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Preview: LexisNexis® Mealey's™ Insurance Legal News

LexisNexis® Mealey's™ Insurance Legal News

Headline Insurance Legal News from LexisNexis®


3rd Circuit Says Asbestos Exclusion Is Enforceable, Insurer Owes No Coverage
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on April 21 reversed a $36 million judgment entered against an insurer in an asbestos coverage dispute after determining that an asbestos exclusion is not ambiguous and bars coverage for underlying asbestos-related claims filed against the insured (General Refractories Company v. First State Insurance Co., et al., No. 15-3409, 3rd Cir.).

Insurer To N.Y. High Court: Asbestos Defense Costs Are Not Held To Reinsurer's Cap
NEW YORK - A reinsurer must cover an insurer's costs to defend an insured in asbestos litigation beyond its total liability cap because a prior New York decision does not compel a conclusion that the cap includes both indemnity and defense costs, the insurer argues in an April 14 appellant brief regarding a certified question to the New York Court of Appeals (Global Reinsurance Corporation of America, successor in interest Constitution Reinsurance Corp. v. Century Indemnity Co., successor interest to CCI Insurance Co., successor interest to Insurance Company of North America, No. CTQ-2016, 0005, N.Y. App.).

Pennsylvania Court Says Continuous Trigger Applies In Environmental Dispute
HARRISBURG, Pa. - The Pennsylvania Commonwealth Court on April 21 adopted an insured's application of a continuous trigger of coverage rather than the insurer's application of a first manifestation trigger of coverage in an environmental contamination coverage dispute after determining that environmental contamination claims are similar to asbestos bodily injury claims, which are subject to a continuous trigger pursuant to precedent established by the Pennsylvania Supreme Court (Pennsylvania Manufacturers' Association Insurance Co. v. Johnson Matthey Inc., et al., No. 330 M.D. 2015, Pa. Cmwlth.).

Rescission Ends Coverage For Lead Paint Injuries, Insurer Says To 4th Circuit
RICHMOND, Va. - Having been rescinded, a commercial general liability insurance policy did not provide coverage for lead paint claims as a judgment creditor was not an intended beneficiary of the policies at the time of rescission, the insurer argues in a March 30 brief to the Fourth Circuit U.S. Court of Appeals (CX Reinsurance Co. Ltd. v. Brayon Loyal, No. 16-2180, 4th Cir.).

Wisconsin Panel Says Extrinsic Evidence Should Have Been Considered
WAUKESHA, Wis. - Because a trial court erred in failing to consider extrinsic evidence presented in a suit seeking damages for mold and sewage contamination, the District II Wisconsin Court of Appeals on April 19 reversed and remanded a summary judgment ruling entered in the insurer's favor (The Stimac Family Trust, by Mark Stimac, trustee, v. Wisconsin Power and Light Co., et al., No. 2016AP748, Wis. App., Dist. 2, 2017 Wisc. App. LEXIS 272).

New York Federal Judge Says Dismissal Of Insured's Suit Is Not Appropriate
UTICA, N.Y. - Dismissal of an insured's pro se lawsuit seeking coverage for water and mold damages is not appropriate because the insured attempted to timely file the suit within the policy's two-year limitations period, a New York federal judge said April 19 (Edmund Sanderson v. First Liberty Insurance Corp., No. 16-644, N.D. N.Y., 2017 U.S. Dist. LEXIS 59330).

Insurer Did Not Impermissibly Depreciate Labor Costs, 10th Circuit Affirms
DENVER - The 10th Circuit U.S. Court of Appeals on April 21 affirmed a lower federal court's finding that a homeowners insurer did not violate its policy when it depreciated labor costs in determining the actual cash value of an insured's loss following hail and water damage (Margaret Graves v. American Family Mutual Insurance Co., No. 15-3187, 10th Cir., 2017 U.S. App. LEXIS 6980).

Jury Enters Almost $8M Verdict Against Supplier Of Contaminated Seeds
SANTA ANA, Calif. - A California federal jury on April 14 entered an almost $8 million verdict against a company that supplied pomegranate seeds contaminated with hepatitis A after determining that the plaintiffs proved that the company was the source of the contaminated seeds (Townsend Farms Inc. v. Goknur Gida Maddeleri Enerji Imalat Ithalat Ihracat Ticaret ve Sanayi A.S. et al., No. 15-837, C.D. Calif.).

Indiana Federal Judge Denies Insured's Motion For Preliminary Injunction
INDIANAPOLIS - An Indiana federal judge on April 11 denied an insured's motion for a preliminary injunction after determining that the insured has already shown that it can avoid suffering any irreparable harm by paying for its own site remediation contractor rather than switching to the insurers' choice of contractor while its lawsuit against its insurers is pending (Ranburn Corp. v. Argonaut Insurance Co., et al., No. 16-088, N.D. Ind., 2017 U.S. Dist. LEXIS 54833).

