The United States District Court for the Western District of Washington, applying Washington law, has held that an insured’s late notice of a claim bars coverage, rejecting arguments that (i) coverage applied because the prior and pending litigation provision did not exclude coverage, (ii) the insurer could not relate a claim back to a prior claim to bar coverage, and (iii) the notice-prejudice rule applied. Faithlife Corp. v. Phila. Indem. Ins. Co., 2020 WL 7385722 (W.D. Wash. Dec. 16, 2020).
Continue Reading No Coverage for Employment Lawsuit Where Insured Failed to Notice Earlier EEOC Charges

The United States District Court for the Western District of Washington, applying Washington law, has held that exclusions for false advertising and trademark infringement in a media liability policy did not bar defense coverage for a claim alleging that Expedia violated the Lanham Act.  Nat’l Union Fire Ins. Co. v. Expedia, Inc., 2020 WL 5893326 (W.D. Wash. Oct. 5, 2020).

Continue Reading Insurer Has Duty to Defend Lanham Act “False Advertising” Claims Despite False Advertising and Trademark Exclusions

The United States Court of Appeals for the Ninth Circuit, applying Washington law, has held that a district court erred in concluding that a demand letter and suit alleging the same wrongful act constituted a “single claim” where the applicable professional liability policy lacked a related claims provision.  Nat’l Union Fire Ins. Co. v. Zillow, Inc., 2020 WL 774366 (9th Cir. Feb. 18, 2020).  The court of appeals declined, however, to find that the absence of a related claims provision resolved the coverage issue and remanded for consideration of extrinsic evidence to determine the parties’ intent.

Continue Reading Ninth Circuit Holds Demand Letter and Suit Alleging Same Wrongful Acts Are Not Necessarily a Single Claim Where Policy Lacks Related Claims Provision

The United States District Court for the Western District of Washington has held that a liability insurer has no duty to defend its insured against a putative class action because the lawsuit involved “Related Wrongful Acts” and therefore constituted a single claim first made prior to the inception of the policy.  Navigators Specialty Ins. Co. v. Double Down Interactive, LLC, 2019 WL 3387458 (W.D. Wash, July 26, 2019).

Continue Reading Interrelated Claims Provision Precludes Coverage for Putative Class Action

The United States District Court for the Western District of Washington, applying Washington law, has held that no Washington state public policy prevents an insurer from enforcing a defense cost recoupment provision.  Massachusetts Bay Ins. Co. v. Walflor Indus., 2019 WL 1651659 (W.D. Wash. Apr. 17, 2019).  The court resolved the issue based on precedent and saw no need to certify the question of the enforceability of such provisions to the Washington Supreme Court as the insured urged.

Continue Reading Defense Cost Recoupment Provisions Enforceable Under Washington Law

A Washington federal district court, applying Washington law, has held that an insurer who issued a public officials and employment practices liability policy to a utility had a duty to defend the insured in an action stemming from damages to a refinery after a power outage, despite the policy’s property damage exclusion.  Indian Harbor Ins. Co. v. City of Tacoma, Wash. Dep’t of Pub. Util., 2018 WL 6304767 (W.D. Wash. Dec. 3, 2018).  The court found that the underlying complaint was ambiguous as to whether the refinery sought any damages other than those for property damage.

Continue Reading Insurer Must Defend Utility in Suit Based on Outage, Despite Exclusion for Property Damage and Resulting Loss of Use

The U.S. Court of Appeals for the Ninth Circuit has held that an exclusion for loss “resulting directly or indirectly from the input of Electronic Data by a natural person having the authority to enter the Insured’s Computer System” barred coverage under a Computer Fraud insuring clause for a business email compromise/fraudulent instruction scheme.  Aqua Star (USA) Corp. v. Travelers Cas. & Sur. Co. of Am., No. 16-35614 (9th Cir. Apr. 17, 2018).

Continue Reading Exclusion Bars Coverage for Fraudulent Instruction Loss when Employee with Authority to Initiate Wire Transfer Enters Fraudulent Account Information

The U.S. District Court for the Eastern District of Washington has held that a statutory notice of intent to sue letter received by an insured prior to a claims-made policy period did not constitute a “claim,” because it was not a “written demand for monetary, non-monetary or injunctive relief.”  Tree Top, Inc. v. Starr Indem. & Liab. Co., 2017 WL 5664718 (E.D. Wash. Nov. 21, 2017).

Continue Reading Washington Court Holds that Statutory Notice of Intent to Sue Letter is Not a “Claim”

A Washington federal court has denied an insurer’s motion for summary judgment regarding coverage under a fidelity bond issued to a now-defunct bank for losses incurred in connection with fraudulently originated loans the bank purchased, resold, and ultimately repurchased pursuant to contractual obligation. The court held that the loan originators were “Employees” under the policy, and the bank’s immediate, initial loss in the amount it paid for the faulty loans was a direct result of the loan originators’ fraud. Federal Deposit Ins. Corp. v. Arch Ins. Co., 2017 WL 5289547 (W.D. Wash. Nov. 13, 2017).

Continue Reading Washington Court Finds Coverage for Fraudulently Originated Loans Repurchased by Now-Defunct Bank

A Washington federal court has held that an insured’s failure to provide notice of a demand letter to its insurer during the policy period in which the letter was received precludes coverage under a claims-made and reported policy for a related lawsuit filed during a subsequent policy period. National Union Fire Ins. Co. v. Zillow, Inc., 2017 WL 1354147 (W.D. Wash. Apr. 13, 2017).

Continue Reading Insured’s Failure to Provide Notice of Demand Letter Precludes Coverage for Related Lawsuit Noticed in Subsequent Policy Period