Applying Florida law, a federal district court has held that an insurer owed no duty to defend or indemnify its individual insureds because an exclusion for claims arising from the purchase or sale of securities barred coverage. Colorado Boxed Beef Co. v. Evanston Ins. Co., 2019 WL 77376 (M. D. Fla. Jan. 2, 2018).… Continue Reading
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No Personal Injury Coverage for Payment Card Breach Because Damages Resulted from Hacker’s Criminal Conduct, Not Insured’s Data Security Practices
Posted in Cyber Policies and Issues, Professional ServicesA Florida federal district court has ruled that a claim asserting that an insured’s negligent data security practices led to a payment card breach did not trigger personal injury coverage under a CGL policy. See St. Paul Fire & Marine Ins. Co. v. Rosen Millennium, Inc., No. 6:17-cv-540-Orl-41GJK (M.D. Fla. Sept. 28, 2018). The court… Continue Reading
Lawsuits Involving a “Continuing Pattern of Anticompetitive Behavior” Constitute Related Claims
Posted in Related Claims and associated exclusions, Wrongful ActThe United States Court of Appeals for the Eleventh Circuit, applying Florida law, has affirmed a district court’s holding that multiple lawsuits filed against the insured over a fifteen-year period involving a “continuing pattern of anticompetitive behavior” constitute claims “related logically, causally or in any other way.” Health First, Inc. v. Capitol Specialty Ins. Corp.,… Continue Reading
No Coverage for Criminal Investigation Where Sealed Affidavit Identifying Insured as Target of Investigation Was Not Reported During Policy Period
Posted in “Claim”, Notice of ClaimThe United States District Court for the Middle District of Florida has held that an errors and omissions policy does not provide coverage for a criminal investigation of an insured individual where the affidavit identifying the individual as a target of the investigation was not unsealed or reported to the insurer until after the policy’s… Continue Reading
Eleventh Circuit Holds Prior Acts Exclusion Does Not Apply to Claim by FDIC Against Failed Bank
Posted in Related Claims and associated exclusions, Wrongful ActThe U.S. Court of Appeals for the Eleventh Circuit has held that a prior acts exclusion in a directors and officers liability policy does not bar coverage for a lawsuit brought by the Federal Deposit Insurance Corporation (FDIC) against a failed bank, because the wrongful acts at issue occurred after the prior acts date and… Continue Reading
No Indemnification for Insured’s “Restitutionary In Nature” Settlement Payments, Even Without Admission of Guilt or a Final Adjudication
Posted in Loss, Personal Profit/Advantage exclusion, Public Policy prohibition on insuranceThe United States District Court for the Southern District of Florida has denied an insured’s request for indemnity from its insurer for the amount owed under a settlement agreement with the state of Florida over grand theft charges against the insured. The court held that, under Florida law, the settlement does not constitute covered “Loss”… Continue Reading
Eleventh Circuit Affirms that Eleven Claims Arising Out Of Negligently Repackaging Two Drugs Are “Related Claims”
Posted in Related Claims and associated exclusionsIn a win for an insurer represented by Wiley Rein, the United States Court of Appeals for the Eleventh Circuit, applying Florida law, has held that eleven claims by patients against a pharmacy and pharmacist for negligently repackaging two preservative-free drugs for injections by the same doctor to treat the same condition constituted “related claims.” … Continue Reading
Prior Knowledge Exclusion Bars Coverage for Claim Against Insured Attorney
Posted in Prior Knowledge/Warranty ExclusionApplying Florida law, a federal district court has held that a prior knowledge exclusion bars coverage for a claim against an insured attorney where the attorney knew, prior to applying for the policy, that he had failed to meet his client’s expectations for the representation. David R. Farbstein, P.A. v. Westport Ins. Co., 2017 WL… Continue Reading
Eleventh Circuit Affirms Dismissal Where Professional Services Exclusion Unambiguously Created Joint, Not Several, Obligations
Posted in Professional ServicesThe United States Court of Appeals for the Eleventh Circuit has affirmed the dismissal of a breach of contract and bad faith case against two insurers based on the policies’ professional services exclusion, finding that the exclusion clearly created joint, not several, obligations. Stettin v. National Union Fire Ins. Co. of Pittsburgh, Pa., 2017 WL… Continue Reading
Prior Acts Exclusion Bars Coverage for Claims Arising Out of Actions Predating Policy
Posted in UncategorizedThe United States Court of Appeals for the Eleventh Circuit, applying Florida law, has held that a prior acts exclusion barred coverage under a directors and officers liability policy for claims brought against insured persons for alleged fraudulent transfers, even though the transfers occurred within the policy period. Zucker v. U.S. Specialty Ins. Co., 2017… Continue Reading
Allegations Concerning Wage Fixing in Violation of the Sherman Act Do Not Fall Within Professional Liability Coverage for “Counseling” Services
