Preview: LexisNexis® Mealey's™ Emerging Insurance Disputes Legal News
LexisNexis® Mealey's™ Emerging Insurance Disputes Legal News
Headline Emerging Insurance Disputes Legal News from LexisNexis®
Panel Partly Reverses Ruling In Directors, Officers Liability Coverage Dispute
LOS ANGELES - In reversing a lower court in part, a California appeals panel on March 8 held that although a directors and officers liability insurance policy's "Willful Misconduct Exclusion" barred coverage for losses brought about by fraud or criminal acts, the exclusion did not apply to defense expenses (Mitchell J. Stein v. Axis Insurance Company, et al., No. B265069, Calif. App., 2nd Dist., Div. 1, 2017 Cal. App. Unpub. LEXIS 1628).
Judge: No Directors, Officers Liability Coverage Owed For Promissory Note Dispute
HARTFORD, Conn. - A Connecticut federal judge on Feb. 28 dismissed breach of contract, unjust enrichment, conversion and declaratory judgment claims against a directors and officers liability insurer, finding that the insured's failure to provide the insurer with timely notice of an underlying claim negated coverage (J. Graham Zahoruiko v. Federal Insurance Co., et al., No. 15-474, D. Conn., 2017 U.S. Dist. LEXIS 28204).
Judge: Breach Of Contract Suit Against Professional Liability Insurer Is Timely
TAMPA, Fla. - A Florida federal judge on March 13 rejected a professional liability insurer's argument that a breach of contract lawsuit brought by the insured's assignees is barred by a five-year statute of limitations, denying the insurer's motion to dismiss (Mark Chapman, et al. v. ACE American Insurance Co., No: 16-2111, M.D. Fla., 2017 U.S. Dist. LEXIS 35347).
Judge: Insured Owed $100,000 Sublimit Under Policy's 'Known Claims' Endorsement
HUNTINGTON, W. Va. - A West Virginia federal judge on March 8 found that a professional limited liability company insured is entitled to a $100,000 sublimit under the "known claims" endorsement of an accountants professional liability insurance policy for underlying claims over assets that were misappropriated by the insured's employee (CAMICO Mutual Insurance Co. v. Hess, Stewart & Campbell, P.L.L.C., No. 16-2357, S.D. W. Va., 2017 U.S. Dist. LEXIS 32790).
Underlying Claims At Least 'Possibly' Constitute 'Wrongful Acts' Under Policy, Judge Says
HARTFORD, Conn. - A Connecticut federal judge held March 8 that a professional liability insurer has a duty to defend and indemnify its insureds against an underlying lawsuit alleging that an affiliate of the insured tortiously interfered with an employment agreement (David Fernandez, et al., Plaintiffs, v. Zurich American Insurance Co., No. 15-00228, D. Conn., 2017 U.S. Dist. LEXIS 32900).
Judge Partly Grants Motion To Compel In Professional Liability Coverage Dispute
JOHNSTOWN, Pa. - A Pennsylvania federal judge on March 7 granted a law firm insured's motion to compel a professional liability insurer to produce underwriting materials but found that the insured failed to satisfy the heightened relevancy standard applicable to its discovery request for personnel files of three of the insurer's employees (Westport Insurance Corp. v. Hippo Fleming & Pertile Law Offices, et al., No. 15-251, W.D. Pa., 2017 U.S. Dist. LEXIS 31659).
Insurer Has Article III Standing To Sue Insured, Assignees, Panel Says, Reversing
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on Feb. 28 reversed and remanded a lower federal court's finding that an insurer has no standing to sue its doctor insured and the insured's patients for declaratory relief and rescission of insurance policies (Allied Professionals Insurance Co. v. Michael Scott Anglesey, M.D., et al., No. 15-55231, 9th Cir., 2017 U.S. App. LEXIS 3658).
7th Circuit Finds $5M Theft Was Not Covered Under 2 Policies
CHICAGO - The Seventh Circuit U.S. Court of Appeals on March 9 affirmed a district court's decision to grant judgment for insurers, finding that theft by a former vice president of a telecommunications firm was not covered under insurance policies and that the insurers did not act in bad faith (Telamon Corp. v. Charter Oak Fire Insurance Co., et al., Nos. 16-1205 and 16-1815, 7th Cir., 2017 U.S. App. LEXIS 4207).
