THE YEAR IN REVIEW Insurance Coverage Cases by Region

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1 THE YEAR IN REVIEW Presented by: Michael Aylward Morrison, Mahoney & Miller Boston, MA Joanne Blackburn Forsberg & Umlauf Seattle, WA David Kendall Kendall Freeman London, England Mary Gogoel Hudgins Law Firm Alexandria, VA Neil Rambin Sedgwick, Detert, Moran & Arnold Dallas, TX Todd Roberts Ropers, Majeski, Kohn & Bentley Redwood City, CA

2 Page 2 UNITED STATES ALABAMA Quality Cas. Ins. Co. v. Ruben, 2006 Ala. Civ. App. LEXIS 192 (April 14, 2006) Alabama Court of Appeals considers scope of Section of the Alabama Code which prevents recovery under an insurance policy if the application contains misrepresentations, omissions, or concealments of facts that are either fraudulent, or material to the acceptance of risks or to the hazard assumed by the insurer, or are such that but for them, the insurer, acting in good faith, would not have issued the policy. Relying on Alpha Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938 (Ala. 1999), in which the Alabama Supreme Court held, without apparent qualification, that Section applies only to initial insurance policies and the applications for those policies. Accordingly, Quality Casualty was not entitled to be relieved from providing insurance coverage under an automobile insurance policy where the insured had falsely identified his son as an infrequent user of an automobile in the initial application, but where the accident at issue occurred during a renewal period. Lemuel v. Admiral Ins. Co., 414 F.Supp. 2d 1037 (M.D. Ala. 2006) Admiral, the primary insurer, sought a declaration that it was not obligated to defend or indemnify the insured for any portion of a $5 million default judgment obtained by plaintiff in the underlying lawsuit. Excess insurer likewise sought a declaration that there was no coverage under its policy because of lack of notice. Court held that the insured s five month delay in notifying Admiral of the lawsuit was unexcused and, therefore, unreasonable as matter of law since it breached the policy condition that required notification as soon as practicable and immediately. Court also found that the sixteen-month delay in notifying the excess insurer was also unreasonable and prejudicial since the delay prevented the excess insurer from participating in the insured s defense. Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So. 2d 1006 ( Ala. 2005) Alabama Supreme Court rules that allegations that a bank converted a customer s property by improperly seizing inventory and assets in which the bank held a security interest did not constitute an occurrence. ARIZONA State Farm Mut. Auto. Ins. Co. v. Conolly (May 3, 2006) 132 P.3d 1197; 2006 Ariz. App. LEXIS 61 Decedent's sister's claim for negligent infliction of emotional distress arising from the decedent's death in a car accident that the sister witnesses was not subject to the

3 Page 3 same "each person" policy limits as her parents' wrongful death claim, and therefore she was entitled to recover from the insurer on her claim. Progressive Classic Ins. Co. v. Blaud (April 11, 2006) 132 P.3d 298; 2006 Ariz. App. LEXIS 51; 475 Ariz. Adv. Rep. 17 Trial court erred in finding that insured motorcyclist satisfied physical contact requirements of Uninsured Motorist Act (UMA), Ariz. Rev. Stat (M), as a matter of law because he had to show contact with an unidentified vehicle or corroborate his version of tire tread accident; and satisfying UMA did not entitle him to UM coverage ARKANSAS Crisler v. Unum Ins. Co. of America, 2006 Ark. LEXIS 302 (Ark. 2006) The Arkansas Supreme Court held that the trial court erred in finding that decedent s death was not an accidental bodily injury, as the policy exclusion for death caused by bodily infirmity or disease did not apply to death caused by anaphylactic shock resulting from an allergic reaction to a drug. Decedent s death qualified as an accident, meaning happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected, because from the objective perspective of the average purchaser of insurance, the probability of death resulting from injection of an antibiotic is an unexpected occurrence that is very much outside the usual course of things. Low v. Ins. Co. of North America, 2005 Ark. LEXIS 772 (Ark. Dec. 15, 2005) Ark. Code Ann. Section provides that, in a tort suit, a plaintiff has a direct cause of action against the insurer where there is liability insurance carried by the cooperative non-profit corporation or organization defendant. Arkansas Supreme Court interprets the not subject to suit for tort language in the direct action statute as synonymous with a charitable organization s immunity from tort liability. To the extent their prior decisions made a distinction between immunity from liability and immunity from suit in the context of the charitable immunity doctrine, those decisions were specifically overruled. Ferrell v. West Bend Mutual Ins. Co., 393 F.3d 786 (8th Cir. 2005). A group of farmers sued a manufacturer of an agricultural protective product for damage caused to the farmers tomato crop. The farmers obtained a judgment and proceeded to sue the manufacturer s general liability insurer for indemnity. The Eighth Circuit initially noted that the fact that the claim was set forth as an action for breach of contract did not preclude the court s finding of an occurrence. The court held that the tomato crop suffered property damage within policy, and that said damage could be

