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Shale Gas: Environmental Concerns Are Just the Tip of the Iceberg

By Kenneth Anspach

The U.S. Environmental Protection Agency (USEPA) announced the publication of a report, which concluded that the process known as "fracking" causes the contamination of water supplies.

Group Health Insurers Can Be Sued for Negligence of Providers in Their Networks

By Kristina N. Holmstrom

Plaintiffs injured by medical malpractice typically look to recover against the doctors and medical facilities that treated them, not to the insurer that paid for the substandard treatment. In Nevada, however, this is changing.

A Closer Look at the SafeNet Decision on "Related Claims"

By Jeffrey A. Kiburtz

The U.S. District Court for the Southern District of New York recently issued a decision in Fed. Ins. Co. v. SafeNet, Inc., Case No. 09 CV 7863 (Sept. 9, 2011), which addresses a number of issues that frequently arise in claims under directors and officers liability policies and other claims-made insurance policies.

California and Illinois Hold Accidental Contamination Provisions Afford No Coverage

By Rina Carmel

Two recent cases have examined policy definitions of accidental contamination and accidental product contamination under a product recall issued to a food distributor and a malicious tampering/accidental contamination policy issued to a food manufacturer, respectively.

D&O Coverage Exists For Subpoenaed Non-Party Employees’ Fees

By Paul T. Curley

Director’s and officer’s liability coverage exists for legal fees paid by the insured entity on behalf of nonparty employees subpoenaed to testify in an SEC civil lawsuit against certain of the entity’s directors and officers.

Interrelated Wrongful Acts Provision Bars Coverage

By Paul T. Curley

The court addressed whether an amended cross-complaint made during the policy period related back to the original cross-complaint made prior to the policy period.

Fraud Exclusion in D&O Policy Bars Coverage for Convicted Insureds

By Paul T. Curley

The Southern District of Ohio held that, despite material misrepresentations in an application, a directors and officers liability insurer’s rescission claim could not be adjudicated on summary judgment.

Asserting Derivative Claims on Top of Direct Claims Does Not Give Rise to D&O Coverage

By Paul T. Curley

Court upheld an insurer’s denial of coverage for purported derivative claims on the ground that the policyholder was attempting to convert a directors and officers liability policy “into a policy that provides first-party coverage for what amounts to business losses.”

South Carolina: CGL Policy Covers Construction Defects

By Edwin L. Doernberger

South Carolina’s Supreme Court recently issued a revised opinion in the hotly debated case of Crossmann Communities of North Carolina, Inc. v. Harleysville Mut. Ins. Co.

Institutional Bad-Faith Discovery: Locating Smoking Guns in the Digital Era

By Meghan C. Moore and Matthew B. Weaver

The road to evidence demonstrating an insurance company’s decision to adopt or tolerate corporate policies, repeat conduct, and general business practices that harm policyholders in violation of state insurance laws, is often littered with obstacles.

When Is Work Abandoned for Purposes of the Products-Completed Operations Hazard?

By Neil Selman

The distinction between an insured’s ongoing operations and completed operations can affect the application of three key exclusions.

Location, Location, Location: Placement of Terms Can Really Matter

By Jamie R. Carsey and Kimberly Snagg

Prejudice need not be shown in connection with an insured’s failure to comply with a consent-to-settle provision contained in the definition section of a policy.

What's Your Status?

By Daniel A. Dorfman

A general contractor is not an additional insured under a commercial general liability policy where the general contractor is not in contractual privity with the named insured.

Insurance in the Wake of United Kingdom Bribery Act
By Raymond L. Sweigart and René L. Siemens

The UKBA has serious potential implications for non-UK companies.

Pulling for Japan–Insurance Coverage for Natural Disasters

 By Tred R. Eyerly

The world watches with awe as Japan struggles through a triple-disaster.

Federal Court Finds No Coverage for Internal Investigation Costs and Certain SEC Costs

 By Joan Gilbride and Paul Curley

One of only a few decisions to address the internal investigation issue, Office Depot appears to be the first to hold in favor of insurers.

