A Vermont federal court has held that a suit seeking “benefits [the insured] promised but failed to provide” sought amounts that fell within an exception for “restitution” from the definition of “damages” covered under an E&O policy.  James River Ins. Co. v. Inn-One Home, LLC, 2020 WL 3415627 (D. Vt. June 22, 2020).

Continue Reading Benefits the Insured Promised But Failed to Provide Constitute Non-Covered Restitution

The U.S. Court of Appeals for the Ninth Circuit, applying California law, has held that a fiduciary liability policy potentially provided coverage for a complaint alleging errors in the administration of an employee benefits program.  Erickson-Hall Constr. Co. v. Hartford Fire Ins. Co., 2020 WL 1744338 (9th Cir. Apr. 8, 2020).

Continue Reading Alleged Errors In Employee Benefits Administration Potentially Trigger Fiduciary Liability Policy

A Michigan intermediate appellate court has held that a lawsuit alleging a trustee’s undue influence with inheritance alleged a “negligent act, error or omission” within the meaning of an insuring agreement of an E&O policy.   Hanover Ins. Co. v. Lubienski, 2020 WL 1491781 (Mich. Ct. App. Mar. 24, 2020).

Continue Reading Undue Influence Suit Alleges “Negligent Act, Error or Omission” Under E&O Policy

Applying Texas law, the United States Court of Appeals for the Fifth Circuit has held that a prior knowledge condition did not relieve an insurer of its duty to defend where an underlying complaint made vague allegations of wrongdoing at an indeterminate time.  Allied World Specialty Ins. Co. v. McCathern, P.L.L.C., 2020 WL 933314 (5th Cir. Feb. 26, 2020).  The court found that the vague allegations could be construed to refer to conduct occurring after the date specified in the prior knowledge condition.

Continue Reading Vague Allegations Did Not Trigger Prior Knowledge Condition at Duty-to-Defend Stage

The United States Court of Appeals for the Eleventh Circuit, applying Florida law, has affirmed a ruling that no coverage was available in connection with a criminal investigation where the insured failed to timely report a sealed affidavit that constituted a “claim” under the language of the policy at issue.  Crowley Maritime Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 2019 WL 3294003 (11th Cir. July 23, 2019).

Continue Reading No Coverage for Criminal Investigation Where Claim Was Not Reported During Applicable Notice Period

A Louisiana federal court has held that settlement of a False Claims Act investigation did not trigger the insuring agreement of a bankers professional liability policy because the claim was not made by a third-party client for acts in rendering or failing to render professional services.  Iberiabank Corp. v. Ill. Union Ins. Co., 2019 WL 585288 (E.D. La. Feb. 13, 2019).

Continue Reading False Claims Act Investigation Does not Implicate “Professional Services”

An Ohio federal court has held that attorneys’ fees awarded under a fee-shifting provision contained in the Individuals with Disabilities Education Act (IDEA) do not constitute covered “damages” under an insurance policy.  Wesco Ins. Co. v. Roderick Linton Belfance LLP, 2018 WL 4510093 (N.D. Ohio Sept. 19, 2018).

Continue Reading Attorneys’ Fees Awarded Pursuant to Statute Are Not “Damages”

The United States District Court for the Northern District of Ohio has held that a bodily injury exclusion did not preclude coverage for a wrongful death suit, reasoning that the death did not cause the alleged wrongful conduct and therefore did not “arise out of” it.  Clarendon Nat’l Ins. Co. v. Lexington Ins. Co., 312 F. Supp. 3d 639 (N.D. Ohio 2018).  The court also held that the assault at issue was not “discovered” for purposes of triggering coverage until the underlying claimants learned of the alleged wrongful conduct at issue.

Continue Reading Bodily Injury Exclusion Inapplicable to Wrongful Death Suit

Applying New York law, the Delaware Supreme Court has held that settlement payments that were not conclusively linked to disgorgement damages were insurable under New York public policy.  In re TIAA-CREF Ins. Appeals, 2018 WL 3620873 (Del. July 30, 2018).

Continue Reading Settlement Payments Not Uninsurable Disgorgement Where Not Conclusively Linked To Improperly Acquired Funds