4 Page 4 measured by lost profit or diminished gross receipts. The court further found an occurrence, observing that the damage to the plants was accidental, occurring as a result of continuous exposure to the same harmful conditions: blight, over watering, and under watering. CALIFORNIA Pilimai v. Farmers Ins. Exchange (July 13, 2006) 2006 Cal. LEXIS 8363 Uninsured motorist arbitration was a contractual arbitration within the meaning of Code Civ. Proc., 998, and an insurer that refused a settlement demand was subject to the cost-shifting provisions of 998 after the arbitrator found that the insured was entitled to recover damages in an amount that exceeded the insured's settlement offer. Essex Ins. Co. v. Five Star Dye House, Inc. (July 6, 2006) 2006 Cal. LEXIS 8229 Where an insured assigned his claim for bad faith breach of the duty to defend, the assignee could assert a right to recover Brandt attorney fees incurred in prosecuting the assigned claim because the assignee stood in the shoes of the insured and sought to recover the monetary value of wrongfully withheld policy benefits, not personal interests. RLI Ins. Co. v. CNA Casualty of California (July 7, 2006) 2006 Cal. App. LEXIS 1044 An excess insurer could not maintain a subrogation action against the primary insurer, based on an unreasonable refusal to settle the underlying tort claim, where the underlying tort claim did not go to trial, and no excess judgment was entered against the insured. Safeco Ins. Co. of America v. Superior Court (June 22, 2006) 140 Cal. App. 4th 874 Where a nonparticipating coinsurer's duty to defend was undisputed and the settlements reached by settling insurers in underlying actions were by law presumptively reasonable, the nonparticipating coinsurer had the burden of proving the absence of actual coverage. CDM Investors v. Travelers Casualty & Surety Co. (May 26, 2006) 139 Cal. App. 4th 1251 Nothing in the central insuring clause of umbrella policy purported to expand insurer's indemnification obligation beyond "damages"; therefore, the insurer was entitled to demurrer in insureds' action seeking coverage for costs to respond to an

5 Page 5 order of the state water quality control board to test their commercial real property leased to tenants. North American Building Maintenance, Inc. v. Fireman's Fund Ins. Co. (March 9, 2006) 137 Cal. App. 4th 627 Under a commercial general liability policy, an insurer had a duty to defend its insured, a janitorial services contractor, against a claim that it falsely imprisoned a subcontractor's employees. Exclusion for liability arising from employment-related practices, interpreted under Civ. Code, 1636, 1638, did not apply to subcontractor's employees. Julian v. Hartford Underwriters Insurance Co., 35 Cal.4th 747, 27 Cal.Rptr.3d 648 (Cal. 2005). Insureds sought coverage for damage caused to their home by a landslide precipitated by rainfall. The insurer denied coverage under an exclusion precluding coverage when weather conditions (rain) interact with an excluded peril (landslide) to cause the loss. The insured argued that the insurer s position violated the efficient proximate cause doctrine, which provides that where a loss is caused by a combination of a covered and specifically excluded risks, the loss is covered if the covered risk was the main of the loss, but not where it was only a remote cause of the loss. The court held that an exclusion for a loss caused by weather conditions that "contributed in any way" with earth movement must be reasonably construed to bar coverage for a loss caused by rain that induced a landslide. Mirpad v. California Insurance Guarantee Association, 132 Cal.App.4th 1058, 34 Cal.Rptr.3d 136 (Cal. 2005) The insured property management company was sued for wrongful eviction by its corporate tenant. The insurer's policy covered claims for wrongful eviction from property occupied by a "person". The insured argued that the term person should be construed to include an entity recognized as such under the law, including a corporation. Construing the term "person" in the context of the policy as a whole, the court held that the wrongful eviction or wrongful entry provision of the personal injury section only provided protection to the insured when the claimant is a natural person, not a corporation or organization. West Coast Life Ins. Co. v. Ward, 132 Cal.App.4th 181, 33 Cal.Rptr.3d 319 (Cal. 2005) In applying for life insurance, the decedent failed to disclose that she was covered under three other policies. Upon her death, her widower applied for benefits whereupon the insurer discovered the omission and denied the claim. The insurer argued that it would not have issued the policy had it known of the existence of the

6 Page 6 other policies, as this would have caused its underwriting limits to be surpassed. Court held that the decedent s failure to disclose the other policies was material and rejected the argument the decedent s disclosure of a given policy was sufficient notice of other undisclosed policies. Garamendi v. Mission Insurance Co., 131 Cal.App.4th 30, 31 Cal.Rptr.3d 395 (Cal. 2005). The successor to the insured corporation was sued in an environmental clean-up action. The insured's second-level excess insurer became insolvent, whereupon successor made a claim to the insurance commissioner. The insurance commissioner denied the claim on the grounds that, because there were allegedly two separate "occurrences", the insurer's policy limit did not attach. Observing that the second-layer insurer's policy attached after exhaustion of the aggregate limits regardless of the number of occurrences, the court determined that the $1.5 million threshold had been reached and that the insurance commissioner was liable for the second-level excess insurer's obligation. Powerine Oil v. Superior Court, 37 Cal. 4th 377 (Cal. 2005) The insured, a defunct oil refinery, faced liability for certain governmentally imposed cleanup and abatement orders requiring it to remediate soil and groundwater pollution resulting from its past refinery operations at various locations. Local agencies brought administrative proceedings for site remediation. Examining policy language for expenses and ultimate net loss, the court held that the insurer s coverage obligation was not limited to money ordered by a court, but rather extended to costs expended to comply with state pollution cleanup and abatement orders. County of San Diego v. Ace Property & Cas. Ins. Co., 37 Cal. 4th 406, 118 P.3d 607 (Cal. 2005) Decided on the same day as Powerine Oil, supra, Supreme Court holds that insurer s umbrella policy did not cover administrative clean-up orders. In contrast to the policies at issue in Powerine, the subject policy defined ultimate net loss as the sum or sums which the insured shall become legally obligated to pay in settlement or satisfaction of claims, suits or judgments, including all expenses from the investigation, negotiation and settlement of claims and shall include legal costs. The court held that this constituted excess liability coverage over and above the insured s self-insured retention. As a result, the insurer had no coverage obligation. Rombe Corp. v. Allied Ins. Co., 128 Cal.App.4th 482, (Cal. 2005) Insured sued for breach of contract, misappropriation of trade secrets and unfair competition based upon the insured s personal solicitations of the plaintiff s customers at a breakfast meeting. Insured argues that he was advertising to specific market

