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Preview: LexisNexis® Mealey's™ Insurance Pleadings Legal News

LexisNexis® Mealey's™ Insurance Pleadings Legal News

Headline Insurance Pleadings Legal News from LexisNexis®


Fire Insurer: Claims Against Original Insurer Are Valid, Should Be Reinstated
SAN FRANCISCO - Seneca Insurance Co. has asked the Ninth Circuit U.S. Court of Appeals to reverse summary judgment for AMCO Insurance Co., saying AMCO improperly tried to cancel two apartment complex fire insurance policies under California law (Seneca Insurance Company, Inc. v. Allied Insurance Company, et al., No. 16-55079, 9th Cir.).

Architect Asks Panel To Find Proof Of Claim In Bankruptcy Is A Final Judgment
NEW ORLEANS - An architect has asked the Fifth Circuit U.S. Court of Appeals to reverse a ruling in favor of a home builder's insurer in a breach of contract dispute arising from an underlying $63,471,000 copyright infringement dispute, arguing that an unobjected-to proof of claim in a bankruptcy case should be allowed and should become a final judgment when the bankruptcy case is closed (Kipp Flores Architects, LLC v. Mid-Continent Casualty Co., No. 16-20255, 5th Cir.).

9th Circuit To Decide Policy Coverage For Teen's Sexual Assaults
SAN FRANCISCO - A Las Vegas family and an insurance company recently debated in the Ninth Circuit U.S. Court of Appeals whether an exclusion in a homeowners policy for all injuries arising from sexual contact bars coverage to the family for an underlying state court complaint alleging sexual molestation by two teens against a child (Paul Taylor, et al. v. American Family Mutual Insurance Company, No. 16-15022, 9th Cir.).

Insured Failed To Prove Avian Flu Outbreak Is Covered Under Policy, Insurer Argues
MINNEAPOLIS - An insurer argues in a Nov. 15 reply in support of its motion for partial summary that an insured has failed to meet its burden of proving that coverage is owed for an outbreak of the avian flu virus under the policy's exception to a naturally occurring material exclusion (Rembrandt Enterprises Inc. v. Illinois Union Insurance Co., No. 15-2913, D. Minn.).

Retailer Says Insurers Had Broad Duty To Defend In Computer Spyware Suits
SAN FRANCISCO - In a Nov. 15 reply brief in the Ninth Circuit U.S. Court of Appeals, a rent-to-own (RTO) retailer argues that its insurance providers had a broad duty to defend it in underlying lawsuits over its installation of spyware on customers' computers, contending that a trial court erred in construing a recording and distribution policy exclusion in favor of the insurers and against coverage (American Economy Insurance Co., et al. v. Aspen Way Enterprises Inc., et al., No. 16-35059, 9th Cir.).

2 Insurers Argue Before 10th Circuit On Liability For School Fire
DENVER - The 10th Circuit U.S. Court of Appeals heard oral arguments on Nov. 14 from two insurers, one for an Oklahoma school district and one for a school leasing one of the district's buildings, about whether the lessee's insurer has standing to sue the district's insurer and if it does, whether the loss due to a fire in the leased building should be shared on a pro rata basis by the two companies and how to calculate the percentage (Philadelphia Indemnity Insurance Company v. Lexington Insurance Company, Nos. 16-5008 and 16-5010, 10th Cir.).

Claimant Should Not Be Permitted To Conduct Discovery, Plan Argues
INDIANAPOLIS - A disability claimant should not be permitted to conduct discovery to determine if a plan operated under a conflict of interest because the claimant failed to prove that the discovery sought is necessary, the plan argues in a Nov. 3 response brief filed in Indiana federal court (Donald Fessenden v. Reliance Standard Life Insurance Co., et al., No. 15-370, N.D. Ind.).

Reinsured Says Reinsurer Should Return Money Paid Under Now-Vacated Award
DETROIT - A group of insurers asked a federal court in Michigan on Oct. 17 to order a reinsurer to return more than $3.5 million that was paid in accordance with an arbitration award that a federal appeals court has ordered to be vacated (Star Insurance Company, et al. v. National Union Fire Insurance Company of Pittsburgh, PA, No. 14-cv-12915, E.D. Mich.).

Insurers File Suit, Claim No Coverage Owed For Underlying Pollution Claims
LOS ANGELES - No coverage is owed for underlying pollution claims filed against an insured because the policies at issue contain pollution and lead exclusions, two insurers allege in a Nov. 8 complaint filed in California federal court (XL Insurance America Inc., et al., v. Craig R. Jalbert, et al., No. 16-8318, C.D. Calif.).

Carrier Seeks Rescission Of Policies Issued To Insured Based On Misrepresentation
ATLANTA - An insurer claims in a Nov. 7 complaint filed in Georgia federal court that it is entitled to rescind its insured's policies and owes no further coverage for underlying suits arising out of exposure to hepatitis A from food purchased from the insured because the insured did not disclose in its insurance application that it was a national franchisor (Sentinel Insurance Co. Ltd., v. Tropical Smoothie Cafe LLC, et al., No. 16-4162, N.D. Ga.).

