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Mealey's Insurance

  • December 10, 2018

    Insurers Are Permitted To Control Defense Of Underlying Asbestos Suits

    BOSTON — In a recently released opinion, a Massachusetts Superior Court justice granted summary judgment in favor of two insurers involved in an asbestos coverage dispute after determining that the insurers are entitled to select defense counsel and to control the defense of the underlying asbestos suits that they offered to defend without a reservation of rights (Crosby Valve LLC, et al. v. OneBeacon America Insurance Co., et al., Mass. Super., Suffolk Co., No. 141213, 2018 Mass. Super. LEXIS 271).

  • December 10, 2018

    Insured Urges 9th Circuit To Take Judicial Notice Of Briefs Filed In 2 Cases

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals should grant an insured’s motion for judicial notice regarding briefs filed in two cases that address similar facts to the insured’s argument in its appeal of a district court’s ruling that California law, rather than Alabama law, applies to an environmental contamination coverage suit, the insured argues in response to the insurers’ objection to the motion for judicial notice (Arrow Electronics Inc. v. Aetna Casualty & Surety Co., et al., No. 18-55810, 9th Cir.).

  • December 10, 2018

    Site Investigation Costs Should Be Classified As Defense Costs, Insured Says

    SEATTLE — Environmental liability investigation costs incurred by an insured as a result of an agreement with the Washington Department of Ecology should be classified as defense costs and not as damages under an insurer’s policies, the insured argues in a Dec. 3 brief filed in the Ninth Circuit U.S. Court of Appeals (The Travelers Indemnity Co. v. Richland, Nos. 18-35543, 18-35558, 9th Cir.).

  • December 10, 2018

    Policy Endorsement Limits Coverage For Sewage Backup, Panel Says

    TRENTON, N.J. — A New Jersey appellate panel on Dec. 3 affirmed a trial court’s ruling that a policy’s custom endorsement limitation applies to cap an insurer’s coverage responsibility to $25,000 for damages caused by a sewage backup in an insured restaurant because the endorsement clearly excluded loss for business income or extra expenses  (Fouzia Salih v. Ohio Security Insurance Co., No. A-1179-17T1, N.J. Super., App. Div., 2018 N.J. Super. Unpub. LEXIS 2647).

  • December 10, 2018

    Policy Covers Collapse, But Insured Failed To Prove Any Amount Of Loss

    SYRACUSE, N.Y. — While coverage is afforded under a policy for the collapse of a roof caused by the weight of snow, the insurer has no duty to pay the insured for the loss because the insured failed to establish any amount of loss caused by the collapsed roof, a  New York federal judge said Dec. 3 (Robert T. Iannucci v. Allstate Insurance Co., No. 16-357, N.D. N.Y., 2018 U.S. Dist. LEXIS 203687).

  • December 7, 2018

    Panel: Insurer’s Settlement, Reimbursement By Reinsurer Did Not Breach Contract

    NEW YORK — In affirming the dismissal of breach of contract and bad faith claims, the Second Circuit U.S. Court of Appeals on Dec. 6 agreed with a lower judge that an insurer’s settlement of a flood damage claim arising out of construction work and its reimbursement under a captive reinsurance agreement did not breach its contract to insureds (Keller Foundations LLC, et al. v. Zurich American Insurance Co., No. 18-1280, 2nd Cir., 2018 U.S. App. LEXIS 34345).

  • December 6, 2018

    Judge Dismisses Insureds’ Breach Of Contract Claim In Concrete Decay Dispute

    HARTFORD, Conn. — In a concrete decay case, a Connecticut federal judge on Dec. 4 dismissed claims for breach of contract and violations of the Connecticut Unfair Insurance Practices Act (CUIPA) and the Connecticut Unfair Trade Practices Act (CUTPA) against an insurer because the policies cover only loss that has occurred suddenly and accidentally (Richard T. Hyde, et al. v. Allstate Insurance Co., et al., No. 18-00031, D. Conn., 2018 U.S. Dist. LEXIS 204835).

  • December 4, 2018

    Insurer Says Pollution Exclusion Clearly Applies To Fire Suppression Foam

    MIAMI — A trial court correctly determined that a policy’s total pollution exclusion bars coverage for underlying claims alleged against a fire protection systems contractor because the fire suppression foam that was released in an air hangar is clearly a pollutant under the terms of the policy at issue, the insurer argues in a recent appellee brief filed in the Third District Florida Court of Appeal (Advanced Systems Inc, v. Gotham Insurance Co., No. 3D18-1744, Fla. App., 3rd Dist.).

  • December 3, 2018

    Special Master: Bifurcation Should Be Denied In Case Between Insurer, Reinsurer

    DETROIT — A special master on Nov. 29 recommended that a Michigan federal court should deny an insurer’s motion for bifurcation of discovery in a breach of contract case against a reinsurer over reinsurance billings for asbestos claims (Amerisure Mutual Insurance Co. v. Transatlantic Reinsurance Co., No. 18-11966, E.D. Mich.).

  • November 30, 2018

    Reconsideration Denied On Collateral Estoppel Ruling In Reinsurer, Insurer’s Case

    UTICA, N.Y. — In the “latest chapter in a long-running dispute” between a reinsurer and insurer, a New York federal judge on Nov. 30 declined the reinsurer’s motion to reconsider an earlier ruling on issues of collateral estoppel and standing in the parties’ dispute over settlements of asbestos claims (Utica Mutual Insurance Co. v. Century Indemnity Co., No. 13-995, N.D. N.Y., 2018 U.S. Dist. LEXIS 202819).