7 Page 7 segments within the definition of advertisement. Court observes that advertising and solicitation are distinct concepts. Advertising to a specific market segments only meant that, instead of advertising to the general public, coverage would extend to advertisements to a defined market such as medical professionals, racing car enthusiasts or horse breeders, etc. Either way, the insured must have engaged in a relatively wide dissemination of its advertisements even if the distribution was focused on recipients with particular characteristics or interests. Lockheed Corp. v. Continental Ins. Co., 134 Cal. App.4th 187, 35 Cal. Rptr.3d 799 (Cal. 2005). Environmental clean-up action was brought against insured airplane manufacturer, whereupon it was determined that the insured was responsible for soil and groundwater contamination at various sites. Summary judgment for the insurer is affirmed based on: (1) administrative proceedings brought by the state and federal government did not constitute any claim, suit or action covered under the policy; (2) polices which covered accidents did not cover claims arising from gradual or deliberate contamination; (3) insured failed to show that any palpable contamination caused by sudden and accidental releases over and above that caused by excluded sources; and (4) pollution damage to real property is not a personal injury under a general liability policy. Scottsdale Ins. Co. v. MV Transportation, 36 Cal. 4th 643, 115 P.3d 460 (Cal. July 25, 2005) Insurer defended a third-party action against the insured under a reservation of rights which included a reservation for reimbursement of fees in defending against uncovered claims. The underlying action settled and the action brought an action for declaratory and further sought reimbursement. The court held that so long as an insurer properly reserves its rights, it may obtain reimbursement if it shows that there was no potential for coverage. Indeed, the court held that the an insurer s action may be predicated on case law indicating a lack of coverage which was published after its initial denial. Emerald Bay Community Ass n. v. Golden Eagle Insurance Corp. (2005) 130 Cal.App.4th Policyholder has no bad faith or breach of contract action against an insurer who refuses to defend when the policyholder is defended by a second insurer. In connection with the duty to defend, an insurer has no duty to prosecute affirmative cross-complaints to protect the interests of the policyholder. Root v. American Equity Specialty Insurance Co. (2005) 130 Cal.App.4th 926

8 Page 8 The requirement under a legal malpractice policy that a claim be made and reported during the policy period may be equitably excused if it works as a forfeiture, especially when the insured only learns of the possible claim days before the policy expires and has little opportunity to investigate. Scottsdale Insurance Co. v. State Farm Mutual Automobile Insurance Co. (2005) 130 Cal.App.4th 890 In order for employee to be an insured, and therefore barred from coverage under an automobile policy, (which precluded coverage for injuries to an insured) the employee would actually have to be sitting behind the steering wheel and operating the truck rather than simply using the truck at the time. In this case, the employee was merely on a cherry picker attached to the truck when injured. Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540 An insurer who has paid a homeowner for water damage claims is entitled, as a matter of right, to intervene in the policyholder s claim against the general contractor on the insurer s subrogation claim. Travelers Cas. And Sur. Co. v. Employers Ins. Of Wausau (2005) 130 Cal.App.4th 99 Products-completed operations coverage applied to a manufacturer of latex backing for carpets when the failure occurred away from the premises of the policyholder and after the backing had left the control of the policyholder. Bullard v. California State Automobile Association (2005) 129 Cal.App.4th 211 Under a new two-year statute of limitations for uninsured motorist claims, claims already barred (lapsed) under the old one-year statute of limitations, are not revived by the new statute. In other words, the new statute is not retroactive. Romano v. Mercury Insurance Co. (2005) 128 Cal.App.4th 1333 For purposes of deciding whether a motorist is uninsured, it is sufficient to show that the motorist s carrier is substantially insolvent, even though not technically declared insolvent by the Department of Insurance. Catholic Mutual Relief Society v. Superior Court (2005) 128 Cal.App.4th 879 In sexual abuse cases, plaintiff is not allowed to discover information concerning the financial condition of defendant s insurers. Review granted by Supreme Court to determine the propriety of discovery of information concerning the financial condition of reinsurers.

