By Nicole Audet Richardson on Posted in Insured v. Insured ExclusionApplying both New York and Nevada law, the United States Court of Appeals for the Second Circuit has held that an insurer correctly denied coverage under its directors and officers liability policy based on the insured v. insured exclusion. Intelligent Digital Sys. L.L.C. et al. v. Beazley Ins. Co., 2017 WL 4127540 (2d Cir. Sept.… Continue Reading
By Emily S. Hart on Posted in Insured v. Insured Exclusion,Wrongful ActThe 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… Continue Reading
By Jessica N. Gallinaro on Posted in Insured v. Insured ExclusionThe Superior Court of New Jersey, Appellate Division, applying New Jersey law, has held that an insured vs. insured exclusion bars coverage under a directors and officers liability policy for counterclaims brought against an officer by the company and fellow officers. Abboud v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 2017 WL 2665133 (N.J.… Continue Reading
By Edward R. Brown on Posted in Bankruptcy,Insured v. Insured ExclusionThe United States Court of Appeals for the Sixth Circuit, applying Michigan law, has held that an insured vs. insured exclusion bars coverage for a claim against an insured company’s former officers assigned during bankruptcy to a liquidating trust. Indian Harbor Ins. Co. v. Zucker, 2017 WL 2641085 (6th Cir. June 20, 2017).… Continue Reading
By Bonnie Thompson on Posted in “Claim”,Insured v. Insured Exclusion,Related Claims and associated exclusionsAn Illinois federal court, applying Illinois law, has held that an insurer who declined to advance defense costs was not estopped from asserting policy defenses in a coverage action later filed by the policyholder corporation. Vita Food Prods., Inc. v. Navigators Ins. Co., 2017 WL 2404981 (N.D. Ill. June 2, 2017). The court also held… Continue Reading
By Alexander Merritt on Posted in Insured v. Insured ExclusionThe United States Court of Appeals for the Ninth Circuit, applying California law, has held that an insured v. insured exclusion in a bank’s insurance policy bars coverage for a claim brought by the Federal Deposit Insurance Corporation (FDIC) in its capacity as a receiver of the insured bank. Hawker v. Doak, 2017 WL 1147131… Continue Reading
By Bonnie Thompson on Posted in Insured v. Insured ExclusionThe Texas Supreme Court has held that the insured-versus-insured exclusion in a D&O policy precludes coverage for a claim asserted by the insured’s fidelity insurer, under an assignment of rights from the insured, against a former director of the insured. The court reversed the holding of the intermediate court of appeals and reinstated the trial… Continue Reading
By Ashley-Anne L. Criss on Posted in Insured v. Insured Exclusion,Public Policy prohibition on insuranceThe United States District Court for the District of Rhode Island, applying Rhode Island law, has held that an insured v. insured exclusion in a directors and officers liability insurance policy does not apply to a court-appointed receiver because the receiver acts as an agent of the court under Rhode Island law, rather than on… Continue Reading
By Emily S. Hart on Posted in Insured v. Insured Exclusion,Regulatory ExclusionThe United States Court of Appeals for the Ninth Circuit, applying California law, has held that an insured v. insured exclusion in a directors and officers policy, which expressly barred coverage for actions brought by a “receiver,” precluded coverage for a claim against a failed bank’s directors and officers by the Federal Deposit Insurance Corporation… Continue Reading
By Karen L. Toto on Posted in Insured v. Insured ExclusionApplying Minnesota law, the United States Court of Appeals for the Eighth Circuit has held that a policy’s insured versus insured exclusion bars coverage for a suit filed against the insured company by a former director and two other shareholders regarding share value. Jerry’s Enterprises, Inc. v. U.S. Specialty Ins. Co., 2017 WL 104468 (8th… Continue Reading
By Laura Lee Miller on Posted in Insured v. Insured ExclusionThe United States Court of Appeals for the Ninth Circuit, applying California law, has held that an insured-versus-insured exclusion was ambiguous where the plaintiff FDIC, in its capacity as receiver, sued the directors and officers of a defunct bank. St. Paul Mercury Ins. Co. v. Federal Deposit Ins. Corp., 2016 WL 6092400 (9th Cir. Oct.… Continue Reading
By Matthew W. Beato on Posted in Insured v. Insured Exclusion,Personal Profit/Advantage exclusionA federal appellate court, applying Utah law, has held that an insured v. insured exclusion did not preclude a duty to defend where one insured entity had changed its name and disaffiliated from the other insured entity. Church Mut. Ins. Co. v. Ma’afu, 2016 WL 3997212 (10th Cir. July 21, 2016). The court also held… Continue Reading
