By Margaret Thomas on Posted in Excess insurance/exhaustionThe United States Court of Appeals for the Ninth Circuit has held that a New York choice of law provision in a policy issued by an international insurer is enforceable and that, under either New York or California law, an excess policy was not triggered when the underlying policy limits were not exhausted through payments… Continue Reading
By Danielle Barondess on Posted in RescissionThe United States District Court for the Southern District of New York, applying New York law, has held that an insurer was entitled to rescind a lawyers professional liability policy because the insured law firm made a material misrepresentation in its application. Travelers Cas. & Surety Co. of Am. v. Gold, Schollar, Moshan, PLLC, 2018… Continue Reading
By Ashley E. Eiler on Posted in Notice of Potential Claim (Timeliness)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,… Continue Reading
By Edward R. Brown on Posted in Loss,Professional ServicesA New York federal district court, applying New York law, has held that the sending of unsolicited text message advertisements in violation of the Telephone Consumer Protection Act (TCPA) triggered professional services coverage under a Miscellaneous Professional Liability (MPL) policy. Illinois Union Ins. Co. v. US Bus Charter & Limo, Inc., 2018 WL 1193464 (E.D.N.Y.… Continue Reading
By Nathan Lovett on Posted in “Claim”,Notice of ClaimThe United States District Court for the Southern District of Mississippi has held that notice of an underlying accident sent to the insured’s three insurance carriers represented a timely “claim” under the claims-made general liability policies at issue in light of the insurers’ course of conduct upon receipt of the notice. Jordan v. Maxfield &… Continue Reading
By Jason P. Cronic on Posted in Corporate ConsiderationsA New York trial court has rejected a “disclosure-only” settlement in a shareholder class action, determining that the disclosures were not sufficiently beneficial to the class to support the settlement or the related plaintiffs’ fee award. City Trading Fund v. Nye, Index No. 651668/2014 (Sup. Ct. NY County Feb. 8, 2018).… Continue Reading
By Ashley-Anne L. Criss on 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
By Nicole Audet Richardson on Posted in Insured v. Insured ExclusionApplying both New York and Nevada law, the United States Court of Appeals for the Second Circuit has held that an insurer correctly denied coverage under its directors and officers liability policy based on the insured v. insured exclusion. Intelligent Digital Sys. L.L.C. et al. v. Beazley Ins. Co., 2017 WL 4127540 (2d Cir. Sept.… Continue Reading
By Ashley-Anne L. Criss on Posted in “Claim”,Personal Profit/Advantage exclusionA New York state trial court, applying New York law, has held that a fee arrangement exclusion contained in a professional liability insurance policy precludes coverage for claims arising from an insured’s force-placed insurance business. QBE Americas, Inc. v. Ace Am. Ins. Co., 2017 WL 4122651 (Sup. Ct., N.Y. County Sept. 18, 2017). The court… Continue Reading
By Matthew W. Beato on Posted in “Claim”The United States District Court for the Southern District of New York has held that subpoenas and a formal investigative order issued by the U.S. Securities & Exchange Commission (“SEC”) constituted “Claims” as defined under a D&O policy. Patriarch Partners LLC v. AXIS Ins. Co., 2017 WL 4233078 (S.D.N.Y. Sept. 22, 2017).… Continue Reading
By Stewart Day on Posted in Cyber Policies and IssuesThe United States District Court for the Southern District of New York, applying New York law, has held that a cloud-based service provider’s loss resulting from fraudulent wire instructions is covered under a computer fraud and funds transfer fraud policy because the fraudulent email changed data in the provider’s computer system despite use of a… Continue Reading
By Karen L. Toto on Posted in Consent to settle/incur defense costsApplying New York law, a New York intermediate appellate court has held that insurers’ unreasonable delay in addressing an insured’s claim and their repeated insistence that several policy provisions barred coverage for the claim alleviated the insured’s obligation to seek the insurers’ consent to settle. J.P. Morgan Securities Inc. v. Vigilant Ins. Co., 2017 WL… Continue Reading
By Matthew W. Beato on Posted in Coverage Litigation - Declaratory Judgment ActionsJudge Martin Glenn of the U.S. Bankruptcy Court for the Southern District of New York has held that a Bermuda insurer must post a bond pursuant to N.Y. Ins. Law § 1213 after it filed a motion to compel arbitration. MF Global Holdings Ltd. v. Allied World Assur. Co., Ltd., 2017 WL 2533353 (Bankr. S.D.N.Y.… Continue Reading
