Insurance Coverage Litigation

Articles

Untitled Document

2019

How to Defeat an Insurance Company’s Demand That the Policyholder Pay Back Defense Costs
By Pamela D. Hans and Jorge R. Aviles – May 28, 2019
Insurance companies often assert a right to recoup advanced defense costs in their reservation of rights letters. Policyholders leave such claims uncontested at their peril.

Rights of Insurers to Recover from Third Parties
By Mary E. Borja – May 28, 2019
A claims professional can take steps from the outset of a claim to evaluate the potential recovery rights, reserve them accordingly, and take steps to protect and pursue those rights.

High Risk or High Reward? Navigating the Emerging Insurance Market for the Cannabis Industry
By Jodi S. Greene – May 28, 2019
This high-risk industry may offer an even higher reward to those insurers willing to delve into understanding this controversial cash crop.

Context Matters: Broad Exclusions and Narrow Coverage Grants
By Joseph D. Jean and Janine M. Stanisz – May 28, 2019
When an insurance company tries to erroneously limit its obligations, fails to consider all available coverages under a policy, or neglects to review exceptions to policy exclusions, policyholders should consider fighting back.

Rethinking Federal Appellate Court Legerdemain in Analyzing the Scope of “Potential Coverage”
By David A. Gauntlett – March 13, 2019 | A modest |proposal for changes designed to encourage panels to not render decisions based on “fresh” cases without appropriate input from the parties, and to provide more staying power for the issues that it especially asserted in the issuance of published opinions.

E-SIGN Compliance Strategy to Avoid Pitfalls in Electronic Delivery of Documents
By Alan D. Wingfield and Michael L. Huggins – March 1, 2019
One compliance strategy for delivering documents to consumers electronically across multiple jurisdictions would be to comply with E-SIGN as establishing a minimum set of national standards for effective delivery of documents.

The Applicability of State Consumer Protection Laws to Insurance Companies in Coverage Disputes
By Trevor J. Cooney and Daniel J. DeFiglio – March 1, 2019
Insurers and insureds should carefully examine their state’s laws, as well as any choice-of-law provisions in their policies, and conduct an analysis of their specific needs and the risks to which they may be exposed.

Arbitrating Cyber Coverage Disputes
By Peter A. Halprin and Daniel Garrie – March 1, 2019
When buying such insurance, however, policyholders should seek to negotiate the terms of arbitration clauses to ensure a level playing field.

Blockchain Is Coming and So Are Insurance Coverage Challenges and Opportunities
By James S. Gkonos and Laurie A. Kamaiko – March 1, 2019
As blockchain becomes more common in usage, risks and resulting losses will become more reality than theory, and demands for coverage of those risks and losses will rise.

Insurance 101: Consumer Class Actions and the CGL Insurer’s Duty to Defend
By Seth D. Lamden – January 17, 2019
An overview of how courts have evaluated CGL insurers’ duty to defend consumer class actions and an explanation of why the standard for evaluating the duty to defend a consumer class action.

The Burden to Allocate Settlement Funds
By Christina Culver and Cy Haralson – January 17, 2019
A number of recent cases from around the nation highlight basic principles of allocation jurisprudence in the context of an insured seeking indemnity for settlements it has entered into with injured third parties.

If You’re Selling, Some Considerations Regarding Cannabis
By Kristin A. Ingulsrud and Marc J. Shrake – January 17, 2019
Some of the states leading the latest decriminalization movement have recognized insurance gaps facing the cannabis industry and, in response, have encouraged commercial sellers of insurance to develop and offer tailored coverage.

Budding Considerations: Cannabis-Related Insurance Issues
Amy Elizabeth Stewart and Katie Glenn – January 17, 2019
Lessons learned from coverage litigation involving cannabis-related activities provide some guidance for insurers and insureds interested in understanding how risks are insured under policies issued to cannabis businesses.

2018

Insurance Coverage Implications of Article III Standing for Threatened Injuries Resulting from a Data Breach
By Ken D. Kronstadt– November 6, 2018
Coverage may hinge on whether there is evidence that any personal identifying information has actually been misused, as opposed to merely having been accessed..

Insurance 101: Evaluating Coverage Tenders under General Liability Policies
By Patice A. Gore – October 31, 2018
This primer for young lawyers identifies key policy language, legal issues, and potential pitfalls affecting an insurer’s defense obligation under commercial general liability policies.


Lessons Learned from the Storms of 2017
By Michael S. Levine and Andrea L. DeField – October 31, 2018
How Harvey, Irma, and Maria are helping to shape storm-related commercial property insurance.

Is a Consensus Developing on Computer Fraud Coverage for Email Schemes?
By Laura J. Grabouski – October 31, 2018
As social engineering schemes have grown and evolved, so too has the body of case law addressing whether crime coverage policies provide coverage to insureds who fall victim to email fraud.


Coverage for Bitcoin Losses . . . or Is There?
By Stephen D. Palley – October 31, 2018
The very nature of Bitcoin—including where and how the virtual currency is stored—may ultimately affect whether insurance coverage exists under homeowner’s and crime policies if the currency is lost or stolen.

Driverless Cars May Expose Tech Companies to Unexpected Accident Liability
By John Barwell and Isabella Leavitt – May 31, 2018
Who is ultimately responsible, and what kind of insurance should be in place, when a computer is at the wheel?

Federal Court Jurisdiction—Who Will Decide Your Coverage Case?
By Brian H. Sande and Charles E. Spevacek[1] – May 31, 2018
Oftentimes, insurers find it advantageous to file their coverage actions in federal as opposed to state court.

Seeing Around the Cyber Corner: What’s Next for Cyber Liability Policies?
By Karin S. Aldama, Tred R. Eyerly, and Rina Carmel – May 31, 2018
A review of common provisions of cyber liability coverages available today and the related issues that have arisen, including a look at coverage and bad-faith arguments and defenses that may be raised in the future.

