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Category Archives: Duty to Defend

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Insurer gets summary judgment for untimely notice – claims made policy — no prejudice required — 8th Circuit Minnesota

Posted in Contractual Liability, Duty to Defend
In Food Market Merchandising, Inc v. Scottsdale Indemnity Company, Food Market was required to pay additional commissions to an employee.  It provided notice to Scottsdale 7 months after the employee sued for his commissions.  The trial court said it was too late, and the Eighth Circuit agreed.  The policy required the policyholder to “give Insurer… Continue Reading

Homeowners policy did not cover privacy, negligence claims where there was no physical injury to person or property — 10th Circuit, Oklahoma law

Posted in Contractual Liability, Duty to Defend
In State Farm Fire v. Dawson, Dawson was sued for negligence and privacy violations after receiving inappropriate photos of an under aged student. Dawson wanted State Farm to pay his defense and any judgment.  But State Farm claimed there was no physical injury to tangible property and no bodily injury such that the policy did… Continue Reading

Insurer equitably estopped from denying coverage based on change of position on interrelated acts — 10th Circuit — NY law

Posted in Contractual Liability, Duty to Defend
In Brecek & Young Advisors v. Lloyds London, BYA told Lloyds about some claims (Wahl Arbitration) that fell within the 2006-2007 policy issued by Lloyds to BYA.  Lloyds first claimed that the Wahl Arbitration was related to another claim under a previous policy issued by Fireman’s Fund. Under the policy,“Interrelated Wrongful Acts” are “considered a… Continue Reading

Mid-Continent off the hook on claim against bankrupt policyholder — 5th Circuit

Posted in Contractual Liability, Duty to Defend
In Kipp Flores Architects v. Mid-Continent Casualty Co.,  Hallmark (Mid-Continent’s policyholder) had a license to build one home per KFA blueprints, but ended up building hundreds, and not paying KFA for its plans.  After KFA sued for copyright infringement, 2 Hallmark entities filed for Chapter 7 bankruptcy, stating there would be no money to distribute… Continue Reading

E and O insurer had no duty to defend Realtor in claims arising after the sale — 7th Circuit, Illinois

Posted in Duty to Defend
In Madison Mutual Insurance Co v. Diamond State Insurance Co., the policyholder, Favre was sued by her neighbors, the Dribbens for harassment, intimidation and interference with their rights.  The Dribbens had purchased their property through Favre, a realtor, and had sued when they discovered the lake on the development had not been properly permitted.  After… Continue Reading

Construction defect is not an “occurrence” or “accident” that triggers covered “property damage” within the meaning of a CGL policy – 7th Circuit, Illinois

Posted in Contractual Liability, Duty to Defend
In  Allied Prop. & Cas. Ins. Co. v. Metro N. Condo. Ass’n., Allied’s policyholder insured improperly installed windows on Metro’s property. Metro sued the insured for breach of the implied warranty of habitability. Metro and the insured entered into a settlement agreement assigning Metro the right to the insured’s insurance proceeds. Allied sought a declaratory… Continue Reading

No coverage under builders risk policy for damage to the existing structure — 10th Circuit Colorado

Posted in Contractual Liability, Duty to Defend, Insurance Bad Faith
In Gerald H. Phipps, Inc. v. Travelers Property Casualty, the Tenth Circuit affirmed summary judgment to Travelers Property Casualty on a builders’ risk policy.  The policy covered the builder’s work on the property, not the property itself.  So, when water damaged the property while roof work was being performed by the policyholder, Phipps, there was… Continue Reading

Declaratory judgment on coverage premature when underlying liability has not been determined — South Dakota

Posted in Contractual Liability, Duty to Defend
In Western National Mutual Insurance Company v. Gateway, Gateway was involved in building some grain elevators that failed.  Gateway claimed the failure was due in part at least to work of its subcontractor.  Western filed a declaratory judgment action, claiming there was no coverage under the policy because of the “your work” exclusion,  the “professional… Continue Reading

No coverage for contaminated water claim at mobile home park, 8th Circuit, Missouri

Posted in Duty to Defend
In Williams v. Employers Mutual Casualty Co., the issue was insurance coverage for claims for contaminated drinking water at a mobile home park. There was no coverage for the claims because the insurance policies’ pollution exclusions excluded coverage for “‘[b]odily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage,… Continue Reading

Explosion Excluded from Coverage by Pollution Endorsement – 8th Circuit, North Dakota

Posted in Duty to Defend
Hiland Partners GP Holdings, L.L.C. v. Nat. Union Fire Ins. Co. of Pittsburgh, Pa. arose from an insurance coverage dispute over a processing facility condensate explosion. The insurer claimed the explosion was excluded per the policy’s pollutants endorsement. The endorsement defined pollutants as “any solid, liquid, gaseous, or thermal irritant or contaminant” and excluded coverage… Continue Reading

Insured vs Insured exclusion applies to preclude coverage under D&O policy — 8th Circuit Minnesota

Posted in Contractual Liability, Duty to Defend
In Jerry’s Enterprises, Inc. v. U.S. Specialty Insurance Co, Sullivan, a former director of the company, and her daughters (also shareholders) sued Jerry’s regarding the valuation of their stock.  Jerry’s settled, and then sued US Specialty for its defense costs and for sums paid under the settlement agreement.  The trial court said no coverage and… Continue Reading

Injury occurring during rodeo event subject to athletic participation exclusion — MD Fla.

