May 17, 2013
On May 7, 2013, a divided panel of the NY Court of Appeals issued an important opinion, in Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, Pa., 2013 N.Y. Slip. Op. 03264 (May 7, 2013). The court affirmed, by a plurality, the Appellate Division’s ruling that at least one occurrence per year of abuse transpired under the policy wording at issue. MORE
May 15, 2013
The decision, which ordered the defendants to produce documents and the clerk to unseal papers filed in motion practice, represents a new and troubling broadening of the scope of discovery in bad faith cases. MORE
May 07, 2013
The 2nd Circuit's decision affirmed the Southern District of New York’s dismissal of Saint Vincent’s claims and addressed the pleading standards for allegations of breach of fiduciary duty with respect to management of an ERISA plan. MORE
May 06, 2013
On March 13, 2013, the Oregon legislature introduced Senate Bill 814 to create sweeping reforms on environmental claims handling regulations and available remedies for insureds facing liability for cleanup of contaminated property located in the state. MORE
May 02, 2013
Massachusetts’s Division of Insurance issued a bulletin mandating prompt investigation of business interruption, property damage and medical insurance claims by policyholders victimized by the Boston Marathon bombings and stated the Insurance Commissioner expects insurers to offer extensions of reporting timelines and other requirements to displaced insureds. MORE
May 01, 2013
Angelo Savino, chair of the professional liability practice in Global Insurance, published an article in Best's Review addressing the issue of claims having decreased but D&O insurers face a potentially volatile underwriting landscape. To read the complete article click here. MORE
April 24, 2013
Earlier this month the 7th Circuit affirmed a district court order that held an insurer properly denied coverage to the insured law firm based on its failure to comply with the reporting requirements under its claims-made professional liability policy. MORE
April 11, 2013
In Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court held that a class-action plaintiff may not avoid the effect of the federal Class Action Fairness Act (CAFA) by “stipulating” he will not seek damages in excess of $5,000,000. CAFA provides that the federal “district courts shall have original jurisdiction” over a civil “class action” if, among other things, the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U.S.C. §§ 1332(d)(2), (5). The statute further states that to “determine whether the matter in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.” § 1332(d)(6). MORE
April 05, 2013
Policyholders in New York and New Jersey presently have no private right of action against insurance companies for alleged violations of each state’s respective statutory claim handling guidelines – New York’s Unfair Claim Settlement Practices Act, N.Y. Ins. Law § 2601, and New Jersey’s Unfair Claim Settlement Practices Act, N.J. Admin. Code tit. 11, §§ 2-17.6 and 2-17.7. Although the New York and New Jersey statutes each prohibit insurers from engaging in unfair claim settlement practices, neither allows insureds the right to enforce the laws or seek damages for a violation by filing a lawsuit against the insurer. Rather, the Insurance Department for each state are vested with the exclusive power of enforcement, and then only when an insurer engages in a pattern of violations demonstrating that the mishandling of claims is a general business practice. That may soon change, however. MORE
March 29, 2013
New Jersey has now joined New York in instituting a voluntary mediation program for insured victims of Superstorm Sandy with "open and unresolved first party insurance claims." The program became operative with the issuance of a Bulletin on Thursday, March 28, and insurers must provide all eligible policyholders with notice of their right to request mediation and detailed instructions about how to do so within five business days' time, which is to say by Friday, April 5th. MORE
March 20, 2013
In a recent unanimous decision, the U.S. Supreme Court held that the Securities Exchange Commission (SEC) has five years from the date when an alleged fraud begins – not from the date when the SEC uncovers the fraud – to bring an action seeking penalties. It is likely this decision will have a large-scale impact, including an impact on D&O insurers, by spurring the SEC to complete its investigations and bring enforcement actions sooner rather than later. MORE
March 20, 2013
In Syracuse University v. National Union Fire Insurance of Pittsburgh, PA, No. 2012EF 63 (Sup. Ct., Onondaga County, January 29, 2013), the New York Supreme Court, County of Onondaga, held that an insured’s costs incurred in responding to subpoenas issued by state and federal agencies, were covered (as defense costs) as “Claims” made under a not-for-profit individual and organization insurance policy issued by National Union. The case arose out of allegations that a Syracuse assistant basketball coach, Bernie Fine, had sexually abused two former participants in Syracuse University’s basketball program over a period of years while serving in his capacity as the University’s assistant basketball coach.1 The court held that issuance of the subpoenas constituted a “Claim” as defined in the policy. MORE
March 19, 2013
In D.R. Horton, Inc.—Denver v. Mountain States Mutual Casualty Co., No. 12-cv-01080 (February 25, 2013), another U.S. District Court judge for the District of Colorado determined a liability insured seeking defense costs from its insurer may qualify as a “first-party claimant” for purposes of Colorado’s Unfair Claim Settlement Practices Act, potentially entitling the insured to recover unpaid defense costs, attorneys’ fees in prosecuting the recovery action and two times the unpaid defense costs as a penalty. MORE
March 18, 2013
The Washington Supreme Court joined a minority of jurisdictions that hold that insurers may not unilaterally reserve the right to seek reimbursement for defense costs paid in defending non-covered claims through a reservation of rights letter. In National Surety Corp. v. Immunex Corp., the Washington Supreme Court, in a five to four decision, held that insurers defending under a reservation of rights may not seek reimbursement for defense costs from the insured, even if there is a determination that the insured is not entitled to coverage under the policy No. 86535-3 (March 7, 2013). In so holding, the court recognized that, upon a showing of actual and substantial prejudice resulting from an insured’s delayed tender, an insurer could minimize or avoid liability for defense costs. MORE
March 15, 2013
When an insured sues an insurer for bad faith, how much of the claims file maintained by the insurer is discoverable? In a 5-4 decision, the Washington Supreme Court recently weakened insurers’ ability to protect confidential communications with their attorneys in first-party claims where the insured has alleged bad faith. Cedell v. Farmers Insurance Company of Washington, No. 85366-5 (February 22, 2013). The court held that, in the context of a first-party claim for bad faith claim handling and processing, courts must apply a presumption that there is no applicable attorney-client privilege. The court further held that an insurer would be entitled to overcome the presumption by showing that its counsel was providing legal advice as to the insurer’s potential liability and was not acting in the insurer’s “quasifiduciary” function. Upon this showing, the insurer is entitled to an in camera review where the trial court will determine if the privilege applies, subject to the insured’s assertions that the privilege does not apply due to an exception, including the civil fraud exception. MORE
March 14, 2013
The line between maritime and non-maritime jurisdiction continues to be redrawn. A recent case out of the Southern District of New York, Fireman’s Fund v Great American Insurance Company, 2013 U.S. Dist. 11114, held a dry dock that sank at its berth in Texas not to be a vessel. Unless plaintiffs could establish an alternative jurisdictional basis such as Diversity of Citizenship, the court ruled it lacked jurisdiction to decide the underlying insurance dispute. MORE
March 12, 2013
On February 20, 2013, in a matter of first impression in the state of Florida, the Third District Court of Appeal ruled 2-1 that an additional insured was entitled to the appointment of separate and independent defense counsel in a liability matter involving multiple insureds with “conflicting legal positions.” The majority opinion, written by Judge Suarez with Chief Judge Wells concurring, determined that the retention of separate defense counsel was necessary, simply because: 1) the complaint alleged each insured was independently negligent; and 2) each insured sought contribution and indemnification from the other. Judge Suarez found that these allegations were enough to create a “legal dilemma” for defense counsel in advancing the defense interests of one insured to the potential detriment of the other. In an 11-page dissent, however, Judge Shepherd expressly rejected the majority’s holding, characterizing the insureds’ mutual defense interests as nothing more than a “paper conflict” that fails to justify the retention of separate counsel. MORE
March 11, 2013
It may be surprising to learn that currently there is no federal
law requiring the installation of fire sprinklers in residential
structures. Despite most states and municipalities requiring
fire sprinkler systems in commercial structures, few states
or municipalities have tried to implement this requirement in
residential structures. In 2011, U.S. fire departments responded
to 370,000 home structure fires causing $6.9 billion in direct
damage. According to the 2009 American Housing Survey, 4.6
percent of occupied homes (including multi-unit) had sprinklers,
up from 3.9 percent in 2007. MORE
March 08, 2013
In Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085 (Slip Op. Feb. 27, 2013), the U.S. Supreme Court, in a 6-3 majority opinion (Ginsburg, J.), affirmed the U.S. Court of Appeals for the 9th Circuit’s ruling that a securities class action plaintiff need not prove materiality of alleged misrepresentations or misleading omissions as a prerequisite to class certification under Fed. R. Civ. P. 23. Justices Kennedy, Scalia, and Thomas dissented. Justice Alito concurred with the majority but added a separate and important note (discussed below). The Court’s decision lowers the bar for investors seeking to obtain class certification, which has significant implications for D&O insurers, companies, their Directors and Officers (Ds and Os), and securities fraud plaintiffs alike. The Court’s ruling in Amgen also settles a split among the 2nd, 3rd, 7th, and 9th Circuits. Although the ruling is clearly favorable to securities fraud class action plaintiffs, the four concurring and dissenting justices appear willing to entertain arguments over the continued validity of the fraud-on-the-market presumption, which could drastically alter the landscape for securities class actions. MORE
March 07, 2013
Following considerable public comment, the Texas Supreme Court revised and issued final approval of new rules providing for expedited trials and dismissal of baseless claims. Despite pleas from various factions, however, the new rules maintain their mandatory nature. The revisions do, however, contain material changes to the Alternative Dispute Resolution provision of new Rule 169 of the Texas Rules of Civil Procedure. MORE
March 05, 2013
On February 15, 2013 a Pennsylvania federal district court held that the shipment of defective drywall from China to the United States constituted one “occurrence” for purposes of insurance coverage, and the occurrence took place when the damage caused by the drywall manifested itself in the residences or buildings of the underlying plaintiffs. With this ruling, Pennsylvania joins Virginia as one of the few states to opine regarding the number of occurrences in the Chinese drywall context. MORE
March 01, 2013
In a victory for liability insurers against the asbestos plaintiffs’ bar, the California Supreme Court ruled in Greb v. Diamond International Corp., that California’s statutory provision that a dissolved corporation continues to exist perpetually for purposes of being named as a defendant in a suit does not apply to dissolved foreign corporations. Instead, the law of the state of incorporation governs how long a foreign corporation can be sued after it is dissolved, even for suits by injured California residents. Diamond International Corporation was a dissolved Delaware corporation, and the Supreme Court held that the three-year Delaware survival statute barred an asbestos bodily injury suit in California filed more than three years after the corporation was dissolved under Delaware law. The practical effect is that the dissolved corporation’s insurers do not have any liability for suits filed more than three years after the Delaware dissolution, because the plaintiff cannot obtain a judgment against the insured necessary to bring a direct action against the liability insurer. MORE
February 15, 2013
In 2011, the Texas Legislature passed House Bill 274, directing the Texas Supreme Court to promulgate new rules reducing the expense and delay of litigation. House Bill 274 calls for early MORE
February 13, 2013
In its recent decision in Powell v. Cherokee Insurance Company, Case No.: 5:09-CV-00205, the U.S. District Court for the Western District of Kentucky reaffirmed that in a third-party bad faith lawsuit alleging failure to timely settle a personal injury claim, the third-party claimant must produce evidence of conduct by the insurer that is outrageous, because of the defendant’s evil motive or his reckless indifference to [her] rights in order to establish a bad faith claim under the Kentucky Unfair Claims Settlement Practices Act (UCSPA). MORE
February 11, 2013
The examination under oath has long served as a valuable tool to prevent fraud and exaggeration in property insurance claims, while also keeping the cost of insurance as low as possible. The Washington Supreme Court, however, did insurance consumers no favor when it recently held, in an 8-1 decision, that an insured may substantially comply with an insurer's request for examination under oath (EUO), even where the insured never submitted to the requested EUO. Staples v. Allstate Ins. Co., No. 86413-6, Washington Supreme Court (Jan. 24, 2013). The court also held that an insurer must establish actual prejudice before denying a claim based on the insured's noncompliance with the EUO request. The court's decision is a departure from previous precedent. MORE
February 07, 2013
In a case of first impression, the Illinois Appellate Court considered whether a professional liability insurer can deny a defense to its insured, an attorney who admits he erred in providing legal services. Ill. State Bar Assoc. Mut. Ins. Co. v. Greenfield & Assocs., P.C., No. 1-11-0337, 2012 Ill. App. LEXIS 921 (Ill. Ct. App. Nov. 9, 2012). The court held the insurer had a duty to defend its insured against a legal malpractice claim. The court rejected the insurer’s reliance on the prohibition against admitting liability in its Voluntary Payments condition. MORE
January 28, 2013
Yearly, many oil pipelines fail, spill crude oil, and cause significant health and environmental damage all across the continental United States, leading to hefty financial implications for the oil companies, landowners, government, and insurers. MORE
January 24, 2013
On January 15, 2013, the Supreme Court, in a majority decision with two justices dissenting, ruled that a so-called “floating home” which did not have self-propulsion and essentially consisted of a house-like plywood structure with French doors floating on an empty bilge space, did not come within the definition of a vessel under 1 U.S.C. § 3 and therefore was not subject to maritime law. Lozman v. City of Riviera Beach, docket 11-626, 568 US ___ (1/15/2013). MORE
January 22, 2013
In Washington State Department of Transportation v. James River Insurance Company, Wash. No. 876444 (January 17, 2013), the Washington Supreme Court declared binding arbitration agreements in insurance contracts void and unenforceable. The court explained that binding arbitration frustrates legislative intent to protect Washington policyholders' rights to sue insurers in Washington courts for coverage disputes over subjects located, resident or to be performed in Washington. MORE
January 18, 2013
When can the Federal Government be pursued for a flood damage subrogation claim? Are one-off floods considered a taking of property requiring compensation under the 5th Amendment, or are repetitive flooding events required? Are state laws better avenues to evaluate flood claims? MORE
January 16, 2013
In Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Eininger, LLP v. Underwriters of Lloyds, London, no. CV11-665, 2013 U.S. Dist. LEXIS 1204 (E.D. N.Y. January 2, 2013), the District Court for the Eastern District of New York upheld a legal liability insurer’s denial of coverage to a law firm. The court agreed with the insurer that although two complaints filed against the law firm and its partners alleged professional malpractice, the policy’s business pursuit exclusion and business enterprise exclusion applied. MORE
January 14, 2013
In what may be the continuation of a trend toward the erosion of the attorney-client privilege and work product doctrine in bad faith litigation, another court has held that an insurer's communications with defense counsel retained for the insured in an underlying liability suit are discoverable and not subject to the attorney-client privilege or work product doctrine in a subsequent third-party bad faith lawsuit, under Georgia law. MORE
January 08, 2013
Last year, we notified you that the National Labor Relations Board will now consider a general employer rule requiring confidentiality during an internal investigation into an employee complaint to be an unfair labor practice. The Board has now taken things even further. MORE
January 08, 2013
For more than 20 years, Pennsylvania retirees who accepted an early retirement incentive plan have been denied unemployment compensation benefits under the Unemployment Compensation Law (UC law). The Supreme Court of Pennsylvania departed from well-established precedent on December 28, 2012, opening the door for early retirees to qualify for unemployment compensation. MORE
December 28, 2012
What is the value of a prized pet? Will the law on pet value change in Texas in 2013? How do other states value pets? Those questions and others are addressed in our December Subrogation Alert discussing whether the sentimental value of a pet can be recovered. MORE
December 21, 2012
Historically, employers have been free to discontinue union dues check-off arrangements upon the expiration of a collective bargaining agreement. The National Labor Relations Board (NLRB) changed that long-standing rule on December 12, overturning 50 years of precedent and ruling employers must honor dues check-off arrangements until the parties execute a new collective bargaining agreement or reach a bargaining impasse. The fact that this decision came just one day after Michigan joined the ranks of Right-to-Work states, by banning requirements that non-union employees pay union dues, raises the question of whether the NLRB is seeking to give where state legislatures take away. MORE
December 19, 2012
In Capitol Specialty Insurance v. JBC Entertainment Holdings, Inc. et al., No. 68129-0-1, 2012 Wash. App. LEXIS 2835 (Ct. App. Dec. 10, 2012), the Washington Court of Appeals held a firearms exclusion in a commercial general liability (CGL) policy unambiguously excludes coverage for all claims arising from a nightclub shooting regardless of who used the firearm, including those claims characterized as pre-shooting negligence. The court distinguished the holding from those claims where there are allegations of post-shooting acts that lead to further injury or harm to the claimant. MORE
November 15, 2012
Earlier this year, the U.S. District Court for the Southern District of Texas ruled an insured can pursue its bad faith claim even where the insurer made timely payment of the appraisal award and the court dismissed the breach of contract claim on summary judgment. Intermodal Equip. Logistics, LLC and Sea Train Logistics, LLC v. Hartford Accident & Indem. Co., No. 3:10-cv-00458 (S.D. Tex. Galveston Div. May, 24, 2012). MORE
November 13, 2012
A Second Obama Administration's Impact on Labor and Employment Issues - Labor and Employment Alert - With the re-election of Barack Obama and the prospect of continued political gridlock at the congressional level, the administration will likely turn to regulatory and administrative avenues in an effort to pursue workplace policy goals. The landscape is very different than it was just four short years ago. MORE
November 13, 2012
Collectibility in Legal Malpractice Suits - A Required Element in Proving Damages: Schmidt v. Coogan - Commercial Litigation Alert - In Schmidt v. Coogan, No. 41279-9-II, 2012 WL 5331567 (October 30, 2012), the Washington Court of Appeals held that (1) collectibility is a required component in determining legal malpractice damages and (2) the failure to prove collectibility is fatal to a plaintiff trying to establish damages in a legal malpractice action. MORE
November 08, 2012
Virginia Supreme Court Ends Chinese Drywall Debate - Global Insurance Alert - We are pleased to report that the Virginia Supreme Court has tacked down – or, more appropriately, "drywall-ed in" – the issue of whether a pollution exclusion in a property insurance policy precludes coverage for Chinese drywall claims under Virginia law. MORE
November 07, 2012
Fifth Circuit Reverses Itself on Hurricane Katrina Cases, Raises Bar for Pursuing Flood Claims Against Army Corps of Engineers - Subrogation and Recovery Alert! - Flood damage subrogation claims are likely to be harder to pursue against the Army Corps and potentially other governmental entities according to a recent U. S. Fifth Circuit Court of Appeals case discussing Hurricane Katrina losses. MORE
November 06, 2012
On October 15, 2012, the U.S. District Court of Appeals for the 5th Circuit – applying Texas law – addressed another Cumis counsel matter. See Coats, Rose, Yale, Ryman & Lee, P.C. v. Navigators Specialty Ins. Co., No. 12-10055, 2012 WL 4858194 (5th Cir. Oct. 15, 2012). MORE
November 02, 2012
Covenant Judgements in Washington - Reasonableness Determined on Five Days' Notice to the Insurer and Without a Jury: Bird v. Best Plumbing and Farmers Insurance Exchange - Global Insurance Alert - In Bird v. Best Plumbing Group, LLC and Farmers Insurance Exchange, Wash. No. 86109-9 (October 25, 2012), the Washington Supreme Court held that: (1) insurers have no constitutional right to a jury determination of whether covenant judgements are reasonable and (2) due process is not violated when the presumptive amount of damages in a future bad faith action is set at a reasonableness hearing without a jury following five days' notice to the insurer. MORE
October 24, 2012
ATF Critical of Electrical Arc Bead Recognition Study - Subrogation and Recovery Alert! - A new Technical Bulletin (Tech. Bull. 001-9/28/2012) issued by the Bureau of Alcohol, Tobacco & Firearms critiques an earlier National Institute of Justice funded report on inspecting electrical conductors involved in fires. This ATF Technical Bulletin is important reading for anyone handling fire losses involving electrical equipment or electrical lines.
MORE
October 19, 2012
Ohio Supreme Court Rules That Claims of Defective Workmanship Against A Builder Do Not Constitute An Occurrence Under A CGL Policy - Global Insurance Alert - On October 12, 2012, the Ohio Supreme Cort resolved a long-simmering conflict among Ohio's intermediate appellate courts by answering the following certified question: Are claims of defective construction/workmanship brought by a property owner claims for "property damage" caused by an "occurrence" under a commercial general liability policy? MORE
October 09, 2012
Maryland's Rule of Contributory Negligence - Subrogation and Recovery Alert! - For the past 165 years in Maryland, if a jury found a plaintiff even as little as 1 percent responsible for an alleged injury, any recovery against the defendant(s) was barred. This is known as the contributory negligence doctrine.