Improving Corporate Matchmaking: The Rise of Transactional Liability Insurance
By William G. Passannante, Carrie Maylor DiCanio, and John M. Leonard[1] – May 31, 2018
history of transactional liability insurance, case law addressing coverage issues, and strategies for policyholders.

The BUILD Act Revitalizes the EPA’s Brownfields Program
By Thomas W. Dimond and Donald M. Snemis – May 31, 2018
The act expands liability protections for tenants and governments.

Proving Lost Business Income for Manufacturers Without Clearly Identifiable Lost Sales
By Christina Arnone and Christopher Sevedge – May 31, 2018
A manufacturer unable to identify lost sales with precision should consider whether it might be able to rely on other factors identified by courts.

When Parties Enter into an Agreement That Conflicts with Their Insurance Policies—A Hypothetical
By Nancy Gutzler and Elizabeth Sackett – April 26, 2018
Test your knowledge of basic priority of coverage issues for indemnity (not defense) with this hypothetical.

Don’t Let Insurance Companies’ Intellectual Property Exclusions Stop Notice to an Insurer of an Intellectual Property Lawsuit
By David A. Gauntlett – March 30, 2018
Ultimately, policyholders should canvas insurance markets with the assistance of a knowledgeable insurance broker for policies that offer the best coverage available against IP claims.

Artificial Intelligence and Insurance: A Glimpse of the Future
By John M. Sylvester and Ralph C. Surman Jr. – April 30, 2018
The growing use of artificial intelligence in business operations and in the insurance industry may provide interesting new twists on traditional legal issues that are commonly disputed in the insurance coverage arena.

The Insurance Brokers for the London Market: Whose Agents Are They, Anyway?
By Rhonda D. Orin and Daniel J. Healy[1] – February 2, 2018
A peculiarity of the London insurance market that often affects insurance coverage disputes for policyholders in the United States arises from the role of insurance brokers in London.

Insurable Interest: Coverage Even When an Insured Does Not Own the Property
By Nicholas Goanos and Jeffrey Gionet – February 2, 2018
The concept is easy to grasp, but can be troublesome in application.

Avoiding Delayed or Diminished Recovery of Delay-in-Completion Loss under Builders’ Risk Policies
By Brad Murlick, Kirsten Ambroze, and Micah Skidmore[1] – February 2, 2018
Insureds can maximize coverage and avoid double jeopardy by becoming familiar with key policy terms and anticipating the valuation and legal issues likely to arise in any given claim.

Phishing for Fidelity Coverage
By John Pitblado – February 2, 2018
Coverage claims under the “computer fraud” rider in fidelity policies for certain types of scam have met with mixed results.

Set Up, Design, and Tactics for Value-Driven Negotiation
By Laura A. Foggan – January 31, 2018
Litigators should focus on gaining or improving their negotiation skills with at least as much enthusiasm as they show for programs on sharpening trial skills.

Kicking the Tires on a New Cyber Policy: Top Tips and Traps
By John G. Buchanan and Marialuisa S. Gallozzi – January 22, 2018
It takes both expertise and care to spot the traps or coverage gaps that may lurk in any cyber policy form.

2017

Privacy and Technology Best Practices and Reputational Harm
By Richard J. Bortnick – December 20, 2017
Why lawyers should be concerned and what they can do to protect themselves.

Insurance 101: The Right to Settle: When Policyholders and Insurance Companies Disagree
By Diana Shafter Gliedman – November 20, 2017
Most liability insurance policies do not simply maintain that the insurance company will pay for the defense; they also provide the insurance company with the right, under certain circumstances, to control aspects of the defense of the underlying action, including whether and when to settle.

Insurance Coverage for Business Email Compromise Losses
By Gregory Wright and Gillian Giannetti – November 20, 2017
Courts across the country have reached conflicting results on legal issues. In the future, cases might focus not only on legal issues, but factual issues and expert testimony concerning the specific techniques used by criminals.

Hurricane Harvey’s Aftermath: Anticipated Coverage Issues Following Natural Disasters
By Christina A. Culver and Cy Haralson – November 20, 2017
Following a natural disaster, idiosyncratic coverage issues will arise, including those related to flood exclusions, controlled reservoir releases, concurrent causation, business income reimbursement, and procurement claims.

Bad-Faith Claims in Louisiana
By James R. Sutterfield with Laken N. Davis – November 20, 2017
Claims of bad faith, once rare, are now often par for the course when defense is denied or a settlement offer is rejected, and have the potential to affect practitioners who represent insurers, insureds, and plaintiffs alike.

Court Rejects Proof of Ill-Will for Bad Faith Claims
By Andrew J. Kennedy – November 15, 2017
The Pennsylvania Supreme Court has issued a decision that, for the first time, endorses a test for bad faith.

Insurance Defense Counsel Must Be Cautious in Sharing Information with the Insurer
By William T. Barker – September 27, 2017
Counsel must always consider whether disclosure would potentially have adverse effects on the policyholder.

Coverage and Claims Information for Victims of Hurricane Irma
By Danya J. Pincavage – September 25, 2017
Insureds should be aware of the types of insurance coverage available to them, potential issues that may arise during the claims adjusting process, and the resources available to assist them with the claims process.

Connecticut Court Adopts Continuous Trigger Theory and the Unavailability-of-Coverage Rule for Long-Tail Claims
By David R. Osipovich, Paul C. Fuener, and Isaac T. Smith – August 30, 2017
The case involved several issues of first impression in Connecticut and one issue believed to be an issue of first impression in the nation, involving an occupational disease exclusion.

That Consumer Class Action Suit You’re Defending May Be Covered by Insurance
By Finley Harckham[1] and Luma Al-Shibib[2] – August 30, 2017
All class action complaints should be read carefully for any potentially covered claims, bearing in mind that most companies have broad coverage under a variety of insurance policies.

Ransomware in Health Care: An Insurance-Based Analysis
By Kristen Psaty and Christina Terplan – August 30, 2017
This type of phishing loss is complex and unsettled, frequently leaving room for coverage gaps under many policies.

