continue Reading

LCA Forms New Insurance Law Institute

Posted in News
Diane Polscer and I are excited to announce formation of the Insurance Litigation Institute of America, an institute of the Litigation Counsel of America. Founded with colleagues Julia Molander and Stacy Broman, ILIA is a nationwide, but limited, network of highly skilled and experienced insurer and policyholder counsel that will offer programs and publications addressing critical… Continue Reading

New York State-Federal Judicial Council Issues Report on Pre-Litigation Preservation of ESI

Posted in News
This is a bit off-topic for our blog, but worthy of note. The Advisory Group to the New York State-Federal Judicial Council recently issued a report analyzing the extent to which there are differences in the ways in which New York State and federal courts treat pre-litigation conduct regarding the creation, retention, and destruction of… Continue Reading

Policyholder Entitled to Attorneys’ Fees Incurred in Defending Coverage Action by Excess Insurer

Posted in Liability Coverage
In RLI Insurance Company v. Smiedala, 2010 NY Slip Op 06836 (Oct. 1, 2010) a New York appellate court recently applied a familiar rule in holding that a policyholder who prevails in a declaratory judgment action filed against it by its insurer is entitled to recover attorneys’ fees and costs incurred in defending that action.… Continue Reading

Severability Clause Given No Effect on Exclusion Applicable to “Any Insured”

Posted in Liability Coverage
On June 23rd, Sara reported on a recent California Supreme Court decision which held that an intentional acts exclusion that applied to the conduct of “an insured” did not apply to negligent supervision claims against a co-insured, reasoning that the severability clause rendered the exclusion ambiguous.  A contrary result obtained in Howard & Norman Baker, Ltd.… Continue Reading

Blanket AI Endorsement Triggered by Language Requiring Insurance for “Mutual Benefit” of Parties

Posted in Liability Coverage
In Kassis v. The Ohio Casualty Company, 2009 NY Slip Op 05207 (June 25, 2009), the New York Court of Appeals considered whether a provision in a lease agreement requiring insurance for the “mutual benefit” of landlord and tenant was sufficient to trigger coverage under the terms of a blanket additional insured endorsement extending coverage… Continue Reading

No Duty to Defend Affirmative Defenses

Posted in Liability Coverage
In P.J.P. Mechanical Corporation v. Commerce and Industry Insurance Company, 2009 N.Y. Slip Op. 04984 (June 18, 2009), New York’s Appellate Division, First Department, held that an insurer has no duty to defend its insured against an affirmative defense based on a claim of offset raised in the responsive pleadings. Imposing such a duty, held… Continue Reading

New York Court of Appeals Affirms Trigger of SUM Coverage

Posted in Auto Liability Coverage
In a 5-2 decision, the New York Court of Appeals held in Matter of Allstate Insurance Company, 2009 N.Y. Slip Op. 04300 (June 4, 2009) that Supplemental Uninsured/Underinsured Motorists (“SUM”) coverage is not triggered where payments to multiple insureds reduces the liability limits of the tortfeasor’s policy. Thus, SUM benefits were unavailable to co-occupants of a… Continue Reading

Insurer Estopped from Seeking Recission of Life Policy for Collection and Retention of Premiums

Posted in Life, Health & Disability
In an action to rescind life insurance policies for fraud and misrepresentation, a New York appellate court recently held that although the action was timely filed within the statutory two-year incontestability period, the insurer was estopped from seeking rescission for having collected and retained nine premium payments after commencing suit. In Security Mutual Life Insurance… Continue Reading