Mealey's Emerging Insurance Disputes : Mealey's : Legal News & Analysis

Mealey's Emerging Insurance Disputes

September 22, 2023
Insured Failed To Provide Timely Notice Of Opioid Suits, 11th Circuit Affirms

ATLANTA — The 11th Circuit U.S. Court of Appeals on Sept. 21 affirmed a lower federal court’s ruling that an excess insurer has no duty to defend an opioid manufacturer insured against underlying lawsuits arising from the insured’s sale of prescription opioid medications, finding that the insured failed to provide timely notice of the underlying actions.
September 20, 2023
Viacom, 1 Insurer Stipulate To Dismissal In D&O Coverage Suit Over Merger

WILMINGTON, Del. — Viacom Inc. and XL Specialty Insurance Co. stipulated and agreed to dismiss with prejudice all claims against XL Specialty in Viacom’s lawsuit seeking directors and officers liability coverage for underlying claims that its directors, officers and controlling shareholders breached their fiduciary duties in connection with a 2019 merger with CBS Corp.
September 19, 2023
Panel Affirms Ruling In Insurer’s Favor In Fraud Suit Challenging Its Practices

PHILADELPHIA — The Third Circuit U.S. Court of Appeals affirmed a lower federal court’s summary judgment ruling in favor of an insurer in an insured’s lawsuit alleging that it applied an undisclosed, extracontractual insurance premium formula to secretly increase his policy premiums, finding that the insured failed to demonstrate a material misrepresentation as required for a common-law fraud claim or unlawful conduct as required under the New Jersey Consumer Fraud Act (NJFCA).
September 19, 2023
Insurers Cross-Appeal In Coverage Dispute With Home Depot Over 2014 Data Breach

CINCINNATI — Insurers filed cross-appeal notices in an Ohio federal court two weeks and one day after their mutual insured, Home Depot, appealed to the Sixth Circuit U.S. Court of Appeals the lower court’s finding that an insurance policy’s electronic data exclusion bars coverage for the retailer’s losses stemming from a 2014 data breach (The Home Depot, Inc., et al. v. Steadfast Insurance Co., et al., No. 21-00242, S.D. Ohio, Western Div.).
September 19, 2023
High Court Review Sought For Reverse-Preemption Ruling In Insurance Info Row

WASHINGTON, D.C. — Arguing in part that the Third Circuit U.S. Court of Appeals removed “large pieces of insurance regulation from the purview of states, where it has long been placed and confirmed by the McCarran-Ferguson Act [MFA],” the Delaware Department of Insurance (DDOI) asked the U.S. Supreme Court to review a corporate privacy case involving microcaptive insurance company information.
September 18, 2023
Nevada High Court Vacates Ruling Against Insurer In Coronavirus Coverage Suit

CARSON CITY, Nev. — Granting a commercial property insurer’s petition for writ of mandamus in a coverage dispute arising from the forced closure of a shopping mall in response to the coronavirus pandemic, the Nevada Supreme Court directed the lower court to vacate its order denying the insurer’s motion for summary judgment on the insured’s breach of contract and declaratory relief claims after finding that the insured’s evidence failed to create a genuine dispute of material fact regarding the existence of “direct physical loss or damage” to trigger coverage and that the policy’s pollution and contamination exclusion further barred coverage.
September 18, 2023
Judge Says CGL Insurer Owes Reasonable Defense Costs, Orders Allocation Of Costs

BOSTON — A federal judge in Massachusetts held that a commercial general liability insurer has a duty to pay all reasonable defense costs incurred by its insured in an underlying trade secret lawsuit brought by a competitor but ordered a reasonable allocation of costs between the insured and noninsured parties.
September 18, 2023
N.Y. Justice Denies Insurer’s Summary Judgment Motion In Malpractice Coverage Suit

NEW YORK — A New York justice denied a professional liability insurer’s motion for summary judgment as premature in its lawsuit seeking a declaration as to primary and excess insurance coverage obligations for an underlying malpractice lawsuit brought against a law firm, further denying as moot the insurer’s motion to stay discovery.
September 15, 2023
Panel: Professional Liability Insurers Owe Pro Rata Coverage For Educators

ATLANTA — The 11th Circuit U.S. Court of Appeals on Sept. 14 affirmed a lower federal court’s ruling that an insurer and a risk management fund owe professional liability coverage on a pro rata basis for an underlying lawsuit brought against Georgia public school educators, agreeing with the lower court that the parties’ “other insurance” clauses are irreconcilable.
September 15, 2023
Professional Services Exclusion Does Not Bar Coverage, Delaware High Court Affirms

WILMINGTON, Del. — The Delaware Supreme Court on Sept. 14 affirmed a lower court’s $4,907,612.95 final judgment in favor of an insured in its lawsuit seeking coverage for approximately $18 million in losses arising from an underlying False Claims Act investigation, finding that the management liability insurance policy’s professional services exclusion did not bar coverage and that the insurer did not act in bad faith.
September 13, 2023
No Coverage Owed For Restaurants’ Coronavirus Losses, 9th Circuit Affirms

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals affirmed a lower federal court’s dismissal of a restaurant owner insured’s breach of contract and declaratory judgment lawsuit seeking coverage for its losses stemming from the coronavirus pandemic, finding that the policy’s virus exclusion bars coverage.
September 08, 2023
COMMENTARY: Maui Wildfire Insurance Recoveries: In The Rush To Lay Blame, Remember Your Claim