Posted in Duty to Defend
In Volusia County Cattlemen’s Association v. Western World Insurance Company; Case No: 6:15-cv-1239 (MD Fla), Desiree Cicero was participating in a cash grab event at the Cattlemen’s rodeo.  The event involved grabbing cash off of bulls running around in the arena.  Cicero was hurt and sued the Association.  The Association sought a defense and coverage… Continue Reading

TCPA exclusion applies to non-TCPA claims, such as conversion — ED Missouri, applying Illinois law

Posted in Duty to Defend
In Regent Insurance Co. v. Integrated Pain Management, 4:14-CV-1759 RLW, 2016 WL 5357408 (E.D. Mo. Sept. 23, 2016) the policyholder was sued for sending unsolicited faxes in violation of the TCPA — Telephone Consumer Protection Act. In addition to the statutory damages, the complaint said that by sending the faxes, the policyholder converted the plaintiffs’… Continue Reading

Claim file discoverable on issue of duty to defend — WD Okla applying Illinois law

Posted in Contractual Liability, Duty to Defend, Insurance Bad Faith
In Federal Insurance Company v. Indeck Power Equipment Company, CIV-15-491-D, 2016 WL 5173402 (W.D. Okla. Sept. 21, 2016) the trial court granted a motion to compel discovery of a claim file.  The case had been bifurcated for discovery between duty to defend and bad faith. According to Federal, information regarding the claim file relates to… Continue Reading

Shooting not covered by homeowners, umbrella or business policies E.D. Ark

Posted in Contractual Liability, Duty to Defend, New Case
In Travelers v. Wilson, 2016 WL 5334666, Wilson was insured under a homeowner’s policy, an umbrella policy, and a business policy.  But none of these policies provided coverage to Wilson when he shot Metcalf in the parking lot of his (Wilson’s) liquor store.  Wilson was convicted of 2nd Degree murder for the shooting.  Second degree… Continue Reading

New Issue of Coverage Opinions out

Posted in Contractual Liability, Duty to Defend, Insurance Bad Faith
There is a new issue of Coverage Opinions out.  The newsletter discusses, inter alia: Update From The Reporters On The ALI Restatement Of Liability Insurance A Monster: Insurer Sasquashed: #1 Coverage Case Of 2016 ABSOLUTE MUST READ: Bad Faith: Turning $30K into $3M (And Easily Preventable) Consequences For Breach Of The Duty To Defend This… Continue Reading

Insurance company must defend distributor in pill mill case — 7th Circuit

Posted in Duty to Defend, New Case
In Cincinnati Insurance v. H.D. Smith, the Seventh Circuit reversed a lower court’s ruling finding that Cincinnati had no duty to defend its policyholder, H.D. Smith, a pharmaceutical drug distributor, in a lawsuit filed by West Virginia for damages caused by an “epidemic of prescription drug abuse.” Under the policy, Cincinnati agreed to cover damages… Continue Reading

CGL Policy Excludes Damage to Insured’s Work Product; 8th Circuit, Iowa.

Posted in Contractual Liability, Duty to Defend
In Decker Plastics, Inc. v. W. Bend Mut. Ins. Co., the insurer denied coverage after its insured, Decker, was sued for damages caused by Decker’s defective plastic bags. West Bend argued the defective plastic bags did not constitute an “occurrence” under the policy. Judgment for the insured was proper because “occurrence” includes damages to property other than… Continue Reading

Wyoming Oil & Gas Insurance Policies Exempt from Anti-Indemnity Statute; 10th Circuit, Wyoming

Posted in Contractual Liability, Duty to Defend, Insurance Bad Faith, New Case
In Lexington Ins. Co. v. Precision Drilling Co., L.L.P., the insurer sued the insured after an accident on the insured’s oil rig. The insurance policy was purchased by the oil rig management company. The insurer claimed the policy violated the Wyoming Anti-Indemnity Statute because the policy was purchased by a third party and the statute… Continue Reading

Insurers Must Defend Telemarketing Suits — despite claims of intentional conduct — Second Circuit, NY

Posted in Contractual Liability, Duty to Defend, New Case
In National Fire Insurance Company v. E. Mishan & Sons, Inc., Emson was sued in two class action lawsuits that claimed Emson worked with two other companies to to deceptively trap customers into recurring credit card charges.  The underlying lawsuits asserted that Emson acted as a purveyor of data, facilitating “data passes” and transferring private… Continue Reading

Breach of cooperation clause precludes coverage — Arkansas Court of Appeals

Posted in Contractual Liability, Duty to Defend, New Case
In Spore v. Geico, 2016 Ark. App. 306, Spore was injured in a car accident with Adrian, who was driving a car insured by Geico, through a policy issued to Lolita Ford. Lolita Ford ignored all of Geico’s requests for information about the accident, and Geico filed a declaratory judgment action claiming Lolita Ford’s breach… Continue Reading
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