Green Companies Need Insurance Too: Wind Fields

 By Jess R. Booth

This is the first article in a series of articles regarding the insurance needs of green companies or companies that are going green.

Maximize Your Insurance Recovery for Theft or Fraud Losses

 William G. Passannante & James R. Serritella

Recent surveys and reports show that incidents of fraud are on the rise.

May an Insurer Recoup Defense Costs Paid Under a Reservation of Rights?

By Michael F. Aylward

For the past 10 years, courts around the country have grappled with the issue of whether an insurer—later declared not to owe coverage—may recoup defense costs, which it paid in the interim under a reservation of rights.

Some Courts Expect All Defense Attorneys to be Experts in Insurance Law

By Erica J. Dominitz

All defense attorneys might have a duty to investigate, advise their clients regarding, and take steps to preserve their clients’ rights under applicable insurance policies.

Insurance Coverage for Ponzi-Fund Losses and Liabilities

By John E. Heintz, Justin F. Lavella, and Veronica Jackson

Although Bernie Madoff is now in federal prison for organizing one of history's largest Ponzi schemes, his victims are still feeling the ramifications of his crimes.

Fifth Circuit Upholds Injunction Requiring Insurer to Advance Defense

By Laura J. Grabouski

The Fifth Circuit issued an opinion in the dispute involving former officers and directors of companies affiliated with Robert Allen Stanford.

Business Interruption

Please contact Richard Lewis for further information or to submit articles.

Ten Tips to Securing Insurance Coverage for a Business Interruption

Lee M. Epstein

A Look Back at Insurance Law in 2008: New York’s Highest Court Confirms that Insurance Companies are Liable for Consequential Damages Just Like Anyone Else

Ronald J. Papa and Marshall Gilinsky

The “Loss of Market” Exclusion: An Update from the Policyholder Perspective

 Nicholas M. Insua

The “Loss of Market” Exclusion: The Insurer’s Perspective

 Frank A. Valverde

Fundamentals of Making a Business Income Claim | 

 Richard P. Lewis

Natural Catastrophes

Please contact Troy J. Seibert for further information or to submit articles.

Servicing Insurer Agreement

Wilbert V. Farrell, IV

Ninth Circuit Rules Flood Exclusion Unambiguously Bars Coverage for Storm Surge Damage from Hurricane Katrina

Thomas H. Cook, Jr. and Patricia St. Peter

Counseling Your Client after the Loss of a Home

 Linda E. Klamm

Hurricane Storm Surges and Property Insurance: What’s the Coverage Climate?

 Marc J. Shrake and Raina Bayas

Implications of Anti-Concurrent Causation Clauses in Gulf Coast Hurricane Claims

 Daniel P. Buechler

Failure to Adopt Creative Solutions Furthers Crisis in U.S. Property Insurance Markets

 James M. Davis and Noel C. Paul

Breadth of the Flood Exclusion: A Flood is a Flood, Including Storm Surge

 Tred R. Eyerly

Checklists for Property Damage and Business Interruption Claims
The Insurance Coverage Litigation Committee has prepared a general checklist for making claims under property insurance policies and a checklist of additional information that may be required in making a claim under business interruption coverage. Originally created to address insurance issues arising out of the terrorists attacks on September 11, 2001, these checklists are applicable to losses from natural disasters.

» Property Insurance Checklist | 

» Business Interruption Insurance Checklist | 

» Frequently Asked Questions in the Wake of Natural Disasters | 

Financial Crisis

Please contact Tyler Gerking for further information or to submit articles.

A Closer Look at the SafeNet Decision on "Related Claims"

By Jeffrey A. Kiburtz

The U.S. District Court for the Southern District of New York recently issued a decision in Fed. Ins. Co. v. SafeNet, Inc., Case No. 09 CV 7863 (Sept. 9, 2011), which addresses a number of issues that frequently arise in claims under directors and officers liability policies and other claims-made insurance policies.