9 Page 9 Third Eye Blind, Inc. v. Near North Entertainment Insurance Services, LLC (2005) 127 Cal.App.4th 1311 Even though an insurer was ultimately held to its duty to defend (because numerous policy exclusions were found to be ambiguous), the insurer could still maintain an action against the broker for negligent failure to procure the right kind of insurance so as to avoid the whole problem. Garamendi v. Golden Eagle Insurance Co. (2005) 127 Cal.App.4th 480 Silica produced by an insured s sandblasting operations comes within the pollution exclusion, barring coverage and barring a duty to defend. Mitchell v. United Nat l Ins. Co. (2005) 127 Cal.App.4th 457 In a standard fire policy, even though the policy language itself (as required by Ins. Code 2071) indicates that willful misrepresentations will void coverage, the insurer is entitled to rescind the policy under Ins. Code 331 and 352 even if the misrepresentations of the insured in the application are negligent or unintentional. Insurer also has no independent duty to verify the accuracy of the material set forth by the insured in the application. Travelers Casualty and Surety Co. v. Superior Court (2005) 126 Cal.App.4th 1131 In complicated coordinated sexual abuse cases involving the Catholic Church, insurers and plaintiffs, a settlement judge had no authority to issue valuation orders setting settlement and jury values purporting to constitute an actual trial, thereby allowing the Church to settle cases or direct actions to be filed against insurance companies, and precluding the insurance companies from arguing that the insured had forfeited coverage by settling cases. All the documents associated with mediation are privileged and cannot be used in any other forum (such as coverage litigation or bad faith litigation). Carmel Development Co. v. RLI Insurance Co. (2005) 126 Cal.App.4th 502 In a complicated construction/bodily injury claim where the general contractor had available to it two excess policies, one of the excess policies settled and then sought equitable contribution from the other policy, which had not contributed to the settlement. The court of appeal reversed the trial court s order requiring equitable contribution from the non-settling carrier because the two excess policies were not identical and dealt with different levels of coverage so equitable contribution was not in order.

10 Page 10 American Casualty Co. v. General Star Indemnity Co. (2005) 125 Cal.App.4th 1510 Additional insured and indemnity clauses are to be construed separately; so an additional insured clause secured by a subcontractor in favor of the general contractor protected the general contractor, even though the general contractor was solely negligent. Daun v. USAA Casualty Insurance Co. (2005) 125 Cal.App.4th 599 A police officer driving a motorcycle owned by the City and furnished to the police officer was entitled to underinsured motorist coverage, even though there was an exclusion in the policy precluding coverage when the named insured was operating a land motor vehicle with less than four wheels. Lundquist v. Continental Casualty Co., 94 F.Supp.2d 1230 (C.D. Cal. 2005) U.S. District Court holds that when ERISA insurer is both funder and administrator, this creates a conflict of interest and changes the standard of review from abuse of discretion to de novo review. Green v. Sun Life Assurance Co. (2005) 383 F.Supp.2d 1224 When a policy does not unambiguously confer discretion on the insurer to grant or deny coverage and the insurer denies an ERISA claim denies for total disability benefits, the standard of review to be applied by the district court in reviewing the decision is de novo review, not abuse of discretion. PMI Mortgage Insurance Co. v. American International Specialty Lines Insurance Co.394 F.3d 761 (9th Cir. 2005) A mortgage insurer that bought coverage for its professional services exposure was entitled to coverage when the insured engaged in a kick-back scheme with the lenders, charging the lenders less premiums in return for customer referrals, which resulted in more money having to be paid by the borrowers who filed claims against the insurer. COLORADO Friedland v. The Travelers Indemnity Co., 105 P.3d 639 (Colo. 2005) In its earlier decision in 2001, the Colorado Supreme Court had held that the notice/prejudice applied in the context of uninsured motorists policies. In Friedland, the court adopted the rule as to all commercial general liability policies. The insured was a former officer of a bankrupt mining company, which was subject to an environmental

11 Page 11 cleanup action. The insured failed to notify the insurer of the environmental action until after the insured had defended and settled the case. The court held that this delay was unreasonable as a matter of law and resulted in a rebuttable presumption of prejudice against the insurer. Kaercher v. Sater (June 29, 2006) 2006 Colo. App. LEXIS 1014 Court did not err in concluding that because automobile insurer complied with Colo. Rev. Stat by offering and providing maximum UM/UIM coverage required by statute, agent had no common law duty to offer insured higher UM/UIM coverage consistent with insured's liability coverage and insurer was entitled to judgment as matter of law. Dicocco v. Nat'l Gen. Ins. Co. (May 18, 2006) 2006 Colo. App. LEXIS 698 Insured's suit against his auto insurer was properly dismissed as unripe; under Colo. Rev. Stat (3) (repealed), insurer was excess insurer for purposes of claim for PIP benefits, as insured's car was not involved in accident where car struck insured while he was walking, and he did not show that excess policy was likely to be reached. Loar v. State Farm Mut. Auto. Ins. Co. (April 6, 2006) 2006 Colo. App. LEXIS 478 Summary judgment was improperly granted to an insurer in a dispute over UM/UIM motorist coverage because the one-time duty to inform insureds about the potential for increased coverage applied even when only the minimum liability coverage was selected; however, enhanced limits were not available unless liability limits were raised. Nationwide Mut. Ins. Co. v. Mrs. Condies Salad Co., Inc. (March 9, 2006) 2006 Colo. App. LEXIS 292 Grant of summary judgment in favor of an insured was affirmed; although the insured had misrepresented the ownership of a truck on a business auto policy, the misrepresentation regarding the ownership was not material in that the liability provisions of the policy covered any auto regardless of ownership. Snipes v. Am. Family Mut. Ins. Co. (March 9, 2006) 2006 Colo. App. LEXIS 287 Where insurer reformed its policy pursuant to former (2)(a) of former Auto Accident Reparations Act (No-Fault Act), Colo. Rev. Stat et seq., to offer limits of $200,000, insured was not entitled to more than the $ 200,000 aggregate limit because the original policy the insured had purchased unambiguously limited PIP coverage.

