ATLANTA - An insurer waived its defense based on untimely notice of an underlying action arising from an insured's welding work on a pipeline, a Georgia federal judge concluded March 31, also finding that any claims based on the defense fail as a matter of law (Latex Construction Co. v. Everest National Insurance Co., No. 12-892, N.D. Ga.; 2014 U.S. Dist. LEXIS 42976).
Blog Post: Mealey's Insurance - Insurer Waived Untimely Notice Defense On Insured's Welding Work, Judge Says
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Blog Post: Policy Requiring a Carrier to Investigate and Defend “Suits” Does Not Require It to Investigate and Defend Claims That Have Not Ripened Into Litigation
Great Am. E&S Ins. Co. v. Kouw Pinnq Enter. Co. , 2013 U.S. Dist. LEXIS 146247 (C.D. Cal. Sept. 20, 2013) [enhancedversion available to lexis.com subscribers]
In Great American, the district court held that a general liability insurer did not have an obligation to investigate, defend, or indemnify the insured because the insured had not alleged facts to support the existence of a suit alleging a legal obligation to pay damages as required under the policy. Because the insurer did not have a duty under the contract, the insured’s breach of contract claim could not stand.
The insured in Great American received notice of more than thirty claims alleging a failure of its product, but a lawsuit was not filed against it. The insured nevertheless submitted the claims to its insurer under several policies issued by that carrier and requested coverage. When the insurer subsequently discovered misrepresentations in the insured’s application during its investigation, the carrier filed a complaint for rescission and declaratory relief confirming its right to rescind its policies. The insured responded with a counterclaim for, among other causes of action, breach of contract, anticipatory breach, and bad faith. The carrier moved to dismiss the counterclaim on the basis that its policies only required it to defend and investigate “suits” and that the absence of any lawsuits filed against the insured meant that it had not breached those duties. Similarly, the carrier argued that its duty to indemnify had not been triggered because its policies only required it to pay for “Loss,” which was defined as “sums actually paid in the settlement or satisfaction of a claim,” and the insured had not alleged that it had paid any such sums. 2013 U.S. Dist. LEXIS 146247, at *10.
In response, the insured argued that Section 790.03(h) of the California Code of Insurance (“Section 790.03(h)”) [enhancedversion available to lexis.com subscribers] is an implied term of all policies and that the carrier had breached the terms of that provision by failing to investigate the underlying claims and failing to defend and indemnify it against those claims. In rejecting this position and adopting the carrier’s argument, the court held that Section 790.03(h) only applies to claims that are otherwise covered under the policies at issue and does not create obligations relating to otherwise uncovered claims. The court also rejected the insured’s argument that the insurer’s complaint for rescission and declaratory relief amounted to anticipatory breach of the contract because the insurer’s actions did not constitute an absolute and unequivocal refusal to perform.
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Blog Post: Medicare Recognizes Same-Sex Marriages
Medicare will begin processing enrollment requests from married same-sex couples, the U.S. Department of Health and Human Services said Thursday, joining a wave of other federal agencies after the U.S. Supreme Court struck down part of the Defense of Marriage Act last year.
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Blog Post: Pa. Justices Snub Appeal Over Atty's Dual Role In Injury Row
The Pennsylvania Supreme Court on Wednesday declined an appeal of a decision which barred Liberty Mutual Insurance Co. and other insurers from challenging and overturning a $5.1 million judgment in a personal injury suit where the same attorney allegedly represented both sides during a jury trial.
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Blog Post: Insurer Hit With $1M Bad Faith Ruling Over Car Crash
A federal magistrate judge in New York held Monday that New York Central Mutual Fire Insurance Co. must pay $1 million to excess carrier Quincy Mutual Fire Insurance Co. in a dispute over a car accident, concluding that the primary insurer's adherence to its initial settlement offer “epitomize[d]” bad faith negotiations.
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Blog Post: House Passes Bill To Redefine Full-Time Work In ACA
The U.S. House of Representatives passed a bill Thursday to change the definition of full-time work under the Affordable Care Act’s so-called employer mandate from 30 hours to 40 hours per week, a move the bill’s proponents say woudl benefit both businesses and workers.
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Blog Post: Texas Lt. Gov. Claims Immunity In $26M Coverage Suit
Texas Lieutenant Gov. David Dewhurst launched a suit in state court Thursday to stop the Mostyn Law Firm from taking his deposition in a $26 million lawsuit being pursued by a school district against the state’s windstorm insurer for denying hurricane damage claims.
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Blog Post: Xerox, Nev. Health Exchange Sued Over Coverage Glitches
A putative class action lobbed against Xerox Corp. and Nevada's health exchange in state court Tuesday alleges that even though thousands of residents paid for insurance, few have yet to receive coverage.
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Blog Post: NY Bows To Need For Secrecy In Insurer Solvency Reports
New York’s insurance regulator is considering inserting procedures for shielding trade secrets into a proposal to track insurers' risk exposures and business plans, according to an industry group that called for the revision.
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Blog Post: Stonebridge Settles Spam Text Case With 60K Plaintiffs
A California federal judge said Thursday that he's inclined to grant preliminary approval to a settlement between Stonebridge Life Insurance Co. and a class of nearly 60,000 people who say they received unwanted text messages offering Wal-Mart Stores Inc. gift cards from a marketing group Stonebridge hired.