To Settle or Not to Settle? Bad-Faith Implications in Resolving Underlying Actions
By Rina Carmel, Tred R. Eyerly, and Karin S. Aldama – August 30, 2017
The stakes for insurers in improperly declining a settlement demand can be quite high—as can be the stakes for policyholders who would prefer, for a variety of reasons, not to settle.

Coverage for Construction Defect Claims May Hinge on a Clearly Defined Scope of Work
By P. Wesley Lambert and JoZeff W. Geboyls – June 27, 2017
A close look at cases determining whether defective construction constitutes an occurrence, and the three outcomes that generally result.

“Time Element” Pollution Insurance and Third Parties
By John Ellison, Luke Debevec, and Richard P. Lewis – June 5, 2017
A look at emerging areas of insurance coverage law in the context of construction defects.

Washington Supreme Court Limits Application of Absolute Pollution Exclusion
By Michael B. Rush – June 5, 2017
Policyholders must consider several interrelated issues when faced with the potential application of a pollution exclusion.

When It Comes to Coverage for Cyber Crime Losses, Is Your Loss “Direct”Enough?
By P. Wesley Lambert – April 28, 2017
For policyholders making insurance claims for losses arising from cybercrimes, recent court decisions show that the availability of coverage will likely turn on the way in which the crime was committed.

R.T. Vanderbilt Clarifies Key Long-Tail Liability Issues of Connecticut First Impression
By Paul Fuener, David Osipovich, and Isaac Smith – April 24, 2017
The decision represents a significant win for policyholders attempting to recover from their insurers costs associated with long-tail toxic tort claims.

Is There Coverage for Time Element Losses Incurred or Ascertained (Arguably) Outside the Period of Recovery?
By Erica J. Dominitz, Dorothea W. Regal, and Ezra S. Gollogly – February 27, 2017
Courts have split on whether such losses are covered.

Whether Faulty Workmanship Is an Occurrence and How Many
By Christine A. Gudaitis and Ashley B. Jordan – February 2, 2017
A look at emerging areas of insurance coverage law in the context of construction defects.

When It Comes to Coverage for Cyber Crime Losses, Is Your Loss “Direct”Enough?
By P. Wesley Lambert – April 28, 2017
For policyholders making insurance claims for losses arising from cybercrimes, recent court decisions show that the availability of coverage will likely turn on the way in which the crime was committed.

The Notice-Prejudice Rule Debate in Claims-Made Policies
By Ellis I. Medoway – February 2, 2017
Should prejudice be required when notice is reported during the policy term?

The Confession-of-Judgment Doctrine: No Good Deed Goes Unpunished
By Julius F. “Rick” Parker III – February 2, 2017
A close examination of the evolution of the doctrine demonstrates why it should not be applied in the third-party context, as Florida has done.

2016

Employment Practices Liability Insurance Policies
By Teresa Lewi [1] – November 21, 2016
Exploring the interplay between recent employment law developments and coverage issue.

The Evolution of Cyber Coverage Law: A Survey of Critical Decisions and the Market’s Response
By Lorraine A. Armenti and Steven D. Cantarutti [1] – November 21, 2016
Key decisions by courts on whether cyber-related risks are covered under commercial general liability policies, the current state of the cyber insurance market, and recent decisions interpreting stand-alone cyber policies..

Reinsurance: The Risks and Rewards of Sharing Information
By Peter Steffen – November 21, 2016
Reinsurers have broad access to insurance company records. What does that mean for reinsurers, insurers, and their opponents?

How to Recover Business Interruption Losses
By Brad Murlick, Marshall Gilinsky, and Pamela D. Hans – November 21, 2016
The more precisely policyholders can document their loss calculations, the more likely they are to expedite and maximize recovery.

Is There Coverage for Defective Work? A Short Question with a Long Answer
By David B. Applefeld – February 11, 2016
A trigger of coverage under the contractor’s commercial general liability policy not only affords the contractor a defense at the cost of its insurer, but also can provide an available source of funds to resolve the owner’s claim and/or pay an adverse judgment.

Determining Whether and When the Duty to Defend Ends
By Rina Carmel, Tred R. Eyerly, and Karin S. Aldama – August 11, 2016
Practical tips for insurers that wish to withdraw the defense and for policyholders who learn that their defense will be withdrawn.

Dueling Loyalties: The Right to Independent Counsel
By Brian C. Bassett [1] – August 11, 2016
An examination of the factors an insurer should consider when it offers to defend its insured under a reservation of rights--and the potential consequences of failing to comply with the insurer's obligations in offering or affording the right to independent counsel.

Snowplow Contracts and Ongoing Operations
By Dan D. Kohane, Jennifer A. Ehman, and Alyssa J. Jones [1] – August 11, 2016
An analysis of who bears the risk when, despite best efforts, someone slips and falls due to snow or ice, and whether anything can be done to limit an insurance carrier's exposure to these types of claims.

Defective Construction Claims: Why Do Illinois Courts Treat Construction Companies Like Criminals?
By By David H. Anderson – May 5, 2016 [1]

The author argues that the Illinois Supreme Court should bring Illinois within the mainstream of insurance coverage jurisprudence concerning defective construction claims.

Maximizing Insurance Coverage under Environmental Insurance Policies
By Robin Kelliher – May 5, 2016
The pollution legal liability and contractor’s pollution liability policies appear to be successful examples of the insurance industry’s response to emerging risks.

Insurance 101: Professional Liability Policies and Prior Knowlege
By By Diana Shafter Gliedman – May 5, 2016 [1]

Virtually all professional liability policies contain provisions that purport to limit or exclude coverage based on the policyholder’s knowledge of acts or omissions that could give rise to a claim.

Product Liability and Construction Insurance: Updates on Key Provisions and Exclusions
By Joseph D. Jean and Matthew D. Stockwell – May 5, 2016 [1]

The majority rule is currently that defective products and construction defects causing damage to property or bodily injury constitute “occurrences” under most CGL policies.