12 Page 12 Usick v. Am. Family Mut. Ins. Co. (January 26, 2006) 131 P.3d 1195; In an insurance coverage dispute between an insured and her insurer, insured's preexisting condition was not covered because Colo. Rev. Stat (1)(a)(II) did not proscribe exclusion of particular preexisting condition and policy's exclusion from treatment for endometriosis did not dilute statutory coverage or violate public policy. CONNECTICUT Hartford Cas. Ins. Co. v. Litchfield Mut. Cas. Ins. Co., 876 A.2d 1139 (Conn. 2005) The Connecticut Supreme Court rules that the commercial property insurer is required to provide coverage for a dog bite incident that occurred on the insured s premises, rejecting the commercial property insurer s contention that it could look to extrinsic facts in determining whether it had a duty to defend. The court instead adopted the homeowner insurer s argument that the duty to defend is based solely on the underlying complaint and will arise in any cases where the facts alleged even possibly fall within the scope of coverage (although the court observed that insurers could not ignore extrinsic facts that might lend support to the insured s claim for coverage). Having found that insurer breached its duty to defend, the court held that it was estopped from disputing its duty to indemnify and was therefore required to reimburse the homeowner insurer for the sums that it had paid to settle claims on behalf of their mutual insured. Hutchinson v. Farm Family Mut. Ins. Co., 273 Conn. 33, 867 A.2d 1 (Conn. 2005) Insured alleges insurer wrongfully applied a deduction regarding their underinsured motorist benefits. Insured propounded discovery-seeking communications between the insured and its attorneys. Connecticut Supreme Court holds that more than a mere allegation of bad faith is required to warrant an in camera review of privileged communications between an insurer and its attorneys. The court ruled that mere need and relevance are not enough and that the party seeking to overcome a claim of privilege must show through means other than the disputed documents themselves that the insurer put the privilege at issue or that the communications were undertaken for the purpose of committing or concealing a crime or civil fraud. R.T. Vanderbilt Co. v. Continental Cas. Co., 870 A.2d 1048 (Conn. 2005) The insured chemical manufacturer received a potentially responsible party (PRP) letter from the EPA, indicating a potential CERCLA claim. The insured s general liability insurer denied coverage on the grounds that the PRP letter did not constitute a suit within the meaning of the policy and did not give rise to a duty to defend the administrative action. Connecticut Supreme Court disagreed, holding that, because a

13 Page 13 PRP letter constitutes an attempt to recover under CERCLA, it was a notice of claim of the type covered under the policy. The court concluded that a governmental clean-up demand letter would reasonably be viewed as a suit triggering an insurer s duty to defend when considered in the overall context of dictionary definitions and the pertinent environmental statutes. DELAWARE Eames Nationwide Mut. Ins. Co., 412 F.Supp.2d 431 (D.Del.) (February 2, 2006). Although an insurance policy is construed against the insurer under Delaware law, this rule does not apply unless there is some ambiguity in the policy language. Plaintiffs filed a proposed class action seeking a declaratory judgment that the auto insurer had misrepresented the limits of liability for personal injury protection in its policies. Finding the provisions regarding the PIP coverage unambiguous, the court granted insurer s motion to dismiss. Harleyville Insurance Co. v. Church Insurance Co. 892 A.2d 356 (Del.Supr.)(November 16, 2005) A property manager was an additional insured under a landowner's CGL policy. When the manager and the landowner were sued in a personal injury action, the insurers for both defended the action. The insurer for the property manager subsequently argued that landowner s insurer had the primary duty to defend the manager. The Court found that the landowner's insurer did owe a duty to defend the manager, but that the manager's liability insurer knowingly waived the right to a defense from the landowner s insurer, so that it was not entitled to reimbursement of defense costs. DISTRICT OF COLUMBIA Burlington Insurance Co. v. Okie Doke, Inc. 368 F.Supp.2d 83 (May 2, 2005) CGL insurer, who filed an action against the insured and its insurance broker for negligent misrepresentation in the insurance application, was not required to produce underwriting and claim guidelines for policies issued to other nightclubs, as these documents were found to be irrelevant to whether or not insurer would have issued the policy without the alleged misrepresentation. Martinez v. Hartford Casualty Ins. Co. 429 F.Supp.2d 52 (D.D.C.)(April 06, 2006) Under District of Columbia law, contractual provisions limiting the period within which insurance policyholders may validly initiate a lawsuit are generally enforceable. In an action by an insured for breach of contract and bad faith failure to pay a fire loss,