Federal Magistrate Judge Says Some Emails Are Protected By Work Product Doctrine
FORT WAYNE, Ind. - None of the approximately 185 emails between an insured and two of its environmental contractors are protected by the attorney-client privilege; however, a portion of the emails on are protected by the work product doctrine, an Indiana federal magistrate judge determined April 14 after conducting an in camera review of the emails sought by an insurer in an environmental contamination coverage dispute (Valley Forge Insurance Co. v. Hartford Iron & Metal Inc., et al., No. 14-006, N.D. Ind.; 2017 U.S. Dist. LEXIS 57370).

Ohio Federal Judge: Insurer Failed To Show Good Cause Exists For Protective Order
CINCINNATI - An Ohio federal judge on April 11 denied an insurer's motion for a protective order regarding a number of documents and communications sought by an insured seeking coverage for underlying asbestos claims after determining that the insurer failed to meet its burden of establishing that there is good cause for a protective order (The William Powell Co. v. National Indemnity Co., et al., No. 14-807, S.D. Ohio, 2017 U.S. Dist. LEXIS 55148).

Insurer Says Its Payment Of Asbestos Claims Was Reasonable
SYRACUSE, N.Y. - An insurer told a federal court in New York on April 7 that its payments to its insured were reasonable and that a reinsurer's challenge to those payments is contrary to the follow-the-fortunes doctrine (Utica Mutual Insurance Company v. Century Indemnity Company, No. 13-cv-00995, N.D. N.Y.).

3rd Circuit: Insurers Have No Duty To Defend, Indemnify Faulty Workmanship Claims
PHILADELPHIA - Commercial general liability insurers have no duty to defend or indemnify an insured in a shoddy workmanship lawsuit filed by the former owner of an apartment complex, the Third Circuit U.S. Court of Appeals ruled April 11, affirming summary judgment for the insurers (Mega Construction Corp. v. XL America Group, et al. v. Travelers Casualty Insurance Company of America v. Ohio Casualty, No. 16-2639, 3rd Cir., 2017 U.S. App. LEXIS 6210).

Fact Issues Exist On When Damage Manifested Under Insurance Policies, Judge Says
TRENTON, N.J. - Factual issues remain on whether damage caused by a window subcontractor manifested before or after an insurer's policy periods, a New Jersey federal judge ruled April 12, denying summary judgment to two insurers in a contribution lawsuit over defense costs incurred by the one insurer in a construction defects case (American Fire and Casualty Co. v. Crum & Forster Specialty Insurance Co., No. 14-04696, D. N.J., 2017 U.S. Dist. LEXIS 56450).

Judge Rules On Insurers' Late Notice, Suits Limitations Defense In Coverage Dispute
TACOMA, Wash. - In a coverage dispute between a condominium association and several "all-risk" insurers, a Washington federal judge on April 12 granted in part and denied in part summary judgment on two insurers' late notice defense but granted summary judgment entirely on their suit limitations defense (Eagle Harbour Condominium Association v. Allstate Insurance Co., et al., No. 15-5312, W.D. Wash., 2017 U.S. Dist. LEXIS 56292).

Judge: Fact Issues Remain On If Covered Peril Caused Insured's Continuous Damage
TACOMA, Wash. - Questions of fact exist on whether a covered peril caused continuous damage to a condominium association's common areas and buildings under several "all-risk" insurance policies, a Washington federal judge ruled April 10, denying summary judgment to the association and insurers (Eagle Harbour Condominium Association v. Allstate Insurance Co., et al., No. 15-5312, W.D. Wash., 2017 U.S. Dist. LEXIS 54761).

Federal Judge Denies Reconsideration Of Ruling In Contamination Dispute
TRENTON, N.J. - A New Jersey federal judge on April 5 denied motions for reconsideration filed by two insurers and their insured after determining that the court did not commit a clear error of law in interpreting the applicability of the policies' per-occurrence limits and absolute pollution exclusion in an environmental contamination dispute (Castoro & Co. Inc. v. Hartford Accident and Indemnity Co. Inc., et al., No. 14-1305, D. N.J., 2017 U.S. Dist. LEXIS 52140).

4th Circuit: Insured's Faulty Design Of Student Housing Foundation Is Covered
RICHMOND, Va. - A professional liability insurance policy provided coverage for a general contractor's liability for defective design of a building's foundation, which resulted in the contractor becoming responsible to pay $1.77 million as part of the costs to repair, the Fourth Circuit U.S. Court of Appeals held April 4, affirming summary judgment on an insured's breach of contract counterclaim (Westchester Surplus Lines Insurance Co. v. Clancy & Theys Construction Co., Nos. 15-2299 & 15-2373, 4th Cir., 2017 U.S. App. LEXIS 5796).

