Mealey's Emerging Insurance Disputes : Mealey's : Legal News & Analysis

Mealey's Emerging Insurance Disputes

April 04, 2024
Insured Appeals Court’s Ruling That Bump-Up Exclusion Bars D&O Coverage

ALEXANDRIA, Va. — An insured on April 3 filed a notice of appeal in a Virginia federal court asking the Fourth Circuit U.S. Court of Appeals to review the lower court’s holding that a “bump-up” exclusion unambiguously precludes directors and officers liability insurance coverage for the $90 million settlement of two underlying lawsuits arising from a 2015 merger.
April 03, 2024
Connecticut Panel Affirms Ruling In Insurer’s Favor In Tribe’s Coronavirus Suit

HARTFORD, Conn. — A Connecticut appeals court on April 2 affirmed a lower court’s judgment in favor of an insurer in an Indian tribe’s declaratory judgment lawsuit arising from the COVID-19 pandemic, rejecting the tribe’s contention that the lower court improperly determined that the policy’s contamination exclusion applied to bar the majority of its coverage.
April 03, 2024
Employee’s Injuries Barred By Policy Exclusion, Georgia Panel Rules In Reversal

ATLANTA — A Georgia appeals panel reversed a lower court’s denial of a commercial general liability and auto insurer’s amended motion for summary judgment in its declaratory judgment lawsuit disputing coverage for an underlying injury that occurred at a job site, finding that the underlying injuries were barred by a policy exclusion.
April 02, 2024
N.J. Panel Affirms Ruling In Favor Of Excess Insurer In Suit Arising From Death

TRENTON, N.J. — A New Jersey appeals panel concluded April 1 that an unambiguous excess insurance policy is triggered upon exhaustion of the primary commercial general liability insurance policy’s $1 million coverage limit and not upon its $50,000 assault and battery sublimit, affirming a lower court’s summary judgment ruling in favor of the excess insurer in a coverage dispute over claims that the insured negligently failed to provide adequate security.
April 02, 2024
Parties Refile Stipulation Of Dismissal In Worker Injury Coverage Dispute

NEW YORK — Per a New York federal judge’s order, a subcontractor, a property owner and a construction manager on April 1 refiled their stipulation of dismissal of the claims between them in the subcontractor’s lawsuit arising from personal injury actions brought by two of its workers.
April 01, 2024
Delaware Judge Tosses Insurers’ Subrogation Suits Arising From Ransomware Attack

WILMINGTON, Del. — A Delaware judge dismissed insurers’ subrogation lawsuits seeking recovery from an application service provider for the amount they paid to their nonprofit insureds for investigative and remediation steps arising from a ransomware attack, finding that the fact that the data breach occurred and the nonprofits incurred expenses alone is not sufficient to state a claim under the policies.
April 01, 2024
Washington Judge Certifies 2 Questions In University’s Coronavirus Coverage Suit

SEATTLE — A Washington judge granted in part an insurer’s motion to certify issues to the Washington Court of Appeals for discretionary review in the University of Washington’s lawsuit seeking coverage for losses incurred by its medical and athletic properties due to the COVID-19 pandemic, staying the lawsuit pending resolution of the two controlling questions of law to determine whether commercial property insurance policies insure business income losses that are related to a pandemic.
April 01, 2024
9th Circuit Panel Refuses To Rehear Ruling In $40M Commercial Crime Coverage Suit

PASADENA, Calif. — A panel of the Ninth Circuit U.S. Court of Appeals on March 29 voted unanimously to deny insurers’ petition for panel rehearing challenging its reversal of a lower federal court’s dismissal of a financial services company insured’s claim for loss under its commercial crime insurance policy’s “Computer And Funds Transfer Fraud Insuring Agreement” and its claim for tortious breach of the implied covenant of good faith and fair dealing, standing by its finding that the authorized submission of fraudulent electronic data into the insured’s computer system can arguably be described as “fraudulent entry” to trigger coverage.
April 01, 2024
Panel Says It Lacks Jurisdiction To Hear Trustee’s Appeal In D&O Coverage Dispute

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals granted the Federal Deposit Insurance Corp.’s motion to dismiss a trustee’s appeal of a lower federal court’s orders dismissing claims against a failed bank’s officers and staying the remainder of the lawsuit pending completion of arbitration between the trustee and Ernst & Young LLP, finding that it lacks jurisdiction.
March 29, 2024
Insurer Defends Motion Seeking Appellate Review Of COVID-19 Coverage Dispute

