Applying New York law, a New York state trial court granted an insurer’s motion for summary judgment where an insured sought coverage under a private company D&O policy for a settlement it had paid for fraudulent filings for state construction projects that were made after the policy’s run-off date.  WDF Inc. v. Zurich Am. Ins. Co., 2020 WL 5801072 (N.Y. Sup. Ct., N.Y. Cnty. Sept. 29, 2020).

Continue Reading Run-Off Endorsement Bars Coverage for “False Filings” Made in Connection with Construction Projects for State Agencies

Applying California law, a federal district court has held that a request for payment of overdue legal fees does not constitute a claim for purposes of a D&O policy. Domokos v. Scottsdale Ins. Co., Case No. 5:20-cv-00366 (N.D. Cal. July 16, 2020). The court also held that the policy’s prior acts, breach of contract, and creditor claims exclusions did not bar coverage.

Continue Reading Pre-Policy Email Demanding Payment of Overdue Legal Fees is Not a Claim

A Texas court of appeals found no coverage under two excess directors and officers liability policies for an appraisal action brought by dissenting shareholders to a merger pursuant to Section 262 of the Delaware General Corporation Law.  Zale Corp. v. Berkley Ins. Co., 2020 WL 4361942 (Tex. Ct. App. July 30, 2020).  The court held that the litigation right created by the appraisal statute turns on the act of executing the merger and not on any “wrongful act” preceding the merger.  Thus, because the merger was consummated after the policy period, there was no “wrongful act” during the policy period sufficient to trigger coverage for the appraisal suits.

Continue Reading Texas Court Holds “Instrumental Act” in Appraisal Litigation is Execution of Merger

The United States District Court for the Southern District of Florida, applying Michigan law, has ruled that an insurer did not owe an attorney and his firm a duty to defend under a professional liability policy because, among other things, the conduct at issue in an underlying action brought by a former client was undertaken in an uninsured capacity for a firm that was neither identified in the insurance application nor named as an insured in the policy. Wesco Ins. Co. v. Repasky, 2020 WL 3129145 (S.D. Fla. June 12, 2020).

Continue Reading No Coverage for Conduct Performed By Attorney In Uninsured Capacity

Applying Texas law, the United States District Court for the Eastern District of Texas granted an insurer’s motion to dismiss where an insured sought fiduciary liability coverage for amounts it paid to defend and indemnify the trustee for the insured company’s Stock Option Plan under an agreement between the two.  Martin Resource Mgmt. Corp. v. Fed. Ins. Corp., No. 6:20-cv-00083, 2020 WL 4550395 (E.D. Tex. Aug. 6, 2020).

Continue Reading Indemnification Demands Made by Stock Option Plan Trustee Not “Fiduciary Claims” for “Wrongful Acts”

The United States District Court for the Southern District of Florida, applying Michigan law, has ruled that an insurer did not owe an attorney and his firm a duty to defend under a professional liability policy because, among other things, the conduct at issue in an underlying action brought by a former client was undertaken in an uninsured capacity for a firm that was neither identified in the insurance application nor named as an insured in the policy. Wesco Ins. Co. v. Repasky, 2020 WL 3129145 (S.D. Fla. June 12, 2020).

Continue Reading No Coverage for Conduct Performed By Attorney In Uninsured Capacity

The United States Court of Appeals for the Ninth Circuit, applying California law, has held that two exclusions in a D&O policy applicable to claims by employees and for Fair Labor Standards Act violations barred coverage for a wage-and-hour class action lawsuit.  U.S. Telepacific Corp. v. U.S. Specialty Ins. Co., 2020 WL 3265238 (9th Cir. June 17, 2020).

Continue Reading EPL Exclusions in D&O Policy Barred Coverage for Wage-and-Hour Class Action

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

The Eastern District of New York, applying New York law, has held that alleged violations of the New York Labor Law (NYLL) and the Fair Labor Standards Act (FLSA) did not constitute covered “Wrongful Acts” as defined by the applicable employment practices liability insurance policy.  Sirob Imports Inc. v. Mount Vernon Fire Ins. Co., 2020 WL 1550587 (E.D.N.Y. Mar. 31, 2020).  However, the court concluded that such allegations were ultimately covered under the policy’s Fair Labor Standards Act Sub-Limit Endorsement because the two statutes were “similar.”

Continue Reading Alleged Violations of Fair Labor Standards Act and New York Labor Law Not “Wrongful Acts” Under Employment Practices Liability Policy

The Indiana Court of Appeals, applying Indiana law, has held that a ransomware attack did not necessarily constitute a “fraudulent” act, and the corresponding loss did not fall within the scope of the computer fraud coverage part of a multi-peril commercial insurance policy.  G&G Oil Co. of Ind. v. Cont’l Western Ins. Co., 2020 WL 1528095 (Ind. Ct. App. Mar. 31, 2020).  The court rejected the argument that the ransomware attack was a fraud because it was an “unconscionable dealing” and instead found that the hacker did not “pervert the truth” or engage in deception in order to induce ransom payment.

Continue Reading No Computer Fraud Coverage for Ransomware Attack