MORE
October 09, 2012
Ninth Circuit Upholds Dismissal of Global Warming Action on Displacement Grounds - Global Insurance Alert - The U.S. Court of Appeals for the 9th Circuit affirmed the dismissal of a complaint filed by the Native Village of Kivalina and the city of Kivalina (collectively Kivalina) against 22
of the world’s largest energy producers alleging damages caused by global warming. Kivalina v. ExxonMobil Corp.,No. 09-17490 (9th Cir. filed Sept. 21, 2012). Kivalina alleged that the barrier island on which the village is located is becoming uninhabitable. MORE
October 04, 2012
Utah Court of Appeals Relies on Wikipedia to Determine Common Meaning of Term Used in Insurance Policy Exclusion - Global Insurance Alert - In Fire Insurance Exchange v. Oltmanns, 2012 UT App 230 (2012),the court determined the term “jet ski” as used in an exclusion in a homeowner’s policy was ambiguous, based in part on a Wikipedia definition of the term. MORE
October 03, 2012
Pennsylvania Supreme Court Rules Post-Trial Motions Are Not Necessarily Required Following Remand - Litigation Alert - The Pennsylvania Supreme Court issued its much anticipated opinion on Friday, September 28, 2012, in Newman Dev. Group of Pottstown, LLC v. Genuardi’s Family Markets, Inc., No. 101 MAP 2011, 2012 Pa. LEXIS 2262 (Pa. Sept. 28, 2012)(Newman II), involving the interpretation of Pennsylvania Rule of Civil Procedure 227.1, which requires post-trial motions to be filed within 10 days after certain events. MORE
October 01, 2012
One of the largest and most powerful storms on record, Superstorm Sandy made landfall near Atlantic City, N.J., at approximately 8 p.m. on Monday, October 29, 2012. This superstorm extended almost 1,000 miles wide, at one point reaching from Detroit to Bermuda. Sandy generated tremendous winds reaching maximums of 80 to 90 miles per hour; storm surges upwards of 9 feet; and rainfall over 9.5 inches in some areas. Effects of Sandy included flooding, power outages, and wind damage, impacting the entire mid-Atlantic region (New York, New Jersey and Pennsylvania) as well as states north, south and west, including Connecticut, Maryland, Rhode Island, Ohio, Virginia, West Virginia, Washington, D.C., New Hampshire, Massachusetts, Delaware, Maine, and Vermont. Sandy has been blamed for more than 70 deaths in the United States and left millions without power. Total losses due to Superstorm Sandy have been estimated at $50 billion by Moody’s Analytics. Sandy has been assigned a CAT code of 90-12 by ISO. MORE
September 25, 2012
Exculpatory Provisions Can No Longer Preclude Liability for Reckless Acts in Pennsylvania: The Supreme Court of Pennsylvania's Recent Decision Shows that the Tide is Turning - Subrogation and Recovery Alert! - Have you handled a good liability case only to find an exculpatory clause in the contract or lease allowing the targeted party to avoid liability for its negligent acts or omissions? Now, in Pennsylvania, liable parties no longer can
claim blanket protection under an exculpatory provision if they were potentially reckless in bringing about a loss. MORE
September 25, 2012
Texas Supreme Court Revisits Ruttiger Extracontractural Liability in Workers' Compensation Claims All But Vanquished - Global Insurance Alert! - On June 22, 2012, the Texas Supreme Court, in Texas Mutual Insurance Company v. Ruttiger, withdrew its original August 26, 2011 opinion, substituting it with an opinion that even further limits a claimant’s extra-contractual rights in a workers’ compensation matter. MORE
September 20, 2012
Florida Appellate Court Holds that Appraisal Award Constitutes a 'Favorable Resolution' and Permits Insured to Pursue Bad Faith Claim - Global Insurance Alert - The Florida District Court of Appeal, Fourth District, recently held that an appraisal award in favor of an insured constitutes the "favorable resolution" of an action for insurance benefits necessary to proceed with a statutory first-party bad faith action under Florida law. Trafalgar v. Zurich Ins. Co., 2012 WL 3822215 (Fla. App. 4 Dist. Sept. 5, 2012). MORE
September 18, 2012
Court Rules Clock Starts to Run in Common Law Bad Faith Cases with Entry of Excess Verdict - Global Insurance Alert - A federal judge recently concluded that the statute of limitations period does not begin to run for common law bad faith actions filed in Pennsylvania until the plaintiff has suffered damages. MORE
September 14, 2012
Sixth Circuit Confirms that Cybercrime is Crime... and Finds Coverage - Global Insurance Alert - On August 28, 2012, the 6th Circuit Court of Appeals handed down a groundbreaking decision that sent shockwaves through the world of cyber-risk insurance. MORE
September 13, 2012
Fire on the Mountain: Rapidly Growing Fire on Capser Mountain Near Casper, Wyoming - Subrogation and Recovery Alert! - A rapidly spreading wildfire, the Sheep Herder Hill fire, that broke out on the afternoon of Sunday, September 9, 2012, has now burned at least six structures, more than seven-square-miles, and forced some 500 people to evacuate from Casper Mountain, according to the Associated Press on Monday. MORE
September 13, 2012
Petersen v. Columbia Casualty Company: A Case Study in the Differences Between the Duty to Advance and the Duty to Defend - Global Insurance Alert - On August 21, 2012, in Petersen v. Columbia Casualty Company, et al., No. SACV-12-00183, U.S. District Judge James V. Selna held that a professional liability insurance policy, which provided that the insurer had a duty to advance defense expenses, should not be interpreted under the standards that govern policies containing the broader “duty to defend.” MORE
August 29, 2012
Recent Amendments to the Pennsylvania Insurance Holding Company Act: New Enterprise Risk Report - Insurance Corporate and Regulatory Alert - Pennsylvania’s Insurance Holding Company Act (IHCA) was recently amended by Act 136, signed into law on July 5, 2012. Act 136 made a number of changes to the IHCA. MORE
August 29, 2012
The Broad Scope of Contractual Liability Exclusions in D&O Policies - Global Insurance Alert - On August 17, 2012, the U.S. District Court for the Middle District of Pennsylvania, in Federal Insurance Co. v. KDW Restructuring & Liquidation Services LLC et al., Case No. 3:07-cv-01357, held that Federal Insurance Company does not have a duty to defend or to indemnify its insured, Uni-Marts, LLC, under a D&O policy for claims arising out of Uni-Marts’ alleged misrepresentations and omissions to gas station purchasers. MORE
August 27, 2012
GE Dishwashers - Recall and Investigation by CPSC - Subrogation and Recovery Alert! - The Consumer Product Safety Commission (CPSC) issued a recall of GE dishwashers. The CPSC recall affects about 1,300,000 dishwashers for the Brands GE, GE Adora, GE Eterna, GE Profile and Hotpoint. MORE
August 27, 2012
Recent Amendments to the Pennsylvania Insurance Holding Company Act: Changes Affecting Corporate Governance and Intercompany Transactions and Agreements - Insurance Corporate and Regulatory Alert - Pennsylvania’s Insurance Holding Company Act (IHCA) was recently amended by Act 136, which was signed into law on July 5, 2012. Act 136 makes a number of changes to the IHCA, including imposing new corporate governance requirements and processes and expanding the Pennsylvania Insurance Department’s authority to examine affiliates of an insurer. MORE
August 21, 2012
Hulu Subscribers Have Standing Under Video Privacy Protection Act - Global Insurance Alert - The Northern District of California recently held that a proposed class action has sufficiently stated a claim under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710(b)(1), against defendant Hulu. MORE
August 15, 2012
Cle Elum Burning: The Taylor Bridge Fire - Subrogation and Recovery Alert! - On Monday August 13 a fire broke out in the rural area around Cle Elum, Washington. MORE
August 14, 2012
Eleventh Circuit Holds An Arbitration Panel is A Tribunal Under 28 U.S.C. § 1782 For Purposes of Obtaining Discovery For Use in Foreign Arbitration - Global Insurance Alert! - As a matter of first impression, the United States Court of Appeals for the 11th Circuit, held that an arbitral panel in Ecuador was a tribunal under 28 U.S.C. § 1782 for purposes of obtaining discovery for use in foreign proceedings. See, Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS
Forwarding (USA), Inc., No. 11-12879, 2012 WL 2369166 (11th Cir. June 25, 2012). MORE
August 10, 2012
California Supreme Court Adopts "All-Sums-With Stacking" Rule Disapproves FMC Corp. v. Plaisted In The Process - Global Insurance Alert - In a long-awaited decision, the California Supreme Court unanimously held that in cases of continuous or progressive property damage, each insurer, including excess insurers, on the risk at any point when damage occurred is liable for indemnity up to its policy limit if its policy contains “all sums” language. MORE
August 09, 2012
Recent Amendments to the Pennsylvania Insurance Holding Company Act Changes Affecting Controlling Persons - Insurance Corporate and Regulatory Alert - Pennsylvania’s Insurance Holding Company Act (IHCA) was recently amended by Act 136, which was signed into law on July 5, 2012. Act 136 makes a number of changes to the IHCA, including requiring new filings, mandating prior notice and/or approval for certain transactions, and expanding the Insurance Department’s regulatory authority. MORE
August 07, 2012
The Decision in Phaneuf Funeral home v. Little Giant Pump Co.: Statute of Repose in New Hampshire Now Only Protects Manufacturers & Sellers of Products Who Were Involved In the Transformation of the Products into Improvements - Subrogation and Recovery Alert! - What factors determine whether manufacturers or sellers of products incorporated into an improvement to a structure are protected by the statute of repose? MORE
August 06, 2012
Georgia Supreme Court Changes Reservation of Rights Law - Global Insurance Alert - On June 18, 2012, the Supreme Court of Georgia issued Hoover v. Maxum Indemnity Company, Nos. S11S1681, S11G1683, 2012 WL2217040 (Ga. June 18, 2012), dramatically changing Georgia’s “Reservation of Rights” law. In short, Hoover held insurers may no longer disclaim coverage under a specific policy provision, while reserving the right to do so
under others. MORE
July 31, 2012
Jeep Grand Cherokees and Dodge Ram 1500s-Investigations by NHTSA - Subrogation and Recovery Alert! - The National Highway Traffic Safety Administration (NHTSA) has opened two preliminary investigations into the 2012 Jeep Grand Cherokee SUV and 2009-2012 Dodge Ram 1500 pickup. The NHTSA investigation affects 106,863 2012 Grand Cherokee vehicles and 230,000 Dodge Ram trucks. This Alert reviews what is known about the preliminary investigations into these vehicular investigations involving potential fires.
MORE
July 27, 2012
Washington Court Concludes Umbrella Insurer Has a Duty to Defend Suit Against Insured Even Though Underlying Primary Insurer Similarly Has a Duty to Defend - Global Insurance Alert - In a surprising unpublished decision, the Washington State Court of Appeals recently ruled that an umbrella insurer had a duty to defend a suit against its insured despite the fact the underlying primary insurer had also previously been found to have a duty to defend the same parties in the same suit. MORE
July 24, 2012
Recent Arizona Court Opinion Reduces Ratio of Bad Faith Punitive Damages Award to a 1:1 Ratio to Compensatory Damages - Global Insurance Alert - In its recent decision, the Arizona Appellate Court, Division One, affirmed a bad faith verdict in the amount of $155,000 and held that the $55 million punitive damages award against the insurer was “unconstitutionally excessive.” MORE
July 20, 2012
First Circuit Court of Appeals Holds Bank’s Online Security Measures “Commercially Unreasonable” in Landmark Decision - Global Insurance Group Alert - In a landmark decision, the 1st Circuit Court of Appeals held in Patco Construction Company, Inc. v. People's United Bank, No. 11-2031 (1st Cir. July 3, 2012) that People's United Bank (d/b/a Ocean Bank) was required to reimburse its customer, PATCO Construction Co., for approximately $580,000 that had been stolen from PATCO's bank account... MORE
July 13, 2012
Limitations of Time and Notice Requirements for Commencement of Actions - Jurisdictions Comparative Chart - Limitations of Time and Notice Requirements for Commencement of Actions MORE
July 05, 2012
Chevy Cruze Recall - Subrogation and Recovery Alert! - General Motors is recalling nearly all Chevy Cruze models built in the United States since the vehicle’s introduction two years ago. The company knows of 30 fires caused by the problem, but no injuries have been reported, spokesman Alan Adler said. Flames engulfed and destroyed cars in two
cases reported to federal safety officials. MORE
July 02, 2012
New Ninth Circuit Decision Purportedly Imposes Duty on California Insurers to Negotiate a Settlement within Policy Limits - Global Insurance Alert! - The recent Du v. Allstate Ins. Co. opinion is the 9th Circuit’s Erie guess of the proper interpretation of a long-standing issue
of California bad faith law: whether an insurer has a duty to attempt to settle within policy limits even if there is no policy limits demand, and, if so, when that duty attaches. The 9th
Circuit ruled that an insurer does have the duty to attempt to settle a claim within policy limits when it is “reasonably clear” MORE
June 29, 2012
Exhaustion Implications for Multi-Policy Settlements - Global Insurance Alert - In JP Morgan Chase & Co. v. Indian Harbor Ins. Co., 2012 N.Y. App. Div. LEXIS 4627 (N.Y. App. Div. June 12, 2012), the Appellate Division of the New York Supreme Court, applying Illinois law, affirmed the lower court’s grant of summary judgment in favor of certain upper-level excess insurers, agreeing that the insured failed to prove that certain underlying policies had been properly exhausted. MORE
June 28, 2012
50 State Survey of Measure of Damages For Injury to Real and Personal Property - Jurisdictions Comparative Chart - This chart provides a general overview of the case law addressing the measure of damages for property damage in all 50 states as well as the District of Columbia. MORE
June 27, 2012
The Potential Implications of the JOBS Act on D&O Coverage - Global Insurance Alert - On April 5, 2012, President Obama signed into law the Jumpstart Our Business Startups Act, better known as the JOBS Act. The JOBS Act is intended to help smaller and new companies raise capital, and, to accomplish this goal, institutes fundamental changes to existing securities laws in the areas of fundraising and emerging growth companies (EGCs). MORE
June 25, 2012
Maximus Opinion Permits Functional Exhaustion of Underlying Insurance - Global Insurance Alert - Excess insurers should carefully note both trends in the law, and particular policy language, that may potentially influence whether their policyholders can exhaust underlying policies without actually receiving payment of the full underlying limits. In its recent opinion in Maximus, Inc. v. Twin City Fire Insurance Company, No. 11-CV-1231, the U.S. District Court for the Western District of Virginia determined that an ambiguously worded follow-form excess policy permitted this result. MORE
June 25, 2012
Colorado Burning - Subrogation and Recovery Alert! - Due to lower than expected snowpack this past winter, recent high temperatures and low humidity, the Colorado high country has become a tinderbox. MORE
June 19, 2012
Confidentiality Agreements and Standstill Provisions; the Delaware Chancery Court Broadly Construes Confidentiality Agreements and Enjoins a Hostile Bid Despite the Absence of Standstill Provisions Relating to Stock Transactions - Global Insurance Alert - In a significant recent decision, Martin Marietta Materials, Inc. v. Vulcan Materials Company, the Delaware Chancery Court reiterated the preference of Delaware courts to enforce confidentiality agreements and to construe them broadly as a matter of public policy. MORE
June 15, 2012
Florida Supreme Court Confirms: No Common Law First Party Bad Faith Cause of Action - Global Insurance Alert - On May 31, 2012, the Florida Supreme Court rendered its 32 page, long-awaited decision in QBE Insurance Corp. v. Chalfonte Condominium Apartment Association, Inc. MORE
June 14, 2012
Diminution of Value and Property Damage Claims in Georgia - Subrogation and Recovery Alert! - On May 29, 2012, the Georgia Supreme Court significantly changed the landscape for first party property insurance claims and claims handling by holding (in Royal Capital Development, LLC v. Maryland Casualty Company, 2012 WL 1909842)... MORE
June 12, 2012
Virginia Supreme Court Affirms No Coverage Under Property Policies for Contaminated Infant Formula Due to Product Exclusion Endorsements - Global Insurance Alert - On April 20, 2012, the Virginia Supreme Court unanimously affirmed a trial court decision holding that product exclusion endorsements precluded coverage under first-party property insurance policies for contaminated infant formula manufactured by the insured. MORE
June 01, 2012
Pennsylvania Supreme Court Rules "Any Exposure" to Asbestos Fibers Does Not Pass Evidentiary Muster Under Frye (in a Decision with Significant Implications for Insurers - Global Insurance Alert - On May 23, 2012, a unanimous Pennsylvania Supreme Court rejected the admissibility of “any exposure” expert opinion testimony, which is commonly advanced by asbestos plaintiffs. MORE
June 01, 2012
When Loss Ensues: Washington State Supreme Court Issues Mixed Messages on Ensuing Loss Provisions in All-Risk Policies - Global Insurance Alert - All‐risk property insurance policies generally provide coverage for any peril that causes property damage, except when the damage is caused by a risk specifically excluded in the policy. MORE
June 01, 2012
Proving Fine Art Damage: It's All in the Details - Claims Magazine - To Maximize Subrogation Recoveries, Pay Attention of damages and hiring the right damages experts
are as important as proving the cause of
the loss. MORE
May 18, 2012
Wisconsin Court of Appeals Finds Duty to Defend Trade Infringement Case - Global Insurance Alert - A month ago, the Wisconsin Court of Appeals held that an insurer’s duty to defend was triggered under advertising injury liability coverage where the underlying complaint set forth allegations of trade dress infringement. MORE
May 17, 2012
Washington Court Holds that a Corporate Officer's Breach of Contract is Not a Covered 'Loss' from a 'Wrongful Act' Under a D&O Policy - Global Insurance Alert - In a recent case, Sauter v. Houston Cas. Co., No. 66809-9-1, (May 14, 2012), a Washington appeals court analyzed a type of policy not often considered by Washington courts – a director and officer (D&O) policy. MORE
May 08, 2012
Don’t Forget Contract Claims! Another Possible Theory of Recovery in Cases Against the United States - Subrogation and Recovery Alert! - Do you have a claim against the United States? You already may know about how to proceed under the Federal Tort Claims Act. Have you also considered a breach of contract claim, in addition to any tort claim? If not, you need to assess whether the Contract Disputes Act, 41 U.S.C. section 7101, et seq. applies to your contract claim. MORE
May 01, 2012
Split Decisions: The Outcome of Court Cases Concerning Appraisals Varies from State to State for Insurers - Best’s Review - MORE
April 25, 2012
Virginia Supreme Court Affirms No Coverage for Global Warming Claims Alleging Intentional Emission of Carbon Dioxide - Global Insurance Alert - On Friday, April 20, 2012, ruling on the insured’s motion for rehearing, the Virginia Supreme Court unanimously upheld its prior decision, holding that the insurer was not required to defend AES Corporation because the alleged emission of carbon dioxide was not an occurrence within the meaning of a general liability policy. AES Corp. v. Steadfast Insurance Co., No. 100764 (Va. April 20, 2012). MORE
April 20, 2012
Spontaneous Combustion Alert - Subrogation and Recovery Alert! - After speaking to your cause and origin expert on a new large loss you learn that there was no electrical device or other product in the area of origin. You also learn that the usual series of potential causes have been ruled out-arson, negligently discarded smoking material, or the structural wiring to the property. So you ask: How can a fire start when there is nothing there to ignite the fire? Welcome to spontaneous combustion fires. MORE