By Ashley-Anne L. Criss on Posted in RescissionIn a win for Wiley Rein’s client, the Second Circuit has upheld a judgment declaring an accountants professional liability policy to be void ab initio based on material misrepresentations in the insured’s application for coverage. Continental Cas. Co. v. Boughton, 2017 WL 2416902 (2d Cir. June 5, 2017). The appellate court held that (1) the… Continue Reading
By Bonnie Thompson on Posted in Loss,Personal Profit/Advantage exclusion,Prior Knowledge/Warranty ExclusionA New York trial court, applying New York law, has held that a $140 million disgorgement payment by an insured broker-dealer to the U.S. Securities and Exchange Commission constitutes insurable loss, based on evidence that the payment did not disgorge the insured’s ill-gotten gains, but rather those of its customers. J.P. Morgan Secs. Inc. v.… Continue Reading
By Bonnie Thompson on Posted in Consent to settle/incur defense costsThe United States District Court for the Southern District of New York, applying New York law, has held that two judgment creditors of an insured were not entitled to insurance policy proceeds where the insured had breached the terms of the policy by allowing a default judgment to be entered against it. XL Specialty Ins.… Continue Reading
By Jessica N. Gallinaro on Posted in UncategorizedThe New York Supreme Court, Appellate Division, applying New York law, has held that no coverage was available under a lawyer’s professional liability policy for a counterclaim filed against the insured because of an exclusion barring coverage for claims arising out of the insured’s services and/or capacity as an officer, director, partner, or employee of… Continue Reading
By Edward R. Brown on Posted in UncategorizedA New York intermediate appellate court has held that an exclusion “for any employment-related Wrongful Act” unambiguously barred coverage under a D&O policy for a claim against a director for failure to pay wages and earned vacation benefits. Hansard v. Federal Ins. Co., 2017 WL 424688 (N.Y. App. Div. Feb. 1, 2017).… Continue Reading
By Bonnie Thompson on Posted in LossA New York state intermediate appeals court has affirmed a lower court’s holding that statutory damages paid as part of a settlement of a Fair Credit Reporting Act (FCRA) suit are covered compensatory damages, rather than non-covered penalties under the relevant errors and omissions liability policy. Navigators Ins. Co. v. Sterling Infosystems, Inc., 2016 WL… Continue Reading
By Edward R. Brown on Posted in RescissionThe United States Court of Appeals for the Third Circuit, applying New York law, has held that an insurer was entitled to rescind a policy based on an insured’s omission of prior loss data on an insurance application. H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., 2017 WL 108006 (3d Cir. Jan. 11, 2017).… Continue Reading
By Nicole Audet Richardson on Posted in “Claim”,Notice of Claim,Prior Knowledge/Warranty ExclusionA New York federal court has held that an architecture firm is not entitled to coverage under a claims-made professional liability policy because the insured had a reasonable expectation of liability prior to the policy’s inception date. University of Pittsburgh v. Lexington Ins. Co., 2016 WL 7174667 (S.D.N.Y. Dec. 8, 2016).… Continue Reading
By Alexander Merritt on Posted in Defense Costs,Loss,Public Policy prohibition on insuranceApplying New York and Delaware law, the Superior Court of Delaware has held that a retirement benefits provider’s settlement of three class actions seeking payment of alleged profits did not constitute disgorgement and was insurable under the provider’s professional liability policies. TIAA-CREF Individual & Institutional Servs. LLC v. Illinois Nat’l Ins. Co., 2016 WL 6534271… Continue Reading
By Karen L. Toto on Posted in Discovery IssuesApplying New York law, a federal district court in New York has held that market underwriters in a syndicate insurance program need not produce potentially responsive claim materials where such production is burdensome and duplicative of documents already produced by the lead underwriter on the program. Certain Underwriters of Lloyd’s v. National Railroad Passenger Corp.,… Continue Reading
By Jennifer A. Williams on Posted in LossThe United States District Court for the Eastern District of New York, applying New York law, has held that a consent judgment accompanied by a covenant not to execute by the claimant was covered “Loss” under a D&O insurance policy where there was no waiver of the right to pursue the insurer. Intelligent Digital Systems,… Continue Reading