Is There Coverage for Defective Work? A Short Question with a Long Answer
By David B. Applefeld – February 11, 2016
A trigger of coverage under the contractor’s commercial general liability policy not only affords the contractor a defense at the cost of its insurer, but also can provide an available source of funds to resolve the owner’s claim and/or pay an adverse judgment.

The Appeal of Captive Insurance Arrangements to Cannabis Businesses
By By Marshall Gilinsky and Jerry S. Goldman[1] – February 2, 2016
Due in part to the fact that marijuana continues to be illegal under federal law, many commercial insurance and reinsurance companies have been unwilling to sell insurance to cannabis businesses.

Clarifying the Standard Employee Exclusions in Commercial Automobile Policies
By By Julius F. “Rick” Parker III – February 2, 2016[1]

With coverage or exclusion turning on the answer, several federal courts have taken a new approach in recent years to the age-old question of whether a truck driver is an employee or an independent contractor.

Address Fundamental Coverage Issues Before Completing a Deal
By By Amy J. Fink – February 2, 2016
To protect both the buyer and seller in transactions, it may be prudent for companies in the deal cycle to consider insurance coverage issues as part of their due diligence review.

Determining the Number of Occurrences and Its Effect on Coverage
By By Tred R. Eyerly, Rina Carmel, and Karin S. Aldama – February 2, 2016[1]

With the monetary consequences of a finding of one rather than multiple occurrences often dramatic, we examine how a range of courts have parsed the difference.

2015

Insurance for Food Contamination and Recall Events
By Brian J. Osias and Michael Collins Smith – November 2, 2015
Businesses in the food industry can make use of food contamination policies to ensure they are adequately protected from a food contamination and recall loss but should exercise caution when purchasing a specialized food contamination policy and scrutinize policy language to ensure adequate coverage.

Insurance 101: Insurer Intervention—How, Why, and When
By Mary E. Borja – November 2, 2015
Different jurisdictions provide varying mechanisms for an insurer to clarify the facts relevant to apportionment of damages, including permissive intervention. This article explains how to intervene, the reasons militating in favor of intervention, when an insurer might intervene in the underlying action, and potential pitfalls if an insurer ignores proper intervention procedures.

Settling Safely: The Pitfalls of Settlement in Multiparty Coverage Litigation
By Jacqueline M. Brettner[1] and Harry M. Barton[2] – November 2, 2015

The failure to carefully consider how the settlement with one carrier affects a policyholder’s rights and remedies as to other parties can quickly turn a settlement celebration sour.

 

 

The Open Port: Insuring Third-Party Cyber Risks
By Amy Stewart and Tarron Gartner-Ilai – November 2, 2015
Enhanced and ever-evolving cyber risks are the natural corollary to our increasing dependence on technology—hackers, disruption of service, compromised confidentiality of trade secrets and intellectual property, loss or theft of financial data, and publication of personally identifiable information are modern day realities.

The Windsor Food Reality: You Don’t Always Get What You Think You Paid For
By Robert D. Chesler and Janine M. Stanisz – October 28, 2015
Many companies that purchase contamination products insurance policies believe that all of their product recall woes are covered. They could not be more wrong.

Sparring over Forum Selection in Insurance Coverage Actions
By By Richard D. Milone, Mindy B. Pava, John B. Mumford, Jr., Kathryn E. Kasper, Paul A. Rose, Caroline M. Marks, Alexandra V. Dattilo, Cyndie M. Chang, and Dan Terzian – August 28, 2015
A discussion of some of the procedural vehicles and legal doctrines affecting choice of forum and the ever-changing case law affecting forum disputes.

Deposing the Underwriter—The Policyholder’s Perspective
By Tyechia White and Sarah Anchors – August 28, 2015
When the meaning of policy language is disputed, the deposition of the insurer’s underwriters, and thus the documents related to underwriting, are likely to become a focal point of discovery requests and motions to compel.

Social Media: Discovery and Use in Insurance Coverage Disputes
By Rick E. Kubler – August 28, 2015
Courts have generally rejected the idea of a "social network site privilege" and have broadened discovery rules to include relevant social media data, and insurance companies and their adjusters now regularly seek discovery of social media content in coverage cases.

Social Media: Discovery and Use in Insurance Coverage Disputes
By Rick E. Kubler – August 28, 2015
Courts have generally rejected the idea of a "social network site privilege" and have broadened discovery rules to include relevant social media data, and insurance companies and their adjusters now regularly seek discovery of social media content in coverage cases.

Making an Insured Whole Entails More Than a Patch Job
By Grace V. Hebbel and David G. Jordan – July 2, 2015
Discover how "replacement cost" coverage is often complicated by whether a repair can truly match damaged material that is in need of replacement.

A Review of Unique Insurance Coverage Issues Faced by Cities and Towns
By Niquelle Allen Winfrey, Brent W. Huber, Nicholas B. Reuhs, and Michelle R. Valencic – May 29, 2015
Over the past few years, a handful of insurance coverage issues unique to political subdivisions have received judicial or statutory attention. This article explores a few of those issues

“Waiving” Goodbye to Coverage Defenses: Litigating the Effect of Denial Letters
By Seth M. Friedman and Christopher C. Meeks – May 29, 2015
An analysis of the state of the law concerning denials of coverage and the recent expansion of the waiver doctrine in Georgia.

A Review of Unique Insurance Coverage Issues Faced by Cities and Towns
By Vijay V. Bondada and Sherilyn Pastor[1] – May 29, 2015
Over the past few years, a handful of insurance coverage issues unique to political subdivisions have received judicial or statutory attention. This article explores a few of those issues

Transition from Primary to Excess Coverage: Effortless Step or Grand Canyon Leap?
By Patrick J. McGrath – May 29, 2015
An exploration of methodologies and factors to consider in demonstrating the exhaustion of underlying coverage in order to transition to its excess layers of coverage.

