The United States District Court for the District of Kansas, applying Kansas law, has held that an excess E&O insurer was required to advance defense costs where coverage under a potentially responsive D&O policy had not yet been resolved and no other coverage was available.  Bedivere Ins. Co. v. Blue Cross & Blue Shield of Kansas, Inc., 2019 WL 5819612 (D. Kan. Sept. 30, 2020).

Continue Reading Excess E&O Insurer Must Reimburse Defense Expenses Pending Resolution of Insured’s Coverage Dispute with Primary D&O Insurer

Applying New York law, the United States District Court for the Southern District of New York has held that an EPL insurer need not reimburse a CGL insurer for a settlement and defense costs incurred in connection with two lawsuits alleging sexual harassment, discrimination, and assault, concluding that the policy’s criminal act exclusion barred coverage because the suits both arose from alleged sexual assault.  Hamilton Specialty Ins. Co. v. Kinsale Ins. Co., 2020 WL 1876358 (S.D.N.Y Apr. 15, 2020).

Continue Reading Criminal Act Exclusion Bars EPL Coverage for Sexual Harassment, Discrimination, and Assault Suits

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

On a certified question from the U.S. District Court for the Northern District of Georgia, the Supreme Court of Georgia has held that the traditional rule of pro rata allocation of coverage applied when two policies’ “other insurance” provisions conflict, regardless of the fact that one of the coverages was from a state-regulated insurance program.  Nat’l Cas. Co. v. Ga. Sch. Bds. Ass’n-Risk Mgmt. Fund, 2018 WL 3850936 (Ga. Aug. 14, 2018).

Continue Reading Georgia Court Reaffirms Longstanding Rule on Conflicting “Other Insurance” Provisions

The United States Court of Appeals for the Tenth Circuit, applying New Mexico law, has held that a sub-contractor’s insurer had a duty to defend and indemnify a general contractor named as an additional insured in a wrongful death suit and that the sub-contractor’s insurance policy was primary to the general contractor’s own policy.  First Mercury Ins. Co. v. Cincinnati Ins. Co., 882 F.3d 1289 (10th Cir. Feb. 26, 2018).

Continue Reading In Suit Against General Contractor, Sub-Contractor’s Policy Provides Primary Coverage Over General Contractor’s Own Policy

A federal court in South Carolina has held that an insurer breached its contract with its insured by not paying the full policy limits even though its policy included an “other insurance” clause and there was another insurance policy that potentially covered the same loss.  Michelin North America, Inc. v. Federal Ins. Co., No 6:17-1599 (Nov. 7, 2017).  In so holding, the court noted that the dispute between the two insurers (only one of which was a party to the case), as to the appropriate proration of the insured’s loss has “no impact” on the insured’s right to fully recover under the one insurer’s policy.

Continue Reading Insurer Obligated to Pay Full Policy Limits on Loss Despite Potentially Concurrent Policies With Competing “Other Insurance” Clauses

A New Jersey federal court has held that, following a statutory merger under New Jersey law, the surviving entity acquired the target entity’s rights under its directors and officers liability insurance policy by operation of law and was entitled to reimbursement for post-merger defense costs incurred in defending the target entity’s directors in shareholder class actions.  BCB Bancorp, Inc. v. Progressive Cas. Ins. Co., 2017 WL 4155235 (D. N.J. Sept. 18, 2017).

Continue Reading Following New Jersey Statutory Merger, Surviving Entity Acquires All Rights and Obligations Under Target Entity’s Insurance Policy

Giving a major win to several religiously-affiliated health care systems, the United States Supreme Court unanimously held on June 5 that pension plans maintained by certain church-associated organizations qualify as ERISA-exempt “church plans,” whether or not a church first established the plans. Advocate Health Care Network v. Stapleton, No. 16-74 (June 5, 2017). Plaintiffs around the country have alleged that pension plans for employees of several hospitals were not exempt “church plans” because the statutory definition requires that such plans be “established and maintained . . . by a church.” ERISA was amended to state that a plan “established and maintained . . . by a church” includes a plan maintained by a so-called “principal-purpose organization” controlled by or associated with a church which has as its principal purpose the administration or funding of the plan. The court interpreted this amendment to mean that plans maintained by such “principal-purpose organizations” are exempt from ERISA even if the plans were not originally established by a church.

Continue Reading U.S. Supreme Court: ERISA “Church Plan” Exception Applies to Any Benefit Plan Maintained by Certain Church-Associated Organizations