Mealey's Emerging Insurance Disputes

  • May 30, 2019

    Panel:   Bodily Injuries Alleged During Policy Periods Are Distinct From Convictions

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on May 29 held that law enforcement liability policies issued to a local Mississippi government in the mid-1980s cover claims by three individuals wrongfully arrested and imprisoned in 1980 and later exonerated in 2010, finding that the estates of the wrongfully accused allege bodily injuries during the policy periods that were distinct from the wrongful convictions themselves (The Travelers Indemnity Co., et al. v. Ethel Mitchell, et al., No. 17-60291, 5th Cir., 2019 U.S. App. LEXIS 15915).

  • May 30, 2019

    Judge:  Insurer Has Duty To Defend Engineering Firm Against Negligent Design Suit

    CINCINNATI — An Ohio federal judge on May 28 held that a professional liability insurer has a duty to defend its engineering and construction firm insured against an underlying lawsuit alleging negligent design, negligent construction and breach of contract but stayed the indemnification issue pending resolution of the underlying action (Allied World Surplus Lines Insurance Company v. Richard Goettle, Inc., No. 17-670, S.D. Ohio, 2019 U.S. Dist. LEXIS 88545).

  • May 30, 2019

    Fracking Company Asks Panel To Rehear Environmental Damage Coverage Dispute

    NEW ORLEANS — A company that conducted fracking operations on an insured’s facility on May 15 filed a petition asking a panel of the Fifth Circuit U.S. Court of Appeals to reconsider its ruling that reversed a federal court's finding that a site pollution legal liability insurer waived its subrogation rights under an onshore master services agreement (MSA) (Halliburton Energy Services Inc. v. Ironshore Specialty Insurance Co., No. 17-20678 consolidated with No. 18-20239, 5th Cir.).

  • May 30, 2019

    Insured: Court Improperly Held FEMA’s Conduct Is Beyond Scope Of Judicial Oversight

    NEW ORLEANS — In a May 20 reply brief filed in the Fifth Circuit U.S. Court of Appeals, an insured argues that a lower federal court erred in ruling that the actions by the Federal Emergency Management Agency in the Superstorm Sandy claims review process are beyond the scope of judicial oversight in his quest to reverse the dismissal of his lawsuit 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. 18-3520, 2nd Cir.).

  • May 29, 2019

    Off-Premises Injury Not Covered Under Policies, Florida Panel Affirms

    TALLAHASSEE, Fla. — A Florida appeals court panel on May 28 affirmed a lower court’s ruling in favor of commercial general liability insurers in their declaratory judgment lawsuit disputing coverage for personal injuries that an independent contractor incurred while drilling a water well for the insureds’ residential customer, finding that the policies did not cover well drilling operations that were unrelated to the insureds' feed store premises (Larry Musselwhite v. Florida Farm General Insurance Company, et al., No. 1D18-780, Fla. App., 1st Dist., 2019 Fla. App. LEXIS 8207).

  • May 24, 2019

    Kentucky Panel Finds Bad Faith Claim Against Insurer Was Timely, Reverses

    FRANKFORT, Ky. — A Kentucky appeals panel on May 24 reversed and remanded a lower court’s dismissal of a bad faith claim against an insurer arising from an underlying dram shop action against the insured, finding that the bad faith claim was timely (William Gerald Watson v. United States Liability Insurance Company, No. 2018-ca-000475, 2019 Ky. App. LEXIS 94).

  • May 24, 2019

    Insurer Has No Duty To Defend Pharmaceutical Company Against SEC Suit, Panel Affirms

    BOSTON — The First Circuit U.S. Court of Appeals on May 23 affirmed a lower federal court’s ruling in favor of an insurer in a pharmaceutical company insured’s breach of contract and breach of fiduciary lawsuit, finding that the insurer has no duty to defend the insured against an underlying action brought by the Securities Exchange Commission (Biochemics, Inc., et al. v. Axis Reinsurance Company, et al., No. 17-2059, 1st Cir., 2019 U.S. App. LEXIS 15326).

  • May 24, 2019

    9th Circuit: Alleged Landscaping Conduct ‘Was Entirely Intentional’; No Coverage

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on May 22 held that because an insured’s alleged conduct was entirely intentional in an underlying lawsuit alleging that its landscaping activities violated a conservation easement, a lower federal court properly held that the insurer has a no duty to defend the insured (Henstooth Ranch, LLC v. The Burlington Insurance Company, No. 18-15167, 9th Cir., 2019 U.S. App. LEXIS 15157).

  • May 22, 2019

    11th Circuit: Alleged Conduct Falls Outside Of Policy’s ‘Professional Services’

    ATLANTA — The 11th Circuit U.S. Court of Appeals on May 21 held that underlying claims against an insured “falls clearly outside” of a professional liability insurance policy's definition of “professional services,” affirming a lower court’s ruling in favor of the insurer (Mark Chapman, et al. v. ACE American Insurance Co., No. 18-12972, 11th Cir., 2019 U.S. App. LEXIS 15013).

  • May 22, 2019

    Judge Denies Insurer’s Motion As To Yahoo!’s Bad Faith, Bad Faith Damages Claims

    SAN JOSE, Calif. — A California federal judge on May 17 denied a commercial general liability insurer’s motion for judgment as a matter of law on Yahoo! Inc.’s bad faith and bad faith damages claims, finding that there is a “legally sufficient evidentiary basis” for a jury to determine that the insurer acted in bad faith in its handling of underlying class actions filed against Yahoo over its practice of scanning the content of emails (Yahoo! Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, No. 17-00489, N.D. Calif., 2019 U.S. Dist. LEXIS 83811).