By Emily S. Hart on Posted in Insured v. Insured ExclusionThe New York Supreme Court, Appellate Division, applying New York law, has held that a duty to defend was not precluded by the terms of an Insured v. Insured exclusion because the exclusion did not state whether an employee, like the plaintiff in the underlying action, constituted an “insured” for purposes of applying the exclusion.… Continue Reading
By Nicole Audet Richardson on Posted in Allocation,Collusion,Insured v. Insured ExclusionA Delaware trial court has affirmed its ruling that an Insured v. Insured exclusion does not apply to a shareholder derivative demand brought by a director of the company because the demand constitutes a single Claim with an earlier demand made by the same individual before he became a director. Ameritrans Capital Corp. v. XL… Continue Reading
By Jessica N. Gallinaro on Posted in Insured v. Insured ExclusionApplying Arizona law, the United States Court of Appeals for the Ninth Circuit has affirmed the dismissal of a coverage action brought by an insured on the grounds that the insured failed to demonstrate the applicability of an exception to the Insured v. Insured exclusion in a D&O liability policy. AMERCO v. National Union Fire… Continue Reading
By Matthew W. Beato on Posted in Insured v. Insured ExclusionA Michigan federal court has held that an insured v. insured exclusion barred coverage for a claim asserted by a liquidation trust against the insured debtor’s former officers and directors. Indian Harbor Ins. Co. v. Zucker, 2016 WL 1253040 (W.D. Mich. Mar. 31, 2016).… Continue Reading
By Jessica N. Gallinaro on Posted in Insured v. Insured ExclusionThe District Court of Appeal of Florida has held that an insured v. insured exclusion barred coverage for an action brought by a former director of the insured company against the company’s CEO. Durant v. James, 2016 WL 1295100 (Fla. Dist. Ct. App. Apr. 4, 2016).… Continue Reading
By Frederick H. Schutt on Posted in Insured v. Insured ExclusionApplying Louisiana law, the United States Court of Appeals for the Fifth Circuit has reversed a summary judgment ruling in favor of an insurer, holding that a CGL policy’s insured v. insured exclusion does not apply where the suit between the insureds was for indemnification, and not for property damage. Kinsale Ins. Co. v. Georgia-Pacific,… Continue Reading
By Parker J. Lavin on Posted in Insured v. Insured Exclusion,Related Claims and associated exclusionsA New York intermediate appellate court, applying New York law, has held that a shareholder class action complaint concerning the price of a merger and a bankruptcy adversary proceeding against an insured’s directors and officers concerning the same merger are separate claims. Am. Cas. Co. of Reading, Pa. v. Gelb, 2015 WL 3497863 (N.Y. App.… Continue Reading
By Nicole Audet Richardson on Posted in Bad faith/duty to settle,Insured v. Insured ExclusionApplying Oregon law that allows bad faith tort claims “only if the insurer is subject to a standard of care that is independent of the insurance policy itself,” an Oregon federal court has granted summary judgment to an insurer, holding that there was no special relationship between the insurer and the insured where the insurer… Continue Reading
By Frederick H. Schutt on Posted in Insured v. Insured Exclusion,LossApplying Iowa law, a federal district court has held that neither a D&O policy’s “insured v. insured” exclusion nor its “investment loss carve-out” provision barred coverage for an action brought by a receiver against a bank’s former directors and officers for losses resulting from the purchase of high-risk securities. Progressive Cas. Ins. Co. v. FDIC,… Continue Reading
By Edward R. Brown on Posted in Insured v. Insured ExclusionA Texas intermediate appellate court has ruled that an insured v. insured exclusion in an E&O policy did not bar coverage for a claim made by an insured condominium association’s assignee against its former treasurer. Primo v. Great Am. Ins. Co., 2014 WL 7237330 (Tex. Ct. App. Dec. 18, 2014).… Continue Reading
By Executive Summary on Posted in Insured v. Insured ExclusionAn Illinois federal court has rejected an insured’s argument that an “insured v. insured” exclusion bars coverage only where the underlying suit is “collusive.” Travelers Cas. & Sur. Co. v. Bernhardt, 2014 WL 5461871 (N.D. Ill. Sept. 30, 2014). … Continue Reading
By Executive Summary on Posted in Insured v. Insured ExclusionApplying Montana law, the Montana Supreme Court has held that an insurer breached its duty to defend where the insurer was on notice that a policy was “potentially implicated” and “unjustifiably” refused to provide a defense. Tidyman’s Mgmt. Svcs. Inc. v. Davis, 2014 WL 3778481 (Mont. Aug. 1, 2014). In so doing, the court declined… Continue Reading