April 09, 2012
Reinsurer and Third Party Claims Administrators Not Proper Defendants in Asbestos Coverage Action - Global Insurance Alert! - On February 29, 2012, Judge Rita Novak, of the Circuit Court of Cook County, Ill., issued a ruling of major significance granting the Motion to Dismiss filed by Cozen O’Connor on behalf of its clients and holding that a policyholder could
not hold a reinsurer or third-party claims administrators liable for allegedly assuming the direct insurer’s insuring obligations or tortious interference. MORE
April 03, 2012
Washington State Supreme Court Refuses to Cap Punitive Damages Imposed under Federal Maritime Law - Clausen v. Icicle Seafoods, Inc. - Global Insurance Alert! - On the Ides of March, the Washington State Supreme Court delivered the latest pronouncement on the issue of punitive damages under the archaic system of maintenance, cure, and unearned wages for maritime workers who go to sea. MORE
April 03, 2012
Evaluating Subrogation Claims Arising from the Lower North Fork Wildfire in Jefferson County, Colorado - Subrogation and Recovery Alert! - On Monday, March 19, 2012, the Colorado State Forest Service initiated a controlled burn on property owned by the Denver Water Board located in Jefferson County, Colo. This 50 acre prescribed burn was part of an ongoing fuel management program in the Lower North Fork area as part of a service agreement between the Colorado State Forest Service and the Denver Water Board. MORE
March 26, 2012
Indiana Supreme Court Again Finds the Pollution Exclusion Ambiguous, But Indicates a Possible Way Forward - Global Insurance Alert! - Enforcing the pollution exclusion clause in a commercial general liability policy continues to be problematic for insurers in the state of Indiana. On March 20, 2012, the Indiana Supreme Court once again held that the absolute pollution exclusion is unenforceable because of the term "pollutant" is ambiguous. MORE
March 13, 2012
When It Comes to Data Breaches: Show Me The Injury - Global Insurance Alert! - Two recent decisions, one by Oregon's highest court and the other by the 1st Circuit Court of Appeals, reveal a growing trend finding legitimacy in claims asserted by plaintiffs whose personal information has been stolen or compromised only if such information is actually used by a third-party to cause harm or perpetuate identity theft MORE
March 08, 2012
Personal Jurisdiction Over Foreign Defendants Under the Supreme Court's Recent Decision J. McIntyre Mach., Ltd. v. Nicastro - Subrogation and Recovery Alert! - Although recovery professionals often assert that the movement of goods from a foreign manufacturer to domestic consumers - sometimes referred to as "the stream of commerce" - allows one to maintain jurisdiction over a foreign defendant in a state, the U.S. Supreme Court's decision in J. McIntyre Mach., Ltd. v. Nicastro, _U.S._, 131 S. Ct. 2780 (2011) (plurality op., Kennedy, Roberts, Scalia, MORE
March 01, 2012
Subrogation In Fire Cases With No Known Cause - Not Just Blowing Smoke! - Subrogation and Recovery Alert! - The immediate investigation of loss sites, especially those involving fires, enhances subrogation recognition and maximizes recovery. MORE
February 27, 2012
Discovery Prior to Filing Suit - Maritime Alert - The old adage that the early bird catches the worm is as true in litigation as it is in ornithology. The sooner that important evidence can be evaluated and preserved, the better the chances for a successful outcome. MORE
February 17, 2012
Virginia Supreme Court Grants Rehearing on Whether Emission of Carbon Dioxide Constitutes an "Occurrence" - Global Insurance Alert! - On January 17, 2012, the Supreme Court of Virginia set aside its groundbreaking judgment in AES Corporation v. Steadfast Insurance Company, 282 Va. 252 (2011), which held that the emission of carbon dioxide was not an “occurrence” within the meaning of a general liability policy. MORE
February 17, 2012
Do Appliance Installers Have to Follow Instructions - Subrogation and Recovery Alert! - When homeowners purchase household appliances, the oftentimes hire the retailer to install the appliance in their homes. The appliance manufacturer's installation manual typically will specify the use of an accessory, such as a heavy duty power cord, a metal dryer vent, or a copper water line. MORE
February 13, 2012
The Erosion Continues: Washington Supreme Court Expands the Olympic Steamship Rule and Finds a Viable Bad Faith Claim by a PIP "Insured" - Global Insurance Alert! - In Matsyuk v. State Farm Fire & Cas. Co., 2012 Wash. LEXIS 119 (Feb.9 2012), the Washington Supreme Court held that: (1) a tortfeasor's insurer that provides both Personal Injury Protection (PIP) and liability coverage must pay a pro rata share of the attorney fees incurred by the PIP insureds via the equitable "common fund" doctrine, even though the insurer derived no benefit from the "fund" MORE
February 07, 2012
New York's Appellate Division Holds that Insurers Cannot Delay Issuing a Disclaimer of Coverage on a Known Coverage Defense While It Investigates Other Potential Grounds for Disclaiming - Global Insurance Alert! - In George Campbell Painting v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa, 2012 N.Y. Slip Op. 254 (1st Dept. 2012), New York's Appellate Division, First Department, expressly overruled its prior holding in DiGuglielmo v. Travelers Prop. Cas., 6 A.D.3d 544, 766 N.Y.S.2d (1st Dept.2004), which held that "[a]n insurer is not required to disclaim on timeliness grounds before conducting a prompt, reasonable investigation into other possible grounds for disclaimer." MORE
February 06, 2012
California, Washington and New York to Require Most Insurers Doing Business in Their States to File Climate Change Disclosures - Global Insurance Alert! - On February 1, 2012, California's Insurance Commissioner, Dave Jones, announced that California would join New York and Washington in requiring insurers to disclose how climate change may affect their business. The three states will now require all insurers writing in excess of $300 million in direct premiums to respond to a climate change survey form developed by the National Association of Insurance Commissioners (NAIC). MORE
February 02, 2012
California Supreme Court Limits Asbestos Liability for Valve and Pump Manufacturers - Global Insurance Alert! - The California Supreme Court sharply limited asbestos liability for valve and pump manufacturers (and their insurers) in O’Neil
v. Crane Co., 2012 WL 88533 (Jan. 12, 2012). MORE
January 31, 2012
Good-Faith Basis of Settlement Agreements Between Ceding Insurers and Insureds Is a Question of Fact - Global Insurance Alert! - The "follow the fortunes" and "follow the settlements" doctrines often preclude reinsurers from re-examining the conduct of cedents in settling claims. However, a recent ruling by Supreme Court of New York, Appellate Division, calls into question this conventional wisdom. MORE
January 24, 2012
Discovery Prior To Filing Suit - Subrogation and Recovery Alert! - The old adage that the early bird catches the worm is as true
in litigation as it is in ornithology. The sooner that important
evidence can be evaluated and preserved, the better the
chances for a successful outcome. MORE
January 23, 2012
Washoe Drive Wildfire - Subrogation and Recovery Alert - MORE
January 23, 2012
Texas Federal Court Enforces Anti-Assignment Clause to Preclude Assignment of Insurance Policy and $4.7 Million Hurricane Ike Claim - Global Insurance Alert! - On January 10, 2012 Judge Vanessa Gilmore of the Southern
District of Texas, Houston Division, issued an important opinion
concerning the purported assignment of an insurance policy and
a $4.7 million Hurricane Ike property damage claim. MORE
January 06, 2012
Buyer (and Others) Beware ... The Lacey Act - Maritime Alert - MORE
December 22, 2011
Professional Liability: J.P. Morgan Securities: Ill-Gotten Profits are Not a Prerequisite for Disgorgement - Insurance Coverage Alert! - In December 13, 2011, the New York Appellate Division, First Department, issued a decision in J.P. Morgan Securities Inc. v. Vigilant Insurance Co., Index No. 600979/09 (N.Y.A.D. 1st Dep’t Dec. 13, 2011), that significantly adds to the jurisprudence regarding what constitutes disgorgement that is uninsurable under a directors and officers liability policy. MORE
December 21, 2011
New York Court of Appeals Decides Martin Act Does Not Preempt Private Common Law Claims - Commercial Litigation Alert! - The New York Court of Appeals has given a holiday gift to New York securities plaintiffs: yesterday, the court handed down its decision in Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment Management Inc., 2011 NY Slip Op 09162, New York Supreme Index Number 603755/2008 (available at http://www.courts.state.ny.us/CTAPPS/Decisions/2011/Dec11/227opn11.pdf), at long last determining that New York’s Martin Act does not preclude private plaintiffs from pursuing common law claims
MORE
December 15, 2011
Recovering From Subcontractors Under Builders' Risk Policies: Ontario Court of Appeal Opens the Door for Subrogation - Subrogation and Recovery Alert! - Pursuing subrogation under a builders' risk policy against a subcontractor whose fault caused a loss always presents distinct legal challenges. In Canada, the courts have sometimes shielded subcontractors from liability, but a recent decision by the Ontario Supreme Court of Justice in Brookfield Homes v. Nova Plumbing has opened the door to recovery against negligent subcontractors where the policy language permits it. MORE
December 07, 2011
NFPA Issues its U.S. Fire Loss Report Summary for 2010 - Subrogation and Recovery Alert! - A new report by the National Fire Protection Association discusses in detail U.S. fire losses for 2010. This provides interesting data for property and subrogation claim handlers regarding total as well as average property damage losses in 2010. MORE
December 05, 2011
Professional Liability: Keep Your Friends Close, But Your Facebook Posts Closer - Insurance Coverage Alert! - “Facebook helps you connect and share with the people in your life.” That is the Facebook mantra, as displayed on its homepage, and the opening line of a recent – and extremely thorough – Pennsylvania trial court decision regarding the discoverability of a plaintiff’s relevant Facebook information. The court’s conclusion: a plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material, MORE
December 01, 2011
Beware: Precautions for Accepting Retention as a Successor Auditor - The CPA Journal - If a CPA firm is contacted by a potential client seeking a new accounting firm to perform the company's next audit, the firm should proceed with care.
To view the article on The CPA Journal website click here MORE
December 01, 2011
EDRs for the Claims Adjuster - Claims Magazine - MORE
December 01, 2011
'Burning' Issues in Fireplace Losses - CAFI - MORE
December 01, 2011
Sentence First/Verdict Afterwards-Justice in Afghanistan - CAFI - MORE
November 21, 2011
Foreign Arbitration Clauses Invalid Under Carmack - Subrogation and Recovery Alert! - Foreign arbitration clauses are more prevalent than ever in commercial contracts. However, in interstate shipping contract claims under the Carmack Amendment, foreign arbitration clauses have recently been found invalid. This Alert reviews the recent Ninth Circuit Court of Appeals decision in Smallwood v. Allied Van Lines, Inc. MORE
November 16, 2011
Thailand Flood Losses - Cozen O'Connor White Paper - Thailand’s two principal river systems are the Chao Phraya and the Mekong. There are a number of other smaller rivers which run through Thailand and drain into the Gulf of Thailand and the Andaman Sea. The Mekong drains into the South China Sea. Beginning in July, Thailand’s rivers have been flooding. The floods have caused 506 deaths and an estimated $5.1 billion in damage. According to government reports the flooding has affected almost 15 million acres of land in 58 provinces. MORE
November 07, 2011
Colorado Statute Concerning Insurance for Construction Defects Does Not Apply Retroactively, but Property Damage Caused by Poor Workmanship is an Occurrence - Insurance Coverage Alert! - 10th Circuit Court of Appeals held that a Colorado statute regarding insurance for construction defects does not apply retroactively, but that any property damage caused by poor workmanship may nevertheless qualify as an “occurrence” so long as the resulting damage is to nondefective property. Greystone Const., Inc. v. National Fire & Marine Ins. Co., Case No. 09-1412 (10th Cir. Nov. 1, 2011). MORE
November 04, 2011
Professional Liability: And Now, the “Maine” Event: Mitigation Costs Constitute Damages in Data-Breach Case - Insurance Coverage Alert! - Businesses that require their customers to disclose credit card and personal information beware. On October 20th, the U.S. Court of Appeals for the 1st Circuit held that claims by class action plaintiffs for “mitigation damages” arising from alleged negligence and breach of contract are viable under Maine law. Anderson v. Hannaford Brothers Co., Nos. 10–2384, 10–2450, 2011 U.S. App. LEXIS 21239 (1st Cir. Oct. 20, 2011). MORE
November 01, 2011
Follow the Yellow Brick Recovery Road-Social Media Enhances Subrogation Evaluation - Claims Magazine - MORE
October 31, 2011
Corporate Liability for Human Rights Abuses by Foreign Operatives? U.S. Supreme Court to Consider if Victims Can Recover Damages from Corporations - Insurance Coverage Alert! - On October 18, 2011, the Supreme Court of the United States agreed to consider whether corporations can be sued in U.S. courts for acts that take place outside of the country. Kiobel v. Royal Dutch Petroleum, S. Ct. Dkt. No. 10-1491. The Supreme Court arguments will most likely be heard in early 2012, followed by the Court’s written decision sometime before the Court’s term ends in June 2012. MORE
October 28, 2011
Eleventh Circuit Rejects Office Depot's Claim for Defense Costs Incurred During Voluntary Compliance with an Informal SEC Investigation - Insurance Coverage Alert! - In an unpublished per curium opinion, the U.S. Court of Appeals for the 11th Circuit affirmed that Office Depot’s Executive and Organization Liability policy did not cover defense costs incurred in voluntarily responding to an informal Securities and Exchange Commission (SEC) inquiry, nor costs incurred in conducting an internal investigation and audit triggered by a whistleblower complaint over alleged accounting improprieties. Office Depot, Inc. v. National Union Fire Ins. Co. et al., MORE
October 24, 2011
State Immunity Laws and the FTCA - Subrogation and Recovery Alert! - Have a claim involving a federal government agency under the Federal Tort Claims Act (FTCA)? Is the federal agency asserting an immunity defense under state law? If so, it's necessary to analyze whether a state law immunity defense can be raised by a federal agency. This Alert discusses state immunity laws in the context of FTCA tort claims. MORE
October 19, 2011
Tenth Circuit 'Dishes Out' Important Opinion Addressing the Scope of Advertising Injury Coverage for Patent Infringement Claims - Insurance Coverage Alert! - On October 17, 2011, the U.S. Court of Appeals for the 10th Circuit issued a much anticipated decision addressing the scope of “Advertising Injury” (AI) coverage for patent infringement claims. Dish Network Corp. v. Arch Specialty Ins. Co., No. 10-1445, __ F.3d __ , 2011 U.S. App. LEXIS 20955 (10th Cir. 2011), rev’g, 734 F. Supp. 2d 1173 (D. Colo. 2010). The court, applying Colorado law, reversed an order from the District of Colorado that granted summary judgment to the insurers. MORE
October 18, 2011
Court Issues Significant Ruling Regarding Personal Injury Claims in the Deepwater Horizon Litigation - Insurance Coverage Alert! - In a recent Alert, we advised of an important decision affecting maritime interests and their insurers in the multidistricted Deepwater Horizon litigation currently pending before Judge Barbier in federal court in New Orleans. (In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, MDL No. 2179.) On October 4, 2011, Judge Barbier rendered yet another significant decision, this time relating primarily to personal injury claims. MORE
October 17, 2011
New York Court Upholds Denial of Coverage Where Policyholders Breached D&O Policy's Consent-to-Settle Provision - Insurance Coverage Alert! - In Federal Ins. Co. v. Safe Net, Inc., 2011 WL 4005353 (S.D.N.Y. Sept. 9, 2011), a New York federal judge granted partial summary judgment in favor of Federal Insurance Company (Federal), holding that SafeNet, Inc. (SafeNet) and its vice president and chief financial officer failed to comply with the consent-to-settle provision in their D&O policy and were thus precluded from recovering under the policy with respect to their settlement of a securities fraud class action. MORE
October 17, 2011
I'm . . . Too Faxy For the Courts: "Blast Faxers" Face Substantial Uninsured Damages - AVVO.COM - In these difficult economic times, businesses are seeking inexpensive, time-efficient ways to market their products and services to prospective customers. Ostensibly as one such alternative, some businesses have resorted to “blast faxing,” i.e., sending advertisements en masse to prospective customers’ fax machines. MORE
October 12, 2011
Law Firm Disqualified After Its Client’s Party-Appointed Arbitrator Provided It With Panel Deliberations - Insurance Coverage Alert! - On October 3, 2011, the U.S. District Court for Southern District of New York disqualified a law firm from acting as counsel in a reinsurance arbitration. Northwestern National Ins. Co. v. Insco, Ltd., No. 11 Civ. 1124 (S.D.N.Y. Oct. 3, 2011). MORE
October 04, 2011
Texas Supreme Court Issues Important Opinion Concerning Plaintiff's Burden of Proof in Products Liability Matters - Insurance Coverage Alert! - The Texas Supreme Court recently issued an important opinion concerning products liability. Merck & Co. v. Garza, 2011 Tex. LEXIS 638 (Tex. 2011) stemmed from litigation involving the diet drug Vioxx. The court held that plaintiffs seeking to prove general causation with epidemiological evidence must provide at least two independent case studies demonstrating that subjects who used the product under circumstances substantially similar to those encountered by the plaintiff doubled their MORE
October 03, 2011
General Jurisdiction Over Foreign Manufacturers of Defective Products - Cozen O'Connor White Paper - In our increasingly globalized economy, there is a growing need to establish jurisdiction in U.S. courts over foreign manufacturers of defective products. Recent legal developments will, in some cases, make that task more
daunting. MORE
October 01, 2011
Wildfire Losses: Igniting a Recovery Claim - Claims Advisor Online - MORE
October 01, 2011
Through the Looking Glass-Subrogation Issues for the Catastrophe Adjuster - Claims Magazine - MORE
September 26, 2011
Avoiding the Pitfalls of the Economic Loss Rule - Subrogation and Recovery Alert! - The Economic Loss Rule (ELR) can pose substantial hurdles to subrogation recovery because it can bar tort claims alleging only economic loss. This Alert provides a review of the Economic Loss Rule, discusses exceptions to the Rule and strategies to minimize the Rule's impact MORE
September 20, 2011
Revisiting the Scope of the Panel’s Authority to Rewrite the Reinsurance Contract: Harper Insurance Limited v. Century Indemnity Company 10 Civ. 7866 (S.D. N.Y. July 28, 2011) - Insurance Coverage Alert! - In recent years, the question of whether the arbitration panel has the authority to rewrite terms of the reinsurance contract in resolving disputes between cedents and reinsurers has played prominently in the courts in the United
States. In visiting the question in 2010, the U.S. Court of Appeals for the 3rd Circuit affirmed the trial court’s vacatur of an arbitration award where the panel crafted a remedy beyond
the terms of the contract. MORE
September 20, 2011
Virginia Supreme Court Rules that the Emission of Carbon Dioxide Is Not an “Occurrence” - Insurance Coverage Alert! - On September 16, 2011, the Virginia Supreme Court
issued its much anticipated decision in The AES
Corporation v. Steadfast Insurance Company, No.