Kentucky Panel: Insured Fails To Show It Suffered Loss Due To Employee Theft
FRANKFORT, Ky. - A Kentucky appeals panel on March 10 affirmed a lower court's ruling that threw out an insured's breach of contract, bad faith, unfair claims practices and misrepresentation claims against its insurer, finding that because the insured failed to make a prima facie showing that it incurred a loss due to employee theft, the use of inventory calculations is not permitted (Khazai Rug Gallery, LLC v. State Auto Property & Casualty Ins. Co., No. 2016-CA-000129-MR, Ky. App., 2017 Ky. App. Unpub. LEXIS 187).
Fraudulent Wire Transfer Emails Did Not Trigger Coverage, 9th Circuit Rules
PASADENA, Calif. - Affirming a trial court's judgment, a Ninth Circuit U.S. Court of Appeals panel on March 9 found no coverage under a crime insurance policy for funds lost by an accounting firm's wire transfers pursuant to fraudulently sent emails, concluding that provisions for forgery, computer fraud and funds transfer fraud did not apply (Taylor & Lieberman v. Federal Insurance Co., No. 15-56102, 9th Cir., 2017 U.S. App. LEXIS 4205).
5th Circuit: Court Erred In Finding Defense Costs Did Not Erode Policy Limit
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on March 1 found that more than $1.4 million in defense costs paid by an insurer in an underlying pension plan dispute have eroded the insured's $1 million fiduciary liability coverage limit, reversing a lower federal court in part (Federal Insurance Co. v. Singing River Health System, No. 15-60774 consolidated with No. 15-60876, 5th Cir., 2017 U.S. App. LEXIS 3742).
Federal Court Erred In Finding Claim Was Untimely, Insured Argues To 8th Circuit
ST. LOUIS - The correct application of the law and the doctrine of waiver do not support a lower federal court's ruling that a food marketing and distribution company insured's notice of an underlying lawsuit brought by its former employee was untimely, the insured argued to the Eighth Circuit U.S. Court of Appeals (Food Market Merchandising Inc. v. Scottsdale Indemnity Co., 16-3427, 8th Cir.).
Judge: Advertising Injury Coverage Was Triggered In Suit Over Wheat Seed Sale
WICHITA, Kan. - A Kansas federal judge on March 9 held that an underlying lawsuit alleging that an insured sold wheat seed in violation of the Plant Variety Protection Act (PVPA) included a claim that potentially fell under an insurance policy's advertising injury coverage (Brett Parker and D&B Parker Farms, L.L.C. v. Farm Bureau Property & Casualty Insurance Co., No. 15-01204, D. Kan., 2017 U.S. Dist. LEXIS 3417).
Panel: Evidence Supports $3.5M Jury Verdict In Tainted Onions Coverage Dispute
VENTURA, Calif. - A California appeals panel on March 1 affirmed a jury verdict against an excess insurer in an equitable contribution dispute over $3.5 million that the primary insurer paid to settle a lawsuit arising from a deadly outbreak of hepatitis A caused by contaminated onions that were marketed by the wholesaler insured (National Fire Insurance Company of Hartford v. Great American Insurance Co., No. B264238, Calif. App., 2nd Dist., Div. 6, 2017 Cal. App. Unpub. LEXIS 1453).
Judge: Product Liability Claims Constitute Multiple Occurrences Under Excess Policy
COLUMBUS, OHIO - An Ohio federal judge on March 2 found that underlying product liability lawsuits against Big Lots Stores Inc. constitute separate occurrences under a commercial liability umbrella insurance policy, partly granting the insurer's motion for summary judgment (Big Lots Stores, Inc. v. American Guarantee & Liability Insurance Co., No. 14-02635, S.D. Ohio, Eastern Div., 2017 U.S. Dist. LEXIS 29675).