D&O Coverage Exists For Subpoenaed Non-Party Employees’ Fees

By Paul T. Curley

Director’s and officer’s liability coverage exists for legal fees paid by the insured entity on behalf of nonparty employees subpoenaed to testify in an SEC civil lawsuit against certain of the entity’s directors and officers.

Interrelated Wrongful Acts Provision Bars Coverage

By Paul T. Curley

The court addressed whether an amended cross-complaint made during the policy period related back to the original cross-complaint made prior to the policy period.

Fraud Exclusion in D&O Policy Bars Coverage for Convicted Insureds

By Paul T. Curley

The Southern District of Ohio held that, despite material misrepresentations in an application, a directors and officers liability insurer’s rescission claim could not be adjudicated on summary judgment.

Asserting Derivative Claims on Top of Direct Claims Does Not Give Rise to D&O Coverage

By Paul T. Curley

Court upheld an insurer’s denial of coverage for purported derivative claims on the ground that the policyholder was attempting to convert a directors and officers liability policy “into a policy that provides first-party coverage for what amounts to business losses.”

Maximize Your Insurance Recovery for Theft or Fraud Losses

 William G. Passannante & James R. Serritella

Fifth Circuit Upholds Injunction Requiring Insurer to Advance Defense

 Laura J. Grabouski

Texas Court Grants Injunction, D&O Insurer Can't Renege on Promise to Advance Defense Costs

 Amelia Miazad and Walter Crump

When Are the Costs for Complying with an Agency Investigation or Conducting an Internal Investigation Covered by a D&O Policy?

 Stephen Goldberg

A General Overview of Subprime/Credit Crisis Related Claims and Potential D&O Coverage Issues

 Paul Curley

Insurance Coverage for Bankrupt Corporations: Needed Now More Than Ever

 Jason M. Rosenthal and Kristen E. Hudson

Enterprise Risk Management: An Important Strategic Discipline

 Dan A. Bailey

Insurance 101

Please contact Jorge R. Salva for further information or to submit articles.

An Overview of the Reinsurance "Follow the Fortunes" Doctrine for the Young Lawyer

 Nicholas J. Boos

When Is a Claim a “Claim?”

 Helen K. Michael, Amy J. Woodworth, and Erica J. Dominitz

Fundamentals of Litigating Breaches of Notice Provisions in Insurance Policies

 Jorge R. Salva

Differences Between First-Party and Third-Party Insurance Policies

 Lisa J. Trembly

Cost-Saving Tips for Case Management Orders in Insurance Coverage Actions

 James S. Carter

Bad Faith

Please contact Meghan Moore or Arden B. Levy for further information or to submit articles.

Institutional Bad-Faith Discovery: Locating Smoking Guns in the Digital Era

 Meghan C. Moore and Matthew B. Weaver

The Use of Experts in Insurance Bad Faith Cases | 

 Charles M. Miller, Esq.

Bad Faith Basics

 Jeffrey Michael Cohen, Steven J. Brodie and Aram C. Bloom

The Bad Faith Set Up | 

 Jeffrey Michael Cohen, Steven J. Brodie and Aram C. Bloom

The Bad Faith Setup: Doin’ It and Dodgin’ It

 Jeffrey Michael Cohen, Steven J. Brodie and Aram C. Bloom

Media & Technology

Please contact Robert Chesler for further information or to submit articles.

In Your Face! Facebook and the Use of Social Networking Websites for Service of Process

 Paul Spackman and Susan Page White

Privacy Issues Arising Out of Blast-Faxes

 Robert D. Chesler

Use of Another’s Advertising Idea in an “Advertisement” Triggers Insurer’s Defense Obligations

 David A. Gauntlett

Food Contamination

Please contact Suzan F. Charlton for further information or to submit articles.

California and Illinois Hold Accidental Contamination Provisions Afford No Coverage

By Rina Carmel

Two recent cases have examined policy definitions of accidental contamination and accidental product contamination under a product recall issued to a food distributor and a malicious tampering/accidental contamination policy issued to a food manufacturer, respectively.