Insurer, Contractor Argue In Oregon High Court Over Duty-To-Defend Standard
SALEM, Ore. - In briefs filed in the Oregon Supreme Court, a general contractor and an insurer debate whether the determination of the duty to defend in an underlying construction defects lawsuit properly included an examination of extrinsic evidence as to the contractor's insured status, or whether only the complaint's specific allegations should be considered (West Hills Development Co. v. Chartis Claims, Inc., et al., No. S063823, Ore. Sup.).

Marina Owner Says Judge Erred By Not Leaving Issues Of Material Fact For Trial
ST. LOUIS - A marina owner told the Eighth Circuit U.S. Court of Appeals on Oct. 5 that a lower court wrongly found that damages to a series of floating docks was caused by a flood and that the lower court erred by not finding that there were genuine issues of material fact that should have been left for a jury to decide (Hudson Enterprises, Inc. v. Certain Underwriters at Lloyd's London Insurance Companies, No. 16-2846, 8th Cir.).

Flooding Victims Ask 5th Circuit To Find Crawlspace Damage, Mold Is Covered
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals is scheduled to hear oral arguments on Dec. 5 in an appeal filed by a Louisiana couple whose breach of contract suit against their insurer - which denied their claim for water damage and mold - was dismissed with prejudice by a Louisiana federal court (James Miller, et al. v. American Strategic Insurance Corp., et al., No. 16-30251, 5th Cir.).

Insured: Fact Issue Exists As To Whether Settlement Was Based On Advertising Injury
PORTLAND - A pesticide distributor insured has asked the Ninth Circuit U.S. Court of Appeals to reverse a lower federal court's ruling that general liability insurers have no duty to indemnify it for an underlying settlement arising from a former business partner's lawsuit (Crum & Forster Specialty Insurance Co. v. Willowood USA LLC, et al., Nos. 14-35985 and 16-35222, 9th Cir.).

Company: Insurer Owes Duty To Indemnify For Worker's Injury On Offshore Rig
NEW ORLEANS - A petroleum company recently filed a brief in the Fifth Circuit U.S. Court of Appeals contending that its insurer owes it a duty to indemnify the company for costs associated with a lawsuit brought by a contractor who contends that he was injured on the job during an offshore energy rig incident (Raylin Richard v. Anadarko Petroleum Corporation v. Liberty Mutual Insurance Company, No. 16-30256, 5th Cir.).

Parties Seek 9th Circuit Review Of Homeowners Insurance Dispute
SAN FRANCISCO - Parties in a homeowners insurance dispute have asked the Ninth Circuit U.S. Court of Appeals to determine whether an insurer properly denied coverage under the policy due to the insureds' failure to pay their premium, which led to their policy being canceled prior to the time coverage was sought (Robert Fuller, et al. v. Safeco Insurance Company of Oregon, No. 16-35289, 9th Cir.).

Insured Appeals Underinsured Motorist Coverage Dispute To 7th Circuit
CHICAGO - An insured has asked the Seventh Circuit U.S. Court of Appeals to reverse a lower federal court by declaring that he is owed $5 million in underinsured motorist (UIM) coverage under an umbrella insurance policy and that there is no set off for payment of workers' compensation benefits (Dee Frye, et al v. Auto-Owners Insurance Company, No. 16-1677, 7th Cir.).

Excess Insurer Says Texas Federal Judge Incorrectly Applied Injury-In-Fact Theory
NEW ORLEANS - An excess insurer argues in an Oct. 12 brief filed in the Fifth Circuit U.S. Court of Appeals that a Texas federal judge incorrectly determined that excess policies are triggered by mere exposure to asbestos and said that evidence of actual injury caused by asbestos is necessary to trigger the excess policies (Longhorn Gasket and Supply Co., et al. v. U.S. Fire Insurance Co., No. 15-41625, 5th Cir.).

Reinsurer Says Jurisdiction Issues Should Not Be Raised In Answer
CHICAGO - A reinsurer told a federal court in Illinois on Oct. 28 that its reinsured's challenge to the court's jurisdiction voiced in an answer to an amended complaint is not proper because the court has already ruled against the reinsured's motion to transfer the case (R&Q Reinsurance Company v. The American Insurance Company, No. 16-cv-04199, N.D. Ill.).

Complaint Seeks Finding That Insurer Wrongfully Offset Veterans' Benefits
BOSTON - A U.S. Army veteran filed a class action suit on Oct. 25 in Massachusetts federal court against a disability insurer, alleging that the insurer wrongfully offset disability benefits payable under the insurer's policy by disability benefits received from the U.S. Department of Veterans Affairs because the policy does not list veterans disability benefits as income eligible for an offset under the policy (Marco Martinez v. Sun Life Assurance Company of Canada, No. 16-12154, D. Mass.).

