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Mealey's Emerging Insurance Disputes

  • July 20, 2017

    Federal Judge Dismisses Dispute Over FELA Claim After Parties Reach Settlement

    EAST ST. LOUIS, Ill. — An Illinois federal judge has dismissed with prejudice a lawsuit arising from a railway company's losses incurred in an underlying lawsuit brought by a former employee under the Federal Employers Liability Act (FELA) after the parties announced that they reached a settlement (BNSF Ry. v. Gilster-Mary Lee Corp., et al., No. 15-250, S.D. Ill.).

  • July 20, 2017

    Court Failed To Properly Apply New Jersey’s Omnibus Statute, CGL Insurer Argues

    NEW YORK — A commercial general liability insurer has asked the Second Circuit U.S. Court of Appeals to reverse a lower federal court’s ruling in favor of two business auto liability insurers in a dispute over coverage for an underlying fatal injury that occurred at a construction site (Employers Insurance Company of Wausau v. Harleysville Preferred Insurance Co., et al., 16-906, 2nd Cir.).

  • July 20, 2017

    Federal Judge Dismisses Suit Seeking Rescission Of Products Liability Insurance

    SAN FRANCISCO — A federal judge on June 13 dismissed a rescission lawsuit after the primary products liability insurer and the manufacturer of the da Vinci Surgical System announced that they have reached a settlement (Illinois Union Insurance Co., et al. v. Intuitive Surgical Inc., No. 13-04863, N.D. Calif.).

  • July 19, 2017

    Parties Ask Federal Court To Dismiss Their Professional Liability Coverage Dispute

    TULSA, Okla. — A professional liability insurer and its insured on July 13 filed a stipulation of dismissal of the insured’s breach of contract and bad faith lawsuit prompted by an underlying dispute between the insured and a former business partner (Doug Schwegman, d/b/a Schwegman Insurance and Financial Services v. Continental Casualty Co., No. 16-0730, N.D. Okla.).

  • July 19, 2017

    Federal Bankruptcy Judge Strikes Foreign Specialty Reinsurer’s $15M Bond

    NEW YORK — A foreign specialty reinsurer must post a new $15 million bond as part of its attempt to arbitrate a coverage dispute in Bermuda, a New York federal bankruptcy judge ruled July 17, granting a defunct brokerage company’s motion to strike the current bond as defective (In re:  MF Global Holdings Ltd., et al., MF Global Holdings Ltd. as plan administrator, and MF Global Assigned Assets LLC v. Allied World Assurance Company Ltd., et al., Chapter 11 No. 11-15059, Adv. Proc. No. 16-01251, S.D. N.Y. Bkcy.).

  • July 19, 2017

    Insured Asks 9th Circuit To Find Loss Of Boats Was Due To Theft And Not Scheme

    SAN FRANCISCO — A boat business insured has asked the Ninth Circuit U.S. Court of Appeals to reverse a lower federal court’s finding that an insurer did not breach an all-risk policy in bad faith by denying coverage for its theft claim (Pacific Marine Center, Inc. v. Philadelphia Indemnity Insurance Co., No. 17-15897, 9th Cir.).

  • July 18, 2017

    COMMENTARY: Insuring The Sharing Economy and FINTECH: The Exposures And Related Coverage Issues, Where Things Now Stand And Where They May Be Heading

    By Todd D. Kremin and Peter J. Biging

  • July 18, 2017

    Judge: Complaint Fails To Allege Trade Dress Infringement Occurred In Advertising

    PORTLAND, Ore. — An Oregon federal magistrate judge on June 29 held that a pizza company’s underlying complaint against a convenience store operator insured failed to trigger advertising injury coverage, finding that coverage is further barred by two policy exclusions (Hattenhauer Distributing Co. v. Nationwide Agribusiness Insurance Co., No. 16-1703, D. Ore., 2017 U.S. Dist. LEXIS 101107).

  • July 17, 2017

    Exclusion Does Not Bar Coverage Of Personal Injury Suit, New York Panel Affirms

    ROCHESTER, N.Y. — A New York appellate panel majority on June 30 affirmed a lower court’s denial of an insurer’s motion for summary judgment in a coverage dispute arising from an underlying personal injury action (Erie Insurance Exchange v. J.M. Pereira & Sons, Inc., et al., No. 206 CA 16-00324, N.Y. Sup., App. Div., 4th Dept., 2017 N.Y. App. Div. LEXIS 5409).

  • July 14, 2017

    Judge Retains Jurisdiction Over Coverage Suit Arising From Death At Haunted House

    TULSA, Okla. — An Oklahoma federal judge on July 13 denied insureds’ motion to dismiss a commercial general liability insurer’s declaratory judgment lawsuit challenging coverage for an underlying fatal accident that occurred at a haunted house operated by the insureds, finding that it is appropriate to exercise jurisdiction (Mesa Underwriters Specialty Insurance Co. v. Victor R. Marquez, et al., No. 16-213, N.D. Okla., 2017 U.S. Dist. LEXIS 108638).

  • July 13, 2017

    Professional Services Exclusion Bars Coverage For Pipeline Explosion, Panel Says

    SAN FRANCISCO — The First District California Court of Appeal on July 11 affirmed a trial court’s  judgment in favor of an excess insurer after finding that its policy’s professional services exclusion bars  coverage for underlying claims arising from a deadly pipeline explosion (Energy Insurance Mutual Limited v. Ace American Insurance Co., No. A140656, Calif. App., 1st Dist., Div. 4).