Product Recalls Demand Careful Insurance Coverage Analysis

By Robert D. Chesler Esq and Rachel M. Wrightson Esq. – July 6, 2011

The food industry faces a new risk in the wave of product recalls.

First-Party Policies Provide Coverage for Food Spoilage and Other Damages Resulting from Loss
 of Electrical Power

 Robert D. Chesler

Food is Bad for You: Issues to Consider in Food, Beverage, and Wine Claims

 Rina Carmel and Anthony B. Leuin

Insurance Coverage for Food-Related Liabilities and Recalls | 

 Suzan F. Charlton

Contemporary Product Recall Issues and Strategies for Remediation | 

 Brad Murlick

Going Green

Please contact Jim Davis for further information or to submit articles.

Why Should Your Insurance Be Green? You May Save on Premiums and Also Get The Coverage You Need

 Walter Crump and Amelia Miazad

Stemming the Tide: The Lesson of Steadfast v. AES and Terminating the Duty to Defend Climate Change Lawsuits

 Max H. Stern and Jessica E. La Londe

Construction Insurance

Please contact Ruth Kochenderfer or Hillary Jarvis for further information or to submit articles.

South Carolina: CGL Policy Covers Construction Defects

By Edwin L. Doernberger

South Carolina’s Supreme Court recently issued a revised opinion in the hotly debated case of Crossmann Communities of North Carolina, Inc. v. Harleysville Mut. Ins. Co.

Location, Location, Location: Placement of Terms Can Really Matter

By Jamie R. Carsey and Kimberly Snagg

Prejudice need not be shown in connection with an insured’s failure to comply with a consent-to-settle provision contained in the definition section of a policy.

What's Your Status?

Daniel A. Dorfman

A general contractor is not an additional insured under a commercial general liability policy where the general contractor is not in contractual privity with the named insured.

Commercial Construction Wrap-ups: Owner and Contractor Controlled Insurance Programs

 Tracy Alan Saxe

Five Things to Know about Risk Shifting Provisions in Contractor Agreements

 Jason M. Yacuk

Insurance-Related Discovery

Please contact Rina Carmel for further information, to submit articles, or to become the editor of this section.

Beyond Bad Faith: Discoverability of Reserve & Reinsurance Information to Rebut an Insurer's Misrepresentation Defense

Helen K. Michael

 

Intellectual Property

Please contact Richard J. Bortnick for further information, to submit articles, or to become the editor of this section.

Missouri Upholds Disclaimer of Advertising Insurance Coverage

Robert D. Chesler and Eric Jesse

Food product manufacturers and distributors, like other commercial policyholders, often do not realize that they have almost no coverage for intellectual property infringement.

Insurer Did Not Commit Bad Faith When it Relied Upon an IP Exclusion

The California Court of Appeals has held that an insurer did not commit bad faith when it relied upon an IP exclusion to deny coverage for an advertising injury claim.

Dispute Over Coverage for Claim of Unauthorized Use

An action brought in California federal court seeking coverage for claims alleging copyright and trademark infringement has recently settled.

 

IP Exclusion Bars Coverage for Patent Infringement Claim

The U.S. District Court for the District of Arizona, applying Arizona law, held that an IP exclusion barred coverage for a patent infringement claim. In Ventana, St. Paul Fire & Marine Insurance Company (St. Paul), insured Ventana Medical Systems, Inc. (Ventana), under a medical and biotechnology commercial general liability policy.

Circuit Holds Claim for Patent Infringement is Covered as an Advertising Injury

In Hyundai Motor America v. National Union Fire. Ins. Co. of Pittsburgh, No. 08–56257 (9th Cir. Apr. 5, 2010), Orion IP, LLC (Orion), sued Hyundai for patent infringement. Orion alleged that Hyundai was liable for infringement by inter alia, introducing a feature on its website that allowed users to build and preview a car.

