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Mealey's Emerging Insurance Disputes

  • August 6, 2019

    Trustee Appeals Dismissal Of Coverage Suit Over SEC Investigation Against Insured

    BOSTON — A trustee for a bankrupt investment advisory company recently asked the First Circuit U.S. Court of Appeals to reverse a lower federal court’s dismissal of his complaint seeking excess insurance coverage for $7.7 million in attorney fees arising from a formal order of investigation brought by the Securities and Exchange Commission (Craig R. Jalbert v. Zurich Services Corporation, et al, No. 18-2244, 1st Cir.).

  • August 6, 2019

    Private-Label Manufacturer Appeals No-Coverage Ruling For Suit Against Wal-Mart

    SAN FRANCISCO — A private label manufacturer for Wal-Mart Inc. recently asked the Ninth Circuit U.S. Court of Appeals to reverse a lower federal court’s ruling in favor of a commercial general liability insurer in its lawsuit seeking coverage for an underlying trademark infringement action brought against Wal-Mart, arguing that disputed issues of material fact preclude a summary judgment ruling (Hybrid Promotions LLC v. Federal Insurance Co., No. 18-56658, 9th Cir.).

  • August 6, 2019

    Appellant Says He Has Standing To Sue Publisher’s Insurer For Defamation Damages

    PHILADELPHIA — A man who obtained a default judgment and $1.5 million damages in a defamation lawsuit against Journal Register East Inc. (JRE) recently asked the Third Circuit U.S. Court of Appeals to find that he has standing to sue the publisher’s insurer to recover the damages, arguing that a lower federal court erred in finding that he was not the insured’s assignee (Thomas A. Riley Jr. v. Mutual Insurance Company Ltd., No. 19-1321, 3rd Cir.).

  • August 5, 2019

    No Coverage For Suit Arising From Equity Purchase Agreement, Panel Affirms

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on July 30 affirmed a lower federal court’s ruling that a profit management liability insurer has no duty to defend its insureds against underlying claims that they made false representations during negotiations of and in an equity interest purchase agreement (Julie Gleason, et al. v. Markel American Insurance Co., No. 18-40850, 5th Cir., 2019 U.S. App. LEXIS 22546).

  • August 5, 2019

    Majority Affirms Ruling In Insurer’s Favor In Suit Arising From Employment Dispute

    NEW ORLEANS — A majority of the Fifth Circuit U.S. Court of Appeals on Aug 2 affirmed a lower federal court's finding in favor of an insurer in a dispute over directors and officers liability coverage for underlying claims that a technology firm insured failed to pay overtime and improperly categorized employees as "exempt" under the Fair Labor Standards Act (FLSA) (ADI WorldLink, L.L.C. v. RSUI Indemnity Company, No. 17-41050, 5th Cir., 2019 U.S. App. LEXIS 23235).

  • August 5, 2019

    Prior Publication Exclusion Does Not Bar Coverage, 4th Circuit Says In Reversal

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on Aug. 1 reversed and remanded a lower court’s ruling that its businessowners liability and commercial umbrella insurance policies’ prior publication exclusion excused an insurer’s duty to defend an alleged advertising injury as to the insured's use of a trademark, finding that the insured’s “prior and subsequent publications differ in substance” (Pennsylvania National Mutual Casualty Insurance Co. v. Beach Mart, Inc., No. 18-1285, 4th Cir., 2019 U.S. App. LEXIS 22972).

  • August 2, 2019

    Insured Asks 5th Circuit To Reverse Ruling In Suit Arising From Hail, Wind Damage

    NEW ORLEANS — A church insured recently asked the Fifth Circuit U.S. Court of Appeals to reverse a lower federal court’s summary judgment ruling in favor of an insurer in its lawsuit alleging that the insurer breached the contract and acted in bad faith when it replaced roofing materials with lesser quality materials after the insured's property sustained hail and windstorm damage to its roof (University Baptist Church of Fort Worth v. Lexington Insurance Company, 18-11415, 5th Cir.).

