NEW YORK — A New York federal judge on June 23 denied a motion for reconsideration in a suit seeking coverage for underlying suits arising out of an oil refinery because questions of fact exist regarding the insured’s notice and regarding the applicability of the professional services provision (James River Insurance Co., et al. v. Indian Harbor Insurance Co., No.18-767, S.D. N.Y., 2020 U.S. Dist. LEXIS 109635).
NEW ORLEANS — The Louisiana Supreme Court on June 22 granted a malpractice insurer and its attorney insured’s writ application seeking review of an appeals court’s ruling that held that collectability on an underlying personal injury claim stemming from a car accident does not affect the recovery in a legal malpractice claim against the attorney insured who represented the underlying claimant (Elaine Ewing v. Westport Insurance Corporation, et al., No. 2020-C-00339, La. Sup.).
WAUKESHA, Wis. — A commercial general liability insurer recently asked a Wisconsin appeals court to find that a lower court’s final judgment order in a coverage dispute over underlying claims against a medical company insured “wrongly went too far” by imposing on it a duty to indemnify and violated the “law of the case” doctrine (West Bend Mutual Insurance Company v. Ixthus Medical Supply Inc., et al., No. 2020AP237, Wis. App., Dist. 2).
PHILADELPHIA — Minor league baseball teams on June 23 sued their insurers for breach of contract, anticipatory breach of contract and declaratory relief, seeking business interruption coverage for their “catastrophic financial losses” stemming from the “first-ever cessation of Minor League Baseball” due to the novel coronavirus pandemic and Major League Baseball’s decision that its teams will not satisfy their contractual duties to provide players under contract to their affiliated teams in the Minor League (Chattanooga Professional Baseball LLC, et al. v. Philadelphia Indemnity Insurance Co., et al., No. 20-03032, E.D. Pa.).
PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals on June 22 affirmed a lower federal court’s ruling in favor of a commercial general liability insurer in a lawsuit filed by a private label manufacturer for Wal-Mart Inc. seeking coverage for an underlying trademark infringement action brought against the retailer (Hybrid Promotions LLC v. Federal Insurance Co., No. 18-56658, 9th Cir.).
SAN FRANCISCO — An insured recently asked the Ninth Circuit U.S. Court of Appeals to reverse a lower federal court’s ruling that its insurer has no duty to defend it against an underlying trademark dispute (Premier Pools Management Corp. v. Colony Insurance Corp., No. 18-16551, 9th Cir.).
NEW YORK — The Second Circuit U.S. Court of Appeals on June 17 affirmed a lower federal court’s finding that a commercial general liability insurance policy’s intellectual property (IP) exclusion bars coverage for an underlying copyright infringement lawsuit against an insured and that the exclusion’s “advertising exception” does not apply (Spandex House, Inc. v. Hartford Fire Insurance Company, et al., No. 19-2784, 2nd Cir., 2020 U.S. App. LEXIS 19177).
ATLANTA — The 11th Circuit U.S. Court of Appeals on June 19 held that an underlying wrongful death lawsuit failed to assert facts that clearly brought it within a commercial general liability insurance policy’s employer's liability or workers' compensation exclusion and, therefore, the insurer has a duty to defend its insured (Maxum Indemnity Company v. James Massaro, et al., No. 18-12988, 11th Cir., 2020 U.S. App. LEXIS 19230).
PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals on June 19 affirmed a lower federal court’s ruling that an employer’s cross-complaint against its former employee did not raise the possibility of liability for a defamation claim to trigger coverage under a homeowners insurance policy (Aaron Kaufman v. Federal Insurance Company, et al., No. 19-55603, 9th Cir.).
CHICAGO — The Seventh Circuit U.S. Court of Appeals on June 19 affirmed a lower federal court’s ruling that a professional liability insurer has no duty to defend against an underlying argument that its bank insured’s failure to timely notify the operator of a Taco John’s restaurant franchise of a default on rent caused it to incur damages (Market Street Bancshares, Inc. v. Federal Insurance Company, doing business as Chubb Group of Insurance Companies, No. 18-3395, 7th Cir., 2020 U.S. App. LEXIS 19212).