Posted in Dishonesty Exclusion, Personal Profit/Advantage exclusion, Professional ServicesApplying Colorado law, the United States District Court for the District of Colorado has held that allegations of collusion to fix wages in violation of the Sherman Antitrust Act do not fall within the scope of professional liability coverage for “counseling” services because “counseling” does not include an alleged agreement to fix wages. Colony Ins.… Continue Reading
Florida Statute Does Not Estop Insurer from Denying Reimbursement of Pre-Tender Defense Costs
Posted in Consent to settle/incur defense costs, Defense CostsThe United States Court of Appeals for the Eleventh Circuit, applying Florida law, has held that a thirty-day statutory deadline to deny coverage did not apply to an insurer’s refusal to reimburse the insured for its pre-tender defense costs because this refusal did not constitute a “coverage defense” within the meaning of the statute. Embroidme.com,… Continue Reading
Eleven Claims Arising Out of Negligently Repackaging Two Drugs Are “Related Claims”
Posted in Related Claims and associated exclusionsIn a win for an insurer represented by Wiley Rein, the United States District Court for the Southern District of Florida, applying Florida law, has held that eleven claims by patients against a pharmacy and pharmacist for negligently repackaging two preservative-free drugs for injections by the same doctor to treat the same condition constituted “related… Continue Reading
Quality of Services Exclusion Bars Coverage for Online Auction Service’s Alleged Misrepresentations About Its Reliability
Posted in Cyber Policies and IssuesIn another win for an insurer represented by Wiley Rein, the United States District Court for the Middle District of Florida, applying New Jersey and Florida law, has held that the quality of services exclusion in a technology errors and omissions policy barred coverage for a claim that the insured negligently misrepresented the safety and… Continue Reading
Insured’s Settlement Without Regard to Reasonableness Rendered Consent Judgment Unenforceable Against Insurer that Breached Duty to Defend
Posted in Bad faith/duty to settle, Consent to settle/incur defense costsThe United States Court of Appeals for the Eleventh Circuit, applying Florida law, has held that an insurer’s breach of the duty to defend did not render it liable for a consent judgment where the insured did not consider the reasonableness of the settlement amount. Sidman v. Travelers Cas. & Sur., 2016 WL 6803034 (11th… Continue Reading
Statutory Request for Insurance Information Is Not a Claim
Posted in “Claim”The United States District Court for the Middle District of Florida, applying Florida law, has held that a professional liability insurer was not obligated to contribute to defense costs where it received a letter during its policy period requesting insurance information pursuant to Florida statute, and a lawsuit regarding the incident discussed in the letter… Continue Reading
Related Claims Provision Does Not Conflict with Prior and Pending Litigation Exclusion
Posted in Related Claims and associated exclusionsA Florida federal court has held that a set of claims must be deemed first made at the time of the first such related claim in 2008, prior to the relevant policy period, notwithstanding the fact that a prior and pending litigation exclusion in the policies only excluded coverage for lawsuits brought prior to 2003.… Continue Reading
No Double Recovery Under Policy for Amounts Paid by Contractual Indemnitor
Posted in SubrogationThe United States Court of Appeals for the Eleventh Circuit, applying Florida law, has held that an insurer did not breach its duty to defend or indemnify an insured where the insured’s defense and settlement costs were paid by its contractual indemnitor. MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 2016 WL 3553212 (11th Cir.… Continue Reading
Court Limits Discovery in Absence of Bad Faith Claim
Posted in Discovery IssuesThe United States District Court for the Middle District of Florida, applying federal law, has denied a motion to compel an insurer to produce its claims file, underwriting file, and claims handling protocols in coverage litigation, holding that such documents are not relevant in the absence of bad faith allegations. Koster v. Landmark Am. Ins.… Continue Reading
Insured v. Insured Exclusion Bars Coverage for Former Director’s Action Against CEO
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
Dentist’s Alleged Sexual Misconduct Not Covered Under EPL Policy
Posted in Consent to settle/incur defense costs, Notice of Claim, Public Policy prohibition on insurance, Wrongful ActIn a victory for Wiley Rein’s client, a Florida federal court has held that an employment practices liability policy that provided coverage for “harassment” did not cover a licensing action arising out of a dentist’s alleged sexual misconduct. Turbyfill v. Scottsdale Indem. Co., No. 3:14-cv-283 (N.D. Fla. Feb. 24, 2016). The court also noted that… Continue Reading
Podcast: What Insurers Should Know About Bad Faith Claims in Florida
Posted in “Claim”, Bad faith/duty to settle“The most troubling claims of bad faith in Florida tend to involve allegations that the insurer failed to settle a claim against its insured when a reasonably prudent insurer who was acting in the best interest of the insured would have done so,” Charlie Lemley, partner in Wiley Rein’s Insurance Practice. I recently had the opportunity… Continue Reading