AKRON, Ohio — An insurer has a duty to defend an additional insured in four underlying lawsuits arising out of exposure to toxic hydrogen sulfide gas because the underlying suits do not allege that the additional insured was independently responsible for the exposure incident, an Ohio federal judge said Sept. 16 (FirstEnergy Generation LLC v. Valley Forge Insurance Co., No. 19-2413, N.D. Ohio, 2020 U.S. Dist. LEXIS 169512).
SALEM, Ore. — A pollution exclusion included in a landlord protection policy does not bar coverage for an underlying suit arising from carbon monoxide poisoning because it is not clear if the pollution exclusion bars coverage for "degraded indoor air quality" as alleged in the underlying complaint, the Oregon Court of Appeals said Sept. 16 in affirming a trial court's ruling for the insured (Gary Rogowski v. Safeco Insurance Company of Oregon, No. A169063, Ore. App., 2020 Ore. App. LEXIS 1105).
LEXINGTON, Ky. — A chief federal judge in Kentucky on Sept. 16 dismissed Gov. Andy Beshear from an insured's lawsuit seeking a declaration that the insured's temporary closure pursuant to the governor's executive order prompted by the novel coronavirus triggered coverage, finding that the result of this coverage dispute "will have no effect on Governor Beshear's legal rights" (J&H Lanmark, Inc. v. Twin City Fire Insurance Company, et al., No. 20-333, E.D. Ky.).
CHICAGO — A trial court correctly determined that an insurer has no duty to defend or indemnify its insured for allegedly concealing information about its knowledge of toxic chemicals in a well used to supply a village's drinking water because the underlying lawsuits filed against the insured allege intentional acts for which no coverage is afforded, the majority of the First District Illinois Appellate Court said Sept. 14 (General Casualty Company of Wisconsin v. Burke Engineering Corp., et al., No. 1-19-1648, Ill. App., 1st Dist., 2020 Ill. App. LEXIS 614).
NEW YORK — A federal judge in New York on Sept. 15 awarded $1,250,597.81 in prejudgment interest to an umbrella insurer following a previous ruling that an English reinsurer is responsible for $7,234,125 of the umbrella insurer's environmental claims settlement over a Dole Food Co. subsidiary's California housing development (The Insurance Company of the State of Pennsylvania v. Equitas Insurance Limited, No. 17-6850, S.D. N.Y.).
KALAMAZOO, Mich. — A Michigan federal judge on Sept. 15 awarded an insured almost $2.5 million in prefiling prejudgment interest because the insured's bad faith claim arising out of the settlement of underlying claims based on the insured's sale of defective artificial knee joints was founded in contract and, therefore, permitted under Michigan law (Stryker Corp., et. al. v. XL Insurance America Inc., No. 17-66, W.D. Mich.).
SAN FRANCISCO — A federal judge in California on Sept. 14 dismissed without prejudice all claims in a retailer insured's class complaint against its insurer, finding that the insured is not entitled to business income, extra expense or civil authority coverage as a matter of law for its claimed losses following the state's "Stay at Home" order in response to the novel coronavirus pandemic, granting the insured leave to amend because the law regarding "business interruption coverage linked to the COVID-19 pandemic is very much in development" (Mudpie, Inc. v. Travelers Casualty Insurance Company of America, No. 20-03213, N.D. Calif.).
ROME, Ga. — An insurer of Chapter 11 debtor The Fairbanks Co. is not entitled to reimbursement of $1.2 million in historical indemnity payments, overpayments or defense costs for asbestos personal injury claims based on its untimely reservation of rights or on any subrogation rights it has, a Georgia federal bankruptcy judge held Sept. 9 (In re The Fairbanks Company, No. 18-41768, N.D. Ga. Bkcy.).
NEWARK, N.J. — A New Jersey federal judge on Sept. 9 denied an insured's motion to remand an environmental contamination coverage suit after determining that the insurers' parent company was fraudulently joined to defeat diversity jurisdiction (Sun Chemical Corp. v. American Home Assurance Co., No. 20-6252, D. N.J., 2020 U.S. Dist. LEXIS 164675).
NEW YORK — An insurer breached its contract and breached the implied covenant of good faith and fair dealing by refusing to pay more than $2 million in additional coverage for water damages sustained by an insured business, an insured contends in a Sept. 8 complaint filed in a New York court (408 W. 15 Members LLC et al., v. Mt. Hawley Insurance Co. et al., No. n/a, N.Y. Sup., N.Y. Co.).
