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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®


Respondent Files Response, Argues Negligence Claim Is Preempted By ERISA
WASHINGTON, D.C. - The Sixth Circuit U.S. Court of Appeals correctly followed the U.S. Supreme Court's analysis for complete preemption when it determined that a negligence claim is completely preempted by the Employee Retirement Income Security Act, a disability claims reviewer argues in its Aug. 11 response to the disability claimant's petition for writ of certiorari filed in the high court (Samantha Milby v. MCMC LLC, No. 16-1409, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 2883).

Insurance Agency Asks Ohio High Court To Rule Negligence Case Is Barred By Statute
COLUMBUS, Ohio - An insurance agency has asked the Ohio Supreme Court to rule that a limitations period established by Ohio law expressly bars a negligence lawsuit filed by a realty company because its claim was filed more than four years after the allegedly wrongful act was committed; therefore, the statute of limitations has expired (Frank & London Insurance Agency v. LGR Realty Inc., No, 16-1307, Ohio Sup.).

Injured Driver Argues Missed Medical Exams Didn't Prejudice Insurer
GEORGETOWN, Del. - An injured driver's failure to attend several scheduled independent medical examinations (IMEs) did not prejudice the insurer, the driver argues in his reply brief filed July 11 in the Delaware Supreme Court, seeking reversal of a lower court's summary judgment ruling for the insurer (Robert Vanartsdalen v. Farm Family Casualty Insurance Company, No. 159, 2017, Del. Sup.).

Insured, Insurer File Appeals In Coverage Dispute Arising From Ponzi Scheme
NEW ORLEANS - An insured has asked the Fifth Circuit U.S. Court of Appeals to reverse a lower court's ruling that it did not "own" its lost earnings stemming from a Ponzi scheme within the meaning of a commercial crime insurance policy while the insurer has asked the court to find that the policy's indirect loss provision and trading loss exclusion bar coverage (Cooper Industries Ltd., et al. v. National Union Fire Insurance Co. of Pittsburgh, Pa., No. 16-20539, 5th Cir.).

Cosby's Insurer Moves To File A Bond Or Stay Execution Of Judgment Pending Appeal
SPRINGFIELD, Mass. - William H. Cosby Jr.'s homeowners and excess insurer on Aug 10 moved in federal district court to file a supersedeas bond or, in the alternative, to stay execution of a judgment against it pending resolution of its appeal in the First Circuit U.S. Court of Appeals challenging a ruling that it has a duty to defend Cosby against underlying defamation lawsuits arising from sexual assault claims (AIG Property Casualty Co. v. Tamara Green, et al., No. 15-30111, D. Mass.).

Parties Dispute Coverage For Loans Issued For Illegally Subdivided Properties
PHOENIX - Lenders and an insurer recently submitted arguments in the Arizona Court of Appeals on whether a trial court erred when it found that the lenders waived their right to assert a claim for breach of fiduciary duties when they retained the benefits of escrows and other arguments (C&G Farms Inc., et al. v. First American Title Insurance Company, et al., No. 16-600, Ariz. App.).

Driver's Insurer Seeks Reimbursement For Accident From Vehicle's Excess Policy
SANTA ANA, Calif. - The provider of an excess policy for a vehicle involved in a fatal auto accident is next in line after the primary policy to provide coverage for the accident, the insurer of the driver argues in its appellant reply brief filed July 6 in the Fourth District California Court of Appeal (Mercury Insurance Company v. Chartis Property Casualty Company, No. G054369, Calif. App., 4th Dist.).

Insurer, Swimwear Firm Argue Jurisdiction Of Coverage Suit To D.C. Circuit
WASHINGTON, D.C. - In briefs filed in the District of Columbia Circuit U.S. Court of Appeals, a professional liability insurer and the assignee of a deceased attorney's claims debate whether jurisdiction in a coverage declaratory judgment suit is determined by where the insurance contract was drafted or by the location of the assignee (Brit UW, Limited v. Manhattan Beachwear LLC, No. 17-7031, D.C. Cir.).

Claims Constitute 'Property Damage' Under CGL Policy, Insured Argues To 8th Circuit
ST. LOUIS - For the second time, an insured has asked the Eighth Circuit U.S. Court of Appeals to reverse a lower federal court's ruling in favor of a commercial general liability insurer in a coverage dispute arising from the contamination of landscaping materials with plastic from defective storage bags that were manufactured by the insured (Decker Plastics v. West Bend Mutual Insurance Co., No.17-1319, 8th Cir.).

Company Urges 9th Circuit To Reverse, Says Insurance Policy Should Cover Gas Leak
SAN FRANCISCO - A company that takes raw landfill gas and purifies it into pipeline quality natural gas is asking the Ninth Circuit U.S. Court of Appeals to reverse a ruling by a district court judge that high velocity landfill gas was not an "external cause" of damage at the company's plant, and therefore coverage under the company's insurance policy was not available (Ingenco Holdings LLC, et al. v. Ace American Insurance Company, No. 16-35792, 9th Cir.).