More Insurance Coverage Articles

Insurance in the Wake of United Kingdom Bribery Act
Raymond L. Sweigart and René L. Siemens

The UKBA has serious potential implications for non-UK companies.

Why Should Your Insurance Be Green? You May Save on Premiums and Also Get The Coverage You Need

“Green insurance” products may be directly relevant to your business, your profession and your personal assets including your home and car.

Stemming the Tide: The Lesson of Steadfast v. AES and Terminating the Duty to Defend Climate Change Lawsuits

A significant decision was recently rendered in the first and perhaps most well-known of the “global warming” coverage cases.

Texas Court Grants Injunction: D&O Insurer Can't Renege on Promise to Advance Defense Costs

A Texas district court granted insureds under a D&O policy injunctive relief requiring the insurers to continue to advance defense costs as promised to the insureds and also to the court.

Florida's State-Backed Citizens Property Insurance Corporation Not Subject to Bad Faith Liability

A Florida court held that suits for bad faith couldn't be considered in the nature of a willful tort because it arises from a fiduciary duty and the statute creating first-party bad faith claims is a statutory cause of action.

Assessing Coverage Issues Under Additional Insured Endorsements

AI endorsements can be beneficial to both insurers and policy holders; however, disputes often arise when attempting to apply the language.

CACI Int'l v. St. Paul Fire & Marine Insurance Company: Courts Struggle with "Eight Corners Rule" Boundaries

In many states, the outcome of insurance coverage litigation over the duty to defend will hinge on the application of the Eight Corners Rule.

When Co-Insurers Collide, Who Pays?

In 2007, the Texas Supreme Court held that no cause of action exists between co-insurers when they jointly cover a loss and each policy contains a pro rata insurance clause.

Delgado v. Interinsurance Exchange: California Supreme Court Restores Clarity to the Analysis of Coverage for Self-Defense

Along the spectrum of negligent/intentional torts is a gray area of conduct that can appear negligent or intentional, depending on the facts presented.

When Are the Costs for Complying with an Agency Investigation or Conducting an Internal Investigation Covered by a D&O Policy?

One issue that corporate policyholders face is trying to recoup money spent on public agency and internal investigations from the insurers when a D&O policy has been purchased.

The Limited Reach of the Bank of the West Rule

Policyholders are facing increasing numbers of actions for alleged securities fraud, inappropriate options dating, and other compensation arrangements, financial restatements, and other purported financial misdeeds.

Law Firm Disqualification: Defining the Insurer as a Client to Determine the Scope of the Duties of Loyalty and Confidentiality in a Bad Faith Action

Conflicts analysis becomes more complex when the new firm is bringing a bad faith cause of action against an insurer and the insurer previously retained one or more of the firm’s attorneys to defend the policyholder.

Maximizing Policyholder Insurance Coverage in the Face of Insolvencies

Gaps in coverage created by insolvencies and settlements for less than policy limits almost invariably reduce the insurance available to policyholders facing products liability, environmental, and other long-tail claims.

Potential Erosion of the Attorney-Client Privilege in Insurance Coverage Litigation: Danger Ahead?

Many courts have now concluded that an insurer may not avoid the consequences of bad faith conduct just because it engages in litigation concerning coverage issues with its policyholder.

Liability Insurance Coverage Issues in Alabama

Coverage is subject to a three-step analysis.

Katrina Storm Surge Damage Excluded From Homeowners' Policy Coverage

A Mississippi court held that an exclusion for water damage bars coverage for the storm surge that damaged a policyholders’ house during Hurricane Katrina.

Articles from the 2006 Insurance Coverage Litigation CLE Seminar

» Reimbursement of Uncovered Defense Costs
Andrew Weiner, Stephen M. Kelley
» State Tort Reform's Impact on Asbestos Bankruptcy Proceedings
Gretchen A. Ramos
» The States Still Want Their Money: Direct Actions by States Against Insurers for Environmental Claims
Laura Hanson, Amy Woodworth