100764, slip op. (Va. S. Ct. Sept. 16, 2011). In the nation’s first appellate decision addressing insurance coverage issues in relation to claims for global warming, the court held that the emission of carbon dioxide is not an “occurrence” within the
meaning of a general liability policy. MORE
September 20, 2011
MDL Judge in Deepwater Horizon Multidistrict Litigation Issues Major Ruling Construing the Oil Pollution Act of 1990 (“OPA”) - Insurance Coverage Alert! - The allegations include claims under OPA and various state laws, including claims for negligence, gross negligence, strict liability, and punitive damages, as well as claims under the Florida Pollutant Discharge Prevention and Control Act, Fla. Stat. §§ 376.011,
et seq. MORE
September 15, 2011
Texas Wildfires - Subrogation and Recovery Alert! - Background information and investigation summaries are provided on the ongoing catastrophic Texas Wildfires. This Alert provides a review of currently available information on the Bastrop County Complex, Steiner Ranch, and Spicewood/Pedernales Bend wildfires. MORE
September 14, 2011
2011 Floods: Evaluation of Subrogation Potential During Natural Disasters - Cozen O'Connor White Paper - Many regions of our country still are suffering from the tragic consequences of Hurricane Irene, as well as prior and subsequent tropical storms. In the midst of this sometimes overwhelming damage, the insurance industry will be called upon to respond to claims which frequently entail multiple perils such as flood, wind and collapse. These claims, while complex, still are amenable to application of Cozen O'Connor's time tested subrogation methodology. MORE
September 13, 2011
Hurricane Irene Strikes the Eastern Seaboard: An Overview of the Facts and Coverage Issues - Cozen O'Connor Report - On the sixth anniversary of Hurricane Katrina, another such storm was devastating the eastern coastline of the United States. Irene – the first hurricane of the 2011 season – was thankfully not as destructive as the 2005 storm that ravaged New Orleans and the Gulf Coast area. Nevertheless, Irene was a powerful and destructive storm that hit areas of the country that seldom see this kind of event. MORE
September 12, 2011
Bill Allowing Punitive Damages for Insurer's Bad Faith Conduct Introduced in New Jersey Senate - Insurance Coverage Alert! - On August 25, 2011, a New Jersey state senator introduced Senate Bill 3036, purportedly to reverse the New Jersey Supreme Court’s holding in Wood v. New Jersey Manufacturers Ins. Co., 206 N.J. 562, 21 A.3d 1131 (June 14, 2011). The bill goes far beyond a simple reversal, however, and could have significant financial implications for insurers that breach their duty of good faith and fair dealing with their insureds. MORE
September 09, 2011
The Pennsylvania Commonwealth Court Rules That MCARE Owes Coverage Over Extended Reporting Endorsements Despite the Absence of Additional Surcharge - Insurance Coverage Alert! - In the latest installment of the long-running Fletcher v. Pennsylvania Property & Casualty Insurance Guaranty Ass’n case, the Pennsylvania Commonwealth Court rebuked the state insurance department’s effort to negate the excess medical liability coverage obligation of the Medical Care Availability and Reduction of Error Fund (“MCARE”) where the claim was covered by an extended reporting endorsement. MORE
September 07, 2011
The Third Circuit Court of Appeals Corrects the District of New Jersey's Mistake Regarding the Doctrine of Mutual Mistake - Insurance Coverage Alert! - On Aug. 3, 2011, the Third Circuit Court of Appeals in Illinois National Insurance Company v. Wyndham Worldwide Operations, Inc., No. 10-3833, 2011 U.S. App. LEXIS 15894, reversed a decision of the United States District Court for the District of New Jersey and held, in a case of first impression, that New Jersey law allows reformation on the basis of mutual mistake even against a party that did not participate in the negotiation of the contract. MORE
September 01, 2011
The Third Circuit Court of Appeals Pulls the Plug on Medical Monitoring Class Actions - Insurance Coverage Alert! - On August 25, 2011, the U.S. Court of Appeals for the 3rd Circuit entered judgment in Gates v. Rohm & Haas Co., et al., No. Civ. A. 10-2108, --- F.3d ---, 2011 WL 3715817, which, for all intents and purposes, signifies an end in the jurisdiction for bringing a medical monitoring suit as a class action. MORE
August 31, 2011
Overview of Claim Issues Arising From the August 23, 2011 Virginia Earthquake - Insurance Coverage Alert! - Although quickly eclipsed in the news by the onslaught of Hurricane Irene, claims have been and will continue to be presented as a result of the startling Virginia earthquake on Tuesday, August 23rd. The epicenter of the 5.8 magnitude earthquake was in the rural town of Mineral, Va., located between Richmond and Charlottesville, Va., and just 90 miles outside of the nation’s capital. The shaking was felt as far away as Canada. MORE
August 30, 2011
Utah's 'Machine Gun Fire' in Herriman Caused by National Guard Training Exercise - Subrogation and Recovery Alert! - As long as wildfires continue to plague the United States, Cozen O'Connor will provide you with background information and investigation summaries of these devastating fires. One such wildfire ignited in September 2010 during a training exercise by the National Guard at Camp Williams in Herriman, Utah. Our latest alert addresses the current known information about the "Machine Gun Fire" in Herriman, Utah. MORE
August 29, 2011
Texas Supreme Court Severely Limits Extracontractual Liability in Workers' Compensation Claims - Insurance Coverage Alert! - On August 26, 2011, in a highly anticipated decision, the Texas Supreme Court held in Texas Mutual Insurance Company v. Ruttiger that: (1) claims against workers’ compensation insurers for unfair settlement practices may not be made under the Texas Insurance Code; but (2) claims under the Texas Insurance Code may be made against workers’ compensation insurers which misrepresent provisions of their policies. Of critical import, however, the court emphasized that an insurer MORE
August 25, 2011
When Does an Insurer's Liability Under an Indemnity Policy Arise? - UK Subrogation and Recovery Alert! - Insolvency can further complicate recovery efforts against third party liability insurers in England and Wales. In McIlroy v. Quinn (2011), the Court of Appeal permitted recovery against a liability insurer who issued a policy to a party that later became insolvent (under the Third Parties (Rights Against Insurers) Act). This Alert reviews the decision in McIlroy and discusses future implications. MORE
August 22, 2011
Ninth Circuit Decision Interprets Arbitration Provision Narrowly - Maritime Alert! - The U.S. Court of Appeals for the 9th Circuit recently issued a decision, Cape Flattery Limited v. Titan Maritime LLC, Docket No. 09-15682, holding that a dispute pertaining to liability for damage caused during the salvage of a vessel could proceed in court, despite the inclusion of an arbitration provision in the salvage contract. In light of this decision, we recommend reviewing the language of all contractual arbitration clauses MORE
August 22, 2011
Professional Liability: The Yaron Decision and Its Impact on Insurers - Insurance Coverage Alert! - On July 5, 2011, the Philadelphia County Court of Common Pleas published its decision in Yaron, et al. v. Darwin National Insurance Company, et al., No. 502, a declaratory judgment coverage action brought by two policyholders against their professional liability insurers. The court, in an opinion authored by Judge Arnold L. New, granted summary judgment in favor of the insurers, holding that they were not obligated to pay the policyholders’ defense costs in connection with an underlying action. MORE
August 16, 2011
Pennsylvania Federal District Court Holds Community-of-Interest Privilege Requires Actual Implementation of Coordinated and Ongoing Defense Effort - Insurance Coverage Alert! - In King Drug Co. v. Cephalon, Inc., No. 2:06-cv-1797, 2011 U.S. Dist. LEXIS 71806 (E.D. Pa. July 5, 2011), U.S. District Judge Mitchell S. Goldberg compelled a generic drug manufacturer defendant to produce documents that the defendant asserted were protected by the community-of-interest privilege. Although the defendant and one if its suppliers had supposedly entered into a formal joint defense agreement, the court held that the privilege did not apply because the joint MORE
August 15, 2011
Preemption of State Insurance Laws for Risk Retention Groups: Proposals for Regulatory Clarity - Insurance Corporate & Regulatory Alert! - A risk retention group (RRG) has successfully asserted the right to sell its members primary first-dollar automobile liability insurance policies in Nevada, overcoming objections by the Nevada Commissioner of Insurance and the Nevada Department of Business and Industry Division of Insurance (Insurance Division) that such insurance can only be offered by “authorized insurers” and not by RRGs. The federal district court in Nevada recently held that Nevada’s MORE
August 10, 2011
Third Circuit Opinion Splits Pennsylvania Product Liability Law - Subrogation and Recovery Alert! - Is there a negligence component in strict product liability law in Pennsylvania? According to the Federal Third Circuit Court of Appeals in Covell v. Bell Sports, Inc., No. 10-3860 (3rd Cir., June 21, 2011 Slip Op.) there is. This Alert reviews the Covell decision discussing the current split in Pennsylvania about negligence concepts in strict product liability law.
MORE
July 26, 2011
Professional Liability: Second Circuit Holds That D&O Policies Cover Expenses Related to Voluntary Compliance with Agency Investigations and Costs of Special Litigation Committee - Insurance Coverage Alert! - In its July 1, 2011 opinion MBIA, Inc. v. Federal Ins. Co. and ACE American Ins. Co., 10-0355-cv (2d Cir. July 1, 2011), the U.S. Court of Appeals for the 2nd Circuit rejected Insurers Federal Insurance Company’s (Federal) and ACE American Insurance Company’s (ACE)(collectively, the Insurers) appeals seeking to reverse a finding of coverage for (1) expenses associated with federal and state government investigations into the insured’s accounting practices, and (2) MORE
July 25, 2011
The Product Malfunction Theory Lives On - Subrogation and Recovery Alert! - The "Malfunction Theory" in product failures cases lives on, in Pennsylvania and elsewhere, based on a recent federal District Court decision in Liberty Mutual v. Sharp Electronics. This Alert reviews the "Malfunction Theory" and evaluates its continuing impact on potential product failure subrogation claims. MORE
July 19, 2011
Priority of Rights of Recovery Relating To Deductibles - Jurisdictions Comparative Chart - A common inquiry is whether the “first monies” principles in many states likewise control the distribution of deductibles (either property or
automobile). Many states have statutes or insurance regulations that control the distribution of automobile deductibles, and in some cases, confusingly, those statutes or regulations conflict with the law relating to “first monies” in property losses. MORE
July 11, 2011
Standard of Review in Coverage Disputes Over Policies Governed by ERISA May Be Headed to Supreme Court - Insurance Coverage Alert! - Earlier this month, the 3rd Circuit took the minority side on an issue affecting life and health insurers that appears headed for the Supreme Court. In Viera v. Life Insurance Company of North America (June 10, 2011), the court held that an insurance company did not adequately communicate to policyholders that it retained broad-ranging authority to assess compliance under a group accidental death and dismemberment policy governed by ERISA. MORE
July 08, 2011
The Applicability of Morrison v. Nab to Foreign-Cubed Claims by the SEC - Insurance Coverage Alert! - On June 10, 2011, Judge Barbara Jones of the U.S. District Court for the Southern District of New York issued a decision in the case SEC v. Goldman Sachs & Co., No. 10-3229 (Goldman Sachs), that applied the Supreme Court’s Morrison decision to claims by the SEC under both the Securities Exchange Act of 1934 and the Securities Act of 1933. Goldman Sachs had previously settled the claims against it for $550 million, MORE
July 05, 2011
Supreme Court of New Jersey Broadens the Defense Obligation in Emotional Distress Claims - Insurance Coverage Alert! - Portee claims, named after the 1980 Portee v. Jaffe case, may be brought by close family members who witnessed the death or severe injury of a loved one. The decision in Abouzaid v. Mansard Gardens Assoc., LLC, A5-10, will require insurers with policies covering bodily injuries to defend a Portee claim from the outset, even if the complaint is silent regarding physical injuries caused by the alleged emotional distress, unless the defense of the claim is specifically excluded. MORE
July 01, 2011
Investigating the microstructure of CSST after exposure to electrical arcing and corrosion - FIRE & ARSON INVESTIGATOR - As CSST grew in
popularity, correlation appeared between lightning strikes and fires in
structures with installed CSST. The phenomenon comes from perforations
in the CSST caused by its thin wall construction combined with
the overabundance of energy as lightning dissipates through the CSST
to ground. MORE
July 01, 2011
Recovery Potential in the 2011 New Mexico Ongoing Wildfires - Subrogation and Recovery Alert! - Following up on our Arizona Wildfire Alert earlier this month, Cozen O'Connor continues to follow the seemingly ceaseless series of wildfires that have been plaguing the United States this year. We offer the attached summary of presently known information concerning the circumstances surrounding the causes of the recent wildfires in New Mexico. MORE
June 30, 2011
Supreme Court of New Jersey Rejects Insured's Argument That There is No Right to a Jury Trial in Rova Farms Cases - Insurance Coverage Alert! - On June 14, 2011, the Supreme Court of New Jersey unanimously ruled in Wood v. New Jersey Manufacturers Insurance Co. that a claim against a liability insurer alleging that the insurer acted in bad faith by refusing to settle an underlying tort action within the policy limits was a traditional breach of contract claim to which the right to a jury trial attached. MORE
June 29, 2011
- Insurance Coverage Alert! - While recent high-profile network security breaches at companies such as Epsilon and Sony (with crisis management and other costs estimated to range from $1 billion to multiples thereof in the case of Sony) have helped raise awareness about the need to adequately protect personal identifiable information, the problem has existed for decades. MORE
June 23, 2011
U.S. Supreme Court Rules in Favor of Power Companies on Global Warming but Leaves Important Questions Undecided - Insurance Coverage Alert! - On Monday, June 20, 2011, the Supreme Court of the United States issued its much anticipated decision in American Electric Power Co., Inc. v. Connecticut, Supreme Court No. 10-174. Following oral argument in April, most observers agreed that the Court would reverse the decision of the 2nd Circuit Court of Appeals, and the only real question was the basis of the opinion. MORE
June 21, 2011
Arizona Wildfires 2011: Is There Recovery? - Subrogation and Recovery Alert! - Cozen O'Connor, like all of you, is carefully following the seemingly ceaseless series of wildfires that have been plaguing the U.S. this year. We offer the attached summary of presently known information concerning the circumstances surrounding the causes of the recent wildfires in Arizona. Our Wildfire Subrogation Task Force members will continue to analyze and gather intelligence regarding these and other wildfire losses, and will keep you apprised of developments.
MORE
June 17, 2011
New Florida Law Benefitting Property Insurers - Insurance Coverage Alert! - On May 17, 2011, Florida Governor Rick Scott signed into law Senate Bill 408 (SB 408), an “Act Relating to Property and Casualty Insurance.” The bill was passed after much insurer lobbying and two years of discussions amongst Florida lawmakers regarding the need to change Florida insurance law to more adequately address potential natural disasters such as hurricanes and resulting sinkholes. MORE
June 13, 2011
New California Decision Rejects Stacking of Occurrence Limits, Requires Horizontal Exhaustion of Primary Insurance - Insurance Coverage Alert! - On June 3, 2011, the California Court of Appeal for the Second District (Los Angeles) published its opinion in Kaiser Cement & Gypsum Corp. v. Insurance Co. of the State of Pa.¸__ Cal.4th __, __ Cal.Rptr.3d __, 2011 WL 2163737 (2011). The opinion rejects stacking of occurrence limits across multiple policy periods for the same insurer, but confirms that horizontal exhaustion of primary insurance applies to primary insurance issued by other insurers. MORE
June 09, 2011
CPSC Launches Saferproducts.gov Database on Consumer Product Incident Reports - Subrogation and Recovery Alert! - Searching for other similar product failures? Saferproducts.gov database recently launched by the Consumer Product Safety Commission may offer some needed help. The database provides consumer reports on product failures/complaints. MORE
June 01, 2011
Will Others Follow? - Best's Review - MORE
May 31, 2011
Event Data Recorders - Looking into Pandora's Subrogation Box - Subrogation and Recovery Alert! - In an ideal world, subrogation claims arising from product failures are investigated immediately after the loss takes place. However, a number of factors may prevent this from taking place. Event Data Recorders (EDR's) now are being utilized in a number of products, including cars, building alarm systems, and home appliances, serving to record important information regarding the operational history and failure mode of the product. MORE
May 26, 2011
Rhode Island Superior Court Approves First Commutation Plan for Solvent Reinsurer Under Rhode Island's Voluntary Restructuring of Solvent Insurers Act - Insurance Coverage Alert! - On April 25, 2011, the Rhode Island Superior Court, per Justice Silverstein, made history by approving the first solvent commutation plan under Rhode Island’s Voluntary Restructuring of Solvent Insurers Act (Restructuring Act), GL 1956 Section 27 – 14. 15 – 1, et seq. MORE
May 23, 2011
Wronging a Right? South Carolina and Hawai'i Legislatures Pass Laws to Overturn Construction Defect Coverage Common Law - Insurance Coverage Alert! - South Carolina and Hawai’i have now joined Colorado and Arkansas as two of four states that have passed legislation aimed at broadening the definition of “occurrence” under commercial general liability (CGL) policies as it relates to construction defect claims. MORE
May 19, 2011
New Report on CSST - Subrogation and Recovery Alert! - A new report by the Fire Protection Research Foundation thoroughly analyzes CSST installation techniques, calling for extensive testing to protect against casualty losses caused by CSST failures. This is important reading for anyone handling CSST claims or seeking to mitigate against lightning related damage in facilities and homes equipped with CSST systems. MORE
May 17, 2011
Professional Liability: Cybersecurity on President Obama's Agenda - Insurance Coverage Alert! - Faced with revitalizing a deteriorated economy, formulating a national budget, and the aftermath of Osama bin Laden’s death, President Barack Obama has his hands full. Yet, in the midst of all the issues commanding the White House’s attention, the Obama administration somehow has found time to address the threats to our nation’s cybersecurity. MORE
May 10, 2011
“Anonymous” Hacks Sony PlayStation Network: The Increasing Importance of Obtaining Cyber Security Insurance Coverage - Insurance Coverage Alert! - Anyone who harbors the notion that video games are simple distractions from the age of “Pong” has not seen the latest statistics. One of the most popular games released last year, “Call of Duty: Black Ops,” generated $650 million in the first five days of sales and exceeded $1 billion in record time. The achievement put the game in the company of Michael Jackson’s album “Thriller” and James Cameron’s movie “Titanic.” As a whole, the video game industry has been valued at more than $100 billion. MORE
May 06, 2011
En Banc 3rd Circuit Declares Insurers Have Broad Standing in Bankruptcy to Object to Plans that Implicate Insurer Rights - Insurance Coverage Alert! - On May 4, 2011, in a 6-4 en banc decision in In re Global Industrial Technologies, Inc. (GIT), the U.S. Court of Appeals for the 3rd Circuit vindicated the constitutional and statutory rights of insurers to object and to be fully heard in bankruptcy plan confirmation proceedings. In a long-awaited opinion, the court declared that “when a federal court gives its approval to a plan that allows a party to put its hands into other people’s pockets, the ones with the pockets are entitled to MORE
May 01, 2011
Two Looks at the Insurance Legal Landscape - The Insurance Research Letter - New York High Court: “Other Insurance”
Clause Relieves D&O Insurer of Obligation
to Share Defense Costs with CGL Insurer MORE
April 28, 2011
John Hancock Financial’s Settlement With California Highlights The Tension Between Compliance With The Law And Evolving Best Practice Standards - Insurance Coverage Alert! - landmark settlement with John Hancock Financial (Hancock), a subsidiary of Manulife Financial Corporation. The settlement was the outcome of an investigation, commenced in July 2008, of 21 insurance companies relating to allegations that, under a decades-old industry-wide practice, companies have failed to pay death benefits to the beneficiaries of life insurance policies. MORE
April 26, 2011
Flash, Kaboom! Water Heater Failures Involving GACs - Subrogation and Recovery Alert! - Closing a water heater fire subrogation file because lightning hit the home? Did the water heater have a Gas Appliance Connector (GAC)? If a GAC was part of the water heater system, it must be evaluated as part of the overall subrogation investigation. MORE
April 26, 2011
California Insured Cannot Avoid Reimbursing Insurer for Uncovered Settlement by Claiming Unreasonable Time to Respond to Insurer's Notice of Settlement - Insurance Coverage Alert! - In Blue Ridge Ins. Co v. Jacobsen, 25 Cal.4th 489, 106 Cal. Rptr.2d 535, 22 P.3d 313 (2001), the California Supreme Court held that a liability insurer defending its insured under reservation of rights could settle a suit within policy limits and seek reimbursement of the uncovered settlement from the insured without the insured’s consent. The court imposed three requirements on the insurer to obtain reimbursement. MORE
April 21, 2011
Two Important Climate Change Cases Were Argued Before the U.S. Supreme Court and the Virginia Supreme Court on April 19, 2011 - Insurance Coverage Alert! - At issue in the Supreme Court case, American Electric Power Co. (AEP), et al. v. Connecticut, is whether states can use public nuisance laws to force coal-burning power plants to reduce their carbon dioxide emissions. MORE
April 11, 2011
Second Circuit Affirms S.D.N.Y. Decision Finding No Coverage Due to "Prior Knowledge" Exclusion in Broker/Dealer Professional Liability Claims-Made Policy - Insurance Coverage Alert! - On November 16, 2010, the 2nd Circuit affirmed a decision by Judge Peter K. Leisure of the Southern District of New York granting the insurer’s (Quanta) motion for summary judgment as to professional liability coverage. See Quanta Specialty Lines Ins. Co. v. Investors Capital Corp., No. 10-0219, 2010 U.S. App. LEXIS 23594 (2d Cir. Nov. 16, 2010), affirming, No. 06 Civ. 4624 (PKL), 2009 U.S. Dist. LEXIS 117689 (S.D.N.Y. Dec. 17, 2009). MORE
April 07, 2011
The Earthquake and Tsunami in Japan: A Factual Overview and Preliminary First-Party Analysis - Cozen O'Connor White Paper - Whether or not you are involved in addressing claims under first party policies, we trust you will find the factual information contained in the report informative. In the event you need additional information or assistance, please contact Rick Mackowsky who will act as our "expeditor" to make sure you are getting to the right person at the firm to handle any issues you have. MORE
April 04, 2011
Florida Federal Court Finds No Coverage For Chinese Drywall Claims Against Builder Under CGL Policy Pollution Exclusion - Insurance Coverage Alert! - On March 24, 2011, the U.S. District Court for the Southern District of Florida granted summary judgement in favor of insurer, General Fidelity Insurance Co., finding that it had no duty to defend or indemnify its insured-homebuilder for Chinese drywall claims pursuant to the pollution exclusion contained in its commercial general liability policies. General Fidelity Ins. Co. v. Katherine L. Foster, et al., Case No. 09-80743-CIV MOORE/SIMONTON (S.D. FLA. March 24, 2011). MORE
April 01, 2011
IMPLICATIONS OF THE GENZYME DECISION: LOSS UNDER A D&O POLICY - PLUS Journal - Recently, in Genzyme Corp. v. Federal Insurance Co., 2010 WL 3991739 (1st Cir. 2010), the U.S. Court of Appeals for the 1st Circuit construed the definition of loss in a D&O policy and a so-called “bump-up” exclusion that precluded coverage for claims seeking an increase or “bump-up” in the consideration for the company’s securities. MORE
April 01, 2011
Florida Supreme Court Upholds Attorney-Client Privilege in Bad Faith Discovery - Insurance Coverage Alert! - On March 17, 2011, the Florida Supreme Court finally resolved years of speculation, conjecture, and debate regarding the seemingly endless boundaries of permissible discovery of attorney-client communications in the bad faith context. The Florida Supreme Court’s decision in Genovese v. Provident Life and Accident Insurance Company reaffirmed the sanctity of the attorney-client privilege and specifically conscripted it from falling into the Ruiz vortex of discovery in bad faith cases. MORE
March 31, 2011
Update: The Big Chill of 2011 - Evaluating Subrogation Claims Arising From the February 2011 Interruption of Gas Service by New Mexico Gas Company - Subrogation and Recovery Alert! - Recent factual developments into the cause of freeze losses in early to mid February in New Mexico point to viable subrogation claims against the New Mexico Gas Company, a natural gas utility, for interrupting gas service to many of its customers. This Alert provides insight and analysis into the successful presentation of subrogation claims arising from that gas service interruption. MORE
March 24, 2011
D&O Liability: Vivendi – The Multi-Billion Dollar Impact of Morrison on Foreign-Cubed Securities Litigation - Insurance Coverage Alert! - On February 17, 2011, U.S. District Judge Richard J. Holwell in the Southern District of New York entered an order in In re Vivendi Universal, S.A. Securities Litigation, 02-5571 (S.D.N.Y. Feb. 22, 2011), that dramatically reduced the potential amount of a plaintiff’s jury verdict in a securities class action under section 10(b), originally estimated at approximately $9 billion. MORE
March 23, 2011
European Court of Justice Rules That Differential Rates Based on Gender are Discriminatory - Insurance Coverage Alert! - The European Court of Justice recently rendered a decision holding that insurers are no longer permitted to apply different insurance rates according to the gender of their insured. MORE
March 18, 2011
Heating up Frozen Claims: Winter Subrogation Losses - Subrogation and Recovery Alert! - Roof collapses and frozen pipes spilling out of your e-mail box? Don't fall prey to assuming all winter losses are "Acts of God" and not potentially viable. This Alert provides a "playbook" to follow when evaluating winter subrogation losses.
