The United States District Court for the Central District of California, applying Georgia law, has held that a claims-made policy did not provide coverage for an underlying lawsuit where the allegations in that lawsuit were first made in an email received by the insured prior to the start of the policy period.  Peachstate Health Mgmt. v. Chubb Ins. Co., 2020 WL 8184143 (C.D. Cal. Nov. 24, 2020).

Continue Reading No Coverage for Lawsuit Alleging Same Circumstances Asserted in Email Received Prior to Policy Period

A Kentucky federal court has held that an Insured v. Insured (IvI) exclusion that included an assistance exception precluded coverage for an entire lawsuit brought by both insureds and non-insureds and that no allocation was required.  Tarter v. Navigators Ins. Co., 2021 WL 149302 (E.D. Ky. Jan. 15, 2021).

Continue Reading Insured-versus-Insured Exclusion Precludes Coverage For Entire Suit Brought by Insureds and Non-Insureds

There were several important developments impacting private investment funds in 2020.  The SEC continued to prioritize this area of the capital markets, and it issued important rules and guidance impacting private funds and investment advisers.  There also were two important court rulings, one by the United States Supreme Court and one by the Delaware Supreme Court.  This Article summarizes the most important developments in the private fund space – in chronological order.

Continue Reading Private Investment Funds: Major Developments from 2020

The New York Supreme Court, Appellate Division has held that, under New York Insurance Law § 3420(a)(5), an insurer had no duty to defend or indemnify a personal injury action where the insured failed to provide notice of the claim during the policy period or extended reporting period, as required by the claims-made-and-reported policy.  Certain Underwriters at Lloyd’s London Subscribing to Policy No. PGIARK01449-05 v. Advance Transit Co., 2020 WL 6731791 (N.Y. App. Div. Nov. 17, 2020).

Continue Reading New York Insurance Law Does Not Preclude Enforcement of Claims-Made-and-Reported Policy’s Notice Requirements

The United States District Court for the District of North Dakota has held that an insurer had no duty to defend a claim under a lawyers professional liability policy where the insured had prior knowledge that a claim might be made and should have given notice of the potential claim prior to the policy’s effective date. ALPS Prop. & Cas. Ins. Co. v. Brehdal & Assoc., P.C., 2020 WL 6268043 (D.N.D. Oct 23, 2020). The court also held that the insurer was entitled to reimbursement of defense costs where the policy provided such a right, and the insurer reserved its rights to seek such reimbursement.

Continue Reading Prior Knowledge and Prior Notice Exclusions Barred Coverage For Legal Malpractice Claim

The United States Court of Appeals for the Eighth Circuit, applying Arkansas law, has affirmed a ruling in favor of an insurer holding that there was no coverage for a claim made during one policy period but not reported until the following policy period. Pine Bluff Sch. Dist. v. Ace Amer. Ins. Co., 2020 WL 768772 (8th Cir. Dec. 28, 2020). In addition, the court ruled that the doctrines of waiver and estoppel were inapplicable because the claims-made issue went to the scope of coverage, which could not be changed by waiver or estoppel.
Continue Reading No Coverage for Lawsuit That Related Back to Claim Made During Prior Policy Period

Applying California law, the Ninth Circuit held that an excess insurer may challenge the allocation of an underlying settlement that resolves both an underlying claim against an insured and the insured’s coverage dispute with the primary insurer. Scottsdale Ins. Co. v. Certain Underwriters at Lloyds., 2020 WL 7419261 (9th Cir. Dec. 18, 2020). The court further held that a primary insurer is not entitled to equitable contribution from an excess carrier if the excess carrier was not notified of the underlying claim until after the primary insurer denied coverage.
Continue Reading Ninth Circuit Holds that Excess Carrier May Challenge Allocation of Primary Carrier’s Settlement that Resolves Both the Underlying Claim and a Coverage Dispute

The United States District Court for the Western District of Washington, applying Washington law, has held that an insured’s late notice of a claim bars coverage, rejecting arguments that (i) coverage applied because the prior and pending litigation provision did not exclude coverage, (ii) the insurer could not relate a claim back to a prior claim to bar coverage, and (iii) the notice-prejudice rule applied. Faithlife Corp. v. Phila. Indem. Ins. Co., 2020 WL 7385722 (W.D. Wash. Dec. 16, 2020).
Continue Reading No Coverage for Employment Lawsuit Where Insured Failed to Notice Earlier EEOC Charges

Applying New York law, the United States District Court for the Southern District of New York has held that a joint venture between the insured and a capital-contributing partner constituted a “subsidiary” of the insured pursuant to the terms of its D&O policy. Scottsdale Ins. Co. v. McGrath, 2020 WL 7321503 (S.D.N.Y. Dec. 11, 2020).
Continue Reading Joint Venture Qualifies as a ‘Subsidiary’ Where Insured Holds Partial Economic Interest But 100% of Voting Rights

The United States District Court for the Northern District of Ohio, applying Ohio law, has held that coverage for a retaliation claim under a claims-made directors and officers, employment practices, and fiduciary liability insurance policy was not barred by the insured’s failure to disclose a prior False Claims Act investigation on the application. SHH Holdings v. Allied World Specialty Ins. Co., 2020 WL 7385384 (N.D. Ohio Dec. 16, 2020).
Continue Reading Disclosure of False Claims Act Investigation Not Required by Policy Application Questions