Federal Judge Adopts Joint Request By Cosby, Insurer As To Indemnification Claims
SPRINGFIELD, Mass. - A Massachusetts federal judge on March 8 adopted a joint request by William H. Cosby Jr. and his homeowners and excess insurer to file a stipulation or motion to dismiss the indemnification claims without prejudice in a coverage dispute over underlying defamation lawsuits arising from sexual assault claims (AIG Property Casualty Co. v. Tamara Green, et al., No. 15-30111, D. Mass.).
Panel Rejects Argument That Insurer, Agent Misrepresented Property Was Insurable
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on March 7 affirmed a lower federal court's grant of summary judgment in favor of a federal flood insurer and an insurance agent in an insured's lawsuit over Hurricane Ike flood damage, rejecting the insured's argument that she reasonably relied on the defendants' misrepresentations that her property in the Coastal Barrier Resources System (CBRS) was insurable (Danuta Lobeck v. Tina M. Licatino, et al., No. 16-40967, 5th Cir., 2017 U.S. App. LEXIS 4040).
Judge Adopts Magistrate's Finding That Government Exclusion Negates Defense Duty
SHERMAN, Texas - A Texas federal judge on March 2 adopted a magistrate's report that recommended granting an insurer's request for a declaration that it has no duty to defend or indemnify its insureds against an underlying lawsuit because coverage is barred by the policy's government exclusion (Continental Casualty Co. v. Jeffrey Ramsey, et al., No. 16-00125, E.D. Texas).
Judge: Insureds Have Not Proven 'Extraordinary Circumstances' Warranting Relief
DETROIT - A Michigan federal judge on March 6 denied insureds' motion seeking relief from a case management guideline rule that requires motions for summary judgment to be filed after the close of fact and expert discovery, finding that the insureds have failed to demonstrate special circumstances that would justify the filing of premature summary judgment motions (Livonia Public Schools, et al. v. Selective Insurance Company of the Southeast, No. 16-10324, E.D. Mich., Southern Div., 2017 U.S. Dist. LEXIS 31036).
'Great Weight Of New York Authority' Supports Exclusion's Clarity, Insurer Argues
NEW YORK - A commercial general liability insurer recently argued to the Second Circuit U.S. Court of Appeals that there is no controlling case law supporting a lower court's conclusion that an "Employers Liability Exclusion" is ambiguous as a matter of law (Hastings Development v. Evanston Insurance Co., Nos. 15-3816 and 14-4085, 2nd Cir.).
Texas High Court Reverses Ruling That Insured Vs. Insured Exclusion Is Inapplicable
AUSTIN, Texas - The Texas Supreme Court on Feb. 24 found that an appeals court majority incorrectly interpreted the plain language of an insured vs. insured exclusion in a directors and officers liability insurance policy, reversing the majority's ruling against the insurer (Great American Insurance Co. v. Robert Primo, No. 15-0317, Texas Sup., 2017 Tex. LEXIS 212).
Federal Judge Dismisses Insurer's Suit Alleging Trade Secret Misappropriation
ATLANTA - A federal judge in Georgia on Feb. 22 held that an insurer has failed to show that defendants misappropriated trade secrets to establish a competing business or that they violated the Computer Fraud and Abuse Act (CFAA), dismissing the insurer's lawsuit with prejudice (HCC Insurance Holdings, Inc. v. Valda Flowers, et al., No. 15-3262, N.D. Ga., 2017 U.S. Dist. LEXIS 24852).
Federal Judge Stays Discovery In Professional Liability Insurance Coverage Dispute
TULSA, Okla. - A federal judge in Oklahoma on Feb. 21 granted a professional liability insurer's motion to stay discovery pending resolution of its motion for summary judgment in a dispute over coverage for an underlying breach of contract suit brought against the insured by a former business partner (Doug Schwegman, d/b/a Schwegman Insurance and Financial Services v. Continental Casualty Co., No. 16-0730, N.D. Okla., 2017 U.S. Dist. LEXIS 23780).