MORE
March 15, 2011
Aetna Enters the Capital Markets with the First Medical Benefits ILS Transaction - Insurance Finance & Investment - The first health insurance linked securities (ILS)
deal transferring the reinsured risk of medical
benefit claims of a major U.S. health care
company, Aetna Life Insurance Company (Aetna),
to capital market investors closed on January 10,
2011. MORE
March 11, 2011
Cozen O'Connor Prevails in Virginia Trial as Court Holds Food Contamination Claim Barred by Commercial Property Policies' Pollution and Product Contamination and Recall Exclusions - Insurance Coverage Alert! - On January 7, 2011, Judge Walter W. Stout, III, of the Circuit Court of the City of Richmond, Va., issued an opinion and order finding that Cozen O’Connor clients, ACE American Insurance Company (ACE) and Arch Insurance Company (Arch) owed their insured PBM Nutritionals, LLC (PBM) no coverage on its claim for roughly $6 million in product contamination losses. PBM Nutritionals, LLC v. Lexington Ins. Co., No. 09-5289, 2011 Va. Cir. LEXIS 16 (Va. Cir. Ct., Richmond, Jan. 7, 2011). MORE
March 09, 2011
New York High Court: "Other Insurance" Clause Relieves D&O Insurer of Obligation to Share Defense Costs with CGL Insurer - Insurance Coverage Alert! - In Fieldston Property Owners Ass’n, Inc. v. Hermitage Ins. Co., Inc., 2011 NY Slip Op. 01361 (Feb. 24, 2011), the New York Court of Appeals ruled that a D&O policy’s excess “other insurance” clause relieved the D&O insurer of any obligation to reimburse a CGL insurer for defense costs incurred in connection with two underlying tort actions. In Fieldston, Hermitage Insurance Company issued an occurrence-based CGL policy to Fieldston Property Owners Association. Federal MORE
March 08, 2011
Subrogation and Recovery Sinkholes Field Adjuster's Handbook - Cozen O'Connor Subrogation Handbook - Having that sinking feeling again about another property claim? Sinkhole claims can represent favorable subrogation opportunities if investigated promptly and handled effectively. This brochure provides an overview of subrogation issues triggered by sinkhole losses, with an easy to use check list MORE
February 25, 2011
State of Connecticut and Guy Carpenter Settle Landmark Antitrust Case for $4.25M: What's Next for the Reinsurance Industry? - Antitrust Alert! - On January 31, 2011, one of the world’s largest reinsurance brokers, Guy Carpenter & Co. LLC, and its former affiliated reinsurer agreed to pay $4.25 million to settle a lawsuit brought by the Connecticut attorney general alleging these companies engaged in a series of conspiracies to create closed reinsurance markets and driveup reinsurance costs. This settlement, which concludes an investigation and landmark litigation that spanned more than three years, MORE
February 25, 2011
Property: Ohio Supreme Court to Consider Adoption of Reasonable Expectations Doctrine - Insurance Coverage Alert! - In HoneyBaked Foods, Inc. v. Affiliated FM Ins. Co., No. 08-1686, 2010 U.S. Dist. LEXIS 127502 (N.D. Ohio Dec. 2, 2010), the U.S. District Court for the Northern District of Ohio ordered them to submit proposed questions of law to be certified to the Ohio Supreme Court regarding whether Ohio law recognizes the “reasonable expectations doctrine.” Unable to reach consensus, the parties submitted competing proposed statements to the court on January 14, 2011. MORE
February 17, 2011
Construction Defect: New Jersey Appellate Division Leaves the Door Open for Continuous Trigger in Construction Defect Cases - Insurance Coverage Alert! - Over the past decade, courts across the country have delivered countless number of decisions on the scope of liability coverage for underlying construction defect claims. Most of these decisions focus on whether claims of faulty workmanship constitute an occurrence, and if so, whether the business risk exclusions apply to preclude coverage. Just as important, but often overlooked, is the issue of trigger. MORE
February 14, 2011
A Tale of Two State's Views on the Economic Loss Rule - Subrogation and Recovery Alert! - Confused, overworked and overwhelmed by an Economic Loss Rule recovery matter? Washington and Utah have crafted unique conflicting responses to the Economic Loss Rule. This Alert reviews both state's views on the Economic Loss Rule, and evaluates their impact on potential subrogation claims in those states.
MORE
February 09, 2011
Federal District Court in New Jersey Finds a Murder-Suicide Does Not Constitute an "Accident" Under a Liability Policy - Insurance Coverage Alert! - On December 22, 2010, the U.S. District Court for the District of New Jersey ruled in Electric Ins. Co. v. Estate of Marcantonis, Civ. No. 09-5076 (D.N.J. Dec. 22, 2010), that, without further evidence of a psychiatric disorder, an insured who commits a “particularly reprehensible act” such as murder-suicide intended to cause an injury. Thus, no accident and no coverage. MORE
February 08, 2011
Before You Settle ... - Maritime Alert! - In an ironic twist on January 31, 2011, the U.S. Court of Appeals for the 2nd Circuit in “In re: DG Harmony,” affirmed the district court’s ruling that by settling with cargo plaintiffs and “… not pursuing its indemnity claims at trial, Cho Yang forfeited its indemnity claim.” MORE
February 08, 2011
Aetna Enters the Capital Markets With the First Medical Benefits ILS Transaction - Capital Markets Reinsurance Alert - We are pleased to provide the following Market Alert by Albert Pinzon and Robert Tomilson on Aetna's recent securitization of a portion of its risk on medical benefits claims. These risks are new to investors and may signal the beginning of the health care industry's role in the ILS market. We hope you find this Market Alert of interest. MORE
January 24, 2011
The Gang that Couldn't Spoliate Straight - Subrogation and Recovery Alert! - Familiar with claims of evidence spoliation? One court broke new ground ruling that even imprisonment may be authorized for evidence destruction. This Alert discusses spoliation law and increased sanctions for a finding of spoliation. MORE
January 13, 2011
It's All About YouTube: How Social Media Can Make or Break Your Subrogation Action - Subrogation and Recovery Alert! - YouTube can be a surprising source of evidence in proving your claims. Video of fires, explosions, collapses and other casualty events is provided almost in real time by participants and observers. Documentation of the incipient stages of a loss often is of critical importance in reconstructing what occurred. This Alert discusses how to obtain and use YouTube video evidence, including identifying potential witnesses.
MORE
January 05, 2011
A Quiet Revolution: International Acceptance of Contingent Fee Structures - Subrogation and Recovery Alert! - Have an international loss but wary of pursuing due to concerns over high hourly rates? International resistance to contingent fee representation is rapidly evolving towards permitting such arrangements. This Alert describes jurisdictions now permitting contingent fee representation MORE
January 01, 2011
Social Media Users: R U Insurable? - Texas Bar Journal - In the advent of social media, companies should be aware that insurers offer particular types of coverage for Internet-based
business activity, which have improved over the past few years. Policyholders who are willing to invest in reviewing and comparing choices and wording can tailor the coverage to their
needs and potential exposures. MORE
December 21, 2010
When the Toyota Way Went Wrong - The National Law Review - Initially, many companies point the finger at others instead of taking responsibility for the problem. When Toyota heard reports of sudden acceleration in its vehicles, the company first blamed the floor mats, then the throttle pedals, then its pedal supplier, CTS of Indiana. MORE
December 20, 2010
That Sinking Feeling: Losses Arising from Sinkholes - Subrogation and Recovery Alert! - Sinkhole claims are emblematic of a number of different loss scenarios that may be one part mother nature and one part human error. The challenge from a subrogation perspective is to recognize and perfect the recovery opportunities arising from these complex claims, including engineering and construction deficiencies that may contribute to the subterranean failure, and to do so in a way that takes into account time bars triggered by statutes of repose. MORE
December 09, 2010
Natural Catastrophes: Recovering Damages in the Afterman of Disaster - Subrogation and Recovery Alert! - A hurricane sweeps across the Southeast shattering its structures. Fires rage through the West ravaging the landscape. A flood runs through the Midwest ruining crops and city buildings. A blizzard blasts through the Northeast bringing businesses to the brink of bankruptcy. Lives are lost, and livelihoods. Whole industries take a hit, the insurance industry in particular. MORE
December 07, 2010
U.S. Supreme Court Accepts Certiorari in an Important Climate Change Case - Insurance Coverage Alert! - On December 6, 2010, the U.S. Supreme Court accepted certiorari in American Electric Power v. Connecticut, a public nuisance case which may have broad implications on climate change litigation in the federal courts. MORE
November 29, 2010
New Expert Report and Communication Rules in Federal Court Cases - Subrogation and Recovery Alert! - Draft expert reports can be a trap for the unwary, often resulting in drafts not being protected from discovery by opposing parties. Under recently amended Federal Rule 26 for Federal cases, draft expert reports now are discoverable when counsel is not involved. The converse is the lesson of the day: draft reports are privileged when prepared at the request of counsel. This Alert discusses these important new amendments to Federal Rule 26, and their impact on expert disclosures. MORE
November 08, 2010
Implications of the Genzyme Decision: Loss Under a D & O Policy - Insurance Coverage Alert! - Recently, in Genzyme Corp. v. Federal Insurance Co., 2010 WL 3991739 (1st Cir. 2010), the U.S. Court of Appeals for the 1st Circuit construed the definition of loss in a D & O policy and a so-called “bump-up” exclusion that precluded coverage for claims seeking an increase or “bump-up” in the consideration for the company’s securities. MORE
November 05, 2010
Middle East Insurance & Subrogation Overview - Cozen O'Connor Insurance Overview - The prevailing laws in the Middle East are generally based on and utilize elements of Shari’ah, The Koran and the Hadith together with what is termed as Latin law, influenced by Egyptian Napoleonic Code style law. The concept of insurance
is not contradictory to Islam, for example, the payment of blood money by an individual to a deceased’s family has been common through the ages. MORE
November 01, 2010
Two Avenues to Recovering Deepwater-Related Losses - Insurance Day - MORE
November 01, 2010
RECENT DEVELOPMENTS IN EXCESS INSURANCE, SURPLUS LINES INSURANCE, AND REINSURANCE LAW - Tort Trial & Insurance Practice Law Journal, Winter 2010 - MORE
October 21, 2010
Naming John Doe: Suing a Fictitious Defendant to Further Your Investigation and Toll the Statute of Limitations - Subrogation and Recovery Alert! - Do you have a statute of limitations running out but the correct defendant is not known yet? It happens to everyone now and then. What do you do to avoid losing your potential subrogation recovery? This Alert discusses suing a "fictitious" Doe defendant to help preserve the subrogation case while conducting additional discovery.
MORE
October 12, 2010
Oregon Federal Court Rules EPA CERCLA Section 104(e) Request for Information Letter to Insured Constitutes a Suit Triggering Insurer’s Duty to Defend Under Pre-1986 Primary CGL Policies Under Oregon Law - Insurance Coverage Alert! - While several courts around the country have concluded a potentially responsible party (“PRP”) letter from the U.S. Environmental Protection Agency (“EPA”) or a state regulatory agency is sufficiently adversarial to be the functional equivalent of a suit, no reported decision has yet extended that rationale to a request for information letter received from a regulatory agency. Yet, in what appears to be the first reported decision of its kind in the country, MORE
October 01, 2010
Anticipating Changes in Food Packaging - Food Safety Magazine - eDigest - According to the Centers for Disease
Control and Prevention, an estimated 76 million cases of foodborne illness occur each year in the United States, resulting in approximately 325,000 hospitalizations and 5,000 deaths. These staggering statistics, along with a seemingly endless
list of food recalls and associated public outrage, have prompted the
government to react. MORE
October 01, 2010
Deepwater Impact Rumbles On - Maritime Risk International - MORE
October 01, 2010
Curbing an Employee Classification Mistake - Risk and Insurance Online - Misclassifying employees as independent contractors is costing employers, with increased litigation and regulatory action. A
proactive approach can avoid missteps. MORE
September 30, 2010
Maryland Federal Court Imposes Sanctions for Egregious eDiscovery Violations - Insurance Coverage Alert! - In Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. Lexis 93644 (2010 D. Maryland Sept. 9, 2010), the United States District Court for the District of Maryland imposed sanctions for some of the most egregious eDiscovery misconduct ever reported in any decision. The court entered a default judgment, awarded attorneys’ fees and costs allocable to spoliation of evidence. Additionally, the court directed one of the defendants to be “imprisoned for a period not to exceed two years” MORE
September 28, 2010
NFPA Bans Use of Antifreeze in Sprinkler Systems - Subrogation and Recovery Alert! - In an incredibly ironic turn of events, the National Fire Protection Association has determined that the use of antifreeze within wet pipe sprinkler systems-to avoid freeze-ups-actually creates a fire hazard by virtue of the extreme flammability of the antifreeze solution. Consequently, the NFPA now has issued a safety alert recommending that residential wet pipe fire systems should be drained of antifreeze and filled with plain old water. MORE
September 22, 2010
Pennsylvania Supreme Court Rejects Reimbursement of Defense Costs While Tenth Circuit Finds Support Under Colorado Law - Insurance Coverage Alert! - Two cases decided only one day apart illustrate the growing divide over whether an insurer is entitled to recover the costs of defending a claim that is ultimately determined not to be covered. In both cases, the policies at issue did not specifically address the reimbursement of defense costs, but the insurers asserted the right in their reservation of rights letters. The Pennsylvania Supreme Court rejected the right to do so, MORE
September 20, 2010
If it is Not Clearly Excluded, it Must be Included: "Fair Market Value" Includes Unpaid Sales Tax in Washington State - Insurance Coverage Alert! - On September 9, 2010, the Washington Supreme Court once again proved it will go to great lengths to protect policyholders in disputes with their insurers. In Holden v. Farmers Ins. Co. of Washington, — P.3d — (Sept. 9, 2010), the court deemed ambiguous the actual cash value (“ACV”) provision in a renters policy. The court concluded that because the definition of ACV “does not clearly exclude sales tax” then sales tax must be included in ACV calculations. MORE
September 16, 2010
Fixing the Undamaged: Coverage for Code Upgrades in Property Claims - Seminar Program Book - If insured property is partially damaged by a peril covered by a property insurance
policy, repair of the damage will be subject to local ordinances that may mandate upgrades
or changes that were not required when the property was originally constructed. Local
ordinance may also dictate changes to portions of the building not damaged by the loss
event. MORE
September 14, 2010
Maryland High Court Interprets AIA Waiver of Subrogation - Subrogation and Recovery Alert! - Reviewing an American Institute of Architects (AIA) contract with a waiver of subrogation? Is that waiver enforceable? Is there a colorable argument to defeat the AIA waiver provision? This alert analyzes a recent Maryland Court of Appeals opinion finding an AIA contract ambiguous permitting suit to proceed even though there was a waiver of subrogation in the contract.
MORE
September 01, 2010
The Laws of Nature: States and federal agencies have broadened their efforts to regulate the environment. - Best's Review - The professional liability insurance industry has weathered many storms over the past few years, from the Enron and WorldCom debacles to the subprime meltdown and the myriad pyramid schemes highlighted by Bernard Madoff. So, what will be the next “big
thing” to keep underwriters and claims professionals up at night? Not surprisingly,
it may be the fallout from climate change regulations, litigation and, perhaps ultimately, federal legislation. MORE
September 01, 2010
Third Circuit Rejects "Fraud-Created-the-Market" Presumption as Basis to Prove Transaction Causation - Insurance Coverage Alert! - Reliance, or transaction causation, is a significant element in a securities fraud case. But proving reliance by individual investors in a securities class action is often a cumbersome endeavor that may overwhelm the questions of law or fact common to the proposed class, and may therefore serve to preclude class certification. MORE
August 24, 2010
Cyber - Identity Theft: Our Children At Risk - Insurance Coverage Alert! - Interviewing for your first job as a teenager is as exciting as it is intimidating. The interview proceeds flawlessly, and you start to count the dollar signs as you await the job offer. But, imagine your surprise when you are informed that you did not get the job because your background check revealed that you are more than $75,000 in debt and five years behind in child support payments for your 11-year-old child—a terrifying thought considering you are only 16 years old. MORE
August 16, 2010
Can I File Suit in The U.S. Against A Foreign Entity, And If So, Is It Worth It? An Analysis of Personal Jurisdiction and Enforcement of Judgments Against Foreign Entities - Subrogation and Recovery Alert! - Have you ever handled a subrogation claim involving a product manufactured outside the U.S.? For most of us, the answer is an overwhelming yes. For such losses, many claims professionals are not aware of the ability to file suit in the U.S. against the responsible foreign manufacturers and sellers. This Alert discusses the criteria for asserting jurisdiction in the U.S. against a foreign tortfeasor, both for losses occurring in the U.S., as well as abroad.
MORE
August 12, 2010
Concurrent CGL and E&O Coverage for “Spyware"? Yes, Says the Eighth Circuit - Insurance Coverage Alert! - Eyeblaster, Inc. v. Federal Ins. Co., 2010 U.S. App. LEXIS 15152, No. Civ. A. 08-3640 (8th Cir. July 23, 2010), finding concurrent coverage under both a General Liability (“CGL”) insurance policy and a separate Information and Network Technology Errors and Omissions Liability (“E&O”) policy in circumstances where an online marketing company installed software on a consumer’s computer system, allegedly corrupting the computer’s software operating system.