Excess Insurer Owes No Coverage For Costs Incurred By Well Blowout, Judge Says
AUSTIN, Texas - A Texas federal judge on April 6 granted an excess liability insurer's motion for summary judgment after determining that the excess insurer has no duty to contribute to an insured's costs incurred as the result of an oil well blowout (Starnet Insurance Co., et al., v. Federal Insurance Co., No. 16-664, W.D. Texas, 2017 U.S. Dist. LEXIS 53172).

Coverage Not Barred For Power Plant Explosion Damages, Federal Judge Says
BRIDGEPORT, Conn. - A Connecticut federal judge on April 6 granted a motion for summary judgment in favor of plaintiffs seeking to recover a $13.5 million judgment entered against an insured for damages and personal injuries incurred as a result of a power plant explosion after determining that a "wrap-up" exclusion in the insurer's policy is ambiguous and cannot be construed as a bar to coverage (James Thompson et al., v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 14-259, D. Conn., 2017 U.S. Dist. LEXIS 52673).

Judge Remands Injury Claims After Insurer Seeking Arbitration Is Dismissed
ALEXANDRIA, La. - After granting a request to dismiss a Bermuda insurer who removed an action filed by an injured electrician from a state court based on an arbitration agreement with an energy company named as a defendant, a Louisiana federal judge on April 3 granted the claimant's motion to remand the case to a state court for lack of jurisdiction (Garrett L. Faulk, et al. v. Alcoa Inc., et al., No. 2:16-CV-01461, W.D. La., 2017 U.S. Dist. LEXIS 51675).

Insurer Relies On Follow-The- Fortunes Rule To Show Reinsurer Must Cover Claims
NEW YORK - An insurer told the Second Circuit U.S. Court of Appeals on April 3 that the language of certain reinsurance agreements are the same as if the agreements had specific follow-the-fortunes provisions (Utica Mutual Insurance Company v. Clearwater Insurance Company, No. 16-cv-2824 and Utica Mutual Insurance Company v. Clearwater Insurance Company, No. 16-2535, 2nd Cir.).

Liquidator Of Insolvent Insurer Asks Court To Approve $10M Settlement
CONCORD, N.H. - The liquidator of an insolvent insurer asked a New Hampshire court on March 30 to approve a $10 million settlement between the liquidator and a manufacturing company that has had asbestos-related claims brought against it (In the Matter of the Liquidation of The Home Insurance Company, No. 03-E-0106, N.H. Sup., Merrimack Co.).

Insurer Files Complaint, Says No Coverage Owed For Underlying Asbestos Claims
CLEVELAND - No coverage is owed to an insured for thousands of underlying asbestos bodily injury claims because the coverage limits of the primary policies have not been fully exhausted, an excess insurer argues in a lawsuit filed April 5 in Ohio federal court against the insured (Berkshire Hathaway Specialty Insurance Co., f/k/a Stonewall Insurance Co. v. Goodyear Tire & Rubber Co., No. 17-714, N.D. Ohio).

15 Lawsuits Over Defects In Insureds' Windows Constitute Separate 'Occurrences'
DES MOINES, Iowa - Fifteen lawsuits against insureds for alleged negligently designed or installed windows constitute separate "occurrences" under comprehensive general liability policies, an Iowa federal judge ruled March 31, granting partial summary judgment to the insureds (Pella Corp., et al. v. Liberty Mutual Insurance Co., No. 11-00273, S.D. Iowa).

New York Law Applies In Environmental Dispute, Delaware High Court Says, Reversing
WILMINGTON, Del. - The Delaware Supreme Court on March 23 determined that the law of New York should be applied in a dispute over the allocation of environmental contamination claims because New York has the most significant relationship with the parties and applying the law of the state in which an environmental cleanup site is located, as proposed by the lower court, would result in an inconsistent application of a policy's contract language (Chemtura Corp. v. Certain Underwriters at CCLC Lloyd's, et al., No. 371, 2016, Del. Sup., 2017 Del. LEXIS 127).

California Federal Judge: Policies Cannot Be Stacked; Insured Cannot Recover $27M
RIVERSIDE, Calif. - A noncumulation clause included in three umbrella policies operates as an anti-stacking provision, preventing the insured from stacking the three policies' $9 million limits to cover costs for a landfill cleanup, a California federal judge said March 8 (The Insurance Company of the State of Pennsylvania v. County of San Bernardino, No. 16-0128, C.D. Calif., 2017 U.S. Dist. LEXIS 45031).

Federal Judge Says Insurer Is Entitled To Reimbursement Of Costs Paid Under Deductible
SAN FRANCISCO - An insurer involved in an environmental contamination coverage dispute is entitled to reimbursement of the deductible it paid on behalf of its insured because the policy at issue specifically states that the deductible includes claim expenses such as defense costs, a California federal judge said March 29 in granting the insurer's motion for partial summary judgment (American Guarantee and Liability Insurance Co., et al. v. Technichem Inc., et al., No. 15-03611, N.D. Calif., 2017 U.S. Dist. LEXIS 47103).