Cyber Insurance and Industrial Control Systems
By Lon Berk [1] – February 5, 2015
The expanding market for cyber insurance may create problems insuring the risk

Insurance 101: Understanding ISO’s New 2014 Cyber Insurance Endorsements
By Rina Carmel and Sherilyn Pastor – February 5, 2015
The insurance industry is offering specialty insurance products designed to cover cyberliability threats while promulgating data breach and data-related exclusions for primary and umbrella liability policies.

Why Coverage B May Not Protect Companies from the Recent Rise in Data Breaches
By By Kathryn E. Kasper [1] –February 5, 2015
With the increase in cyber attacks has come an increased interest in the availability of coverage under Commercial General Liability Policies, specifically Coverage B, for costs associated with those attacks.

Recent Developments in Excess Policy Language Requiring Exhaustion of Primary Limits
By By Bradley M. Jones and Anthony J. Alt[1] –February 5, 2015
An examination of recent cases addressing the sufficiency of exhaustion-requirement language in excess policies.

2014

Decomposing Body Brings Life to Exclusions for Seepage and Microorganisms
By Peter J. Mitchell — November 4, 2014
Third Circuit recently decided whether coverage exists under a commercial and general liability policy for the damage caused by a decomposing body.

"Right to Occupy" Surface Estate Bars Coverage for Property Damage
By M. Kaylan Dunn, Courtney E. Ervin and J. Wiley George— November 03, 2014
Legal right to occupy property suffices for property damage and blended pollution exclusions to bar coverage for well blowout.

Insurance 101: Decoding the Secrets of the London Market
By Anna Torres -- October 28, 2014
Understanding the history and unique terminology of Lloyd’s of London.

Guidance Coming on Determining Damages in Florida UM/UIM Bad Faith Actions
By William T. Barker— October 14, 2014
New law may be just around the corner in Florida auto insurance law.

Coverage for Actions in Response to Governmental Investigations and Prosecutions
By Joseph D. Jean and Danielle Vrabie — October 3, 2014
It's not a suit, but the government is knocking on the door. Is coverage available?

Fidelity Coverage for Loss Arising from Financial Crises
By Matthew J. Schlesinger and Tara A. Brennan – September 30, 2014
Looking beyond the four corners of the policy may provide avenues to another source of coverage.

Asbestos Plaintiffs May Still Collect on a Dissolved Corporation's Insurance
By Kenneth M. Gorenberg – September 25, 2014
After a corporation dies, its liability and therefore its insurers’ liability die too, right? Not under Delaware corporate law.

Insurer Files Class Action Suits to Recover for Climate Change Losses
By Erin Doran – June 27, 2014
One insurer recently looked to litigation as a tool for recouping past losses it attributes to climate change.

Insurance 101: Employers Required to Establish Employee Theft for Coverage under Crime Policies
By Gabrielle T. Kelly— June 24, 2014
Because first-party property policies typically do not cover crime-related losses, companies are purchasing commercial crime policies, also called fidelity insurance, to fill this gap and protect their assets.

Insurance 101: Seventh Circuit Limits Insurer Standing to Challenge Settlements
By Marla H. Kanemitsu — May 30, 2014
The Seventh Circuit Court of appeals directed that an excess insurer’s concerns about a policyholder settling “on the cheap” with a lower-layer insurer—thereby potentially increasing the excess insurer’s coverage obligations—was an issue the excess insurer should address through its policy language, not through the bankruptcy courts.

Greater Effects of Hurricanes in Business Interruption Claims
By Erica J. Dominitz and Gregory M. Jacobs — February 21, 2014
Parties have disputed, and courts have addressed, whether the valuation of a business interruption claim should consider the effects that a hurricane or other catastrophic event had on the surrounding region, positive or negative, including its effect on the policyholder’s competitors and on the local economy.

Insurance 101: Insurer’s Use of Extrinsic Evidence for Duty to Defend in Florida
By Andy Dogali and Jacqueline H. Palik – February 4, 2014
Liability insurance may entitle an insured to a defense and to indemnification for a third-party claim made against it. In Florida, an insurer's duty to defend its insured against such a claim is separate and apart from the duty to indemnify the insured.

Insurer Files Class Action Suits to Recover for Climate Change Losses
By Erin Doran – June 27, 2014
One insurer recently looked to litigation as a tool for recouping past losses it attributes to climate change.

Coverage Disputes Arising from Cyber Claims
By Carrie E. Cope and Ian Reynolds[1] – September 26, 2014
When businesses first began to use the Internet more widely, the potential exposure they faced by doing so was far from clear--now we know better.

Insurance Coverage for Fair Housing Act Claims
By Brian D. Heskamp [1] –September 26, 2014
Costs incurred in Fair Housing Act cases can be significant, implicating defense and indemnity obligations under insurance policies.

Decomposing Body Brings Life to Exclusions for Seepage and Microorganisms
By Anjali C. Das[1] –September 26, 2014
Third Circuit recently decided whether coverage exists under a commercial and general liability policy for the damage caused by a decomposing body.

Current Controversies over Personal and Advertising Injury Coverage
By Laura J. Grabouski [1] –September 26, 2014
Third Circuit recently decided whether coverage exists under a commercial and general liability policy for the damage caused by a decomposing body.

Declaratory Judgment Actions When an Underlying Action Is Pending
By Erin Doran[1] and Julia J. Nierengarten[2] – August 15, 2014
Declaratory judgment actions are a powerful tool that can clarify not only an insurer’s current coverage obligations to the insured but also whether an insurer may have to indemnify an insured for a future judgment.

Insurance 101: Don’t Forget the Policy Conditions
By Alex Hartzler,[1] Steven H. Weisman,[2] and Andrew D. Deutsch[3]–August 15, 2014
Insurance policy conditions are important because they address a wide variety of issues including how or if other insurance contributes, how and when the insured must give notice of a claim, the insured’s duties after a loss or occurrence, the insurer’s subrogation and other rights, and what happens in cases of fraud or misrepresentation by the insured.