Judge: Suit Arises Out Of Exclusion For 'Insufficiency In The Amount Of Proceeds'
BALTIMORE - A Maryland federal judge on Feb. 17 found that coverage for an underlying lawsuit alleging that an insured was negligent in the provision of settlement services for the sale of a home is barred by a professional liability insurance policy's exclusion for "insufficiency in the amount of the proceeds" (Resource Real Estate Services, LLC v. Evanston Insurance Co., No. 16-168, D. Md., 2017 U.S. Dist. LEXIS 22920).
Panel: Professional Liability Insurer Did Not Breach Policy By Refusing Defense
ATLANTA - The 11th Circuit U.S. Court of Appeals on Feb. 14 affirmed a lower federal court's finding that a professional liability insurer has no duty to defend its law firm insured against an underlying contempt motion that sought only sanctions and nonpecuniary relief (Jones, Foster, Johnston & Stubbs v. ProSight-Syndicate 1110 at Lloyd's, No. 15-12399, 11th Cir., 2017 U.S. App. LEXIS 2550).
9th Circuit Reverses, Remands Excess Coverage Suit Over Racial Discrimination Claim
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on Feb. 21 reversed and remanded a lower federal court's ruling in a dispute over excess coverage for a settlement demand in an underlying racial discrimination lawsuit against the city of Montebello, Calif. (Security National Insurance Co. v. City of Montebello, Nos. 15-56199 and 15-56263, 9th Cir., 2017 U.S. App. LEXIS 2965).
Judge: Insurer Has No Duty To Defend, Indemnify Against Sexual Abuse Claims
MINNEAPOLIS - A Minnesota federal judge on Feb 28 held that a commercial general liability insurer has no duty to defend or indemnify the Order of St. Benedict Inc. against underlying sexual abuse claims against the order's members, finding that primary and excess coverage was barred by the policies' exclusions for injury that was "expected or intended by any protected person" (St. Paul Mercury Insurance Co. v. Order of St. Benedict, Inc., No. 15-2617, D. Minn., 2017 U.S. Dist. LEXIS 28103).
9th Circuit: No Jurisdiction To Review Denial Of Class Certification
PORTLAND, Ore. - A Ninth Circuit U.S. Court of Appeals panel on Feb. 24 dismissed the appeal of an order striking class allegations in a lawsuit by purchasers of long-term health insurance who are bringing claims under Oregon's financial abuse statute, finding that the appellate panel lacked jurisdiction (Lorraine Bates, et al. v. Bankers Life and Casualty Company, et al., No. 14-35397, 9th Cir., 2017 U.S. App. LEXIS 3370).
Judge: Broker Is Liable For Breach Of Implied Contract; Damages Are In Dispute
DALLAS - A Texas federal judge on Feb. 24 held that there is no genuine dispute of material fact regarding whether an insurance broker breached its implied contract to secure a total of $975,000 worth of federal flood insurance coverage for an insured, further finding that the amount of potential damages that the breach caused is in dispute (Hudson Henley v. Love Insurance Group, LLC, No. 15-3078, N.D. Texas, 2017 U.S. Dist. LEXIS 26244).
Judge: Insurer Not Liable For $2.6M In Punitive Damages Arising From Racetrack Death
PHILADELPHIA - A Pennsylvania judge on Jan. 20 found that a commercial umbrella liability insurer has no duty to indemnify its insured against $2.6 million in punitive damages that it paid to settle an underlying wrongful death and survival action, finding that consistent with Pennsylvania law and public policy, punitive damages based on the insured's direct liability may not be insured and, as a result, are not recoverable (Bensalem Racing Association, Inc., et al. v. Ace Property and Casualty Insurance Co., No. 4858, Pa. Comm. Pls., Philadelphia Co., 2017 Phila. Ct. Com. Pl. LEXIS 11).
Insureds: 7 Claims Alleged 'Advertising Injury' Triggering Insurer's Duty To Defend
NEW ORLEANS - Insureds recently asked the Fifth Circuit U.S. Court of Appeals to reverse a lower federal court's finding that a commercial general liability insurer has no duty to defend them against underlying copyright claims brought by an adult entertainment company, arguing that the underlying complaint triggered the insurer's duty to defend by stating a claim for "advertising injury" (St. Paul Fire and Marine Insurance Co. v. Giganews Inc., et al., 16-50914, 5th Cir.).
