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The United States District Court for the Eastern District of Louisiana, applying Louisiana law, has allowed an insured’s claim against a third party adjuster (TPA) to survive a motion to dismiss, where the insured’s principal support for the claim was its alleged “belief” that the contract between the insurer and the TPA (which defendants declined to provide to the insured) contained a provision stipulating that the contract was for the benefit of insureds.  Hammerman & Gainer, LLC v. Lexington Ins. Co., 2019 WL 2603637 (E.D. La. June 25, 2019).
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Continue Reading Court Lets Insured’s Third-Party Beneficiary Claim Proceed Against Adjuster With Which It Had No Contract

The United States District Court for the Middle District of Florida has ruled regarding the discoverability of a broad array of documents sought by an insurer in a declaratory judgment action concerning application of a prior knowledge condition.  Berkley Assurance Co. v. Expert Grp. Int’l Inc., 2017 WL 4574599 (M.D. Fla. Oct. 13, 2017).  The court’s order included mixed rulings on seven of the insurer’s requests for production (RFPs) and one interrogatory.
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Continue Reading Federal Court Limits Information Discoverable by Insurer Concerning Insured’s Prior Knowledge

A Pennsylvania federal district court, evaluating the recent amendments to the Federal Rules of Civil Procedure regarding proportionality in discovery, has held that an insured that seeks to discover extrinsic evidence regarding interpretation of an insurance policy must: (1) point to specific language in the policy itself that is genuinely ambiguous (or that extrinsic evidence is likely to render ambiguous); and (2) show that the requested extrinsic evidence is also likely to resolve the ambiguity without imposing unreasonable expense. Westfield Ins. Co. v. Icon Legacy Custom Modular Homes, 2017 WL 2021514 (M.D. Pa. May 12, 2017).
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Continue Reading Court Applies 2015 “Proportionality” Amendments to Federal Rules to Preclude Insured’s Discovery into Extrinsic Evidence Regarding Insurance Policy

Applying New York law, a federal district court in New York has held that market underwriters in a syndicate insurance program need not produce potentially responsive claim materials where such production is burdensome and duplicative of documents already produced by the lead underwriter on the program.  Certain Underwriters of Lloyd’s v. National Railroad Passenger Corp., 2016 WL 7017356 (E.D.N.Y. Nov. 30, 2016).
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Continue Reading Lead Underwriter’s Document Production Limits Scope of Following Market’s Production

In a favorable ruling for a Wiley Rein client, a Tennessee federal court has rejected an insured’s motion to compel documents and interrogatory responses relating to reserves, reinsurance communications, claims and underwriting manuals, and other claims against other insureds.  First Horizon Nat’l Corp. v. Houston Cas. Co., 2016 WL 5869580 (W.D. Tenn. Oct. 5, 2016).  Wiley Rein represents the primary carrier.
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Continue Reading Documents Relating to Other Insureds, Reserves, Reinsurance Communications, Claims Handling and Underwriting Manuals Not Discoverable

In a win for a Wiley Rein client, the United States District Court for the Southern District of California, applying California law, has held that an insured is required to reimburse his insurer for defense costs incurred for a non-covered claim where the insurer properly reserved its right to recoupment. Columbia Cas. Co. v. Abdou, 2016 WL 4417711 (S.D. Cal. Aug. 18, 2016).…
Continue Reading Insured Required to Reimburse Defense Costs Paid by Insurer for Non-Covered Claim

Applying California law, a federal district court has held that an insured is not entitled to discovery of information in its insurer’s claims-handling file that post-dated the filing of coverage litigation. Genesis Ins. Co. v. Magma Design Automation, Inc., 2016 WL 3057375 (N.D. Cal. May 31, 2016).…
Continue Reading Insurer Not Required to Produce Post-Litigation Claim File Documents

The United States District Court for the Middle District of Florida, applying federal law, has denied a motion to compel an insurer to produce its claims file, underwriting file, and claims handling protocols in coverage litigation, holding that such documents are not relevant in the absence of bad faith allegations. Koster v. Landmark Am. Ins. Co., 2016 WL 3014605 (M.D. Fla. May 20, 2016). The court further held that, while information about why the insurer denied coverage is relevant and discoverable, information about what steps the insurer took to arrive at that decision is not relevant in the absence of a bad faith claim and is therefore not discoverable.…
Continue Reading Court Limits Discovery in Absence of Bad Faith Claim

The United States District Court for the Western District of Pennsylvania ruled that, under federal rules of civil procedure regarding discovery, an insurer is obligated to produce in coverage litigation underwriting files relating to policies issued to other policyholders. H. J. Heinz Co. v. Starr Surplus Lines Ins. Co., 2015 WL 5781295 (W.D. Pa. Oct. 1, 2015).…
Continue Reading Insurer Obligated to Produce Underwriting Files Relating to Policies Issued to Other Policyholders

The United States Court of Appeals for the Tenth Circuit has held that an attorney may be sanctioned under Rule 37 of the Federal Rules of Civil Procedure for failing to disclose a client’s D&O policy that potentially covered securities-related claims asserted against the  client. Sun River Energy, Inc. v. Nelson, 2015 WL 5131947 (10th Cir. Sept. 2, 2015).…
Continue Reading Attorney Sanctioned for Failure to Disclose Client’s D&O Insurance Policy