Insureds Seek Reversal Of Court's Dismissal Of Declaratory Judgment Claim
LAKELAND, Fla. - A trial court erred in dismissing a declaratory judgment claim in a water damage coverage dispute because the insureds should not be precluded from bringing the claim for declaratory judgment, the insureds argue in their Aug. 6 reply brief filed in the Second District Florida Court of Appeal (Samuel Rivera, et al. v. Homeowners Choice Property and Casualty Insurance Co. Inc., No. 2D16-4567, Fla. App., 2nd Dist.).

Chit Fraud Loss Occurred Via Computer, Card Firm Argues To 11th Circuit
ATLANTA - Contrary to the views expressed by its insurer and a trial court, a card management firm argues in a July 27 reply brief to the 11th Circuit U.S. Court of Appeals that an $11 million loss it experienced due to fraudulent activity involved a computer and thus triggered coverage under the computer fraud provision in its insurance policy (Hi Technology Corp., et al. v. Great American Insurance Co., No. 17-11712, 11th Cir.).

Truck Driver, Insurers Argue Barred Evidence Would Reduce $3.2M Verdict
GRETNA, La. - The Fifth Circuit Louisiana Court of Appeal is scheduled to hear oral arguments on Sept. 6 from a Louisiana man and his insurers seeking to slash a $3.2 million jury verdict arising out of a vehicular accident because, they argue, the jury was given a misimpression of the nature of the accident (Scott W. Tillman v. Lawrence P. Joseph, et al., No. 17-CA-94, La. App., 5th Cir.).

11th Circuit Should Reverse Decertification Of Rental Car Class Action, Woman Says
ATLANTA - A woman who claims that her class action related to a rental car company's practice of selling liability insurance to certain customers differently than others was wrongly decertified recently appealed to the 11th Circuit U.S. Court of Appeals asking it to reverse the lower court's decision (Heather Venerus v. Avis Budget Car Rental, LLC, et al., No. 16-16993, 11th Cir.).

Hospital Is Not Additional Insured, Subcontractor's Insurer Argues To 2nd Circuit
NEW YORK - An insurer asked the Second Circuit U.S. Court of Appeals to reverse a lower federal court's finding that it has a duty to defend or indemnify a hospital against an underlying personal injury lawsuit as an additional insured pursuant to an insurance policy that it issued to its subcontractor insured (Cincinnati Insurance Co. v. Harleysville Insurance Co., 16-3929, 2nd Cir.).

Bank Opposes Insurer's Discovery Sanctions Bid In Reinsurance Dispute
COLUMBIA, S.C. - A bank argues in an Aug. 7 opposition brief that a South Carolina federal court should not impose an insurer's discovery sanctions in a dispute over the mishandling of reinsurance funds because it has appropriately preserved and collected electronically stored information (Companion Property and Casualty Insurance Co. v. U.S. Bank National Association v. Redwood Reinsurance Spc. Ltd., et al., No. 15-01300, D. S.C., 2017 U.S. Dist. LEXIS 54182).

Insurer Asserts No Waiver In Right To Arbitrate $1.3M Suit With Reinsurer
MONTGOMERY, Ala. - A nonprofit public insurer argues to an Alabama federal court in an Aug. 9 brief that it did not waive its right to arbitrate its $1.3 million lawsuit under a reinsurance agreement and that a reinsurer will not be prejudiced in sending the dispute to arbitration (Alabama Municipal Insurance Corp. v. Munich Reinsurance America Inc., No. 16-cv-00948, M.D. Ala.).

Insured: GEICO's Brief Ignores Adverse Evidence, Violates Directed Verdict Standard
TALLAHASSEE, Fla. - Replying to an insurer's answering brief of its initial appeal, an insured on Aug. 1 reiterated to the Florida Supreme Court that a Florida appellate court erred in reversing a state trial court's denial of the insurer's motion for a directed verdict in an insurance bad faith lawsuit (James M. Harvey v. GEICO General Insurance Co., No. SC17-85, Fla. Sup.).

New York Insured Sues FEMA, Administrators, Insurer In Superstorm Sandy Dispute
CENTRAL ISLIP, N.Y. - An insured sued the Federal Emergency Management Agency, its administrators and Wright National Flood Insurance Co. on Aug. 17 in a New York federal court, alleging that he was wrongfully denied $141,274.50 in insurance proceeds for Superstorm Sandy damage to his Long Beach, N.Y., home (David Clutter v. William B. Long, et al., No. 17-4833, E.D. N.Y.).

Insurer Seeks Equitable Contribution For Insured's Defense In 3 Defects Suits
MORRISTOWN, N.J. - An insurer claims in a June 2 complaint filed in New Jersey state court that it is entitled to equitable contribution from another insurer because the other insurer improperly denied coverage to its insured for three construction defects lawsuits filed against the insured (Zurich American Insurance Co., as successor by merger to Assurance Company of America, et al. v. Crum & Forster Specialty Insurance Co., et al., No. L-1233-17, N.J. Super., Morris Co.).