14 Page 14 the insurer was not estopped from invoking the limitations period, where it failed to call attention to the to the limitations period in its dealings with the insured. FLORIDA Nova Cas. Co. v. Waserstein, 424 F. Supp.2d 1325 (S.D. Fla. 2006) Where policy defines pollutants as an irritant or contaminant, court should determine whether disputed substance is alleged to have had a particular effect commonly thought of as irritation or contamination. Plaintiffs alleged that living organisms, microbial population, microbial contaminants and indoor allergens traveled from surfaces in the building, through the air, and came in contact with the plaintiffs, thereby causing physical injury, sickness, disease and/or physical handicap. Court makes an Erie guess that the Florida Supreme Court would find that plaintiffs complaints fit the ordinary definition of a contaminant and that such had a contaminating effect. Taurus Holdings, Inc. v. USF&G, 913 So.2d 528 (Fla. 2005) Florida Supreme Court holds that various nuisance suits against a gun manufacturer fell outside the scope of a general liability policy that excluded coverage for losses occurring away from the insured s premises and arising out of the insured s product. The court rejected the insured s contention that the products exclusion did not apply to allegations in the underlying suit that the insured had been negligent in its marketing, advertising and distribution of its products, holding that the phrase arising out of should be given a broad meaning. Court held that the exclusion was not limited to claims based upon a defect in the insured s product but rather extended to all injuries that originated from the insured s product including, in this case, the discharge of its manufactured guns. 2006) Pozzi Window Co. v. Auto-Owners Ins. Co., No (11th Cir. April 19, Manufacturer of windows sought coverage as additional insured under policy issued to a subcontractor., Eleventh Circuit certifies question to the Florida Supreme based on split among Florida appellate decisions as to whether a general liability policy that included coverage for claims within the products/completed operations hazard would cover a general contractor s liability to a third party for the cost of repairing or replacing defective work by its subcontractor.

15 Page 15 RAD Source Technologies, Inc. v. Colonial National Insurance Company, 914 So. 2d 1006 (Fla. 2005) Insured shipped a blood irradiation machine to a university, but machine was damaged in transit. University sued the insured. The court held that the product exclusion in the insurer s general liability policy did not preclude coverage for losses arising out of the damage that occurred while the irradiation unit was being shipped. As the university had not alleged that the irradiator was defectively manufactured or that a defect in the machine caused the damage, or arose out of the insured s product or some part of it, the exclusion did not apply. Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317 (11th Cir. 2005) The Eleventh Circuit ruled that a sexual misconduct exclusion did not preclude coverage for an assault and battery suffered by the plaintiff before being raped. While agreeing that the victim s rape was clearly excluded, the court ruled the court found that other criminal acts, including battery, abduction and kidnapping were not sufficiently connected to the sexual acts as to arise out of sexual misconduct. Applying Florida s concurrent causation doctrine, the Eleventh Circuit concluded that where two crimes combine to cause a loss, the loss is covered even if one of the causes is excluded from coverage. Court also found that separate assaults committed by the perpetrator involved more than one occurrence and therefore triggered the $2 million aggregate limit in the insured s general liability policy. IDAHO Greenough v. Farm Bureau Mutual Insurance, 130 P.3d 1127 (Idaho February 27, 2006) Greenough Sr. was killed when thrown from a vehicle owned by Hotchkiss in a single-car rollover accident. Hotchkiss said he and Greenough had picked up a hitchhiker, and the hitchhiker was driving because Hotchkiss and Greenough Sr. were both drunk. Initial information indicated Greenough Sr. may have been driving. Greenough Jr. sent a letter demanding $50,000 for underinsured coverage on his father s policy with defendant. Farm Bureau asked Jr. to complete a proof of loss. Jr. sent another letter demanding payment and including affidavits from indicating that Hotchkiss subsequently admitted he had been driving that night. Farm Bureau again asked for a proof of loss, and months later Jr. provided one. Arbitration was held on the issue of whether Greenough Sr. was the driver. After the UM award was issued, the District Court awarded prejudgment interest from the date of the accident, and Farm Bureau appealed. The Court remanded the case for a determination of when Greenough Jr. provided sufficient information for Farm Bureau to have a reasonable opportunity to investigate and determine its liability. This was not necessarily the date Greenough Jr. submitted his sworn proof of loss form.