MORE
August 05, 2010
Pennsylvania Insurance Department Issues Exemption from Filing/Prior Approval Requirements for Policy Forms Revised Only to Comply with PPACA Immediate Market Reform Requirements - Insurance Corporate and Regulatory Alert! - The Pennsylvania Insurance Department (the “Department”) recently issued Notice 2010-07 (Patient Protection and Affordable Care Act – Guidance for Compliance Filings). Notice 2010-07 provides an exemption from the forms filing/prior approval requirements under Pennsylvania’s Accident and Health Filing Reform Act for insurers that issue health insurance coverage subject to the PPACA immediate market reform requirements (i.e. health reform requirements that must be implemented MORE
August 02, 2010
D&O Insurance: The White House's "Progress" Report on Cybersecurity: There's a Long Road Ahead - Insurance Coverage Alert! - Lest one question the severity of the evolving challenges in our rapidly growing cyber world, President Obama has crystallized it succinctly: (1) "cyber threat is one of the most serious economic and national security challenges we face as a nation;" and (2) "America’s economic prosperity in the 21st century will depend on cybersecurity." In other words, President Obama has declared cybersecurity to be a national security priority. MORE
July 29, 2010
Summer 2010 - Subrogation & Recovery Observer - MORE
July 22, 2010
Update on the Implied Coinsured Rule (Subrogating Against a Tenant) - Subrogation and Recovery Alert! - A recent Wisconsin case clarifies an insurer's subrogation rights in the landlord-tenant context. When a tenant causes a loss and the landlord's insurer pays to repair the damage, the question in Wisconsin has been: Can the landlord's insurer recover against the tenant? In Wisconsin and other states, the landlord must show the tenant negligently or intentionally caused the damage. For further explanation, MORE
July 20, 2010
National Australia Bank—Not the Last Word on Foreign-Cubed Securities Litigation - Insurance Coverage Alert! - In a recent decision by Justice Antonin Scalia in Morrison v. National Australia Bank (“NAB”) (June 24, 2010), the U.S. Supreme Court answered a question with which lower courts have struggled for more than 40 years—whether section 10(b) of the Securities and Exchange Act of 1934 (the “Exchange Act”) provides a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges—so called foreign-cubed litigation. MORE
July 19, 2010
Case Study: Devcon V. Reliance Insurance - Law 360 - On June 8, 2010, the Third Circuit held that a total
pollution exclusion within a contractor's commercial general liability policy (the "policy")
barred property damage and bodily injury claims related to dust and fumes dispersed from
a construction site. See Devcon Int'l. Corp., et al. v. Reliance Ins. Co., et al., Nos. 07-
4602/08-1996, __ F.3d __ (3d Cir., June 8, 2010). MORE
July 14, 2010
Supreme Court Limits Exposure of Directors and Officers to Prosecutions for Honest Services Fraud - Insurance Coverage Alert! - In three decisions issued on June 24, 2010, the Supreme Court of the United States limited a favorite tool of prosecutors—the honest services statute—to its “solid core.” Justice Ginsburg, delivering the opinion of the Court in Skilling v. U.S., narrowed the Fifth Circuit’s broad interpretation of 18 U.S.C. §1346, which criminalizes “a scheme or artifice to defraud another of the intangible right of honest services,” and remanded the case. MORE
July 01, 2010
Subrogation and Recovery Claims for Flood Losses - Cozen O'Connor Whitepaper - A flood caused by an act of God can neither be planned for nor prevented. But a flood caused or contributed to by an act of negligence, even if the negligence simply exacerbated the flooding, may present a recovery opportunity. To those skeptics who say that recoveries cannot be made on flood claims, we offer the Hurricane Katrina litigation
in the U.S. District Court for the Eastern District of Louisiana as proof that recoveries are possible MORE
July 01, 2010
D&O Insurance: D&O Policies in Bankruptcy - Delaware Bankruptcy Court Rules that Directors and Officers May Access Eroding Policy Notwithstanding Company's Bankruptcy Filing - Insurance Coverage Alert! - A company’s bankruptcy filing affects its D&O insurers and the insured directors and officers in significant ways. One area of concern is the distribution of policy proceeds where the directors and officers continue to face costs and exposure from shareholder and derivative actions but the corporation has filed for protection under the Bankruptcy Code. Are the policy’s proceeds property of the debtor’s estate and therefore subject to the automatic stay of 11 U.S.C. § 362(a)? MORE
June 15, 2010
Third Circuit Confirms That Pennsylvania CGL Insurers Have No Duty to Defend Claims Arising From Contractor's Faulty Workmanship and Resulting Foreseeable Damages - Insurance Coverage Alert! - On June 8, 2010, the U.S. Court of Appeals for the Third Circuit issued a precedential opinion in Specialty Surfaces International, Inc. v. Continental Cas. Co., No. 09- 2773 (3d Cir. 2010), confirming that an insurer has no duty under Pennsylvania law to defend or indemnify a contractor under a CGL policy for claims based on faulty workmanship and resulting foreseeable damages – even where the damage extended beyond the insured’s own work product. MORE
June 11, 2010
Commercial General Liability: Hawai’i State Court Holds that Construction Defect Claims Do Not Constitute an “Occurrence” - Insurance Coverage Alert! - As predicted by the U.S. District Court in Hawai’i and the U.S. Court of Appeals for the Ninth Circuit Court in several cases decided in the past 15 years, the Intermediate Court of Appeals of Hawai’i recently held that construction defect claims do not constitute an “occurrence” under a commercial general liability (“CGL”) policy. Group Builders Inc. and Tradewind Ins. Co., Ltd. v. Admiral Ins. Co., 2010 Haw.App. LEXIS 234 (May 19, 2010). MORE
June 07, 2010
D & O Insurance: Limiting Attorneys' Fee Awards in Derivative Suits - Insurance Coverage Alert! - On May 6, 2010, the Delaware Court of Chancery approved the settlement of a derivative action captioned In re Cox Radio, Inc. Shareholders Litigation, No. Civ. A. 4464-VCP, and ruled on plaintiffs' attorneys' application for a fee award. The court's decision on the fee award may have a material impact on directors and officers ("D&O") insurers' coverage analysis with respect to such awards. MORE
June 01, 2010
Colorado Enacts Statute Retroactively Changing Duties of Insurers with Respect to Construction Defect Claims - Insurance Coverage Alert! - On May 21, 2010, Colorado Governor Bill Ritter signed into law HB 10-1394, a bill which retroactively changes the manner in which insurers must handle and assess construction defect claims against construction professionals. It may also change how policies issued to Colorado construction professionals are underwritten. The bill was enacted with a Safety Clause, making it immediately effective. MORE
June 01, 2010
Strings Attached - BEST'S REVIEW - The difficulties that many insurers
continue to face make
this a good time to remind
risk managers and reinsureds of one
of the dangers of transacting business
with a financially weak insurer. MORE
May 01, 2010
Health care costs continue to rise, forcing a commensurate rise in the cost of traditional group insurance. Employers continue to seek affordable benefits for their employees in an effort to maintain a productive and competitive workforce. Inspired entrepreneurs enter the market to supply low-cost programs to meet this demand. Many of these programs qualify as insurance. MORE
April 28, 2010
Update on Florida's Implied Waiver Doctrine in Landlord-Tenant Cases - Subrogation and Recovery Alert! - A recent Florida case clarifies an insurer's subrogation rights in the landlord-tenant context. When a tenant causes fire and landlord's insurer pays, the question in Florida has been: Can the landlord's insurer subrogate against the tenant? In many states, the answer is no -- not unless the lease agreement expressly says so. Those states followed the so-called Sutton rule. Florida's stance on the Sutton rule has been unclear over the years. MORE
April 19, 2010
Ken Levine discusses market conduct regulation in New Appleman on Insurance Law Library Edition. Specifically, this chapter discusses the manner in which market conduct regulation addresses certain market practices. MORE
March 30, 2010
Economic Loss Rule Update in Car Fire Cases: State Farm v. Ford - Subrogation and Recovery Alert! - A new decision from the Michigan Court of Appeals answers a burning question on the ever-evolving economic loss doctrine: When a car burns down a house, is the house MORE
February 02, 2010
The Duty to Refuse the Work? - Subrogation and Recovery Alert! - To do or not to do. That, some contractors may ask, is the question. The duty to affirmatively do something is usually the key to any negligence claim. Duty is the first of four elements are necessary to prove negligence. But can there be a duty NOT to do? Are there cases where a contractor can be liable for NOT REFUSING to do work altogether? In other words, can there be a duty not to do -- a duty to refuse the work? In this Alert, the question posed is answered with a case analysis. MORE
February 01, 2010
California Court of Appeals Permits Fire Case Against Modifier of Ferrari Proceed - CAFI - MORE
November 09, 2009
North Carolina Extends Statute of Repose for Product Defects to Twelve Years - Subrogation and Recovery Alert! - Statutes of repose often are subject to misunderstanding, causing leakage and lost opportunities. The North Carolina General Assembly recently extended the North Carolina Statute of Repose from 6 to 12 years. We are taking the opportunity of this amendment to discuss the application of statutes of repose - and statutes of limitation - in the context of subrogation and recovery claims. MORE
November 02, 2009
Subrogation Claims Against Tenants in Michigan: The Co-Insured Doctrine Revisited - Subrogation and Recovery Alert! - In many states, the implied co-insured doctrine bars a subrogated insurer of a landlord from suing a negligent tenant, unless the lease has express language allowing such an action. Such was thought to be the law of land in Michigan. Recent unpublished decisions, however, have created an opening. Subrogated insurers may have a new lease on life in Michigan. MORE
October 14, 2009
The Use of Information Posted on Facebook and MySpace in Litigation - Subrogation and Recovery Alert! - Over the past five years, social networking websites
such as MySpace1 and Facebook2 have boomed in
popularity. MySpace has 125 million users3 and
Facebook4 has a staggering 200 million users.5 Initially intended
for college-aged students, social networking websites are
now open to the public and attract a plethora of subscribers,
ranging from teenagers to grandparents.6 MORE
October 12, 2009
Piercing the Corporate Veil - Subrogation and Recovery Alert! - A corporation can be like the Great Oz. Someone is behind the curtain. And that someone wants no attention paid to him or her regardless - or because - of what is done behind the scenes. Most of the time, the curtain works and protects the hidden officer or director. But even though Lady Justice wears a blindfold, she has ways of getting past it. For she holds two things. One is a balance. The other is a sword. The balance weighs the case. The sword delivers the justice. MORE
October 07, 2009
Spoliation in Design Defect Cases: Freedom of Disassembly? - Subrogation and Recovery Alert! - Spoliation is generally defined as the intentional or negligent destruction or loss of tangible evidence in such a way that that destruction or loss impairs the opposing party’s ability to prove the case or mount a defense.
But is disassembly of a product spoliation? What if your expert disassembles a product and examines it without the presence of the manufacturer? Even though no actual physical evidence was lost, is your case lost? MORE
September 21, 2009
CPSC Product Recalls for Common Household Appliances - Subrogation and Recovery Alert! - Below is a listing of all of the product recalls for common household appliances issued by the Consumer Products Safety Commission since 2000. These products were recalled because they pose a significant risk of causing property damage. Anytime that you have a property loss that you believe was caused by a product, you should
visit the CPSC’s website at wpsc.gov to find out whether the product in question has been the subject of a recall. MORE
September 16, 2009
Washington Insurers Must Include Deductible in Subrogation Demands - Subrogation and Recovery Alert! - [W]hile an insurer is entitled to be reimbursed to the extent that its insured recovers payment for the same loss from a tort-feasor responsible for the damage, it can recover only the excess which the insured has received
from the wrongdoer, remaining after the insured is fully
compensated for the loss. MORE
August 19, 2009
Alive and Kicking: The Undertaker Doctrine in Alarm and Security Company Litigation - Subrogation and Recovery Alert! - When property damage results from the failure of
an alarm or security system, the subrogation
investigation is often stopped dead in its tracks
due to severe contractual limitations of liability. If the damaged party was not a party to that contract, most courts will not apply those limitations. The question remains whether
an alarm or security company owes a duty to persons with whom it did not contract? The security company will argue it owed no duty, which is the first MORE
June 22, 2009
New Generation Of Asbestos Trusts Encourages Double-Dipping - Daily Journal Newswire Article - There’s nothing new about asbestos plaintiffs’ lawyers trying to manipulate the legal system,
playing what one Los Angeles County judge recently dubbed the “grisly game of asbestos
litigation.” A new generation of asbestos trusts, established to pay claims on behalf of bankrupt
manufacturers, now tempts plaintiffs’ lawyers to seek double recoveries by concealing their
clients’ trust recoveries from tort defendants. Solvent defendants are thereby unfairly saddled MORE
June 18, 2009
Ken Levine looks back on 2008 and highlights eight memorable insurance topics from the year: (1) Life Settlement Agreements/Stranger-Originated Life Insurance; (2) Suitability; (3) Bad Faith Civil Liability; (4) Property and Casualty: Flood and Other Natural Disaster; (5) Health (Autism, Mental Health Parity, and Accessibility/Affordability); (6) Producer Licensing; (7) Interstate Compact; and, (8) Federal Regulatory Effort. MORE
June 01, 2009
CSST: The Flexible or Flammable Alternative for Gas Piping - Subrogation and Recovery Alert! - Lightning. For generations, it has inspired and impressed. For the present generation of owners of newer homes, as spring and summer storms loom, lightning means only one thing: Fear. In our September 2006 Alert, we informed you of an
emerging trend that we had identified involving gas-fueled fires caused by gas lines failing when they become energized during a direct or nearby lightning strike. The gas lines at risk are known as corrugated stainless steel tubing (CSST) MORE
June 01, 2009
New York Spontaneous Combustion Case - CAFI - MORE
May 14, 2009
Jesusita Wildfire Causes Major Residential Damage - Subrogation and Recovery Alert! - On May 5, 2009, at approximately 1:45p.m., a fire erupted in Santa Barbara County in an area adjacent to the Jesusita Trail. The fire has spread across 8,733 acres and has forced approximately 30,000 residents to evacuate. The fire has damaged or destroyed upwards of 96 homes. [See list below*]. Approximately 5,400 homes have been evacuated and another 3,500 are threatened. Per CalFire, the fire is 80% contained and is expected
to be contained by May 20, 2009. MORE
May 13, 2009
North Carolina Considers Change from Contributory Negligence to Comparative Fault - Subrogation and Recovery Alert! - Imagine that you send an email with only one typo, one missed comma, but that error makes the whole report void. Such is the doctrine of contributory negligence. Even if the plaintiff is only 1% negligent, plaintiff's whole case is lost. Most states have abrogated the harsh doctrine in favor of comparative negligence, but a handful steadfastly refuse. North Carolina has been one of those few, together with Alabama, Maryland, Virginia, and the District of Columbia. MORE
May 11, 2009
Lightning-Induced CSST Fires: Protecting Your Subrogation Rights - Subrogation and Recovery Alert! - Since the introduction of CSST, there has been an
increase in fire damage caused by lightning strikes. Direct and indirect lightning strikes can energize CSST, inducing current that attempts to use the metal conduit to reach ground.The corrugated design and the thin walls cannot withstand the energy produced, causing a
hole to be melted in the CSST.That hole results in the release of pressurized natural gas or propane into the structure MORE
April 01, 2009
Defective Drywall: The Not-So-Great Wall of China - Subrogation and Recovery Alert! - The Great Wall of China is a Wonder of the World. It is the only man-made structure visible from space with the naked eye. While even the best made drywall will never compare to the Great Wall, drywall from China should not corrode and smell like rotten eggs in a matter of months. The following Alert explains the problem, and gives new meaning to a line from an Eighties classic, “When the walls come crumbling, crumbling, crumbling, crumbling, down.” MORE
March 23, 2009
Fessing Up to Facebook: Recent Trends in the Use of Social Network Websites for Insurance Litigation - Canadian Subro Alert! - In December 2008, after several failed attempts to serve a couple with court documents by email and text messaging their mobile phones, an Australian lawyer won the right to serve a default judgment by posting the terms of the judgment on the defendant’s Facebook Wall. In a ruling that appears to be the first of its kind anywhere in the world, Master Harper of the Supreme Court of the Australian Capital Territory held that the lawyer could use the social networking site to serve court notices. MORE
February 23, 2009
Can't Get No Satisfaction? Relief in the Face of Bankruptcy - Subrogation and Recovery Alert! - Your subrogation defendant is liable, pure and
simple. And it has full liability insurance. Yet the
liability insurer will not pay. Its insured – your target
– is apparently going out of business. It’s the economy. No
one wants to pay. MORE
February 10, 2009
EMERGING ISSUES: A REPLACEMENT FOR COGSA IN 2009? - Maritime Alert! - The Carriage of Goods by Sea Act (COGSA), 46 U.S.C. app. §§1300 et seq., has provided the legal
framework for ocean cargo shipments to and from the United States since the Act was passed in 1936. Unfortunately COGSA has never been amended, notwithstanding the monumental changes in global trade which have occurred in the last 72 years. In 1936, it was still 15 years before Sea-Land
began to experiment with a single “container” which could be used not only on a ship, but also for MORE
January 26, 2009
Alberta Statute Entrenches Subrogation Rights - Canadian Subrogation and Recovery Alert! - On November 4, 2008 the Alberta Legislature passed
Bill 11, a Bill to amend the Insurance Act of Alberta. Bill 11 was introduced as a means to update the Alberta Insurance Act which has not been significantly changed in the past thirty years! Among other items, Bill 11 introduced greater clarification with respect to the subrogation rights of an insurer. MORE
January 01, 2009
Maryland Court Permits Fire Case Against Management Company for Fire Code Violations Even Though Fire Determined to be Arson - CAFI - MORE
December 22, 2008
Eliminating the Comparative Fault of Your Insured in Fire Suppression Failure Cases - Subrogation Alert! - Where a fire is caused by the acts or omissions of your insured, it is generally assumed that
subrogation recovery is not possible. In cases
where the insured itself causes a fire that could or should have been contained, the subrogation professional is faced with a seemingly insurmountable hurdle arising from the
conduct of the insured. Strong arguments exist, however, to preclude the comparative fault of the insured. The claim may be framed in terms of MORE
November 20, 2008
The Re-Invigoration of the Consumer Products Safety Commission - Subrogation Alert! - 2 pgs total. Several provisions of the Act will be of particular interest to the subrogation community. The Act requires the CPSC to create an online, publicly available database for consumer products, which will provide greater and easier access to product defect information. 1. The Act Mandates a Consumer-Friendly, Searchable Database. 2. The Act Mandates Stiffer Penalties for Companies. MORE
November 07, 2008
Builders' Risk Insurance - Seminar Program Book - If a contractor commences work on a building or structure and the structure is destroyed
or damaged before completion of the project, the contractor may stand to lose much of the
anticipated benefit of the construction contract as well as property on site. In the absence of
contract language to the contrary, the common law required the contractor to repair damage to
the structure under construction before turning the project over to the owner. MORE
October 20, 2008
Subprime mortgage fallout seen boosting D&O losses - Industry Focus - The subprime mortgage crisis is affecting the professional liability market for the real estate and financial institutions sectors, though the problem thus far seems confined to those two areas
of the market. MORE
September 17, 2008
Managing a Loss Site After a Catastrophic Event - Subrogation and Recovery Alert! - 2 pgs total. It is important to understand the issues that arise from a catastrophic loss with respect to managing the scene, preserving evidence, interacting with public sector authorities, and addressing the needs of your insureds. This Alert discusses these issues and provides an outline to serve as a guide in helping claims and subrogation professionals to manage a loss site in the context of a catastrophic disaster. MORE
September 04, 2008
Several Significant Coverage Cases Decided by the Texas Supreme Court - Insurance Coverage Alert! - MORE
September 03, 2008
Minnesota Court of Appeals Concludes That Mold, Bacteria and Bioaerosols Dispersed From a Composting Site are "Pollutants" - Insurance Coverage Alert! - The Minnesota Court of Appeals recently concluded
that mold, bacteria and bioaerosols dispersed from a composting site fall within a commercial general liability (“CGL”) insurance policy’s pollution exclusion. Larson v. Composting Concepts, Inc., Nos. A07-976, A07-977, A07-976,
available at 2008 Minn. App. Unpub. LEXIS 551 (Minn. Ct. App.,May 13, 2008). MORE
September 03, 2008
Two Contamination Decisions Affirmed on Appeal - Insurance Coverage Alert! - Cozen O’Connor’s Food Contamination and Product
Recall Practice Area attorneys handle, litigate and monitor related coverage matters. Earlier this year, the authors prepared a Year-End Retrospective on 2007 court decisions addressing insurance coverage for contamination claims. Two of the decisions analyzed in the 2007 Year-End
Retrospective were Hueske v. State Farm Fire & Cas. Co., No. 1:06-cv-057, MORE
September 02, 2008
Insurance Coverage Alert! entitled: "Alaska Supreme Court Finds Gasoline Released from Underground Storage Tank is a "Pollutant" within the Scope of an Absolute Pollution Exclusion in a CGL Policy - Insurance Coverage Alert! - In Whittier Properties, Inc. v. Alaska National Insurance Company, No. S-12538, Alaska Supreme Court the Alaska Supreme Court addressed
the question of whether gasoline stored in an underground storage tank constituted a “pollutant” within the meaning of the Absolute Pollution Exclusion contained in the general
liability policy at issue in the case. MORE
September 01, 2008
Buyers Should Beef Up Coverage, With Food Exposures Expanding - National Underwriter - MORE
August 30, 2008
Summer 2008 - Insurance Coverage Observer - MORE
August 08, 2008
Why shopping around for forum is a sensible move - Insurance Day - James F Campise examines how decisions over which jurisdiction to use can influence the outcome of the case. MORE
August 04, 2008
During September 2003, the National Association of Insurance Commissioners adopted the Suitability in Annuity Transactions Model Regulation (Suitability Model) to establish uniform standards and procedures for ensuring that annuity purchases and exchanges were suitable to the insurance needs and financial objectives of senior citizens. MORE
July 31, 2008
Hawaii Supreme Court Concludes Liability Insurers Have No Duty to Indemnify or Defend Successor Company Where the Named Insured Assigned Policies Without Insurers' Consent - Insurance Coverage Alert! - MORE
July 11, 2008
Washington State Court of Appeals Holds Reasonableness Hearing in Contract Action Not Subject to Same Factors as Reasonableness Hearing in Tort Action - Insurance Coverage Alert! - MORE
July 11, 2008
Washington Appellate Court Concludes SIR is Not "Insurance" in Subrogation Context and Defense Costs Paid By the Insured Concurrently Satisfy SIRS in Successive Primary Policies - Insurance Coverage Alert! - MORE
July 10, 2008
Rhode Island Supreme Court Overturns Public Nuisance Verdict Against Lead Paint Manufacturers - Insurance Coverage Alert! - MORE
July 07, 2008
Collaboration key to overcome subprime claims - BusinessInsurance.com - The past decade has produced more than its fair share of real and supposed crises for
professional and management liability insurers and policyholders. Beginning with Y2K and
through Enron, WorldCom, options backdating and global warming, insurers have had to
constantly revise actuarial plans, re-evaluate aggregations and pray. MORE
July 01, 2008
The UN Convention on Contracts for the International Sale of Goods (CISG) - Subrogation and Recovery Alert! - 4 pgs total. The U.N. Convention on Contracts for the International Sale of Goods (CISG)is an intl. agreement that is applicable to contracts for the intl. sale of goods between parties whose places of business are in different countries. Two CISG issues that are relevant to subrogation actions against parties doing business in a foreign country: a requirement that the buyer provide timely notice of the nonconformity of the goods to the seller, and, the statute of limitations under CISG. MORE
June 23, 2008
Ninth Circuit Court of Appeals Holds Idaho Tort Claim Act Endorsement Does Not Reduce Original Policy Limits - Insurance Coverage Alert! - The Ninth Circuit Court of Appeals found an insurer’s Idaho Tort Claim Act Endorsement
ambiguous, to the extent it attempted to incorporate a reduced liability limit found in the state’s Act. In Ferguson v. Coregis Ins. Co., --- P.3d ----, 2008 WL2246535 (June 3, 2008), plaintiff John Ferguson filed an action on behalf of his son seeking a declaratory judgment as to the general liability limit of an insurance policy (“the Policy”) sold to the MORE
June 03, 2008
Special Report: Suing the Saudis - How Cozen took on a kingdom for 9/11 liability - Philadelphia Inquirer - On the morning of Sept. 11, 2001, Stephen Cozen huddled with expert witnesses
in a seventh-floor conference room of his Center City law firm preparing for what
promised to be a bare-knuckle trial over a string of soured movie deals. MORE
June 01, 2008
The Aviation Industry: Storm Clouds In Sight - The Metropolitan Corporate Counsel - The Editor interviews James E. Robinson, member of law firm Cozen O’Connor,whose practice includes products liability, aviation and commercial litigation matters.