By Christopher C. Loeber and Helen P. Hunter
September 12, 2023
Panel Remands Coronavirus Coverage Suit To Decide Federal Diversity Jurisdiction

ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on Sept. 11 reversed and remanded a coronavirus coverage lawsuit for an Iowa federal court to determine whether federal diversity jurisdiction exists, finding that it is unable to decide if an insured’s members were diverse based on the insured’s new affidavit.
September 12, 2023
Delaware High Court Refuses Insurer’s Interlocutory Appeal In Dispute With FedEx

DOVER, Del. — The Delaware Supreme Court denied an excess insurer’s request for an interlocutory appeal of a lower court’s grant of FedEx’s stay of the insurer’s lawsuit disputing coverage for post-judgment interest that FedEx incurred from a $157 million jury verdict in an underlying personal injury lawsuit, finding that there are no exceptional circumstances to warrant an interlocutory appeal.
September 12, 2023
Questions On Meaning Of Occurrence, Pollutants Certified To Hawaii High Court

HONOLULU — A Hawaii federal judge certified two questions to the Hawaii Supreme Court, seeking the state high court’s guidance regarding the meaning of the terms “occurrence” and “pollution” as used in insurance policies in a suit filed by a petroleum company seeking coverage for underlying lawsuits alleging that the petroleum company is responsible for contributing to the effects of global warming based on its alleged failure to warn of the hazards of using fossil fuel products.
September 07, 2023
COMMENTARY: Should Insureds Reimburse Insurers For Defense Costs When No Coverage Is Found?

By Robert M. Hall
September 11, 2023
Amber Heard Seeks Dismissal Of Insurer’s Complaint In Defamation Coverage Suit

LOS ANGELES — Amber Heard moved to dismiss an insurer’s second amended complaint seeking a declaratory judgment that it has no duty to defend or indemnify her for a defamation judgment awarded to Johnny Depp.
September 11, 2023
9th Circuit Certifies Pollution Exclusion Question To Alaska Supreme Court

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals certified a question to the Alaska Supreme Court, asking the state high court to answer the question of whether a pollution exclusion in a homeowners insurance policy bars coverage for the carbon monoxide death of a 17-year-old.
September 08, 2023
Federal Judge Dismisses TCPA Coverage Suit After Yahoo, Insurer Reach Settlement

SAN JOSE, Calif. — One day after Yahoo! Inc. and its commercial general liability insurer filed a notice of settlement, a federal judge in California dismissed with prejudice Yahoo’s lawsuit seeking coverage for underlying class actions alleging that it violated the Telephone Consumer Protection Act (TCPA).
September 08, 2023
Home Depot Seeks 6th Circuit Review Of No Coverage Ruling For 2014 Data Breach Losses

CINCINNATI — Home Depot filed a notice of appeal in an Ohio federal court asking the Sixth Circuit U.S. Court of Appeals to review the lower court’s finding that an insurance policy’s electronic data exclusion bars coverage for the retailer’s losses stemming from a 2014 data breach, challenging the lower court’s grant of the insurers’ motions for summary judgment in its breach of contract and bad faith lawsuit seeking damages up to the full collective policy limits of $50 million.
September 08, 2023
Federal Judge Dismisses Bobcat Wildfire Coverage Suit After Parties Reach Settlement

LOS ANGELES — A federal judge in California dismissed without prejudice a coverage dispute over underlying lawsuits arising from the Bobcat Wildfire one day after the parties announced that they reached a settlement.
September 08, 2023
Majority: Insured Sufficiently States Negligence Claim Against Insurance Agent

RALEIGH, N.C. — A majority of a North Carolina appeals court held that an insured’s allegations are sufficient to state a claim for negligence against an insurance agent in a lawsuit arising from Hurricane Florence property damage, reversing the lower court’s dismissal of the negligence claim and affirming in all other respects.
September 07, 2023
N.J. Panel Remands Coronavirus Coverage Suit To Allow Insured To Amend Fraud Claims

TRENTON, N.J. — A New Jersey appeals panel on Sept. 6 reversed a lower court’s dismissal of a law firm insured’s fraud-based claims against its insurers in a coronavirus coverage dispute, remanding with instructions for the court to permit the insured to amend its complaint to adequately plead these claims, but affirmed the dismissal of the other claims.
August 29, 2023
Joint Statement Filed In Coverage Row Over Jet Leased To Russian Operator

SAN FRANCISCO — Plaintiffs in an international aviation insurance coverage dispute involving Russia’s invasion of Ukraine plan to initially focus depositions “on persons identified by the ‘War Risk’ insurers,” according to a filing in California state court.
August 22, 2023
CGL Insurer Disputes Coverage For Sex Trafficking Claims Against Hotel Insured

ATLANTA — A commercial general liability insurer filed suit in a federal court in Georgia, seeking a declaration that it owes no coverage for an underlying lawsuit alleging that its insured did not uphold its duty of care concerning the safety of its hotel and hotel guests by failing to prevent and respond to evidence of sex trafficking, arguing that the policy’s “Abuse or Molestation” and “Assault or Battery Liability” endorsements preclude coverage.