Solicitor General To Argue In High Court Case On False Claims Act Seal Violations
WASHINGTON, D.C. - In its Oct. 11 order list, the U.S. Supreme Court granted a motion by Acting U.S. Solicitor General Ian Heath Gershengorn to participate in upcoming oral arguments over what the appropriate sanctions are when a private qui tam lawsuit plaintiff violates a seal order under the False Claims Act (FCA) (State Farm Fire & Casualty Co. v. United States, ex rel. Cori Rigsby, et al., No. 15-513, U.S. Sup.; 2016 U.S. LEXIS 6149).

Parties Submit Arguments To 7th Circuit Over Coverage For Defects
CHICAGO - Insurers and a condominium association recently submitted arguments in the Seventh Circuit U.S. Court of Appeals, disputing whether a settlement was covered as an occurrence under various insurance policies (Allied Property, et al. v. Metro North Condo, 16-1868, 7th Cir.).

Insurers To 9th Circuit: Coverage Properly Denied In Suits Over Computer Spyware
SAN FRANCISCO - In briefs filed Oct. 11 in the Ninth Circuit U.S. Court of Appeals, two insurers that issued policies to a rent-to-own (RTO) retailer argue that the policies' recording and distribution exclusions barred coverage for two lawsuits relating to the retailer's installation of spyware on a purchased computer, asking the appeals court to affirm coverage and reimbursement rulings in their favor (American Economy Insurance Co., et al. v. Aspen Way Enterprises Inc., et al., No. 16-35059, 9th Cir.).

Widow Says Excess Insurer Is Legally Bound To Honor Assignment Of Rights
BOSTON - The widow of a man killed after falling bricks knocked him off a ladder has asked the First Circuit U.S. Court of Appeals to rule that a federal judge erred in dismissing her declaratory judgment action against an excess insurer for the responsible defendant (Lucia Salvati, et al. v. The American Insurance Company, No. 16-1403, 1st Cir.).

Timing Of Notice Did Not Cause 'Actual Prejudice' To Insurer, Insureds Argue
CINCINNATI - Insureds argued to the Sixth Circuit U.S. Court of Appeals that the timing of their notice of underlying claims alleging deceptive and misleading conduct did not cause actual prejudice to their commercial liability insurer, further contending that there are genuine issues of material fact regarding whether the timing of their notice subjected the insurer to actual prejudice (Scottsdale Ins. v. Alarm Co., 16-5535, 6th Cir.).

Lack Of Bona Fide Dispute Warrants Attorney Fees Award, Woman Says
ATLANTA - A woman told the 11th Circuit U.S. Court of Appeals that a federal judge in Florida erred in denying her request for attorney fees and costs, arguing that the judge erroneously found that a bona fide dispute existed as to whether she was a beneficiary to her late husband's life insurance policies (Anne Mangano v. Jackson National Life Insurance Company, No. 16-11685-C, 11th Cir.).

Panel Asked To Review Court's Refusal To Compel In Insurance Dispute
RICHMOND, Va. - Parties asked the Fourth Circuit U.S. Court of Appeals recently to determine whether a federal district court erred in denying an insurer's motion to compel arbitration in an insurance dispute after previously ruling that the parties had properly delegated questions of arbitrability to arbitrators (Minnieland Private Day School Inc. v. Applied Underwriters Captive Risk Assurance Company Inc., No. 16-1511, 4th Cir.).

Insurers Dispute Debtor's Attempt To Vacate Policy Exhaustion Finding
NEW YORK - A bid by Chapter 11 debtor Rapid-American Corp. to vacate a finding that it has not paid a sufficient amount for asbestos claims to reach the level of excess coverage provided under three insurance policies should be rejected because the debtor is improperly trying to reargue the issue with a revised legal strategy, insurers assert in separate Oct. 18 response briefs in New York federal bankruptcy court (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy.).

Insured Argues In Motion For Summary Judgment That Insurer Breached Its Contract
HOUSTON - An insured argues in an Oct. 12 motion for partial summary judgment that pursuant to the Texas Supreme Court's answers to certified questions, it is entitled to summary judgment on the liability portion of its breach of contract claim against an insurer because it is undisputed that the insurer failed to defend the insured for an underlying product liability suit (U.S. Metals Inc. v. Liberty Mutual Group Inc., et al., No. 12-379, S.D. Texas).

U.S. Navy Files Complaint In Contamination Dispute, Claims Insurer Breached Contract
SACRAMENTO, Calif. - The U.S. Department of the Navy on Oct. 19 filed a complaint in intervention in a California federal court, seeking a declaration that an insurer owes coverage for environmental contamination discovered at one of the Navy's California shipyards (Lennar Mare Island LLC v. Steadfast Insurance Co., et al., No. 12-2182, E.D. Calif.).