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In a win for Wiley Rein’s client, the United States District Court for the Southern District of Florida, applying Florida law, held that, as a matter of law, a lawsuit against an engineer arising out of three alleged errors in connection with a construction project constituted a single “claim” under the engineer’s claims-made-and-reported architects and engineers policies. Nova Southeastern Univ., Inc. v. Continental Cas. Co., No. 18-CIV-61842-RAR (S.D. Fla. Dec. 27, 2019).  Furthermore, the court held that the policies’ prior knowledge and prior notice provisions separately and independently barred coverage for the lawsuit.
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Continue Reading Lawsuit Arising Out of Three Design Errors is a Single “Claim,” and Prior Knowledge and Prior Notice Provisions Bar Coverage

The United States Court of Appeals for the Eleventh Circuit, applying Florida law, has affirmed a ruling that no coverage was available in connection with a criminal investigation where the insured failed to timely report a sealed affidavit that constituted a “claim” under the language of the policy at issue.  Crowley Maritime Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 2019 WL 3294003 (11th Cir. July 23, 2019).
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Continue Reading No Coverage for Criminal Investigation Where Claim Was Not Reported During Applicable Notice Period

The U.S. District Court for the Middle District of Florida, applying Florida law, held that a directors and officers liability insurance policy did not provide coverage for a claim asserted by a receiver seeking the return of bonus and other compensation amounts paid to a former director and officer of the company because (1) the policy’s profit exclusion applied; and (2) the claw back claim did not arise out of a “Wrongful Act.”  Desai v. Navigators Ins. Co., 2019 WL 3068398 (M.D. Fla. July 12, 2019).
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Continue Reading No Coverage for Receiver’s Claw Back Claim Against D&O Because Profit Exclusion Applied and Claim Did Not Arise Out of a “Wrongful Act”

The United States Court of Appeals for the Eleventh Circuit, applying Florida law, held that the fraud exclusion in a company owner’s D&O policy barred coverage because a Securities & Exchange Commission (SEC) civil action found the owner to have engaged in intentionally fraudulent conduct. Imperato v. Navigators Ins. Co., 2019 WL 2443034 (11th Cir. June 11, 2019).
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Continue Reading Fraud Exclusion Bars Coverage for Insured Found in Violation of Federal Securities Laws

The U.S. Court of Appeals for the Eleventh Circuit, applying Florida law, has held that a securities exclusion in a private company directors and officers insurance policy broadly barred coverage for all claims in an underlying lawsuit brought by former shareholders of an insured company arising out of the sale of their shares.  Colorado Boxed Beef Co., Inc. v. Evanston Ins. Co., No. 19-10326, 2019 WL 2479321 (11th Cir. June 13, 2019).
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Continue Reading Eleventh Circuit Applies Securities Exclusion Broadly

A Florida federal district court has ruled that an invasion of privacy exclusion barred coverage for a lawsuit and consent judgment involving alleged violations of the Telephone Consumer Protection Act (TCPA).  See Horn v. Liberty Ins. Underwriters, Inc., No. 9:18-cv-80762 (S.D. Fla. May 30, 2019).
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Continue Reading Invasion of Privacy Exclusion Bars Coverage for Consent Judgment in TCPA Claim

In a win for Wiley Rein’s client, a New York appellate court has held that a program of asset management liability insurance afforded no coverage for a UK regulatory “Warning Notice” because the notice and a previous notice issued by the same regulator to the same targets arising from the same transaction involved “Related Wrongful Acts” and therefore constituted a single claim first made prior to inception of the relevant policies.  Berkshire Hathaway Specialty Ins. Co. v. H.I.G. Capital, LLC, 2019 WL 2179145 (N.Y. App. Div. May 21, 2019).  In addition, the court held that the policies’ prior notice exclusion applied to bar coverage.
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Continue Reading Regulatory Warning Notices Asserting Damages Based on Same Acquisition Involve “Related Wrongful Acts”

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).
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Continue Reading No Duty to Defend or Indemnify Due to Securities Exclusion

A 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 reasoned that because the hacker’s conduct, not the insured’s omissions, led to the breach, the insured did not make known any private information.  The alleged damages therefore did not “result[] from [the insured’s] business activities” but instead arose from the third-party hacker’s criminal conduct.
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Continue Reading No Personal Injury Coverage for Payment Card Breach Because Damages Resulted from Hacker’s Criminal Conduct, Not Insured’s Data Security Practices

The 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., 2018 WL 4025461 (11th Cir. Aug. 22, 2018).
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Continue Reading Lawsuits Involving a “Continuing Pattern of Anticompetitive Behavior” Constitute Related Claims