Policyholders Should Be Wary of Industry-Specific Arbitration Provisions
By Richard C. Giller[1] – August 15, 2014
Experience demonstrates that pursuing resolution of insurance disputes through private arbitration can be frustrating, expensive, and inherently unfair.

The Liability Coverage Most Businesses Need and Have Never Heard Of
By Louis H. Castoria[1] – August 5, 2014
An examination of the most common types of this insurance, its uses and abuses, current litigation, and legislative reactions regulating or banning it.

Cyber Risk Coverage Litigation Heats Up as Exposure and the Insurance Market Evolve
By Gregory D. Podolak[1] – June 13, 2014
Cyber risk is dominating the headlines and has become a mainstay in the world of corporate risk management. It is incumbent on risk managers, general counsel, and chief information/security officers to appreciate the risk and be conversant in the legal landscape and ever-evolving cyber insurance marketplace in order to effectively assess and tailor their insurance program to match the growing threat.

Fixing the Broken Public Policy Model for Molestation Coverage Cases
By Ravi S. Shankar[1] – June 13, 2014
Courts frequently fail to consider all constituents affected when they decide whether the state’s public policy permits coverage for sexual molestation claims. Just as bad, courts make empirical conclusions about the effects of insurance on society without empirical support.

The Unsatisfactory Insurance Aspect of the Federal Government’s Cybersecurity Initiatives
By J. Wylie Donald and Jennifer Black Strutt – June 13, 2014
The federal government’s programs for tackling the cyber threat are weak when it comes to insurance.

Investor/Stranger–Owned Life Insurance: The Good, the Bad, and the Ugly
By Charles C. Morgan[1] – June 13, 2014
"An examination of the most common types of this insurance, its uses and abuses, current litigation, and legislative reactions regulating or banning it.

Alternative Dispute Resolution: Should Policyholders Be Concerned about the Effect on Common Law?
By Freya K. Bowen[1] – March 21, 2014
The proliferation of ADR may be depleting and impoverishing the body of common-law that practitioners rely on to guide the resolution of coverage disputes and provide certainty to insurance transactions.

Effectiveness of the Business Enterprise Exclusion for Limiting Risk
By Kimberly Ashmore[1] – March 21, 2014
An attorney who wears both lawyer and business person hats simultaneously can present unique risks to the lawyer’s professional liability insurance carrier.

Coverage Issues Arising from Food Contamination Claims
By Virginia L. White-Mahaffey – March 21, 2014
With food contamination or suspected contamination claims frequently resulting in disputes under commercial general liability policies and under property policies, here is a look at the recent case law.

The Foreign Corrupt Practices Act: An Overview of the Law and Coverage-Related Issues

Stacey L. McGraw and Stacey E. Rufe[1] March 21, 2014 M. Kaylan Dunn, Courtney E. Ervin and J. Wiley George— November 03, 2014
Given the increased enforcement of the FCPA and the duration and cost of investigations and related litigation, it is important that counsel for insurers and insureds are familiar with the law and the insurance coverage issues that may be implicated by FCPA investigations and related litigation.

 

2013

Mediation of Coverage Disputes: Best Practices and Trends
By Arden B. Levy – January 22, 2014
Like any other weapon in the litigator’s arsenal, mediation can be an effective tool for obtaining the best possible result for a client if used properly and at the right time. Thus, counsel should consider when and whether to mediate throughout a dispute.

Evaluating Whether the Insured Was Performing "Professional Services"
By Mark E. Cohen, Rina Carmel, and Suzanne Whitehead – January 22, 2014
When and whether an insured is engaged in a professional service is a threshold issue in determining whether coverage exists and under which type of policy.

Claims Notification in the London Market
By Sarah Turpin [1] – January 22, 2014
A number of features of the London market make the process of seeking recovery from insurers more complicated, particularly where the policy is governed by English law.

Interpreting Claims-Made Insurance in the Context of a Mass Tort
By Lon Berk[1] – January 22, 2014
If insurance is to serve its purpose, it must be possible for a policyholder to transfer mass tort risks under a claims-made program as well as under an occurrence-based one.

To the Policy Limits and Beyond
By Jill B. Berkeley[1] – December 4, 2013
In certain circumstances, a strategy allows the plaintiff and defendant to agree to settle for more than the policy limits, to limit collection against the insurer only, and to provide the defendant with a full release and covenant not to execute.

Mediation of Coverage Disputes: Best Practices and Trends
By Tred R. Eyerly – December 4, 2013
Like any other weapon in the litigator’s arsenal, mediation can be an effective tool for obtaining the best possible result for a client if used properly and at the right time. Thus, counsel should consider when and whether to mediate throughout a dispute.

Taking Care and Control to Ensure Abuse and Molestation Coverage
By Ravi S. Shankar [1] – December 4, 2013
How courts construe the abuse or molestation exclusion—and its limiting phrase “care, custody or control,” in particular—is an important issue for insureds to track, especially schools, camps, churches, hotels, and other organizations that host minors or guests.

A Practical Approach to Getting Defense Costs Covered
By Nancy Sher Cohen, Shawn Ledingham Jr., Carol Gerner, Elizabeth Hanke, and Stephanie L. Sciullo[1] – December 4, 2013
Discover the practical steps that policyholders can take to prepare their defense cost data for inevitable coverage disputes.

Keeping Your Data, Not Your Head, In the Cloud
By Jason M. Rosenthal – November 22, 2013
More and more businesses, including law firms, are storing their data in the cloud. Knowing the risks can help minimize the figurative storms that can result from the off-site storage and management of data.

Insurance Coverage for Equitable Relief under ERISA
By Patrick Frye[1] – August 31, 2013
Must fiduciaries pay for remedies recently expanded by a U.S. Supreme Court decision, or can they pass the cost to their insurers?

