In answering a certified question from the Ninth Circuit, the Arizona Supreme Court has held that, where the policy contains no duty to defend, the objective reasonableness of an insurer’s decision to withhold consent to settlement is judged from the perspective of the insurer.  Apollo Education Group, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2021 WL 710224 (Ariz. Feb. 17, 2021).

Continue Reading Where Policy Contains no Duty to Defend, Reasonableness of Insurer’s Decision to Withhold Consent to Settlement Judged from Insurer’s Perspective

Applying Arizona law, the United States District Court for the District of Arizona held that an insurer that breached its duty to defend bears the burden of demonstrating that an allocation of defense costs between covered and non-covered claims is possible. Tapestry on Cent. Condo. Ass’n. v. Liberty Ins. Underwriters Inc., 2020 WL 4607248 (D. Ariz. Aug. 11. 2020).

Continue Reading Insurer that Breached Duty to Defend Bears Burden on Allocation of Defense Costs

An Arizona federal district court has held that an insurer is entitled to an award of approximately $1.1 million in attorneys’ fees incurred in successful coverage litigation with an insured.  11333, Inc. v. Certain Underwriters at Lloyd’s, London, 2018 WL 1570236 (D. Ariz. Mar. 30, 2018).

Continue Reading Insurer Entitled to Coverage Litigation Attorneys’ Fees Under Arizona Statute

Applying Arizona and New York law, an Arizona trial court has held that a claims-made-and-reported policy unambiguously does not apply where the insured failed to notify the insurer of a claim before the policy’s reporting deadline.  Southwest Energy Systems LLC v. Underwriters at Lloyd’s, London, Case No. 2017-015010 (Ariz. Super. Ct., Maricopa Cnty. Mar. 15, 2018).  Wiley Rein represented the insurer in this case.

Continue Reading Unambiguous Claims-Made-and-Reported Professional Liability Policy Bars Coverage for Late Noticed Claim

In a win for Wiley Rein’s client, the United States Court of Appeals for the Ninth Circuit, applying Arizona law, has held no indemnity coverage was available under an accountants E&O policy because the insured was not providing “professional services” when soliciting an investment in an entity in which the accountant held a personal stake. Continental Cas. Co. v. Evans, 2017 WL 1457031 (9th Cir. Apr. 25, 2017).

Continue Reading No Coverage for Accountant’s Solicitation of Investment in Entity He Partially Owned

The United States District Court for the District of Arizona, applying Arizona law, has held that the “other insurance” clauses in two policies are not “mutually repugnant” to enable the primary insurer to receive equitable contribution from an excess insurer where the “other insurance” clause in the primary policy stated that the clause does not apply if the other policy is written to apply as excess insurance.  Admiral Ins. Co. v. Community Ins. Group SPC Ltd., 2016 WL 6873345 (D. Ariz. Nov. 22, 2016).

Continue Reading “Other Insurance” Clause Does Not Create Right to Equitable Contribution Against Excess Policy

The United States District Court for the District of Arizona has held that mere reference to a “pyramid scheme” in a prior lawsuit is insufficient to warrant judgment on the pleadings regarding the relatedness of a later claim alleging a pyramid scheme. Hanover Ins. Co. v. Vemma Int’l Holdings, Inc., 2016 WL 4059606 (D. Ariz. July 29, 2016). The court also held that the possibility of reputational and financial harm to an insured individual is sufficient to demonstrate irreparable harm for the purposes of seeking a preliminary injunction for advancement of defense costs.
Continue Reading Fact Issues Regarding “Relatedness of Claims” Preclude Motion for Judgment on the Pleadings

Applying Arizona law, a federal district court has held that an insurance brokerage firm’s failure to disclose past investigations by the Department of Insurance in response to a specific question on its professional liability insurance application warranted rescission of its policy. Admiral Ins. Co. v. AZ Air Time, LLC, No. CV-15-00245-PHX-SRB (D. Ariz. Aug. 10, 2016).
Continue Reading Rescission Warranted When Policyholder Failed to Disclose Past Department of Insurance Investigations in Application

Applying 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 Insurance Co. of Pittsburgh, PA, 2016 WL 3157301 (9th Cir. Jun. 6, 2016).
Continue Reading Insured Failed to Show Claim Fell Within Exception to Insured v. Insured Exclusion

In one of the first cases directly addressing the scope of coverage under a cyber insurance policy, an Arizona federal district court has dismissed an insured’s complaint seeking coverage for amounts paid to its credit card processor for assessments resulting from a data breach. P.F. Chang’s China Bistro, Inc. v. Fed. Ins. Co., No. 2:15-CV-01322-SMM (D. Ariz. May 31, 2016).
Continue Reading Cyber Policy Does Not Cover Indemnification Payments to Credit Card Processor After Data Breach