16 Page 16 Purvis v. Progressive Casualty Ins. Co., 127 P.3d 116 (Idaho December 20, 2005) Purvis rented a car from Thrifty Car Rental. The next day he gave his daughter permission to drive it, although she had not been authorized by Thrifty to drive. Progressive, liability insurer of Purvis, refuses to defend the suit resulting from accident caused by daughter because she is not an insured driver and the rental vehicle was not an insured auto. Court holds that Progressive s policy was an Owner s policy that satisfied the minimum coverage required in Idaho and was not ambiguous. It covered Purvis driving his own car or a substitute vehicle, while Purvis was driving any vehicle (unless excluded) and anyone else driving the Toyota or a substitute vehicle with Purvis s express permission. The rental car was not a substitute vehicle because the Toyota was not withdrawn from use because of breakdown, repair or loss or destruction as required by the policy Lloyd s of London v. Wolleson, 141 Idaho 740, 118 P.3d 72 (June 20, 2005) Wolleson s business administered fertilizers and pesticides to agricultural properties. After notifying Lloyd s of a potential claim, Lloyd s stated that it had no duty to defend or pay any sums on behalf of the insured. Lloyd s filed a declaratory judgment action. The trial court determine the insurance contract was illusory, so Lloyd s had a duty to defend, but denied the request for attorneys fees. The issue on appeal was whether Wolleson was entitled to attorneys fees under IC The Court found that Wolleson was not entitled to fees under this statute because Lloyd s never refused to pay an amount justly due. Wolleson was aware of a potential claim of approximately $6,000, and had submitted a proof of loss, but no suit had been brought against Wolleson. The Court further noted that the declaratory judgment action was premature, but no motion to dismiss was filed on this basis. ILLINOIS Country Mutual Insurance Company v. Livorsi Marine, No (Ill May 18, 2006) The Illinois Supreme Court has ruled that in cases where an insured s notice is unreasonably late, an insurer has no obligation to prove prejudice. The Court ruled that prejudice is one of several factors to consider in determining whether the delay was unreasonable, along with the policy wording; the relative sophistication of the insured; the insured s awareness of the event that may trigger coverage; and the insured s diligence in ascertaining whether coverage is available. The Supreme Court expressly rejected the Appellate Court s 1998 opinion in Rice, which had suggested that Illinois might adopt a notice/prejudice standard. Even though Country Mutual had conceded that it could not possibly prove prejudice, the Court held that the insured s two-year delay in giving notice was plainly unreasonable. The Court declined to distinguish

17 Page 17 between the rules applicable to notice of an accident or occurrence and those pertaining to notice of a claim or suit. Meridian Mutual Ins. Co. v. Sadowski, 441 F.3d 536 (7th Cir. 2006) In a case that may enable insurers to obtain the benefit of favorable federal appellate authority on coverage claims involving the Telephone Consumer Protection Act, the Seventh Circuit ruled that the district court erred in dismissing an insurer s claim for declaratory relief on the grounds that the amount in controversy was less than $75,000. The court stated that diversity jurisdiction is principally concerned with the domicile of the parties and, so long as a complaint alleges that the amount in controversy exceeds $75,000, an otherwise diverse case may only be dismissed if it is legally certain that the recovery (from plaintiff s perspective) or cost of complying with the judgment (from defendant s) will be less than $75,000. In this case, the insurer s jurisdictional claims were not contested nor could a court have been certain at the point that the district court dismissed the case that the plaintiff s in the state court would recover less than $75,000 from the insured. Native American Arts, Inc. v. Hartford Cas. Ins. Co., 435 F.3d 729 (7th Cir. 2006) The Seventh Circuit ruled that allegations that the insured manufactured and sold fake Indian jewelry in violation of the federal Indian Arts and Crafts Act could be interpreted under Illinois law as setting forth a claim for advertising under the insurer s policies, which defined that term as involving the dissemination of information or images that has the purpose of inducing the sale of goods, products or services through various media. The court found that although the Act does not require that misrepresentations occur through advertisements, in this case the underlying plaintiff alleged that the insured had taken advantage of the plaintiff s advertising style to effectuate its alleged violation of the Act and that said allegations should have put the insurer on notice that at least some of the claims were for advertising injury. However, the underlying claim, which concerned the products authenticity, was barred under an exclusion for advertising injury arising out of the infringement of a trademark, trade name, service mark or other designation of origin or authenticity. General Agents Ins. Co. v. Midwest Sporting Goods, 828 N.E.2d 1092 (Ill. 2005). A city sued a gun retailer for causing a public nuisance by making sales to unqualified purchasers. The insurer defended under a reservation of rights and later sued the insured for reimbursement of its defense payments. The Illinois Supreme Court held that a liability insurer has no unilateral right to force its policyholder to reimburse it for defense costs, even if the insurer has expressly reserved the right to seek recoupment in the event that it is found not to owe coverage. The court adopted what it described as the minority view that an insurer cannot recover defense costs pursuant to a reservation of rights absent an express provision to that effect in the insurance contract between the parties.

18 Page 18 Allstate Ins. Co. v. Kovar, 842 N.E.2d 1268 (Ill. 2006) Parents of teenager who was alleged to have negligently stabbed plaintiff sought coverage under their homeowner s policy. The court held that the teenager s guilty plea to a charge of battery for which he was sentenced to one year of court supervision did not estop him from claiming coverage under the homeowner s policy for the civil action suit arising from the stabbing incident. The court ruled that the guilty plea was not conclusive of whether the injuries were expected or intended since there was not a clear identity of the issues at trial, nor did the insured have a strong incentive to litigate the battery issue in the earlier proceeding as he claimed to have only pleaded guilty to obtain a lighter sentence and a clean criminal record. American Economy Insurance Co. v. Holabird and Root (May 30, 2006) 2006 Ill. LEXIS 426 Allegations of negligent installation of fluorescent lighting in an office building that allegedly caused injury triggered an insurer's duty to defend an additional insured, an Illinois appeals panel held. State Auto. Mut. Ins. Co. v. Kingsport Dev., L.L.C. (April 5, 2006) 364 Ill. App. 3d 946 Conclusion that the insurance company did not have duty to defend general contractor in underlying lawsuit brought against general contractor by subcontractor employee for injuries sustained at a construction project was error; since injuries potentially "arose out of" subcontractor's work, insurance company had duty to defend general contractor. INDIANA Cinergy Corp. v. St. Paul Surplus Lines Ins. Co., 838 N.E.2d 1104 (Ind. 2005) Numerous federal and state governmental agencies sued the insured for the alleged violation of clean air standards. The insured tendered the action under a net loss policy and sought a contemporaneous payment of its costs. Holding that a duty to defend cannot be implied in a policy that only provided for the payment of defense costs as part of a covered loss, the court ruled that a first layer excess policy written by the insurers over a self-insured retention and which provided that the insurer was only liable for the totality of defense and indemnity for which the insurer owed coverage. Since indemnity could not be known until such time as the insured s liability was determined and coverage established, the court held that the insurers did not have a duty to contemporaneously pay defense costs as they were incurred. Instead, only obligated to reimburse a portion of such costs once coverage was otherwise established.