  • August 1, 2019

    Federal Judge Allows Professional Liability Coverage Dispute To Proceed To Trial

    FORT WAYNE, Ind. — In a case remanded from the Seventh Circuit U.S. Court of Appeals, a federal judge in Indiana on July 29 held that a malpractice insurer’s breach of contract lawsuit against its professional liability insurer should proceed to trial after finding that the professional liability insurer is not entitled to summary judgment (The Medical Protective Company of Fort Wayne Indiana v. American International Specialty Lines Insurance Company, No. 13-357, N.D. Ind., 2019 U.S. Dist. LEXIS 125671).

  • July 31, 2019

    Panel:  Prior Known Acts Exclusion Bars Coverage For Suit Against Board Of Education

    PHILADELPHIA — The Third Circuit U.S. Court of Appeals on July 26 affirmed a lower federal court’s finding that a commercial general liability insurer has no duty to defend its board of education insured against an underlying lawsuit arising from sexual abusive acts alleged by students against a former teacher (Montville Township Board Of Education v. Zurich American Insurance Company, No. 18-3073, 3rd Cir., 2019 U.S. App. LEXIS 22375).

  • July 31, 2019

    Judge: Insurer Has Duty To Defend In Coverage Dispute Over Hacked Credit Cards

    HOUSTON — On remand from the Fifth Circuit U.S. Court of Appeals, a senior federal judge in Texas on July 23 granted a specialty retail chain insured’s motion for partial summary judgment as to its request for a declaration that its insurer owes coverage for demand letter claims and an underlying litigation arising from the hacking of its credit card network but denied the motion as to the insured’s TexasInsurance Code claim and claims for attorney fees and prejudgment interest (Spec's Family Partners, Ltd. v. The Hanover Insurance Company, No. 16-438, S.D. Texas, 2019 U.S. Dist. LEXIS 122310).

  • July 30, 2019

    Conference Center Is Not Entitled To Additional Insured Coverage, Panel Says

    ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on July 29 reversed a lower federal court's ruling that a conference center is entitled to coverage as an additional insured, finding that a minor's injuries from a zip-lining accident did not arise out of the use of the premises the conference center leased to the insured (Great American Alliance Insurance Co. v. Windermere Baptist Conference Center Inc., et al., No. 17-3635, 8th Cir., 2019 U.S. App. LEXIS 22443).

  • July 30, 2019

    Real Estate Services Firm Sues Excess Insurer For Breach Of Contract, Bad Faith

    CHICAGO —A real estate services firm insured on July 17 sued its first-level excess professional liability insurer in the U.S. District Court for the Northern District of Illinois for breach of contract and bad faith in a coverage dispute over an underlying fraudulent misrepresentation suit regarding a real estate appraisal the insured generated 13 years ago (Cushman & Wakefield of Pennsylvania v. Illinois National Insurance Company, No. 19-04790, N.D. Ill.).

  • July 30, 2019

    8th Circuit Denies Excess Insurer’s Request To Rehear Coverage Dispute Over Ducts

    ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on July 26 denied an excess insurer’s request for a panel rehearing and an en banc rehearing of its request to vacate a ruling that required it to pay $2.76 million to the maker and designer of air ducts that are allegedly defective (National Union Fire Insurance Company of Pittsburgh, PA, et al. v. Donaldson Company Inc. v. Federal Insurance Co., No. 18-1063, 8th Cir., 2019 U.S. App. LEXIS 22404).

  • July 29, 2019

    Violation Of Statutes Exclusion Bars Coverage For TCPA Suit, Michigan Panel Affirms

    TROY, Mich. — A Michigan appeals panel on July 25 affirmed a lower court’s finding that an insurance policy’s “violation of statutes” exclusion barred coverage for an underlying lawsuit alleging that an insured transmitted unsolicited facsimiles in violation of the Telephone Consumer Protection Act (TCPA) (AMCO Insurance Company v Invecor LLC, et al., No. 342498, Mich. App., 2019 Mich. App. LEXIS 4175).