Prior Knowledge Provisions and the Duty to Defend
By Mary E. Borja – August 31, 2013
Two recent decisions provide good illustrations of how courts have approached the question of the duty to defend where a prior knowledge provision potentially bars coverage.

Insurance 101: Recent Cases Resolving Ambiguities in Insurance Contracts
By Amy Elizabeth Stewart – August 31, 2013
Judicial opinions interpreting ambiguous policies are difficult to reconcile—from state to state and even within the same jurisdiction.

Uncertainty in the Marketplace: Emerging Trends in D&O Coverage
By Andrew Deutsch, Louis Chiafullo, Erin Doran, and Michael Smith – August 31, 201

New risks following the 2008 financial crisis have raised the normal tension between policyholders seeking to maximize coverage and insurers attempting to manage risk exposure.

A Guide to Collusive Policyholder Settlements
By Joseph A. Hinkhouse and Sarah H. Dearing[1] –July 11, 2013
When a coverage dispute arises between an insurer and its policyholder during litigation, the policyholder sometimes attempts to structure a settlement agreement with the underlying claimant(s) to reduce or eliminate potential uncovered exposure and shift that exposure to its insurer.

The Duty to Settle and Its Variations
By Walter Andrews, Syed Ahmad, and Patrick McDermott[1] –July 11, 2013
The answers to the complex questions around an insurer's duty to settle are dependent on the applicable law governing the interpretation of the insurance contract and the law governing an insured’s claim of bad faith.

ISO's 2013 "Additional Insured" Endorsement Changes Merit Close Attention
By Roberta Anderson[1] –July 11, 2013
It is common among parties to sophisticated construction projects, service agreements, leases, and many other types of projects and transactions, to assess the risks associated with their contractual activities and allocate those risks through a combination of contractual indemnification provisions and insurance requirements.

Insurance Coverage for Equitable Relief under ERISA
By Sarah R. Anchors[1] – July 11, 2013
Must fiduciaries pay for remedies recently expanded by a U.S. Supreme Court decision, or can they pass the cost to their insurers?

A Breach Is a Breach—Or Is It? Perspectives on National Union v. Seagate Technology
By Amy Elizabeth Stewart – May 21, 2013
If an insurance policy requires the insurer to provide a defense, but a lower court rules—in error—that the insurer is not required to defend, does the insurer’s withdrawal of the defense in reliance on the lower court’s ruling breach the policy?

Fifth Circuit Reverses in Favor of BP in Deepwater Horizon Litigation
By Charles Platto, Joseph G. Grasso, and Michael Menapace[1] – May 21, 2013
In a major victory for BP, the Fifth Circuit ruled that BP was entitled to coverage as an additional insured under the policies of Transocean, owner of the oil rig that exploded.

Gun and Shooting Liability Claims: A Brief Survey of Selected Coverage Issues
By Rina Carmel[1] – May 21, 2013
The principles governing the existence of coverage for shooting are already well established in most states.

Superstorm Sandy: Minimizing Extra-Contractual Risk in Late-Filed Claims
By J. Randolph Evans, J. Stephen Berry, Alan Kaufman, and Michelle Swiren Zaltsberg[1] – May 21, 2013
Several complicating factors result from later-filed claims, including the difficulty that comes with identifying losses and attributing those losses to a particular cause.

Erosion of Attorney-Client Privilege and Work-Product Doctrine in Bad-Faith Litigation
By

Stacey S. Farrell and Alicia G. Curran – April 18, 2013
In an underlying liability suit, an insurer must keep in mind its tripartite relationship with its insured and outside defense counsel, as well as the long-term effects of this relationship in potential subsequent bad-faith litigation.

Contingent Business Interruption Coverage for Superstorm Sandy Losses
By

Lon A. Berk and Michael S. Levine[1] – February 26, 2013
An examination of some of the issues that may arise in the coverage of contingent business interruption due to Superstorm Sandy.

Recurring Coverage Issues in Employment Practices Liability Insurance
By

Laura A. Foggan, Benjamin C. Eggert, and Parker J. Lavin[1] – February 26, 2013
A look at why lawsuits challenging employment practices have been escalating in recent years.

Occurrence and Allocation Issues in Cases Involving Intentional Conduct
By

John D. Hughes and Laura E. Bange[1] – February 26, 2013
Cases involving intentional misconduct can be complicated because the claim for which coverage is sought often involves a pattern of ongoing actions spanning multiple policy years.

The Role of Insurance in the Land of Viruses, Trojans, and Spyware
By

Roberta D. Anderson[1] – February 26, 2013
Many companies may not be amply considering the important role of insurance as part of their overall strategy to mitigate cyber risk.

2012

Construction Industry Policyholder Coverage in Upheaval After Ruling
By Jeremiah M. Welch and Theresa A. Guertin– December 12, 2012
Insurance coverage for construction industry policyholders has been thrown into a state of upheaval due to a recent decision by the Fifth Circuit Court of Appeals. It misinterprets and misapplies Texas precedent and standard form general liability insurance policies.

Will Cyberbullying Claims Be Covered under Homeowners' Policies?
By Rina Carmel, Barbora Pulmanova, Sherilyn Pastor, and Nina Golden[1] – December 12, 2012
Along with the advent of the electronic age has come an unexpected side effect—a new form of bullying known as “electronic aggression” or “cyberbullying” that poses new coverage issues for policyholders and insurers alike.

Mediation of Coverage Disputes: Best Practices and Trends
By Noah B. Wallace – December 12, 2012
Like any other weapon in the litigator’s arsenal, mediation can be an effective tool for obtaining the best possible result for a client if used properly and at the right time. Thus, counsel should consider when and whether to mediate throughout a dispute.

The Duty to Advance or Reimburse Defense Costs v. the Duty to Defend
By Nick Nierengarten – December 12, 2012
"Courts have developed a variety of familiar duty-to-defend rules for determining whether the defense obligation is triggered and the scope of that obligation.