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Judge: Claims Alleging Wrongful Antitrust, Monopolizing Conduct Are Related
ORLANDO, Fla. - Judgment was entered in favor of insurers on Feb. 15, one day after a Florida federal judge found that there is no further coverage owed to insureds for lawsuits alleging that they have intentionally engaged in wrongful antitrust and monopolizing conduct in an effort to dominate the health care service industry (Health First Inc., et al. v. Capitol Specialty Insurance Corporation, et al., No. 15-718, M.D. Fla., 2017 U.S. Dist. LEXIS 20320).
Federal Judge: ERISA Stock Ownership Plan Cannot Seek Recovery Under Crime Policy
HOUSTON - A federal judge in Texas on Feb. 9 held that a third-party holding corporate stock cannot seek coverage under an insurance policy's plain language that limits coverage to "direct" losses when a corporate officer committed fraud that caused the devaluation of the corporation's stock (HC4, Inc. Employee Stock Ownership Plan v. Travelers Casualty and Surety Company of America, No. 16-00090, S.D. Texas, 2017 U.S. Dist. LEXIS 19605).
Federal Judge Refuses To Dismiss Insurers' Claim Under Defend Trade Secrets Act
TRENTON, N.J. - A New Jersey federal judge on Feb. 7 refused to dismiss insurers' federal claims under the Defend Trade Secrets Act of 2016 (DTSA) and the Computer Fraud and Abuse Act (CFAA) in their lawsuit alleging that the defendant competitors "willfully and maliciously" targeted and solicited at least 15 of their employees for employment (Chubb INA Holdings Inc. [f/k/a The Chubb Corporation], et al. v. Michael Chang, et al., No. 16-2354, D. N.J., 2017 U.S. Dist. LEXIS 16744).
Judge Rejects Insurers' Motion For Leave To Appeal Temporary Restraining Order
NEW YORK - A federal judge in New York on Feb. 9 denied as moot errors and omissions insurers' motion for leave to appeal a temporary restraining order (TRO) issued in a bankruptcy court in a coverage dispute with their insured MF Global Holdings Ltd. (MFGH) (MF Global Holdings Ltd., et al. v. Allied World Assurance Co. Ltd., et al., Nos. 17-106 and 17-113, S.D. N.Y., 2017 U.S. Dist. LEXIS 19328).
Judge: Bermuda Insurers Violated Doctrine By Filing Suit Without Obtaining Leave
NEW YORK - A federal bankruptcy judge in New York on Jan. 31 held that errors and omissions insurers violated the Barton doctrine by filing proceedings against MF Global Holdings Ltd. (MFGH) in Bermuda without obtaining leave from the bankruptcy court (In re: Mf Global Holdings Ltd., et al., Chapter 11, No. 11-15059, S.D. N.Y. Bkcy., 2017 Bankr. LEXIS 251).
Counterclaims Did Not Allege Advertising Injury, 10th Circuit Affirms
ATLANTA - The 10th Circuit U.S. Court of Appeals on Feb. 8 found that underlying counterclaims against an insured failed to assert facts that constituted an "advertising injury" under general liability and excess insurance policies, affirming a lower federal court's finding that the insurer did not have a duty to defend its insured (IVFMD Florida, Inc. v. Allied Property & Casualty Insurance Co., No. 16-15127, 11th Cir., 2017 U.S. App. LEXIS 2218).
Complaint Fails To Allege Personal, Advertising Injury, Federal Judge Rules
CHICAGO - In granting an insurer's motion for summary judgment, California federal judge on Feb. 2 held that underlying claims that an insured violated the Uniform Trade Secrets Act, intentionally inferred with contractual relations and prospective business advantage and engaged in unfair competition and civil conspiracy fail to trigger an insurance policy's "personal and advertising injury" coverage (Sentinel Insurance Co. v. Yorktown Industries Inc., No. 14-4212, N.D. Ill., 2017 U.S. Dist. LEXIS 14439).