  • May 21, 2019

    Insureds Seek Reversal Of No Coverage Ruling In Dispute Over False Medicaid Claims

    RICHMOND, Va. — Insureds recently asked the Fourth Circuit U.S. Court of Appeals to reverse a lower federal court’s finding that an excess insurer has no duty to defend or indemnify them against an underlying lawsuit seeking recovery for the government's alleged injuries for false claims for Medicaid reimbursements, contending that the lower court applied the wrong precedent in reaching its decision (Affinity Living Group, LLC, et al. v. StarStone Specialty Insurance Company, et al., No. 18-2376, 4th Cir.).

  • May 20, 2019

    Insureds Failed To Give Insurer Timely Notice Of Arbitration With Former Employee

    HOUSTON — A Texas federal chief judge on May 15 granted an employment practices liability insurer’s motion for summary judgment in a lawsuit alleging that it wrongfully denied coverage for an underlying arbitration award entered against its insureds in an employment dispute, finding that the policy unambiguously required the insureds to give timely notice of the arbitration (Stadium Motorcars, LLC, et al. v. Federal Insurance Company, No. 18-1920, S.D. Texas, 2019 U.S. Dist. LEXIS 82251).

  • May 17, 2019

    Ohio Panel Majority Affirms Assault And Battery Exclusion Bars Coverage

    DAYTON, Ohio — A majority of an Ohio appellate panel on May 17 affirmed a lower federal court’s ruling in favor of an insurer in a coverage dispute brought by a bar owner insured, finding that the policy term "assault" unambiguously includes the common-law tort of assault and the crime of assault pursuant to Ohio’s Revised Code (Jerome Badders, et al. v. Century Insurance Co., No. 28170, Ohio App., 2nd Dist., Montgomery Co., 2019 Ohio App. LEXIS 1975).

  • May 17, 2019

    Federal Judge Remands Employment Practices Coverage Suit To Indiana Court

    INDIANAPOLIS — An Indiana federal judge on May 14 remanded insureds’ lawsuit seeking employment practices liability insurance coverage for an underlying matter, finding that the insurer has failed to establish that the insureds’ negligent misrepresentation claim against a claims administrator has “no reasonable possibility of success under Indiana law” (Technicolor USA, Inc., et al. v. National Union Fire Insurance Company of Pittsburgh, Pa., et al., No. 19-00174, S.D. Ind., 2019 U.S. Dist. LEXIS 80966).

  • May 16, 2019

    Insured Files Suit Seeking More Than $40M In Damages For Gas Well Explosion

    PITTSBURGH — An insured seeking coverage for pollution costs and damages caused by a gas well that spewed drilling fluid and fracking materials above the surface of the ground claims in a May 15 complaint filed in Pennsylvania state court that its insurers breached their contract and acted in bad faith in denying coverage for the more than $40 million in damages incurred by the insured (CNX Gas Co. LLC v. Lloyd’s of London, et al., No. GD-19-007029, Pa. Comm. Pls., Allegheny Co.).

  • May 16, 2019

    Insurer Seeks Reimbursement For Damages Caused By Engine Failure In Fracking Pump Unit

    BEAUMONT, Texas — An insurer argues in a May 13 motion for summary judgment filed in Texas federal court that it is entitled to reimbursement from the manufacturers of a fracking pump unit for more than $15 million in costs paid on behalf of its insured for damages incurred after the fracking unit malfunctioned and caused a fire at the well site (AIG Europe Ltd. v. Caterpillar Inc. and Dragon Products LLC, No. 17-319, E.D. Texas).

  • May 15, 2019

    Judge: Settlement Payments To Stockholders Constitute ‘Loss’ Under D&O Policies

    WILMINGTON, Del. — Granting in part and denying in part motions for summary judgment in a coverage dispute arising from underlying stockholders’ claims against Dole Food Co. and its directors and officers, a Delaware judge on May 7 held that underlying settlement payments constitute “loss” under excess directors and officers liability insurance policies and that there are genuine issues of material fact regarding the policies’ written consent provisions and cooperation clauses (Arch Insurance Company, et al. v. David H. Murdock, et al., No. N16C-01-104-EMD, Del. Super., New Castle Co., 2019 Del. Super. LEXIS 227).

  • May 15, 2019

    Judge Refuses To Dismiss D&O Insurers From Suit Over Government Investigation

    NEW CASTLE, Del. — A Delaware judge on April 25 denied directors and officers liability insurers’ motion to dismiss their insureds’ lawsuit seeking coverage for an underlying government investigation involving a real estate investment trust but found that the court lacks jurisdiction over another set of insurer defendants that issued Difference in Conditions policies (AR Capital LLC, et al. v. XL Specialty Insurance Company, et al., No. N19C-01-024, Del. Super., New Castle Co., 2019 Del. Super. LEXIS 216).

  • May 15, 2019

    Judge Enters Judgment In Insurer’s Favor After Finding Exclusion Bars Coverage

    MIAMI — A Florida federal judge on May 6 entered final judgment in favor of an insurer in its lawsuit disputing coverage for underlying claims that the insured violated Florida's Dram Shop Law after finding that the policy's liquor liability exclusion bars coverage (AIX Specialty Insurance Company v. Members Only Management, LLC, et al., No. 18-60471, S.D. Fla.).

  • May 14, 2019

    Depositions Ordered In Coverage Dispute Over Online Personal Material Postings

    SAN JOSE, Calif. — A company that was responsible for the online postings of a client’s personal material was ordered May 10 to mostly comply with deposition subpoenas by an insurance company involved in a coverage dispute over the matter, with a California federal magistrate judge declining to quash the subpoenas and finding most of the insurer’s requests to be relevant and proportional to the needs of the case (Pegatron Technology Service Inc. v.  American Guarantee & Liability Insurance Co., No. 5:18-cv--01477, N.D. Calif., 2019 U.S. Dist. LEXIS 79693).