Coverage for Trademark, Patent Infringement, and Antitrust Actions
By David A. Gauntlett – November 5, 2012
Insurers have sought to secure from courts policy constructions that close scrutiny of their policy language would not sustain, to avoid potential coverage in trademark, patent, and now antitrust lawsuits.

Fiduciary Liability Policies May Not Cover All Your Liability under ERISA
By Amy Elizabeth Stewart – November 5, 2012
Even if the named insured is both the plan sponsor and a fiduciary of one or more plans, the company’s fiduciary liability policies rarely cover the company’s liability for plan sponsor decisions and activities.

Determining When the Insurer's Duty to Defend Ceases
By Gary L. Johnson[1] – November 5, 2012
A review of the two competing approaches for assessing when an insurer’s duty to defend is terminated.

Construction Industry Policyholder Coverage in Upheaval After Ruling
By Noel C. Paul and Andrea Yassemedis – October 31, 2012
Insurance coverage for construction industry policyholders has been thrown into a state of upheaval due to a recent decision by the Fifth Circuit Court of Appeals. It misinterprets and misapplies Texas precedent and standard form general liability insurance policies.

Courts Are Now Rejecting Insurers' Reimbursement for Defending Non-covered Claims
By Benjamin D. Morgan – September 10, 2012
"A coverage issue yet to be decided by several jurisdictions is whether a commercial general liability (CGL) policy providing an insurer with the duty and right to defend its insured against third-party claims also authorizes that insurer to be reimbursed for defense costs related to claims that are later determined to be beyond the policy’s grant of coverage.

Bankruptcy Treatment of Self-Insured Retentions and Deductibles
By Erin L. Webb[1] – September 12, 2012
With limited exceptions, courts generally do not allow insurance companies to escape their obligations to bankrupt policyholders simply because the policyholder lacks the financial resources to pay an SIR or deductible.

When a Broker's Presence Breaks the "Cone of Silence" Surrounding Attorney-Client Communications
By By Louis A. Chiafullo and Stephanie Platzman-Diamant – September 12, 2012
Policyholders often believe that their communications with the broker on issues related to a claim are protected by both the attorney-client privilege and the work-product doctrine, but some courts have disagreed with that notion.

Ethical Obligations of Independent Defense Counsel
By By William T. Barker and Charles Silver[1] – September 12, 2012
Independent counsel representing policyholders have their own special ethical issues that deserve our attention.

Coverage for Suits Alleging Infringement of Business Method Advertising Patents
By By Erin L. Webb and Courtney Alvarez – August 2, 2012
Companies need to realize that contamination under a first party property policy is very different from pollution under a third party liability policy.

The Brussels I Regulation's Rules on Choice of Court Clauses
By By Jeffrey A. Kiburtz – December 20, 2012
Given that application or consideration of the Brussels I Regulation could lead to results different from those under U.S. law, it is prudent for U.S. insurance practitioners, particularly those that deal with policies issued out of Europe, to at least be aware of the regulation and its rules concerning choice of court agreements in insurance policies.

New Jersey Law on the Unavailability of Asbestos Insurance
By By John T. Waldron III – August 1, 2012
A number of courts have rejected insurers' version of history and found that asbestos insurance was not reasonably available, beginning in the mid-1980s, to the insureds involved in ongoing litigation.

When Excess Policies May Be Obligated to Defend or Reimburse Defense Costs
By By Pamela J. Tillman*– August 1, 2012
A number of courts have rejected insurers' version of history and found that asbestos insurance was not reasonably available, beginning in the mid-1980s, to the insureds involved in ongoing litigation.

Settling with Limited Funds
By By Duana J. Grage and Suzanne L. Jones* – August 1, 2012
How an insurer complies with its obligation to settle when there are too many claims or too many insureds and insufficient limits depends on which jurisdiction's law applies.

Contingent Time Element Coverage
By Christopher R. Paar and Elizabeth V. Kniffen* – August 1, 2012
The number of contingent time element decisions has increased in recent years and will likely continue to increase. Until the law interpreting contingent time element provisions has been fully developed, there is limited case law to rely on when interpreting these provisions.

Insurance 101: Considerations for Declaratory Judgment Actions
By By Shanda K. Pearson* – August 1, 2012
Declaratory judgment actions are commonplace in insurance coverage litigation, but a number of threshold issues and strategy concerns should be considered.

Coverage for Food Contamination under a First-Party Property Policy
By By Robert D. Chesler–June 27, 2012
Companies need to realize that contamination under a first party property policy is very different from pollution under a third party liability policy.

Construction Anti-Indemnification Law Changes Indemnity and Additional Insurance Landscape
By By Leslie C. Thorne – May 30, 2012
On January 1, 2012, Texas joined a handful of states in declaring construction contract indemnity provisions and additional insured requirements void and unenforceable.

Liability Insurance Coverage for Trade Dress Infringement
By By Peter S. Selvin[1], April 2012
The trade dress of a product or service often constitutes part of its advertising. This article explores the circumstances under which claims for trade dress infringement may be covered under the advertising-injury portion of a CGL policy.

Discovery Strategies in Coverage Litigation
By By Daniel E. Tranen -- May 2012
Courts have been inconsistent on discovery motions of extra-contractual materials held by insurers. Here are some strategies used by policyholders and insurers to obtain or thwart their production.

Confidentiality and Privilege in the Insurer–Policyholder–Defense Counsel Relationship
By By Richard C. Giller [1]

Whether communications between an insured or its counsel and an insurance company are protected from disclosure turns on the issue of which party controls the underlying litigation.

Insurance Coverage for Attorney Fee-Shifting Awards
By By Nick Nierengarten<– May 2012
Insureds may seek to recover an attorney fee award from their insurers, either as part of the indemnity obligation to pay damages or from the supplementary payments coverage to pay costs.

Distinguishing Between Large or Matching Deductibles and Self-Insured Retentions
By Deborah M. Minkoff– March 8, 2012[1]

Understanding the similarities and differences between different methods of apportioning risk between insurers and insured paves the way to efficient handling of claims.