LOS ANGELES — Dismissal of an insured bar’s claims in an insurance breach of contract and bad faith lawsuit stemming from its insurer’s denial of its business income loss coverage claim for losses sustained when the bar was forced to cease operations as a result of the spread of the novel coronavirus is necessary because the insured’s policy explicitly excludes coverage for such losses under a virus exclusion, the insurer argues in a June 3 motion to dismiss filed in California federal court (Pez Seafood DTLA LLC v. The Travelers Indemnity Co., et al., No. 20-4699, C.D. Calif.).
SAN FRANCISCO — Two bars sued their insurer in California federal court on June 18, alleging that the insurer breached the terms of their insurance policies and acted in bad faith in denying their claims for business interruption coverage after they were forced to cease operations in light of San Francisco’s shelter-in-place orders issued to combat the novel coronavirus pandemic (Grubstake Holdings LLC, et al. v. First Mercury Insurance Co., No. 20-4060, N.D. Calif.).
SEATTLE— The Ninth Circuit U.S. Court of Appeals on June 18 affirmed a lower federal court’s ruling that a directors, officers and organization liability insurer did not owe coverage for underlying wage and hour putative class action lawsuits brought against the insured by two of its former employees (U.S. Telepacific Corp. v. U.S. Specialty Insurance Company, No. 19-55828, 9th Cir., 2020 U.S. App. LEXIS 19072).
PITTSBURGH — A restaurant insured in Pittsburgh on June 15 filed a notice of voluntary dismissal of its class action lawsuit seeking declaratory judgment and an injunction enjoining its commercial general liability insurer from denying coverage for its business interruption losses caused by the novel coronavirus and the governmental stay-at-home orders (HTR Restaurants, Inc. v. Erie Insurance Exchange, No. 20-00819, W.D. Pa.).
BALTIMORE — A federal judge in Maryland on June 10 partially granted a bonding agency insured’s motion for partial summary judgment in a coverage dispute arising from an underlying qui tam action, finding that the insurer breached the policy by withdrawing its defense without first seeking a declaratory judgment (Osprey Consulting I, Inc. et al. v. Westport Insurance Corp., No. 19-03092, D. Md., 2020 U.S. Dist. LEXIS 101651).
From motions for dismissal and judgment on the pleadings to state and federal complaints, Mealey Publications takes a look at the latest pleadings relating to business interruption coverage for COVID-19.
ATLANTA — A Georgia appeals panel on June 15 held that a lower court erred in finding that a legal malpractice claim was first made prior to the effective date of a professional liability insurance policy, further finding that issues of fact remain regarding the insureds' reasonable expectation of the incident that gave rise to the underlying malpractice claim (Joseph v. Certain Underwriters at Lloyd's London, Nos. A20A0111 and A20A0112, Ga. App., 2020 Ga. App. LEXIS 344).
ATLANTA — The 11th Circuit U.S. Court of Appeals on June 12 affirmed a lower federal court’s ruling that a commercial general liability insurance policy’s $25,000 coverage limit for assault claims is a "sublimit of liability" and, as a result, an excess insurer owes no coverage for an underlying assault against a guest of the hotel insured (Starstone National Insurance Company v. Polynesian Inn, LLC, et al., No. 19-13769, 11th Cir., 2020 U.S. App. LEXIS 18763).
BOSTON — The First Circuit U.S. Court of Appeals on March 20 affirmed a lower federal court’s dismissal of a trustee for a bankrupt investment advisory company’s 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., 2020 U.S. App. LEXIS 8850).
DETROIT — A Michigan appeals panel on June 11 found that an insurer has no duty to defend its fence company insured against an underlying lawsuit brought by an employee who was injured on the job, reversing and remanding a lower court’s ruling in favor of the insured (Perfect Fence Company v. Accident Fund National Insurance Company, No. 349114, Mich. App., 2020 Mich. App. LEXIS 3783).