Policy Clearly Excludes Coverage For Black Lung Disease Claim, Judge Finds
KANSAS CITY, Kan. - No coverage is provided for an underlying black lung disease claim filed by a former coal miner because the insured failed to purchase an endorsement that would have provided coverage for black lung disease claims, a Kansas federal judge said March 30 (Liberty Mutual Fire Insurance Co. v. The Clemens Coal Co., et al., No. 14-2332, D. Kan., 2017 U.S. Dist. LEXIS 49889).

Man's Land-Based Asbestos Work Dooms Insurer's Action Seeking To Recoup Benefits
NEW ORLEANS - The court lacks jurisdiction over an employer and its insurer's action seeking to recover benefits paid under the Longshore and Harbor Workers' Compensation Act (LHWCA) to the widow of a primarily land-based worker, a federal judge in Louisiana held March 13 (Signal Mutual Indemnity Association Ltd., et al. v. Asbestos Corp. Ltd., et al., No. 15-00633, M.D. La.).

Kaiser Gypsum Seeks Deadline Extension While Insurers Seek Dismissal Of Case
CHARLOTTE, N.C. - Chapter 11 debtor Kaiser Gypsum Co. on March 7 asked a North Carolina federal bankruptcy court for more time to file a plan of reorganization, two weeks after several insurance companies told the court the case should be dismissed because it was filed in bad faith (In re Kaiser Gypsum Company, Inc., et al., No. 16-31602, W.D. N.C. Bkcy.).

Maryland Federal Judge Says Temporary Restraining Order Is Not Warranted
BALTIMORE - A Maryland federal judge on March 22 denied an underlying plaintiff's motion for a temporary restraining order seeking to ban an insurer and its insured from reaching a settlement for an underlying judgment awarded for personal injuries in a lead paint exposure suit (CX Reinsurance Co. Ltd., v. Benjamin L. Kirson, et al., No. 15-3132, D. Md., 2017 U.S. Dist. LEXIS 41230).

Dismissal Appropriate Based On Insurer's Withdrawal Of Reservation Of Rights
PHOENIX - Dismissal of an insurer's suit seeking a coverage declaration for an underlying state court lawsuit alleging personal injury claims caused by pigeon droppings is appropriate because the insureds entered into an agreement with the underlying plaintiff and the insurer withdrew its reservation of rights, an Arizona federal judge said March 22 in granting the insureds' motion to dismiss (American Family Mutual Insurance Co. v. Scottsdale Casitas Condominium Association, et al., No. 16-2289, D. Ariz., 2017 U.S. Dist. LEXIS 42343).

Judge Awards $187,604.17 For Costs Associated With Insured's Work On Fuel Tank
HOUSTON - Granting a motion for final entry of judgment, a Texas federal judge ruled March 29 that a commercial general liability insurer owes a contractor $187,604.17 for costs associated with an insured subcontractor's work on a fuel tank (Mid-Continent Casualty Co. v. Petroleum Solutions, Inc., et al., No. 09-0422, S.D. Texas, 2017 U.S. Dist. LEXIS 46285).

Judge: Water Exclusion Bars Coverage To Insureds For Damage From Collapsed Pipe
MIAMI - An insurance policy's water exclusion precludes payment to insureds for water damage and other repairs stemming from their collapsed and backed-up pipe, a Florida federal judge ruled March 28, granting summary judgment to the insurer (Ken Cameron and Michelle Cameron v. Scottsdale Insurance Co., No. 16-21704, S.D. Fla., 2017 U.S. Dist. LEXIS 45474).

Issues Of Fact Exist On Cause Of Collapse And Insured's Knowledge, Federal Judge Says
PEORIA, Ill. - Because questions of fact exist regarding the cause of the collapse of a building's second floor and the insured's knowledge of the condition of the building, an Illinois federal judge on March 21 denied an insurer's motion for summary judgment (WAMFAM5 Inc. v. Nova Casualty Insurance Co., No. 15-1195, C.D. Ill., 2017 U.S. Dist. LEXIS 40159).

Court Did Not Abuse Its Discretion In Staying Coverage Issues, Illinois Panel Says
CHICAGO - An Illinois appeals panel on March 24 found that a lower court did not abuse its discretion by staying litigation as to an insurance policy's "care, custody, or control" and "professional services" exclusions in a coverage dispute arising from 65 underlying lawsuits alleging that the failure of the insured's cryogenic tanks caused semen and testicular tissue specimens to become unusable (Sentry Insurance v. Continental Casualty Co., et al., No. 1-16-1785, Ill. App., 1st Dist., 5th Div., 2017 Ill. App. LEXIS 163).