Policyholders Seek Right To Sue For Financial Elder Abuse Under Oregon Law
SALEM, Ore. - An insurer is not exempt from liability under Oregon state law for civil financial elder abuse, individuals who have purchased long-term care insurance policies from Bankers Life and Casualty Co. claim in a May 10 opening brief filed in the Oregon Supreme Court (Lorraine Bates, et al. v. Bankers Life and Casualty Company, et al., No. CA S064742, Ore. Sup.).

Rescission Of Professional Liability Policy Was Not Warranted, Insured Argues
HELENA, Mont. - A law firm insured and one of its attorneys have asked the Montana Supreme Court to find that a lower court erred in rescinding a professional liability insurance policy and declaring it void ab initio as to innocent insureds and innocent victims due to another insured's failure to disclose that he stole client money (ALPS Property & Casualty Insurance Co. v. McLean & McLean, PLLP, et al., No. DA 16-0739, Mont. Sup.).

Insurers Dispute Availability Of Hospital Liability Coverage Before 2nd Circuit
NEW YORK- Several insurers recently submitted briefs to the Second Circuit U.S. Court of Appeals, disputing whether numerous underlying lawsuits filed against a hospital in relation to alleged sexual abuse committed by one of its former medical employees implicated coverage under a Hospital Professional Liability (HPL) policy (Pacific Employers Insurance Co. v. St. Francis Care Inc., et al., 16-2747, 2nd Cir.).

Insurer Asks Texas High Court To Reverse Ruling Awarding Judgment To Couple
AUSTIN, Texas - State Farm Lloyds told the Texas Supreme Court in a brief filed Feb. 21 that a trial court judge's ruling awarding extracontractual damages to a couple after a jury found that they breached the terms of an insurance policy should be reversed because it is inconsistent with existing precedent (State Farm Lloyds v. Candelario Fuentes, et al., No. 16-0369, Texas Sup.).

Surety Cannot Recover Attorney Fees, Appellant Argues To Nevada Supreme Court
LAS VEGAS - An appellant has asked the Nevada Supreme Court to reverse a lower court's finding that an insurer that issued a Motor Vehicles Dealer's License Bond to an automobile dealership can recover the attorney fees that it incurred in defending an underlying claim against the bond (Zabeti vs. Great American Ins. Co., No. 70461, Nev. Sup.).

Attorneys Urge 10th Circuit To Reverse Sanctions Ruling In Insurance Coverage Case
DENVER - Two attorneys who were retained to represent a homeowners association in an insurance coverage dispute argue that the 10th Circuit U.S. Court of Appeals should reverse a lower court's sanctions ruling against them pertaining to their relationship with the insurance appraiser who worked on the homeowners association claim because the award is "erroneous" (Auto-Owners Insurance Company v. Summit Park Townhome Association, No. 16-1348, 10th Cir.).

Parties In Real Estate Fraud Dispute Appeal No Coverage Ruling To 11th Circuit
ATLANTA - Parties in an underlying real estate fraud dispute recently asked the 11th Circuit U.S. Court of Appeals to reverse a lower federal court's ruling that commercial general liability insurers are not liable for any amount of a $40 million consent judgment entered against the insured (Attorney's Title Insurance Fund, et al. v. Travelers Indemnity Company of Connecticut, et al., No. 16-15386, 11th Cir.).

Steel Maker Says Settlement With Insurer Triggered Reinsurer's Indemnity Duties
NEW YORK - A steel maker argues in its July 21 reply brief to a New York federal court that its settlement agreement with an insurer triggered a reinsurer's indemnity obligations under an arbitration award because it liquidated the steel maker's claim (National Indemnity Co. v. IRB Brasil Resseguros S.A., No. 15-3975, S.D. N.Y.).

5th Circuit Should Reverse Ruling That Overturned Jury Verdict, Insurer Says
NEW ORLEANS - An insurer is asking the Fifth Circuit U.S. Court of Appeals to reverse a district court's judgment of law that was against a jury verdict in an insurance dispute, contending that the district court committed error because "substantial evidence supported the jury's finding" that the insured breached the insurance policy's cooperation condition by not providing records of its financial performance, relevant to arson that damaged the insured's restaurant (Resie's Chicken & Waffles Restaurant, et al. v. Acceptance Indemnity Company, et al., No. 16-20680, 5th Cir.).

Insured Seeks Finding That Coverage Is Owed For Water Damages
SEATTLE - An insurer owes coverage for hidden damages caused by water intrusion to insured condominiums because the damages occurred during the applicable policy periods and no policy exclusions bar coverage, an insured claims in a May 26 complaint filed in Washington federal court (Edmonds Seacrest Homeowners Association v. State Farm Fire & Casualty Co., No. 17-833, W.D. Wash.).