  • July 29, 2019

    Insurer Appeals Judge’s Refusal To Certify Appeal In Professional Liability Dispute

    WILMINGTON, Del. — An insurer on July 25 appealed to the Delaware Supreme Court a lower court judge’s same-day denial of its application seeking to certify an interlocutory appeal of the court’s ruling last month that held that allegations that an insured installed “counterfeit” delineator posts while performing its contractual services for the Florida Department of Transportation (FDOT) potentially trigger coverage under a contractor's protective professional indemnity and liability insurance policy (Steadfast Insurance Company v. DBi Services, LLC, No. N18C-03-291 PRW CCLD, Del. Super., New Castle Co.).

  • July 26, 2019

    Specific Litigation Exclusion Does Not Bar Coverage For Securities Class Action

    WILMINGTON, Del. — A Delaware judge on July 23 held that wrongs asserted in two underlying securities lawsuits implicated “entirely distinct misrepresentations of very different health risks associated with Celebrex,” rejecting excess directors and officers liability insurers’ argument that the specific litigation policy exclusion excuses their duty to defend (Pfizer Inc. v. Arch Specialty Insurance Company and U.S. Specialty Insurance Company, N18C-01-310, Del. Super.; 2019 Del. Super. LEXIS 345).

  • July 26, 2019

    Delaware Judge Refuses To Reconsider Ruling In Professional Liability Coverage Suit

    WILMINGTON, Del. — A Delaware judge on July 25 denied primary and excess insurers’ motion to reargue to challenge a ruling last month that found a civil investigative demand issued by the Texas attorney general against an insured constitutes a claim for nonmonetary relief that alleged a wrongful act and triggered professional liability coverage (Conduent State Healthcare, LLC, et al. v. AIG Specialty Insurance Company, No. N18C-12-074, Del. Super.).

  • July 26, 2019

    Panel:  CGL Insurer Owes Defense, Indemnification For Construction Site Injury Suit

    BROOKLYN, N.Y. — A New York appeals panel on July 24 affirmed a lower court’s ruling that a commercial general liability insurer has a duty to defend and indemnify additional insureds against an underlying personal injury lawsuit arising from a construction site injury and to reimburse them for all underlying defense costs (AVR-Powell C Development Corp., et al. v Utica First Insurance Company, No. 2016-11075, N.Y. Sup., App. Div., 2nd Dept., 2019 N.Y. App. Div. LEXIS 5786).

  • July 25, 2019

    Panel Reverses Ruling As To Faulty Workmanship Exclusion, Statutory Bad Faith

    DENVER — The 10th Circuit U.S. Court of Appeals on July 24 reversed and remanded a lower court’s finding that a professional liability insurance policy’s faulty workmanship exclusion precluded coverage for a lawsuit alleging that the insured poorly designed and constructed a fisheries enhancement project and the court’s grant of summary judgment on the insured’s claim of statutory bad faith but affirmed the dismissal of the insured’s common-law bad faith claim (Rockhill Insurance Company v. CFI-Global Fisheries Management, et al., Nos. 18-1201 & No. 18-1207, 10th Cir., 2019 U.S. App. LEXIS 22049).

  • July 25, 2019

    Panel: Assault And Battery Exclusion Bars Coverage For Human Trafficking Suit

    PHILADELPHIA — The Third Circuit U.S. Court of Appeals on July 22 affirmed a lower federal court’s finding that an insurer has no duty to defend or indemnify its motel owner insured against underlying claims that it was negligent in failing to prevent human sex trafficking from occurring at its property because the "assault and battery" exclusion precludes coverage (Nautilus Insurance Company v. Motel Management Services, Inc., et al., Nos. 18-2290 & 18-3436, 3rd Cir., 2019 U.S. App. LEXIS 21680).