Editor: Would you tell our readers
something about your professional experience?
MORE
May 20, 2008
Insurance Department Issues Advice on Cancellation of Municipal Bond Insurance Policies - Insurance Corporate & Regulatory Alert! - The New York Insurance Department (the “Insurance Department “) has issued
a circular letter advising financial guaranty insurers (“FGIs”) that in light of the recent and potential downgrades in the ratings of FGIs, the Insurance Department will not object to the cancellation or termination of in-force bond insurance policies on the basis that such termination or cancellation conflicts with non-cancellation provisions in these filed policies. MORE
May 13, 2008
An Introduction to Inverse Condemnation - Subrogation and Recovery Alert! - 4 pgs total, 5/2008. This subrogation alert will introduce Inverse Condemnation, specifically by using examples from California, and discuss its benefits and limitations. Topics: ELEMENTS OF INVERSE CONDEMNATION; WHAT IS A TAKING?; WHAT CONSTITUTES PROPERTY?; WHAT IS A PUBLIC USE?; CAN A PRIVATELY OWNED PUBLIC UTILITY BE LIABLE UNDER INVERSE CONDEMNATION?; CAN A SUBROGATING INSURER USE INVERSE CONDEMNATION?; BENEFITS OF AN INVERSE CONDEMNATION ACTION; LIMITATIONS TO INVERSE CONDEMNATION MORE
April 25, 2008
Washington Court of Appeals Upholds Insolvency Provisions in Excess Policy - Insurance Coverage Alert! - In Polygon Northwest Co. v. American Nat. Fire Ins. Co., --- P.3d ----, 2008 WL 921390
(April 7, 2008), the Washington Court of Appeals, Division I, held that: (1) an excess
insurer’s indemnity obligation does not commence until the insured’s liability exceeds the
limits of all underlying insurance, including the limits of an insolvent primary insurer’s
policy; (2) attorney’s fees do not constitute “costs taxed against the insured,” MORE
April 03, 2008
Reality Cheque: Bank Liability for Fraudulent Bills of Exchange - Canadian Subrogation Alert! - 5 pgs total. In Canada, the liability of banks that act on forged cheques is governed by a mix of the common law and the federal Bills of Exchange Act. This article discusses the legal reasons for placing liability on banks in these cases, and considers some common defences that the subrogation professional may encounter when pursuing this avenue of recovery. MORE
February 05, 2008
Insured's Breach of Contract and Bad Faith Claims Crumble to Nothing... - Insurance Coverage Alert! - U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, APPLYING NEW HAMPSHIRE LAW, HOLDS
THAT THE “YOUR PRODUCT” EXCLUSION EXCLUDES
COVERAGE FOR CONTAMINATED RASPBERRY CRUMBLE
MORE
February 04, 2008
Waivers of Subrogation: End of Story? - Subrogation and Recovery Alert! - 3 pgs total. A welder causes a fire on the roof of a building. The incident is caught on video and the welder admits responsibility for the fire. He also carries liability insurance and the insurer does not contest liability. Slam dunk subrogation case, right? But, oops! There is a waiver of liability provision in the contract between the owner and the welder. Case closed? Not necessarily. The following cases demonstrate circumstances in which such waivers may not be enforced. MORE
January 21, 2008
Tellabs Redux: Seventh Circuit Reinstates Plaintiffs' Complaint on Remand from the United States Supreme Court - Insurance Coverage Alert! - In a much anticipated ruling, the Seventh Circuit Court of Appeals, following on
the heels of the United States Supreme Court’s heralded decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. ___, 127 S. Ct. 2499 (2007) (“Tellabs I”), has again ruled that the complaint at issue sufficiently plead the elements of securities fraud required under the Securities and Exchange Act of 1934 and SEC MORE
November 15, 2007
Methods For Enforcing Civil Judgments in Ontario - Canadian Subrogation Alert! - 5 pgs total, focus on Canada. When a court issues a judgment, it is not concerned with whether the unsuccessful party will ever actually pay the amount. Nonetheless, our civil court system does provide the successful insurer with mechanisms to assist in collecting payment from the unsuccessful defendant. The two most common mechanisms for this purpose are (1) a writ of seizure and sale, and (2) a garnishment of debts, such as wages, owing to the debtor. MORE
November 01, 2007
2007 Southern California Wildfires - Subrogation and Recovery Alert! - 5 pgs total. Wildfires have raced across Southern California, fanned by ferocious Santa Ana wind conditions resulting in losses covering seven counties. In an effort to evaluate recovery opportunities, Cozen O’Connor is coordinating with investigators and various local and state fire authorities, as well as continuing to monitor all news reports and investigations regarding these fires. MORE
October 15, 2007
Massachusetts Court Holds That An Insurer Is Not Obligated to Defend an Uninsured Affiliated Entity in Mass Tort... - Insurance Coverage Alert - MASSACHUSETTS COURT HOLDS THAT AN INSURER
IS NOT OBLIGATED TO DEFEND AN UNINSURED
AFFILIATED ENTITY IN MASS TORT CONTEXT AND
ADDRESSES OTHER ISSUES, INCLUDING
REASONABLENESS OF ATTORNEYS’ FEES MORE
October 09, 2007
Sompo vs. Altadis/COGSA vs Carmack - Maritime Alert! - 4 pgs total. In conclusion, despite the U.S. Supreme Court’s efforts in Kirby to adopt a single default rule on cargo liability for intermodal shipments, federal courts throughout the U.S. are nevertheless split on how to apply COGSA and Carmack in a consistent and methodical fashion. Until then, we recommend that our maritime clients take all necessary steps to protect their respective interests under both COGSA and Carmack. MORE
October 09, 2007
Oregon Federal Judge Rules that Cost of Preventing Future Contamination not a Covered Indemnity Cost - Insurance Coverage Alert! - An Oregon Federal Judge has adopted the Findings and Recommendations of an
Oregon Magistrate Judge and granted partial summary judgment ordering that an
insured is precluded from recovering as indemnity costs, $6.8 million in claimed costs
for an effluent pretreatment system to prevent future contamination from its operations
of a municipal sewer system. MORE
October 01, 2007
Fall 2007 - Subrogation and Recovery Observer - As football season gets underway and the exciting post-season baseball action has
started, Cozen O’Connor’s Subrogation Department is pleased to announce the continued expansion of our team roster. The Fall 2007 edition of the Subro Observer includes the introduction of five new attorneys in Philadelphia, Charlotte, Chicago, San Diego, and Los Angeles. MORE
September 26, 2007
Appellate Court Rules Contingent Commissions Are Legal in New York - Insurance Corporate & Regulatory Alert - The payment of contingent commissions to insurance brokers and agents has received
a substantial amount of attention since 2004. Probes initiated by New York Attorney
General Elliot Spitzer (now Governor) into both bid-rigging practices and the
payment of contingent fees to brokers who steer business to particular insurance
companies have resulted in lawsuits and MORE
September 21, 2007
Brass Fittings Don't Hold Water - Subrogation and Recovery Alert! - 1 pg total. Plumbing systems that incorporate brass fittings manufactured by Zurn are likely to cause water damage and mold infestation in residences, according to a group of Minnesota homeowners who recently filed a class action lawsuit in Minnesota federal court against Zurn Pex, Inc. and Zurn Industries, Inc., the fittings manufacturers. MORE
September 02, 2007
50 States Claims Handling Guidelines - Jurisdictional Comparative Chart - 201 pgs total; updated 6/07. This document is intended to provide a general overview of the laws enacted in each state. The statutes listed are complex and do not necessarily lend themselves to a concise summary. SUMMARY OF STATUTES 3 page Chart with headings: STATE; TIME PERIOD IN WHICH INSURER MUST ACKNOWLEDGE CLAIM; and TIME PERIOD IN WHICH INSURER MUST REPORT INVESTIGATION OF CLAIM. The rest of the document identifies CLAIMS HANDLING GUIDELINES for each of the fifty states. MORE
September 01, 2007
Summary of Claims Handlng Statutes - Northwest Jurisdictions - Jurisdictional Comparative Chart - 43 pgs total, revised 6/07. Table properties: TIME PERIOD IN WHICH INSURER MUST ACKNOWLEDGE CLAIM; TIME PERIOD IN WHICH INSURER MUST REPORT INVESTIGATION OF CLAIM. Majority of document reviews state by state, Acknowledgment of Claim & Prompt, Fair, and Equitable Settlement of Claim. MORE
August 28, 2007
Voters’ Referendum Will Either Delay or Reject Washington’s Insurance Fair Conduct Act - Insurance Coverage Alert - MORE
August 22, 2007
2007 Rocky Mountain Subrogation Seminar - 2007 Rocky Mountain Subrogation Seminar - Program Book - 95 pgs. This seminar booklet contains speaker profiles and PowerPoint presentations from the 2007 Rocky Mountain Seminar. MORE
August 21, 2007
Anticipation of Litigation: The Role of Litigation Privilege in Subrogated Claims - Subrogation and Recovery Alert! - 3 pgs total. When an insurer steps into the shoes of its insured and commences a subrogated action...it is often desirable for the insurer to withhold the production of certain documents that have been generated during the process of investigating the insured's claim. This may be permitted where the materials have been prepared with a view to litigation, pursuant to what is called “litigation privilege.” This privilege does have its limits and exceptions though. MORE
August 20, 2007
Fifth Circuit Court of Appeals Asks Texas Supreme Court to Resolve Issue of - Insurance Coverage Alert - 8/20/2007 - MORE
August 15, 2007
Colorado Court of Appeals Holds - Insurance Coverage Alert - 8/15/2007 - On August 9, 2007, the Colorado Court of Appeals held that a CG 20 10 (10/93)endorsement does not provide coverage to a general contractor for claims arising out of its subcontractor’s completed work or operations. Weitz Company, LLC v. Mid-Century Insurance Company, Colo. Ct. App., Case No. 06CA0163 (August 9, 2007).
In Weitz, a general contractor (Weitz)subcontracted with a mechanical subcontractor
for work on an office building it was constructing. MORE
August 13, 2007
New York Insurance Department Proposes Legislation to Bar Denial of Claims on the Ground of Late Notice. - Insurance Corporate & Regulatory Alert - 8/13/2007 - Within two days after New York Governor Eliot Spitzer vetoed legislation that would have prevented a property/casualty insurer from denying a claim on the ground of late notice without a showing of material prejudice, the New York Insurance Department(the “Department”) proposed amendments to the New York Insurance Law to accomplish that objective. MORE
August 08, 2007
New York Governor Vetoes Major Insurance Legislation - Insurance Corporate & Regulatory Alert - 8/08/2007 - In an August 1, 2007 veto message, New York Governor Eliot Spitzer rejected legislation amending the New York Civil Practice Law and Rules to permit a declaratory judgment action to determine the extent of insurance coverage available to a party to a lawsuit. The vetoed legislation also added a provision to the New York Insurance Law to prevent an insurer from denying coverage on the basis of late notice
unless material prejudice could be shown. MORE
August 07, 2007
In a Major Katrina Decision, the Fifth Circuit Upholds the Flood Exclusion - Insurance Coverage Alert - 8/07/2007 - MORE
August 01, 2007
Trial Advocacy: Feeding The Pipeline - The Metropolitan Corporate Counsel - The Editor interviews Hayes Hunt, Member,
and Benjamin E. Zuckerman, Of Counsel, Cozen O’Connor. Both conceived and developed Cozen O’Connor’s Inaugural Trial Academy. MORE
August 01, 2007
Hot Topic: Insurers must be ready to defend lawsuits blaming global warming on greenhouse gas emissions. - BEST'S REVIEW - A recent U.S. Supreme Court ruling found the Environmental Protection Agency was obligated to regulate greenhouse gases according to the Clean Air Act and take action to control greenhouse emissions.
The outcome of that case, Massachusetts v. Environmental Protection Agency, could forecast more climate change litigation. While raising awareness about the federal government's role in protecting the environment, this case also has the potential to create a snowball effect. MORE
July 17, 2007
Food Contamination Alert - Minnesota Court of Appeals Applies First-Party “Physical Damage” Decision to Third-Party Property Damage Claim in an Adulterated Food Case and Remands for New Trial - Insurance Coverage Alert - 7/17/2007 - In United Sugars, the largest marketer of industrial consumer sugar in the United
States, United Sugars Corporation (“USC”), brought a breach of contract action
against its insurer for coverage for alleged property damage to a customer’s food
product. United Sugars, No. A06-1933, slip op. at *1. The CGL policy at issue
defined “property damage” as “physical damage to tangible property of others,
including all resulting loss of use of that property.” MORE
July 02, 2007
W. Conshohocken to Tuktoyaktuk: One Lawyer's Business Trip - The Wall Street Journal - Stewart wasn’t there for pleasure. Cozen ’Connor, like a handful of other firms, recently launched a “global warming practice” to service its insurance clients, among others — and it tapped Stewart to lead it. “The people I deal with on a regular basis are interested in talking to someone who’s looked at the science and read the literature,” he says. “But I wanted to do more than that. If I could go up there and talk to Inuit hunters about what they’re seeing, it’d be a big help.” MORE
June 25, 2007
Supreme Court Gives Wake-Up Call To Buyers On Global Warming Risks - National Underwriter - Since the advent of the age of mega-securities-fraud settlements, class-action counsel have searched strenuously for—and corporate executives have slept fretfully worrying about—the next trend in investor claims and activism. With global warming and environmental protection on the front pages because of the efforts of social activists, litigators and politicians, there may be repercussions for directors and officers of publicly-traded companies as well as their D&O liability insurers.
MORE
June 25, 2007
Faulty Workmanship Exclusion Bars Coverage for Damage Caused by Workmanship - Insurance Coverage Alert - 06/25/07 - On April 16, 2007, Washington Appellate Court Judge Ronald Cox issued an opinion in the City of Oak Harbor v. St. Paul Mercury Insurance Co., Case No.: 57959-2-I (Wash. Ct. App. April 16, 2007) MORE
June 22, 2007
Cozen OConnor Wins United States District Court Judgement in Favor of Insurer on Food Contamination Business Interruption Claim - Insurance Coverage Alert - 6/22/07 - On June 18 2007 the United States District Court for the District of Colorado granted summary judgment in favor of Maryland Casualty Company represented by Cozen OConnor holding that the business interruption clause in a first party policy only provides coverage until the insured resumes operations and does not provide coverage for market consequences resulting from the insureds temporary cessation of business. MORE
May 29, 2007
Ford Switch Failures - Subrogation and Recovery Alert! - 2 pgs total. But Ford has not been able to avoid the relentless pressure of litigation pertaining to the problem – that of the speed control deactivation switch, a recalled part discussed in our prior Subrogation Alerts. The following are believed to be the root causes of a potential brake switch fire, and were used as the basis for the solution concepts derived. MORE
May 21, 2007
Washington State Passes New Bad Faith Law With Penalties, Requiring 20-Day Notice Before Litigation - Insurance Coverage Alert - 5/21/2007 - Effective July 21, 2007, Washington State’s new “insurance fair conduct act” (“Act”)
will expand the range of private claimants’ remedies against an insurer for a proven
“bad faith” denial of coverage. Statutory penalties, including un-capped treble
damages, are made available under the Act for (1) an insurer’s unreasonable denial of
a claim for coverage or payment of benefits MORE
May 10, 2007
2007 Southeast Subrogation Seminar - Seminar Book - 2007 Southeast Subrogation Seminar - Seminar book from 2007 Southeast Subrogation Seminar MORE
April 20, 2007
The “Q & A” On Freight Forwarders: Who Are They? What Do They Do? When Are They Liable? - Subrogation and Recovery Alert! - 5 pgs total. When goods are damaged during transport, the seemingly obvious targets in a subrogated action are usually the carriers, being the parties who were contracted to handle and transport the goods. Another party may bear responsibility for the loss, the freight forwarder. Where property is damaged in transport, subrogation professionals should be alert to the possibility of recovering against freight forwarders who may have been involved in arranging carriage for the goods. MORE
April 16, 2007
Ford Recalls 500,00 Ford Escapes for Fire Causing Defect - Subrogation and Recovery Alert! - 1 pg total. Ford initiated the recall after receiving numerous complaints that the Escapes’ anti-lock brake module was over-heating, smoking and sometimes catching fire. Similar to the very familiar speed control deactivation switch fires, the Escapes’ anti-lock brake module is always energized and it can catch fire even if the car is turned off and the keys are out of the ignition. MORE
April 12, 2007
Remarks of Adam C. Bonin, Esq. Cozen O'Connor - Campaign Finance Law, Issue Advocacy and the Supreme Court - Remarks from a panel discussion held last Thursday, April 12, 2007, at the American Constitution Society, regarding the upcoming Supreme Court arguments in FEC v. Wisconsin Right to Life MORE
April 01, 2007
Attacking the Root Of the Punitive Damages Problem: The Philip Morris v. Williams Decision - The Corporate Counselor - On Feb. 20, 2007, the U.S. Supreme Court issued a landmark decision on punitive damages in
Philip Morris USA v. Williams, __S.Ct.__ , 2007 WL 505781 when it found a jury’s $79.5 million punitive damage award, assessed in
conjunction with $821,000 in compensatory damages for negligence and deceit in misleading a smoker to believe that smoking was safe,
was unconstitutional. MORE
March 12, 2007
Application of Colorado's Construction Defect Action Reform Act - Subrogation and Recovery Alert! - 4 pgs total, includes photos. Although the statutes vary from state to state, there is at least one common theme – before filing suit, the property owner must give contractors written notice describing the specific defect, then allow contractors a fair opportunity to inspect the property and remedy the alleged problem. Topics: SPECIFIC FACTS OF THE COLORADO LOSS; COZEN O’CONNOR ARGUED FOR THE PROPER INTERPRETATION OF THE STATUTE MORE
February 22, 2007
TRANSCRIPT: ATTORNEYS RUSS MELTON AND JOE GERBER ON RESPONDING TO CATASTROPHES - Best Wire - Recent disasters such as industrial explosions in Kansas City, Mo. and Apex, N.C., have led to large losses. For insurers, the best way to keep abreast of claims and contain catastrophe-related litigation is often for law firms and insurance counsel to become involved quickly. In a roundtable discussion, attorneys Russ Melton and Joe Gerber discussed the role of law firms and insurance counsel in responding to catastrophic incidents. MORE
January 31, 2007
Horse Cents: Turn your Equine Claim into Recovery Dollars - Subrogation and Recovery Alert! - 5 pgs total, includes photos. Although most people were only concerned with Barbaro’s recovery, his story touches on many of the issues that arise in equine claims. This article focuses on some of those issues and provide the adjuster and subrogation professional with a framework to properly and fully analyze subrogation potential in equine claims. Topics: UNDERSTANDING THE POLICY AND ENDORSEMENTS, THEORIES OF RECOVERY, HIRING THE RIGHT EXPERTS AND AVOIDING SPOLIATION MORE
January 25, 2007
Suing the Seller: Using Ontario's Sale of Good Act to Recover Damages Caused by Defective Products in a Subrogated Action - Subrogation and Recovery Alert! - 6 pgs total. Under Canadian law, “strict liability” against a manufacturer does not exist. A plaintiff may not succeed against a manufacturer simply by proving that the manufacturer’s product was defective and that this caused the plaintiff’s loss. The plaintiff must also prove that the manufacturer was somehow negligent. The Ontario Sale of Goods Act may provide an alternative ground of recovery for plaintiffs in product liability actions. MORE
January 01, 2007
A Compelling Situation: Enforcing American Letters Rogatory in Ontario - The Canadian Bar Review - 28 pgs total; article from LA REVUE DU BARREAU CANADIEN. A letter rogatory, or MORE
December 04, 2006
Getting to Higher Ground - Using Hydrologists to Assist in Flood Claims and Subrogation Analysis - Subrogation and Recovery Alert! - 5 pgs total, includes photos. The legal duty is upon an upstream property (“upper riparian”) owner to be sure that, before any changes in his property are made that affect water flow and drainage, potential risks of harm to downstream (“lower riparian”) property owners are considered and necessary steps taken to prevent such harm. Flood claims present unique challenges that require the assistance of knowledgeable subrogation counsel and hydrologists with hands-on experience. MORE
November 13, 2006
Time’s Up!: Limitation Periods for Subrogated Actions in Canada - Subrogation and Recovery Alert! - 5 pgs. Limitation periods are the time period in which an action can be brought. This is both to incentivize plaintiffs to bring lawsuits in a timely fashion and keeps defendants from continuously fearing past obligations. This article goes into detail on what the Canadian laws are regarding these periods. MORE
November 06, 2006
The General Product Safety Directive - An Opportunity for Insurers - Subrogation and Recovery Alert! - 2 pgs total, International. Document’s focus is the: European Union Council Directive 92/59/EEC on general product safety; specifically the UK. [The regulations] place a general duty on all suppliers of consumer goods to supply products that are safe in normal or reasonably foreseeable use. Under the Regulations, the enforcement authorities are given new powers to enter premises, test products and seize records and products. MORE
November 04, 2006
Ensuing Loss Provision in Homeowners Policy Does Not Provide Coverage for Mold Contamination in Texas - Insurance Coverage Alert! - MORE
November 01, 2006