  • July 13, 2017

    Judge: Insurer Is Entitled To Rescind Policy In Suit Over Fall From Infinity Pool

    MISSOULA, Mont. — A Montana federal judge on July 10 held that an excess insurer has a right to rescind its insurance policy in a coverage dispute over a claim that the insureds’ island property was maintained in a dangerous condition that resulted in a catastrophic fall off the edge of an infinity swimming pool (Mount Vernon Fire Insurance Co. v. Jack L. Gabelhausen, Jr., et al., No. 16-91, D. Mont., 2017 U.S. Dist. LEXIS 106125).

  • July 13, 2017

    Brokerage Company Says Foreign Specialty Reinsurer’s $15M Bond Remains Defective

    NEW YORK — A defunct brokerage company argues in its July 11 reply brief with a New York federal bankruptcy court that a foreign specialty reinsurer’s $15 million bond as part of the reinsurer’s effort to arbitrate a coverage dispute in Bermuda should be struck because the bond is defective (In re:  MF Global Holdings Ltd., et al., MF Global Holdings Ltd. as plan administrator, and MF Global Assigned Assets LLC v. Allied World Assurance Company Ltd., et al., Chapter 11 No. 11-15059, Adv. Proc. No. 16-01251, S.D. N.Y. Bkcy.).

  • July 13, 2017

    Panel: Alleged Misconduct Was Not Within Scope Of Police Officer’s Employment

    DETROIT — The Michigan Court of Appeals on July 11 determined that a municipal liability insurer has no duty to defend a police officer against an underlying federal civil rights lawsuit arising from the disappearance and death of the police officer’s cousin, reversing a lower court (Timothy Matouk v Michigan Municipal League Liability & Property Pool, No. 332482, Mich. App., 2017 Mich. App. LEXIS 1106).

  • July 12, 2017

    Panel: Employers Liability Exclusion Is Ambiguous; Insurer Owes Defense, Indemnity

    NEW YORK — The Second Circuit U.S. Court of Appeals on July 10 affirmed a lower federal court’s conclusion that a commercial general liability insurance policy’s "Employers Liability Exclusion" is ambiguous as a matter of law, further finding that the insurer has a duty to both defend and indemnify its insured (Hastings Development LLC v. Evanston Insurance Co., Nos. 15-3816 and 15-4085, 2nd Cir., 2017 U.S. App. LEXIS 12225).

  • July 11, 2017

    Excess Insurer Entitled To Recover $5M Settlement Payment, 9th Circuit Affirms

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on July 7 affirmed a lower federal court’s finding that a software firm insured's former first-layer excess directors and officers liability insurer is entitled to recover the $5 million it paid to settle an underlying securities action plus prejudgment interest from the insured's latter first-layer excess directors and officers liability insurer (Genesis Insurance Co. v. Magma Design Automation Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 15-16999, 9th Cir., 2017 U.S. App. LEXIS 12194).

  • July 11, 2017

    Specialty Reinsurer Opposes Motion To Strike $15M Bond In Bid To Arbitrate Dispute

    NEW YORK — A foreign specialty reinsurer asked a New York federal bankruptcy court on July 6 not to strike a $15 million posted bond at the request of a defunct brokerage company as the bond was required before the court’s consideration of a request to arbitrate the coverage dispute in Bermuda (In re:  MF Global Holdings Ltd., et al. MF Global Holdings Ltd. as plan administrator, and MF Global Assigned Assets LLC v. Allied World Assurance Company Ltd., et al., Chapter 11 No. 11-15059, Adv. Proc. No. 16-01251, S.D. N.Y. Bkcy.).

  • July 10, 2017

    Rescission Lawsuit Is Not ‘Exceptional’ To Justify Abstention, 9th Circuit Rules

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on July 5 found that a lower court’s grant of an insured’s request for abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1979), was an abuse of its narrow discretion because the insurer’s rescission lawsuit is not "exceptional" to warrant disregarding a federal court’s obligation to exercise its jurisdiction (Seneca Insurance Co. Inc. v. Strange Land Inc., et al., No. 15-16011, 9th Cir., 2017 U.S. App. LEXIS 11946).

  • July 10, 2017

    Judge: Ambiguity Exists As To ‘Premises Leased’ In Suit Over Zip-Lining Accident

    JEFFERSON CITY, Mo. — A Missouri federal judge on July 5 granted in part and denied in part an insurer’s motion for summary judgment in a coverage dispute arising from a zip-lining accident (Great American Alliance Insurance Co. v. Windermere Baptist Conference Center, Inc., et al., No. 16-04046, W.D. Mo., 2017 U.S. Dist. LEXIS 103148).

  • July 6, 2017

    5th Circuit Affirms Judgment In Favor Of Insurer, Government In Hurricane Ike Suit

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on July 5 affirmed a lower federal court's ruling in favor of an insurer and the United States of America in a lawsuit arising from the insurer's cancellation of a federal flood insurance policy following Hurricane Ike (Robert Spong, et al. v. Fidelity National Property and Casualty Insurance Company, et al., No. 16- 41165, 5th Cir., 2017 U.S. App. LEXIS 12008).