19 Page 19 IOWA Wilson v. Farm Bureau Mut. Ins. Co. (May 12, 2006) 714 N.W.2d 250 In estate's claim to recover damages under policy's underinsured motorist coverage, district court erred in granting estate's motion for summary judgment on breach of contract, but it correctly denied estate's motion for summary judgment on bad faith claim because insurer had basis to deny demand to pay on judgment in excess of policy's limits. AMCO Ins. Co. v. Estate of Wehde (March 15, 2006) 2006 Iowa App. LEXIS 237 Court did not err in granting summary judgment to insurers holding they had no duty to defend or indemnify as insured's acts in killing alleged intruder were not covered; insurers presented evidence of farm master policy indicating language about reasonable force was not a part of insured's policy and insured failed to provide evidence to contrary American Family Mut. Ins. Co. v. Corrigan, 697 N.W.2d 108 (Iowa 2005) Parents of minor brought action against the parents of a baby-sitter, alleging that the baby-sitter s negligence injured the minor. Baby-sitter pled guilty to childendangerment. His parents tender claim to HO insurer. The Iowa Supreme Court has ruled that an exclusion for criminal conduct by any insured precluded coverage for negligent supervision claims against the baby-sitter s parents. In reaching this conclusion the court distinguished cases in which bodily injuries had two separate causes, holding that in present case the allegations of negligent supervision against the parents were not independent of the excluded acts of the son and that the criminal acts exclusion applied to any insured. KANSAS Park University Enterprises, Inc. v. American Casualty Company of Reading, PA, 442 F.3d 1239 (10th Cir. 2006) Tenth Circuit holds that general liability insurer had a duty to defend claims under the Telephone Consumer Protection Act based on the insured s issuance of unsolicited fax advertisements. Although insured intentionally sent the faxes, a potential occurrence existed because the insured denied any intent to injure. As to the personal injury prong, the court rejected the insurer s contention that there could be no coverage since the plaintiff was a corporation whereas the policy only covered a person s right of privacy.

20 Page 20 Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 33 Kan.App.2d 504, 104 P.3d 997(Kan. 2005), aff d, No. 90,944 (Kan. June 9, 2006) After paying third-party s water damage, the insured tendered the claim to its insurer, who denied coverage. The court determined that, so long as the insured did not expect or intend the damage to occur, the moisture problems due to the insured s defective materials or workmanship in the construction of the third-party s house constituted an occurrence under the general liability policy. Court rejected the insurer s contention that the entire custom house was the insured s product and therefore excluded from coverage. It would make little sense for a CGL policy to include an exclusion for property damage to the insured s own work and that of its subcontractors if such property damage was never meant to be an occurrence in the first place. Further, if insurer had wanted to distinguish between breach of contract and tort claims, it should have included language to this effect. Therefore, court rules that mold damage to the plaintiff s home due to faulty materials and workmanship provided by the insured s subcontractors triggered the policy s coverage. KENTUCKY Continental Ins. Co. v. Adams, 438 F.3d 538 (6th Cir. 2006) Sixth Circuit rules that intent to cause injury could be inferred in a case where jilted insured went back to his house, got a rifle, and shot his ex-girlfriend and her new boyfriend several times. The court noted that the insured s policy unambiguously excluded coverage for intentional acts. Although intent is normally a question for the jury, summary judgment was proper where the evidence with respect to the intentional and inherently injurious nature of the insured s conduct was uncontroverted. Court also found allegations regarding the insured s deranged mental state were irrelevant, as the homeowner s policy excluded coverage for intentional acts regardless of whether insured lacks the mental capacity to govern his or her conduct. Aetna Cas. & Sur. Co. v. Commonwealth of Kentucky, 179 S.W.3d 830 (Ky. 2005) EPA sued the insured under CERCLA for the cleanup of a nuclear waste disposal facility, whereupon the insurer denied coverage. Kentucky Supreme Court found that because insurer agreed to defend any suit, the insurer had a duty to defend the administrative claim against the PRPs arising out of the superfund site. The court held that the trial court improperly instructed the jury to determine whether the responses costs were expected or intended, rather than whether the harm i.e., property damage was fortuitous. The court further held that the insured s claim should be allocated throughout the period of loss.


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