Don't Let Your Subrogation Claim Be Stolen - Subrogation and Recovery Alert! - 2 pgs total. As the price of copper has skyrocketed, thefts of copper piping and wiring, not only from public utilities and vacant buildings, but from unprotected loss scenes as well occurs. Not only can the theft of copper wiring and piping increase the nature and size of your loss, but can also have far reaching and detrimental consequences to your subrogation claim. These thefts serve as a reminder of the necessity to protect a loss scene from alteration and removal of evidence. MORE
August 11, 2006
Recovery Opportunities Arising from Material Failures - Subrogation and Recovery Alert! - 5 pgs total. Many losses involve material failures. In some cases, the material at issue causes the loss. In other cases, the subject material contributes to the size or severity of the loss. In either event, material failures represent an opportunity, albeit sometimes overlooked, for subrogation recovery. Recognizing and understanding the role that materials play in a given loss will help in identifying all potential and viable avenues of subrogation recovery. MORE
August 01, 2006
Lessons From Anna Nicole Smith - Risk & Insurance - The U.S. Supreme Court recently decided Anna Nicole Smith’s much-publicized inheritance case. Playboy’s 1993 Playmate of the Year married 85-year-old Texas oil gazillionaire J. Howard Marshall in 1994. (He died in 1995.) Marshall left nothing in his will for Smith, and things would have stayed that way had Marshall’s son, Pierce, exercised some self-restraint. But Pierce couldn’t help himself. Now, he’s on the wrong end of an $89 million judgment. MORE
July 05, 2006
Recovery Opportunities Arising from Halogen Bulb and Torchiere-Style lamp Failures - Subrogation and Recovery Alert! - 5 pgs total. The torchiere-style residential floor lamp is a sleek, decorative, inexpensive appliance with almost universal appeal. It is also one of the most common fire hazards of our time. The following discussion is intended to assist in proving manufacturer responsibility and overcoming certain defenses. Topics: Determining the Failure Mode; Legal Strategies. MORE
July 05, 2006
The Economic Loss Doctrine: A Contract is a Contract and a Tort is a Tort - Subrogation and Recovery Alert! - 6 pgs total. The purpose of this paper is to introduce you to the economic loss doctrine and introduce Cozen O’Connor’s latest 50-state survey addressing each jurisdiction’s application of the economic loss doctrine and its many exceptions. Topics: Brief History of the Economic Loss Doctrine; Common Scenarios Involving the Economic Loss Doctrine MORE
June 06, 2006
Eon: The Beautiful Alternative or Catastrophic Fire Loss Waiting to Happen? - Subrogation and Recovery Alert! - 5 pgs total. This article is intended to better acquaint subrogation professionals with the potential combustibility of certain types of decking, and to alert both subrogation professionals and homeowners of disturbing combustion data regarding “Eon,” a particular brand of plastic decking. MORE
June 06, 2006
- Preparing for and Responding to Natural & Technological Disasters & Business Disasters Triggered by a Departing Employee - EMPLOYMENT ISSUES TO CONSIDER DURING A CRISIS
Crisis Response and Management Plan, Americans With Disabilities Act (ADA), WARN Act Meeting obligations under a union contact, Uniformed Services Employment and Reemployment,Rights Act of 1994 (USERRA), Payment of Employee Wages,
The Family and Medical Leave Act (FMLA),Data Management, Occupational Safety and Health Administration (OSHA)
MORE
June 01, 2006
Judge Not, Lest Ye Be Judged - Risk & Insurance - In the past few years, it has become popular sport in certain circles to attack our nation’s sitting judges. Unpopular judicial decisions are denounced as “outrageous,” and individual judges described as “activists running amok.” And, believe it or not, political zealots suggest that violence toward judges is perhaps deserved. MORE
May 18, 2006
Something to Prove: The Impact of the Burden of Proof in Property Damage Claims - Subrogation and Recovery Alert! - 7 pgs total. Subrogation professionals need to be aware of cases where the burden of proving a case may rest with a defendant rather than a plaintiff. A claim for property damage that initially appears weak...may give rise to excellent recovery prospects. In a subrogated claim for property damage it is usually the plaintiff...who has the burden of proving that a defendant is responsible for the loss. There are important exceptions to the general rule that the plaintiff has this burden. MORE
May 05, 2006
Fundamental Insurance Coverage Issues Presented by Clergy Sex-Abuse Claims - Cozen O'Connor Seminar Materials - MORE
April 25, 2006
Recovery in Employee Dishonesty Cases - Subrogation and Recovery Alert! - 11 pgs. In an employee dishonesty claim, there are a number of theories from which to pursue recovery and a number of targets that may be responsible. This five-step process is designed to aid recovery in such cases. MORE
April 21, 2006
“You be the Judge” Advantages of Arbitrating Subrogated Claims in Ontario - Subrogation and Recovery Alert! - 8 pgs total, with a focus on Ontario. In order to benefit from arbitration as a method of dispute resolution, insurance companies and their legal counsel must be alert to the advantages offered by Ontario’s arbitration schemes. Topics covered: WHAT IS ARBITRATION?; ARBITRATION IN ONTARIO; WHY ARBITRATE?; AGREEING TO ARBITRATE SUBROGATED CLAIMS; OTHER ARBITRAL ORGANIZATIONS IN ONTARIO. MORE
April 01, 2006
The Flaws of Arbitration - Risk & Insurance - Today’s subject is arbitration and why you should avoid it. Blasphemy you say? Read on to find out why court litigation before a judge sitting without a jury may be preferable. Recently, I found myself before an appellate court trying to vacate an arbitration award. When the appellate panel realized that my arbitration appeal was the only thing separating them from their next meal, they dismissed me with the rubric of the finality of arbitration awards. Justice? Perhaps not. MORE
March 14, 2006
Another Look at Malicious Mischief: Criminal Restitution in the Fifty States - Subrogation and Recovery Alert! - Oftentimes victim is defined broadly enough to include a subrogating carrier. To assist you in determining which states allow restitution in favor of a subrogating carrier and how much restitution may be recovered, see this Fifty State Summary on Criminal Restitution and Recovery by Insurance Companies . This article provides a brief summary of the law, the issues surrounding restitution orders and how best to proceed with your claim for restitution. MORE
January 27, 2006
A New Lease on Life: Subrogating Against Your Insured's Tenant - Subrogation and Recovery Alert! - 6 pgs total. A considerable hurdle is the Implied-Coinsured Doctrine, a legal fiction created to bar subrogation claims against tenants as a matter of public policy. However, depending on the jurisdiction and the underlying lease agreement, this hurdle may be overcome. A detailed analysis of the law of the relevant jurisdiction and the underlying lease agreement must be performed in order to determine if the insurance carrier of a landlord may recover against the tenant. MORE
November 18, 2005
The Aftermath of Rita and Katrina: Where Do We Go From Here - Subrogation and Recovery Alert! - 7 pgs of text. This Alert is offered to help you handle claims efficiently and effectively and to advise you as to what information will be needed to conduct a thorough subrogation analysis. This Alert provides additional information to assist you and your catastrophe-loss adjusters on the ground in making preliminary determinations as to which claims might be viable from a subrogation perspective, and which claims will likely be barred by the Act of God or other defenses. MORE
September 20, 2005
Tempering the Storm: Subrogation in the Wake of Hurricane Katrina - Subrogation and Recovery Alert! - 9 pgs total. This paper serves an initial analysis of the factual and legal issues affecting your subrogation opportunities with emphasis on Federal, Louisiana, Mississippi and Alabama law. This paper does not address coverage issues or all issues relating to subrogation arising from catastrophic losses. MORE
September 08, 2005
Spinning Out of Control: Ford Recalls an Additional 3.8 Million Vehicles Containing the Defectively Designed Speed Control Deactivation Switch - Subrogation and Recovery Alert! - 11 pgs total. For several years, Ford's speed control deactivation switch - a tiny component part, not much bigger than a sparkplug, has been burning down homes across the country. And as of September 7, 2005, it is now the subject of the one of the largest recall campaigns in the history of the automotive industry. Topics: Recall Campaign; The "Expanded Investigation"; The Media Blitz; The Recall of September 2005; The "Root Cause"; The Symptoms; Judicially Declared Defect. MORE
September 07, 2005
New 2-Year Statute of Limitations Impacts Your Subrogation Claims in Ontario, Canada - Subrogation and Recovery Alert! - 3 pgs total, focus on Canada. The Ontario government recently enacted new legislation that created a general 2-year limitations period for commencing civil actions for most claims - including claims based in negligence, products liability and contribution and indemnity. The new Limitations Act significantly reduces the time for filing a lawsuit, and thus, greatly increases the need for efficient and timely handling of subrogation claims north of the border. MORE
August 19, 2005
Testing the Water: Subrogation Possibilities Arising From the August 19, 2005 Storm - Subrogation and Recovery Alert! - 10 pgs total, focus on Toronto. This paper will serve to highlight the factual and legal issues affecting your subrogation opportunities. Topics: OVERVIEW OF SUBROGATION ANALYSIS; POTENTIAL SUBROGATION CLAIMS; POTENTIAL DEFENCES TO ACTIONS ARISING FROM THE STORM MORE
May 23, 2005
Summer and the Season of Pestilence! Recovery Guidelines for Losses Involving Bug Foggers - Subrogation and Recovery Alert! - 4 pgs total. To curb the number of fires and injuries resulting from foggers, the Environmental Protection Agency (EPA) approved new requirements on February 4, 1998 requiring that warnings and instructions be placed on insect foggers to ensure that they are used safely. This article is intended to better your understanding of how the use of bug foggers can lead to explosions and fires and what avenues of recovery may or may not be available for such claims. MORE
March 23, 2005
Time Limitations for Cargo Claims - Subrogation and Recovery Alert! - 7 pgs total. Shipment of goods by boat, train, airline, rail, or automobile may be subject to certain statutory time filing requirements. What follows is an analysis of the more prominent statutes that apply to the transportation of goods intra and inter-state. MORE
December 02, 2004
Construction Defect Claims: Legal Considerations in Idaho, Oregon and Washington - Subrogation and Recovery Alert! - 11 pgs total. The following is a summary of the law of Washington, Oregon, and Idaho on three issues that are common to construction defect claims: (1) notice of claim statutes, (2) statutes of repose, and (3) warranties of workmanlike performance. MORE
November 22, 2004
Update on Builder Friendly Construction Acts - Subrogation and Recovery Alert! - 6 pgs total. This article surveys the new builder-friendly construction acts in Georgia, Mississippi, Tennessee and Hawaii, and reports on several recent opinions in construction act cases. The complete survey of all twenty states, including all recent amendments, is entitled “When the Dream House Becomes a Nightmare: A Survey of the Recent Spread of ‘Builder Friendly Construction Acts’ in the U.S.” and is available upon request. MORE
October 22, 2004
Hurricanes Charley & Frances: Overview of Code Requirements and Engineering Considerations for Subrogation Opportunities - Subrogation and Recovery Alert! - 4 pgs total. The 2001 Florida Bldg Code addresses design wind speeds by referencing Ch. 6 of ASCE-7. For commercial structures, the question of whether or not the structure could have resisted code winds may be determined by evaluating the main wind force resisting systems that were in place prior to the storm. For residential structures, the question of determining if the structure was adequate for code specified winds may be a more complex issue. MORE
September 09, 2004
Hurricane Frances: A Subrogation Guideline - Subrogation and Recovery Alert! - 5 pg, bullet outline. Topics: INITIAL CHECKLIST FOR STRUCTURAL DAMAGE; LEGAL OBSTACLES; KEY ITEMS TO OBTAIN/RETAIN; PARTICULAR DESIGN, INSTALLATION, AND MATERIALS ISSUES TO
CONSIDER. MORE
August 01, 2004
Hurricane Charley: A Preliminary Factual and Legal Analysis of the Subrogation Issues - Subrogation and Recovery Alert! - 37 pgs total, includes photos and table of contents. This paper serves as an initial analysis of the factual and legal issues affecting subrogation opportunities, providing various theories of recovery in the catastrophe context, with emphasis on the law of Fl, Ga, SC, NC, and Va. Topics: OVERVIEW OF THE SUBROGATION ISSUES: Overview of Hurricanes and Their Offspring; Overview of Liability in the Disaster Context; Overview of Negligent Preparedness and Response Issues. MORE
June 14, 2004
Excluding Comparative Fault Evidence in the Fire Spread Case - Subrogation and Recovery Alert! - 4 pgs total. The argument for exclusion of the plaintiff’s, or the plaintiff’s insured/subrogor’s comparative fault in causing the fire in a fire spread case is a veritable Trifecta for subrogation professionals: it is logical; it is fair and it helps maximize subrogation recoveries. MORE
May 12, 2004
Limitations Act, 2002 - Subrogation and Recovery Alert! - 1 pg total, focus on Ontario. In 2004, the Ontario Limitations Act, 2002, came into force. This new statute represents an enormous reform of the existing law of limitations in the province. It is a substantial improvement over the old legislation and will make the law of limitations in Ontario more intelligible to both lawyers and clients. MORE
April 26, 2004
When a Dream House Becomes a Nightmare: A Survey of the Recent Spread of - Subrogation and Recovery Alert! - 7 pgs. This article reviews Residential Construction Liability-type acts in Nevada, Oregon, South Carolina, Texas, Washington, and West Virginia. MORE
March 05, 2004
When a Dream House Becomes a Nightmare: A Survey of the Recent Spread of Builder Friendly Construction Acts in the U.S. - Subrogation and Recovery Alert! - 4 pgs. This article discusses Residential Construction Liability-type acts in Colorado, Florida, and Idaho. Such acts are also called “Builder Friendly Construction Acts.” MORE
January 28, 2004
Drip, Drip, Drip – “Slippery” Issues in Water Losses - Subrogation and Recovery Alert! - 3 pgs total. This article identifies and discusses issues that should be considered in water loss subrogation claims. MORE
December 23, 2003
The Malfunction Theory: Establishing Product Liability Without Proof of a Specific Defect - Subrogation and Recovery Alert! - 4 pgs total. The malfunction theory can be used to effectively establish the inherent defect element of a product liability claim when the damage to the product caused by the product failure renders the remains of the product useless as physical evidence. The malfunction theory is most effective when the product involved is relatively new. The plaintiff must prove that the product was inherently defective and that the defect in the product caused the injury or damage. MORE
November 20, 2003
Colorado: New Notice Requirements For Claimant When Filing a Third Party Action and Codification of Specific Benefits To Which the Insurer is Subrogated - Subrogation and Recovery Alert! - MORE
October 30, 2003
Southern California Wildfires: Overview of Liability and Causation Issues - Subrogation and Recovery Alert! - 3 pgs total. Causes of most of the fires are unknown at present. The major fronts are in Ventura, San Bernardino and San Diego counties. Topics: San Diego County: Roblar/Pendleton Fire; Paradise Fire; Otay Fire; Cedar Fire. San Bernardino County: Grand Prix/Old Fire. Ventura, Los Angeles Counties: Piru Fire; Simi/Verdale Fire; Riverside County; Mountain Fire. MORE
October 08, 2003
The Great Blackout of 2003 – A Summary of the Investigation to Date - Subrogation and Recovery Alert! - 4 pgs total. A task force was convened to review blackout claims with an eye towards potential recovery. A short summary of the Task Force’s investigation to date is being circulated via this Subrogation & Recovery Alert. Topics: Facts; The Power Grid; The Causes of the Blackout of 2003; The Law and Policy Considerations MORE
October 01, 2003
Hurricane Isabel: A Preliminary Factual and Legal Analysis of the Subrogation Issues - Subrogation and Recovery Alert! - 19 pgs total. This paper serves as an initial analysis of the factual and legal issues affecting subrogation opportunities, providing various theories of recovery in the catastrophe context, with emphasis on NC and VA law. Topics: THE STORM AND ITS CONSEQUENCES; SUBROGATION ISSUES: Overview of Hurricanes and Their Offspring; Overview of Liability in the Disaster Context; Liability of Adjoining Landowners for Debris Damage; The Act of God Defense. MORE
August 19, 2003
When the Lights Go Out – Enforceability of Exculpatory Provisions in Utility Tariffs - Subrogation and Recovery Alert! - 4 pgs total. It has long been accepted that public utilities may disclaim or limit their liability for losses caused by their own conduct. A subrogating carrier may be able to circumvent tariff defenses by utilizing several strategies. While utilities are effectively insulated from liability for purely economic losses caused by service interruptions resulting from their own negligence, factual scenarios presented by typical subrogation cases may be beyond the scope of tariff disclaimers. MORE
July 16, 2003
The Volunteer Defense - Subrogation and Recovery Alert! - 3 pgs total. The volunteer defense is most often invoked by opponents who know little about property insurance claims and subrogation. Subrogation defendants typically attempt to pursue a volunteer defense in circumstances where there was a dispute or compromise regarding coverage or scope with respect to the first-party claim, although the defense may sometimes attempt to raise coverage arguments that were not even considered during the adjustment of the claim. MORE
June 30, 2003
Dryer Fires - Subrogation and Recovery Alert! - 4 pgs total. The four main reasons dryers catch fire include installation error, user error, manufacturing defect and design defect. Topics: Talk to the Insured; Further Investigation: Improper Installation; Insured’s Maintenance and Use; Manufacturing and Design Defects. Another investigative source for deter-mining the cause of dryer fires is the findings set forth in the CPSC Clothes Dryer Project Study. MORE
May 27, 2003
Process Safety Management - Subrogation and Recovery Alert! - 3 pgs total. There are several potential benefits which a subrogation claimant can derive from the OSHA PSM regulations, as well as the EPA RMP regulations. Topics: OSHA PSM REGULATIONS; LEGAL/EVIDENTIARY ISSUES; EPA REGULATIONS MORE
January 10, 2003
Subrogation Issues Arising Within the Condominium Contexti - Subrogation and Recovery Alert! - 5 pgs total. Condominium claims present some interesting twists on issues familiar to the subrogation practitioner as well as new issues that are peculiar to the condominium system. …The most common issues to arise recently relate to standing and other aspects of the condominium association/owner relationship. Topics: HISTORY OF THE CONDOMINIUM; CONDOMINIUM LAW; STANDING TO SUE; PRO-RATA LIABILITY OF INDIVIDUAL OWNERS; CONDOMINIUM ASSOCIATIONS LIKENED TO LANDLORDS MORE
November 06, 2002
Post Loss Adjustment Releases Between Insurer & Insured - Subrogation and Recovery Alert! - 5 pgs total. As part of the adjustment of a loss, an insurer will sometimes require the insured to sign a release in exchange for the settlement proceeds under the policy. It is critically important, however, that any release entered into during the adjustment stages between an insured and the insurer does not also contemporaneously release the tortfeasor in a subsequent subrogation claim. MORE
July 15, 2002
Prosecuting Claims Against Motor Truck Common Carriers - Subrogation and Recovery Alert! - 4 pgs total. The I.C.C. Termination Act abolished the Interstate Commerce Commission and replaced it with the Surface Transportation Board. Virtually all regulation of trucking freight rates was ended, with the exception of those companies involved in the transportation of household goods. Topics: PREPARING A VALID NOTICE OF CLAIM; INVESTIGATION OF THE CLAIM; POTENTIAL DEFENSES; PROVING DAMAGES; LIMITATION OF LIABILITY; SHIPMENTS MADE UNDER OCEAN BILL OF LADING; STATUTE OF LIMITATIONS MORE
May 23, 2002
Subrogation in Canada - Subrogation and Recovery Alert! - 9 pgs total. As a result of our recent affiliation with Perley-Robertson, Hill & McDougall in Ottawa, Canada, Cozen O'Connor is uniquely equipped to handle your subrogation claims in Canada. The following discussion is intended to provide a comprehensive overview of the applicable law and procedures in Canada relating to the filing and prosecution of subrogation claims. MORE
October 19, 2001
Recovery Opportunities in Computer Virus, Hacking and Other Ecommerce Claims - Subrogation and Recovery Alert! - 5 pgs total. Companies have developed products specifically aimed at providing coverage for WebPerils. The products are expressly designed to protect insureds against losses intrinsic to a web presence. The next consideration by claims management will be whether claim payments can be recovered from responsible third parties. The purpose of this paper is to address recovery opportunities for losses resulting from WebPerils. MORE
January 01, 2000
Costruction Defect Recover Issues - Subrogation Publications - As soon as it is determined that there is coverage for your insured’s property, the next inquiry is whether subrogation is possible for the loss. This paper will address the claims where it becomes clear there was some improper construction or construction defect that caused the loss. MORE
December 01, 1990
“Former Landowner May be Liable for Defects Left on Property” - Verdicts, Settlements, and Tactics, Volume 10, No. 12 - MORE