Majority: Court Erred In Finding Professional Liability Policy Was Ambiguous
NEW ORLEANS - A majority of the Louisiana Supreme Court on Feb. 3 reversed and remanded an appeals court's finding that a police professional liability insurance policy was ambiguous in a dispute over a deputy sheriff's injury allegedly caused by a defective chair (Jackie Doucet, et al. v. Darwin Select Insurance Co., et al., No. 2016-1989, La. Sup., 2017 La. LEXIS 271).
Capacity Exclusion Bars Professional Liability Coverage, New York Panel Affirms
NEW YORK - A New York appeals panel on Feb. 2 affirmed a lower court's ruling in favor of a lawyers professional liability insurer in a dispute over coverage for underlying counterclaims against an insured for repudiation of a consulting agreement and legal malpractice (Law Offices of Zachary R. Greenhill P.C., et al. v. Liberty Insurance Underwriters, Inc., et al., No. 650414/14, N.Y. Sup., App. Div., 1st Dept., 2017 NY Slip Op 00727).
Judge Enters Default Judgment Against Lawyer In Professional Liability Dispute
NEWARK, N.J. - A New Jersey federal judge on Feb. 3 granted a lawyers professional liability insurer's motion for a default judgment against its attorney insured, finding that the insured knowingly made material misrepresentations on his insurance applications and that the insurer will also suffer prejudice if the default is denied (Liberty Insurance Underwriters, Inc. v. James H. Wolfe, III, et al., No. 16-2353, D. N.J., 2017 U.S. Dist. LEXIS 16295).
New York Panel: Insurer Does Not Owe Insured Directors, Officers Liability Coverage
BROOKLYN, N.Y. - A New York appeals panel on Feb. 1 found that an insurer has no duty to defend its insured under an insurance policy's directors and officers liability and entity liability coverage section, reversing a lower court's ruling against the insurer (Thomas C. Hansard, Jr. v Federal Insurance Co., No. 2014-09639, N.Y. Sup., App. Div., 2nd Dept., 2017 N.Y. App. Div. LEXIS 629).
Judge: Fraud Exclusion Permits Insurer To Pursue Coverage Suit Against Insured
WILMINGTON, Del. - A Delaware judge on Jan. 30 found that an insurance policy's fraud exclusion unambiguously permits the insurer to pursue a coverage action against its insured to determine its financial responsibilities to the insured, denying the insured's motion for summary judgment as to two of the insurer's counterclaims in a dispute arising from claims that the insured violated the False Claims Act (FCA) (Gallup Inc. v. Greenwich Insurance Co., No. N14C-02-136FWW, Del. Super., 2017 Del. Super. LEXIS 46).
Yahoo Sues Insurer Over Coverage Of Email Scanning Suits
SAN JOSE, Calif. - On Jan. 31, Yahoo! Inc. sued its commercial general liability (CGL) provider in California federal court, alleging breach of contract and bad faith related to the insurer's decision not to defend or indemnify the internet firm in four class actions alleging privacy violations in certain email-scanning practices (Yahoo! Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 5:17-cv-00489, N.D. Calif.).
Insureds Sufficiently Pleaded Claims Against Broker, Panel Says In Reversal
LOS ANGELES - A California appeals panel on Feb. 1 found that insureds have sufficiently pleaded claims for fraud, negligent misrepresentation, negligence and breach of contract against a surplus line insurance broker, reversing a lower court (A Plus Fabrics, Inc., et al. v. Yates & Associates Insurance Services, et al., No. B260767, Calif. App., 2nd Dist., Div. 3, 2017 Cal. App. Unpub. LEXIS 728).
New York Justice: Insured Failed To Raise Fact Issue As To Vandalism, No Coverage
NEW YORK - A New York justice on Jan. 20 granted a property insurer's motion for summary judgment in a coverage dispute arising from the insured's demolished building, finding that the insured failed to provide any evidence that the neighboring contractors acted with malice while the policy was in effect (Forty East Broadway v. Charter Oak Fire Ins. Co. et. al., No. 601072/09, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 221).