The United States District Court for the Southern District of West Virginia, applying West Virginia law, has held that claims against a surgery center arising out of medical procedures performed by a doctor while patients were anesthetized, primarily related to alleged sexual abuse, were “related claims” subject to a single limit of liability pursuant to a sexual misconduct endorsement.  Allied World Surplus Lines Ins. Co. v. Day Surgery Ltd. Liab. Co., 2020 WL 1545881 (S.D. W. Va.) (Mar. 31, 2020).  However, the court held that the surgery center’s excess policy, which did not contain a sexual misconduct endorsement, did not cover claims arising solely out of sexual abuse.
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Continue Reading Claims Arising Out of Alleged Sexual Abuse by Doctor are “Related Claims” Subject to Single Limit of Liability Under Sexual Misconduct Endorsement

The United States District Court for the Eastern District of Pennsylvania, applying Pennsylvania law, has held that an insurer was not entitled to summary judgment voiding a medical malpractice liability policy, finding that triable issues of fact remained about whether an insured could have anticipated litigation stemming from past medical procedures at the time it completed its policy application.  MDAdvantage Ins. Co. of N.J. v. Hasiuk, 2020 WL 1531817 (E.D. Pa. Mar. 31, 2020).
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Continue Reading Issues of Fact Halt Insurer’s Attempt to Rescind Malpractice Policy

Applying New York law, a federal district court has held that an insurer has a duty to defend and provide independent counsel to an insured realtor for claims involving intentional acts and repayment of commissions. Great Am. Ins. Co. v. Houlihan Lawrence, Inc., 2020 WL 1487294 (S.D.N.Y. Mar. 7, 2020).  The court also held that, because the underlying case was still pending, the question of whether the insurer had a duty to indemnify was premature.
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Continue Reading Insurer Required to Defend and Provide Independent Counsel for Potentially Covered Claims

Applying North Carolina law, the United States District Court for the Eastern District of North Carolina has held that an insurer did not breach its D&O policy by denying coverage for (i) a putative class action complaint that did not name the insured company; (ii) a subpoena duces tecum served on the insured in connection with the class action that did not satisfy the policy’s definition of “Claim;” (iii) a settlement that the insured was not required to participate in and to which the insurer did not consent; and (iv) a written indemnification demand implicating the policy’s contractual liability exclusion.  Trialcard Inc. v. Travelers Cas. & Surety Co. of Am., 2020 WL 1609483 (E.D.N.C. Apr. 1, 2020).  The court further held that any “Claim” asserted against the insured would otherwise be barred by the policy’s professional services exclusion.
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Continue Reading Suit Against “Doe” Defendant is Not a “Claim”

A Michigan intermediate appellate court has held that a lawsuit alleging a trustee’s undue influence with inheritance alleged a “negligent act, error or omission” within the meaning of an insuring agreement of an E&O policy.   Hanover Ins. Co. v. Lubienski, 2020 WL 1491781 (Mich. Ct. App. Mar. 24, 2020).
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Continue Reading Undue Influence Suit Alleges “Negligent Act, Error or Omission” Under E&O Policy

An Illinois federal district court has ruled that a technology company’s failure to provide timely notice of a computer outage and related email demand barred coverage for a later-filed lawsuit.  Hartford Fire Ins. Co. v. iNetworks Servs., LLC, 2020 WL 1491139 (N.D. Ill. Mar. 27, 2020).
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Continue Reading Untimely Notice of Server Outage and Related Client Communications Bars Coverage for Claim Filed against Technology Service Provider

The U.S. Court of Appeals for the Sixth Circuit, applying Kentucky law, has held that incarceration is a continuous injury sufficient to trigger a duty to defend in a wrongful conviction lawsuit under law enforcement liability policies in effect during the claimant’s incarceration.  St. Paul Guardian Ins. Co. v. City of Newport, 2020 WL 1514837 (6th Cir. Mar. 30, 2020).
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Continue Reading Incarceration Constitutes Continuous Injury Triggering Duty to Defend

The Wisconsin Court of Appeals has held that a “known loss” provision in an E&O policy barred coverage for a lawsuit filed against an insured because the lawsuit previously was threatened in a cease and desist letter that the insured received almost four years earlier.  Vistelar, LLC v. Cincinnati Specialty Underwriters Ins. Co., 2020 WL 891017 (Wis. Ct. App. Feb. 25, 2020).
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Continue Reading “Known Loss” Provision Bars Coverage for Lawsuit Threatened in Pre-Policy Period Cease and Desist Letter

The Eighth Circuit, applying Missouri law, has held that a law enforcement liability insurer has a duty to defend a county and law enforcement officials in a suit alleging violation of the plaintiff’s Fourth and Fourteenth Amendment rights because charges were first filed against the plaintiff during the policy period, even though the complaint against the insureds included a count for an unlawful seizure that occurred before the policy period.  Argonaut Great Cent. Ins. Co. v. Lincoln Cty., 2020 WL 1264213 (8th Cir. Mar. 17, 2020).  The court also held that neither the policy’s intentional conduct exclusion nor application of Missouri public policy precluded a duty to defend.
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Continue Reading Arrest and Filing of Charges Triggers Wrongful Conviction Defense Coverage

The Fourth Circuit, applying Virginia law, has held that a negligent supervision exclusion in a lawyers’ professional liability policy bars coverage for a lawyer’s mismanagement of trust assets when acting as a trustee.  ALPS Prop. & Cas. Ins. Co. v. Higgerson, 2020 WL 1487836 (4th Cir. Mar. 24, 2020).
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Continue Reading Negligent Services Exclusion Bars Coverage for Lawyer’s Actions as Trustee