Executive Summary Blog

Executive Summary Blog

Legal developments affecting professional liability insurers

Coverage Barred for Claim Made During Initial Policy Period and Reported in Renewal Period

Posted in Notice of Claim

The Ninth Circuit, applying Alaska law, has held that coverage was not afforded under a company’s professional errors and omissions insurance policy for a claim made against the company during the policy period but not reported until the renewal policy period.  Alaska Interstate Constr., LLC v. Crum & Forster Specialty Ins. Co., 2017 WL 3601728 (9th Cir. Aug. 22, 2017).

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Prior Knowledge Exclusion Bars Coverage for Claim Against Insured Attorney

Posted in Prior Knowledge/Warranty Exclusion

Applying Florida law, a federal district court has held that a prior knowledge exclusion bars coverage for a claim against an insured attorney where the attorney knew, prior to applying for the policy, that he had failed to meet his client’s expectations for the representation.  David R. Farbstein, P.A. v. Westport Ins. Co., 2017 WL 3425327 (S.D. Fla. Aug. 9, 2017).

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Alternative Dispute Resolution Provision Not Satisfied Where Parties Communicated with Mediator During Cooling Off Period

Posted in ADR Clause

The United States District Court for the District of South Carolina has held that an insurance policy’s alternative dispute resolution condition precedent prior to initiating litigation was not satisfied where the parties communicated with the mediator during the provision’s cooling-off period, even though the parties disputed whether the communications concerned insurance coverage.  Allied World Surplus Lines Ins. Co. v. Blue Cross & Blue Shield of N.C., 2017 WL 3671172 (D.S.C. Aug. 24, 2017).

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Failure to Pay Wages Not a “Wrongful Act”

Posted in Insured v. Insured Exclusion, Wrongful Act

The United States District Court for the Northern District of California has found that an insurer was not obligated to cover an insured’s settlement in a wage and hour class action lawsuit because the failure to pay wages was not a “wrongful act” under the policy.  W.G. Hall, LLC v. Zurich Am. Ins. Co., 2017 WL 3782771 (N.D. Cal. Aug. 31, 2017).

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Professional Services Exclusion Bars Coverage in Connection with Pipeline Explosion

Posted in Exclusion lead-in language (Arising out of), Professional Services

A California appellate court has held that a pipeline owner’s insurer is not entitled to reimbursement of defense costs and settlement payments from the insurer for the staffing agency that supplied personnel to the pipeline because the professional services exclusion in the staffing agency’s policy unambiguously barred coverage.  Energy Ins. Mut. Ltd. v. ACE American Ins. Co., 2017 WL 3476705 (Cal. Ct. App., July 11, 2017).

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Pre-Trial Settlement and Assignment of Rights Unenforceable Against Insurer with No Duty to Defend

Posted in Public Policy prohibition on insurance

Applying Texas law, the United States Court of Appeals for the Seventh Circuit has held that public policy prohibits enforcement of a settlement arrangement in which an insurer with no duty to defend played no role in the settlement, the plaintiff promised to seek damages only from the insurer, and the insured defendant admits liability, stipulates to damages, and assigns its claim against the insurer to the plaintiff.  Hendricks v. Novae Corporate Underwriting, Ltd., 2017 WL 3573390 (7th Cir. Aug. 18, 2017).

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Profit Exclusion Does Not Apply to Judgment Against Insured for Anti-Trust Violation

Posted in Personal Profit/Advantage exclusion

The United States Court of Appeals for the Ninth Circuit, applying Idaho law, has affirmed a lower court’s decision that a judgment against an insured for a violation of the Clayton Act did not preclude coverage under a liability insurance policy’s “financial gain” exclusion.  St. Luke’s Health Sys., Ltd. v. Allied World Nat’l Assurance Co., 2017 WL 3727010 (9th Cir. Aug. 28, 2017).

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Court Grants Summary Judgment to Insurer Based on Failure to Disclose Prior Claims in Application

Posted in Prior Knowledge/Warranty Exclusion, Rescission

A California federal district court, applying California law,  has held that an insurer was entitled to summary judgment that it had no duty to defend a suit against its insured because the insured failed to disclose a related claim in its application, and the claim therefore predated the policy period.  Kelly v. Starr Indem. & Liab. Co., 2017 WL 3457145 (S.D. Cal. Aug. 10, 2017).

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Insurer’s Allegations that Declaratory and Injunctive Relief Are Not Covered Loss Survive Motion to Dismiss

Posted in Excess insurance/exhaustion, Loss, Wrongful Act

The United States District Court for the Northern District of California has denied an insured’s motion to dismiss an umbrella insurer’s declaratory judgment action.  Great American Ins. Co. v. Quintana Homeowners Ass’n., 2017 WL 3453394 (N.D. Cal. Aug. 11, 2017).  The insurer alleged that it had no duty to defend or indemnify after exhaustion of the primary policy.  The court concluded that the insurer’s complaint sufficiently alleged that the claims for declaratory and injunctive relief in the underlying action did not constitute covered “Loss” under the policy.

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Ninth Circuit Applies Invasion of Privacy Exclusion to Bar Coverage for TCPA Claims under D&O Policy

Posted in Uncategorized

The Court of Appeals for the Ninth Circuit, applying California law, has held that an invasion of privacy exclusion in a D&O policy barred coverage for a claim alleging violations of the Telephone Consumer Protection Act (TCPA).  Los Angeles Lakers, Inc. v. Federal Ins. Co., 2017 WL 3613340 (9th Cir. Aug. 23, 2017).

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