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Blog Post: O'Donnell Ferebee Asks To Pick Counsel For Malpractice Suit
O’Donnell Ferebee Medley & Frazer PC told a Texas state court Thursday that it should be allowed to choose independent counsel to defend it against a $5.6 million malpractice suit because the firm's insurance carrier is trying to limit its exposure to the suit.
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Blog Post: NJ Judicial Committee Issues Plan To Manage Sandy Suits
A committee of New Jersey federal judges last week issued case management guidelines for the state’s glut of suits against flood insurance carriers in the wake of Superstorm Sandy, after soliciting public comment on how to streamline the adjudication of as many as 2,000 such suits.
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Blog Post: When Whistleblowers Strike, Give a Little Whistle for D&O Insurance
Anderson Kill presents its 11th annual D&O seminar:
When Whistleblowers Strike, Give a Little Whistle for D&O Insurance
When: Wednesday, April 09, 2014, 3-5 p.m.; cocktail reception follows
Where: The Westin Times Square, 270 West 43rd Street - New York, NY
Price: Free
Whistleblower suits are on the rise and may be approaching flood tide. At the SEC, tips to the Office of the Whistleblower established by Dodd-Frank have roughly tripled since the law was enacted. For four years running, the Justice Department has recovered more than $3 billion from the False Claims Act, most of it under qui tam provisions.
Anderson Kill's annual D&O insurance seminar will provide risk managers, CFOs and corporate officers with a wealth of practical information key to minimizing exposure to today's most salient liability risks for directors and officers -- with whistleblower claims topping the list -- and for maximizing insurance coverage when claims are filed. Top fraud claimants attorneys and insurance recovery attorneys will describe the current whistleblower claims climate. D&O insurance brokers will review major emerging D&O risks, corporate governance and liability at financial institutions, and the state of the D&O liability insurance market.
Speakers include Anderson Kill shareholders William G. Passannante, Allen R. Wolff, and Diana Shafter Gliedman; Jordan A. Thomas, Partner, Labaton Sucharow; Kevin Sullivan, Managing Director , Marsh FINPRO; and Robbyn S. Reichman Esq., Managing Director, Aon Risk Services of New York, FSG.
To register, please contact Sonia Smalls at 212-278-1400, email seminars@andersonkill.com sign up online here.
The seminar is CLE-approved in NY and PA and presumptively in NJ.
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Blog Post: Mealey's Insurance - 11th Circuit Affirms Denial Of Insured's Motion To Vacate Arbitration Award
ATLANTA - The 11th Circuit U.S. Court of Appeals on April 3 affirmed a lower federal court's refusal to vacate an arbitration award in favor of insurers in a coverage dispute over a nursery insured's crop damage (Campbell's Foliage Inc. v. Federal Crop Insurance Corp., et al., No. 13-11896, 11th Cir.; 2014 U.S. App. LEXIS 6132).
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Blog Post: Mealey's Insurance - Judge May Certify Bad Faith Subrogation Questions To Indiana High Court
HAMMOND, Ind. - Finding no existing state case law that directly addressed issues related to the equitable subrogation of an insured's bad faith claim, an Indiana federal judge on April 3 directed the parties in a coverage dispute to submit briefs on whether to certify questions on the topic to the Indiana Supreme Court (Stephen W. Robertson v. The Medical Assurance Company Inc., No. 2:13-cv-00107, N.D. Ind.; 2014 U.S. Dist. LEXIS 46010).
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Blog Post: Mealey's Insurance - Indiana High Court: Statute Bars Negligence Claim Against Insurance Agent
INDIANAPOLIS - A two-year statute of limitations precludes insureds' negligence and breach of contract claims against their insurer and its insurance agent, the Indiana Supreme Court affirmed April 3, finding that the statute began to run no later than the first policy renewal (Christopher Groce and Tracey Groce v. American Family Mutual Insurance Co. and Michael A. Meek, No. 48S02-1307-CT-472, Ind. Sup.; 2014 Ind. LEXIS 262).
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Blog Post: Mealey's Insurance - Judge: Issues Exist Under Insurance Policy As To Source, Timing Of Water Damage
SEATTLE - The source and timing of any water damage caused by an insured's defective windows are genuine issues of material fact, a Washington federal judge held April 1, denying summary judgment to an insurer (Colorado Casualty Insurance Co. v. Starline Windows Inc., et al., No. 12-2218, W.D. Wash.; 2014 U.S. Dist. LEXIS 45763).
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Blog Post: Female Powerbrokers Q&A: Feinberg Day's Elizabeth Day
A great sense of humor, willingness to speak my mind and strong work ethic made breaking into the old boys' network a possibility. And although I was not given a leadership title at my last firm, I was able to lead by starting my own firm with six fantastic, talented men — if you can’t “break” them, start a firm with them, says Elizabeth Day, a founding partner of Feinberg Day Alberti & Thompson LLP.
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Blog Post: Female Powerbrokers Q&A: Pillsbury's Elizabeth Moeller
One thing that has served me well in the professional challenges I face is something my mother taught me. She was Southern, a true steel magnolia, who could be both gracious and tough. She instilled in me that warmth and a tone of civility usually carry the day, says Elizabeth Moeller, leader of Pillsbury Winthrop Shaw Pittman's public policy group.
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Blog Post: House Agrees To Long-Term Budget Review For Major Bills
The U.S. House of Representatives on Friday passed a bill requiring that all major legislation be assessed for its long-term budgetary, tax and economic impacts, a measure targeted at alleged negative impacts of legislation such as the Affordable Care Act.
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