CONCORD, N.H. — A storage tank liability insurer cannot deny coverage on the basis of untimely notice without showing that it was prejudiced by the insured’s failure to report a fuel spill within seven days of the discovery of the fuel spill, a New Hampshire federal judge said Oct. 13 in granting the insured’s motion for summary judgment and denying the insurer’s motion for summary judgment.
CHICAGO — An Illinois federal judge on Oct. 12 partially granted a storage tank liability insurer’s motion to compel amended discovery responses after determining that the insured must provide additional information about the categories of expenses it incurred in remediating damages caused by a diesel fuel spill.
RALEIGH, N.C. — Golden Corral Corp. and Golden Corral Franchising Systems filed a notice in a North Carolina federal court on Oct. 6 indicating that they are appealing the court’s grant of an insurer’s motion for judgment on the pleadings and dismissal of their bad faith lawsuit seeking coverage for their financial losses arising from the suspension of their restaurant operations in response to the government orders prompted by the coronavirus pandemic.
CHICAGO — The same day an insured filed a notice of voluntary dismissal, a federal judge in Illinois on Oct. 7 dismissed with prejudice the insured’s breach of contract lawsuit seeking event cancellation coverage for its alleged several million dollars in losses arising out of its “necessary and unavoidable cancellation” of the May 2020 National Restaurant Association Show in Chicago due to circumstances that were created by the coronavirus pandemic.
BALTIMORE — A Maryland federal magistrate judge on Oct. 8 determined that claims for declaratory judgment and reformation must be dismissed as moot because an insurer fulfilled its indemnity obligation for a lead exposure suit; however, the magistrate judge partially denied the insurer’s motion to dismiss a breach of contract claim because the issue of interest on the underlying judgment must be resolved.
DANVILLE, Va. — No coverage is owed to an insured seeking coverage for a failed piece of equipment that processes animal waste into methane gas used to provide electricity on a farm because the policy’s exclusion for buried vessels bars coverage, a Virginia federal judge said Oct. 7.
BALTIMORE — A commercial general liability (CGL) insurer is responsible for only 81.49 percent of an underlying judgment entered against its insured landlord for exposure to lead paint in the landlord’s property because pursuant to Maryland law, a pro-rata, time-on-the-risk allocation method must be applied to calculate the amount owed by the insurer, a Maryland federal magistrate judge said Oct. 6 in granting the insurer’s motion for summary judgment.
DETROIT — Allowing a second amended complaint after discovery in a dispute over billings for asbestos claims would be untimely and prejudicial and “would fundamentally change the nature and scope of this case,” a reinsurer argues in a Sept. 28 brief filed in a federal court in Michigan; in its Oct. 5 reply, the insurer contends that the request is proper because it has “consistently asserted ad damnum demands for fees” and seeks to conform its pleading to orally discovered facts.
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Oct. 1 affirmed a lower federal court’s dismissal of an insured’s putative class action seeking coverage for class members’ “substantial financial losses” resulting from the coronavirus and subsequent civil authority orders, rejecting the insured’s contention that pursuant to California’s rules of policy interpretation, the lower court had a duty to adopt the insured’s reasonable interpretation of the phrase “direct physical loss of or damage to property.”
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Oct. 1 affirmed a lower federal court’s dismissal of a retailer insured’s class complaint seeking coverage under a comprehensive business insurance policy for its claimed losses following the state’s “Stay at Home” order in response to the coronavirus pandemic, finding that its interpretation that the phrase “direct physical loss of or damage to” insured property requires physical alteration of property is consistent with other policy provisions.
LOS ANGELES — A California judge on Oct. 1 overruled an insurer’s demurrer to an insured’s breach of contract and bad faith lawsuit seeking coverage under a “Cancellation, Abandonment and Non-Appearance Insurance” policy for the postponement of the last six shows of Metallica’s South American tour in 2020, finding that the insurer “inadequately investigated” the claim and that the complaint adequately alleged that the coronavirus “is not the efficient proximate cause” of the concert cancellations.
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Oct. 1 affirmed a lower federal court’s dismissal of a breach of contract and declaratory judgment lawsuit brought against insurers by small businesses that own and operate Minor League Baseball (MiLB) teams, finding that the virus exclusion bars business interruption coverage for their losses arising from the coronavirus pandemic.
CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Sept. 22 affirmed a federal court’s ruling that granted a property insurer’s motion to dismiss an Ohio Italian restaurant’s coronavirus coverage lawsuit, finding there is no coverage because the restaurant has not been tangibly destroyed and the owner has not been tangibly or concretely deprived of any of its restaurant.
CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Sept. 21 affirmed a district court’s ruling that General Electric Co. (GE) is not liable to reimburse its insurer under the Comprehensive Environmental Response, Compensation, and Liability Act as a former operator of passenger railcars that used transformers containing polychlorinated biphenyls (PCBs) or yards in Delaware, New York and Pennsylvania where they were housed that later became contaminated from spills of the chemical because GE employees at the yards performed only warranty work on the railcars.
TOLEDO, Ohio — An Ohio federal judge on Sept. 24 determined that a commercial general liability insurer has a duty to defend its insured landlords against bodily injury claims caused by lead-based paint in a rental home because the policy’s absolute pollution exclusion is ambiguous as to whether lead-based paint is considered a pollutant under the exclusion.
LAKELAND, Fla. — A trial court erred in entering judgment for insureds seeking coverage for damages caused by the overflow of water from a septic tank because the homeowners insurer did not waive its right to assert coverage defenses by invoking the appraisal process and because the appraisal panel failed to consider whether a fungus exclusion applies to the insureds’ fungus-related damages, the Second District Florida Court of Appeal said Oct. 1.
ERIE, Pa. — A federal judge in Pennsylvania on Sept. 28 granted plaintiffs’ co-lead counsel’s motion for relief from an earlier order requiring unanimous consent of all plaintiffs to file a consolidated amended class action in a coronavirus business interruption coverage lawsuit against Erie Insurance Co., allowing the one hold-out plaintiff to join the class action within 10 days of its filing or alternatively file a notice that it will not join the complaint.
CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Sept. 29 granted a commercial insurer’s petition for permission to appeal a lower federal court’s order granting summary judgment in favor of restaurant insureds in a coronavirus coverage dispute over lost business income, vacating the lower court’s ruling as to the coverage issue alleged in the breach of contract and declaratory judgment claims and remanding for further proceedings.
NEW YORK — In orders filed Sept. 17 in one case and Sept. 22 in the other, the Second Circuit U.S. Court of Appeals denied Utica Mutual Insurance Co.’s petition for rehearing en banc of a panel’s combined ruling in favor of two reinsurers in asbestos billings and certificate disputes, saying only that “[t]he active members of the Court” considered the request.
RALEIGH, N.C. — A federal judge in North Carolina on Sept. 8 granted an insurer’s motion for judgment on the pleadings and dismissed Golden Corral Corp. and Golden Corral Franchising Systems’ bad faith lawsuit seeking coverage for their financial losses arising from the suspension of their restaurant operations in response to the government orders prompted by the coronavirus pandemic, finding that the insureds have not plausibly alleged tangible, physical harm to their covered property or a tangible loss of their covered property.