PORTLAND, Ore. — An Oregon federal judge on Sept. 4 denied two insurers' motions for summary judgment on the applicability of the known loss doctrine and late notice because questions of fact exist regarding when the insured became aware of the ongoing water damage in its apartment buildings (Great American Alliance Insurance Co. v. SIR Columbia Knoll Associates Ltd. Partnership, et al., No. 18-908, D. Ore., 2020 U.S. Dist. LEXIS 162401).
WHEELING, W.Va. — An insurer has a duty to defend its insured against underlying suits filed by former employees who allege that they were diagnosed with cancer as a result of their exposure to toxic chemicals, a West Virginia federal judge said Sept. 4 after determining that a continuous trigger of coverage must be applied (Westfield Insurance Co. v. Sisterville Tank Works Inc., et al., No. 18-100, N.D. W.Va., 2020 U.S. Dist. LEXIS 161975).
NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Sept. 4 affirmed a district court's ruling that an insurer has no duty to indemnify its insureds under a pollution liability policy for legal fees incurred in an underlying criminal proceeding arising out of environmental contamination caused by the insureds' operation of a landfill because the legal fees do not constitute cleanup costs under the policy (Waste Management Inc., et al. v. AIG Specialty Insurance Co., No. 19-20674, 5th Cir., 2020 U.S. App. LEXIS 28275).
CHICAGO — No coverage is owed for an underlying toxic exposure lawsuit filed against an insured farm owner because the policy's pollution exclusion bars coverage for the alleged injuries caused by the exposure to pesticide, herbicide, insecticide and fungicide products used on the farm by the insured, an insurer asserts in a Sept. 4 complaint filed in Illinois federal court (Indemnity Insurance Company of North America v. Plunk Brothers Inc., et al., No. 20-5242, N.D. Ill.).
NEW YORK — A Manhattan law firm on Aug. 19 voluntarily dismissed without prejudice its class action alleging in a New York federal court that its “all risk” commercial property insurer breached their contract by refusing to pay claims related to the novel coronavirus (Siegel & Siegel, et al. v. Hartford Casualty Insurance Company, No. 20-04993, S.D. N.Y.).
HARRISBURG, Pa. — An all-risk commercial insurer on Sept. 2 moved to dismiss a self-proclaimed "mom and pop" South Carolina restaurant owner's class action for denying its claim for coverage for its business closure due to the COVID-19 pandemic, arguing that the insured has failed to allege "direct physical loss of or damage" to the property and that the policy's virus exclusion bars coverage (Richard Kahn, et al. v. Pennsylvania National Mutual Casualty Insurance Company, No. 20-00781, M.D. Pa.).
FORT MYERS, Fla. — A federal judge in Florida on Sept. 2 granted a commercial insurer's motion to dismiss a dentist insured's breach of contract and declaratory judgment lawsuit arising from the novel coronavirus and subsequent governmental closure orders, finding that the policy expressly bars coverage from damages that are caused by a virus (Mauricio Martinez v. Allied Insurance Company of America, No. 20-00401, M.D. Fla.).
NEW YORK — A New York federal judge erred in granting an insured's motion to confirm an arbitration award in favor of the insured for underlying groundwater contamination liabilities because the arbitration panel's interpretation of a portion of the pollution exclusion constitutes a manifest disregard of the law, an insurer contends in a Sept. 2 appellant brief filed in the Second Circuit U.S. Court of Appeals (HDI Global SE, f/k/a HDI Gerling Industrie Versicherung AG v. Phillips 66 Co., No. 20-1743, 2nd Cir.).
BAY CITY, Mich. — A federal judge in Michigan on Sept. 3 dismissed with prejudice a chiropractor insured's class action complaint challenging property insurers' "systematic and uniform refusal to pay insureds" for their losses arising from Michigan's March 24 executive order and related actions that suspended business operations in the wake of the novel coronavirus pandemic, finding that the insured failed to demonstrate that it suffered an "accidental direct physical loss to Covered Property" and that the virus exclusion also barred coverage (Turek Enterprises, Inc. v. State Farm Mutual Automobile Insurance Company, et al., No. 20-11655, E.D. Mich.).
UTICA, N.Y. — No coverage is owed to an insured for the collapse of an insured commercial property building because the policy's collapse provision provides coverage only for sudden and abrupt collapses, a New York federal judge said Aug. 31 (Russell Bryant v. General Casualty Company of Wisconsin, No. 18-562, N.D. N.Y., 2020 U.S. Dist. LEXIS 157444).