  • November 30, 2018

    Insured Failed To Comply With Condition Precedent To Coverage, Panel Affirms

    SAN FRANCISCO — An insured failed to comply with the Contractors Special Conditions in its insurance policy before an underlying construction defects lawsuit was filed, the Ninth Circuit U.S. Court of Appeals held Nov. 28, affirming a lower court’s ruling that an insurer has no duty to duty to defend and indemnify (ProBuilders Specialty Insurance Company RRG v. Phoenix Contracting Inc. and FHC LLC, No. 17-35861, 9th Cir., 2018 U.S. App. LEXIS 33384).

  • November 29, 2018

    Mold Damage Is Clearly Excluded From Policy Coverage, Federal Judge Says

    ABINGDON, Va. — A Virginia federal judge on Nov. 28 determined that no coverage is afforded under a homeowners policy for mold damage because the policy at issue clearly excludes coverage for mold (Chad Poore et al., v. Main Street America Assurance Co. et al., No. 18-22, W.D. Va., 2018 U.S. Dist. LEXIS 200998).

  • November 29, 2018

    New York Justice Says Coverage Is Triggered When Claimant Is Exposed To Asbestos

    SYRACUSE, N.Y. — Under New York’s “injury in fact” standard, coverage for personal injury in asbestos suits is triggered when a claimant is exposed to asbestos and continues until death or until a claim for damages is made, a New York justice said Nov. 21 in granting summary judgment in favor of insureds seeking coverage under excess policies for asbestos claims (Carrier Corp., et al. v. Allstate Indemnity Co., No. 2005-EF-7032, N.Y. Sup., Onondaga Co.).

  • November 28, 2018

    Insureds’ Suit Dismissed; Basement Walls Are Not Caving In As Required By Policy

    HARTFORD, Conn. — No coverage is afforded under a policy’s collapse provision for the cracking in the basements walls of an insured home caused by a chemical reaction in the concrete because the policy specifically requires a collapse to be an “abrupt falling down or caving in,” a Connecticut federal judge said Nov. 27 in dismissing the insureds’ complaint (Lawrence Cockill, et al. v. Nationwide Property and Casualty Insurance Co., No. 18-254, D. Conn., 18-254, 2018 U.S. Dist. LEXIS 200172).

  • November 27, 2018

    Panel Denies Rehearing On Reinsurer’s Liability As To Asbestos Claims

    NEW YORK — In a one-page order, the Second Circuit U.S. Court of Appeals on Nov. 14 denied a request for panel rehearing or for rehearing en banc of its ruling that a reinsurer’s liability follows an insurer’s expense‐supplemental obligations under umbrella policies (Utica Mutual Insurance Co. v. Clearwater Insurance Co., Nos. 16-2535 & 16-2824, 2nd Cir.).

  • November 26, 2018

    Federal Magistrate Judge Says Insurer Has No Further Duty For Oil Spill Costs

    NEW YORK — A New York federal magistrate judge on Nov. 7 determined that an excess insurer has no further duty to indemnify its insured for oil spill remediation costs because the evidence shows that the parties never intended for the excess insurer to continue paying pollution defense costs after the policy’s limit for pollution cleanup and response costs was reached (American Commercial Lines LLC, et al. v. Water Quality Insurance Syndicate, No. 09-7957, S.D. N.Y., 2018 U.S. Dist. LEXIS 194202).

  • November 26, 2018

    Insured Objects To Amicus Curiae Brief, Says Amicus Party Is Not Unbiased

    HARTFORD, Conn. — In a Nov. 21 brief to the Connecticut Supreme Court, an insured seeking coverage for underlying asbestos and silica claims objects to the Complex Insurance Claims Litigation Association’s application to file an amicus curiae brief, arguing that rejection of the application is warranted because there is significant overlap between the amicus and the insurers involved in the coverage dispute (R.T. Vanderbilt Co. Inc. v. Hartford Accident & Indemnity Co., et al., Nos. SC 20000, SC20001, SC20003, Conn. Sup.).

  • November 26, 2018

    No Coverage Owed Under Excess Policies For Insured’s Remediation Costs, Judge Says

    NEW YORK — An insured seeking coverage for environmental remediation costs is not entitled to coverage under excess policies because the costs, when allocated on a pro rata basis over a 40-year period, do not reach the attachments points of the excess policies, a New York federal judge said Nov. 24 (Olin Corp. v. Certain Underwriters at Lloyd’s, London, et al., No. 18-8197, S.D. N.Y., 2018 U.S. Dist. LEXIS 199079).

  • November 21, 2018

    Expedited Discovery Ordered In Asbestos Coverage Dispute On Policies’ Exhaustion

    ERIE, Pa. — A Pennsylvania federal judge on Nov. 20 denied an insured’s motion for an interim funding order in an asbestos coverage dispute but ordered the parties to participate in a period of expedited discovery regarding the exhaustion of the insured’s primary policies and the potential coverage obligations of an excess insurer (Zurn Industries LLC v. Allstate Insurance Co., et al., No. 18-299, W.D. Pa., 2018 U.S. Dist. LEXIS 197481).

  • November 20, 2018

    Remand Of Suit Seeking Business Interruption Costs Not Warranted, Judge Says

    TRENTON, N.J. — A New Jersey federal judge on Nov, 19 denied a motion to remand filed by insureds in a suit alleging that their insurer acted in bad faith in ceasing payments for business interruption losses caused by mold growth within the insureds’ dental office because the suit does not present an exceptional circumstance that would warrant abstention by the federal court (Anthony J. Vitale DMD, et al. v. State Farm Fire and Casualty Co., No. 18-8988, D. N.J., 2018 U.S. Dist. LEXIS 197043).