SEATTLE — Replying to the University of Washington’s opposition to its motion to certify issues to the Washington Court of Appeals for discretionary review and to stay the university’s lawsuit seeking coverage for losses incurred by its medical and athletic properties due to the COVID-19 pandemic, an insurer argues that it is not seeking to delay the case but just wants “clear guidance” on the threshold legal question of whether commercial property insurance policies insure business income losses that are related to a pandemic.
March 29, 2024
7th Circuit: Crescent Plaza, Sandy Point Dental Foreclose Rome Hotel Owner’s Appeal

CHICAGO — The Seventh Circuit U.S. Court of Appeals held that its decisions in Crescent Plaza Hotel Owner, L.P. v. Zurich American Insurance Co. and Sandy Point Dental, P.C. v. Cincinnati Insurance Co. foreclose arguments by the owner of luxury hotel in Rome seeking coverage for its lost business income and extra expenses arising from the COVID-19 pandemic.
March 28, 2024
Ankle Monitor Is Potentially A Computer Triggering Professional Liability Coverage

CHICAGO — An Illinois appeals panel held March 27 that an ankle monitor, at the very least, is potentially computer hardware triggering professional services liability coverage, reversing a lower court’s summary judgment ruling in favor of an insurer in its declaratory judgment lawsuit disputing coverage for an underlying personal injury lawsuit.
March 28, 2024
Judge: Mortgage Loan Provider’s Loss Arose From Uncovered Disciplinary Proceeding

CHICAGO — A federal judge in Illinois granted an insurer’s motion to dismiss with prejudice a mortgage loan provider insured’s first amended complaint seeking coverage under a professional liability mortgagee's errors and omissions policy for its $1,275,000 payment arising from an investigation brought by Illinois Department of Financial and Professional Regulation (IDFPR), finding that there is no coverage because the insured’s losses both arose from an uncovered disciplinary proceeding and were uncovered fines, and a policy exclusion bars coverage.
March 28, 2024
Communicable Disease Exclusion Does Not Apply To Legionnaires’ Disease Lawsuits

NEW YORK — A commercial lines insurer’s communicable disease exclusion does not bar coverage for three underlying lawsuits alleging that residents of the insured properties contracted Legionnaires’ disease following exposure to Legionella bacteria at the properties because Legionnaires’ disease is not a communicable disease, a New York federal judge said in granting the insured’s motion for summary judgment.
March 27, 2024
Insurer Seeks High Court Review Of Remanded Class Action Challenging Its Practices

WASHINGTON, D.C. — An insurer filed a petition for a writ of certiorari asking the U.S. Supreme Court to review the Seventh Circuit U.S. Court of Appeals’ finding that a class action challenging its practices fits within the internal affairs and home state controversy exceptions to the Class Action Fairness Act (CAFA).
March 27, 2024
Insurer Has Duty To Defend Suit Over UTV Accident, Wisconsin Panel Affirms

WAUSAU, Wis. — A Wisconsin appeals court on March 26 affirmed a lower court’s ruling that a homeowners insurer has a duty to defend its insureds against an underlying lawsuit arising from an accident involving a utility terrain vehicle (UTV), finding that the underlying complaint adequately alleges facts that would trigger coverage under an exception to a policy exclusion that barred coverage “for the ownership, maintenance, use, loading or unloading of the UTV.”
March 27, 2024
Viacom Dismisses 2 More Insurers In D&O Coverage Dispute In Delaware Court

WILMINGTON, Del. — Viacom Inc. and two of its insurers stipulated and agreed to dismiss with prejudice the claims against the insurers in Viacom’s lawsuit seeking directors and officers liability coverage for underlying claims that its directors, officers and controlling shareholders breached their fiduciary duties in connection with a 2019 merger with CBS Corp.
March 27, 2024
Insurer Has No Duty To Defend DPPA Violation Suit, N.C. High Court Affirms

RALEIGH, N.C. — The North Carolina Supreme Court affirmed an appeals court’s finding that an insurer has no duty to defend its law firm insured against an underlying lawsuit alleging that the firm violated the Driver's Privacy Protection Act of 1994 (DPPA) by using “protected personal information” without consent in connection with advertisements for legal services.
March 26, 2024
5th Circuit: Insured’s Alleged Breach Did Not Arise From Professional Services

NEW ORLEANS —The Fifth Circuit U.S. Court of Appeals affirmed a lower federal court’s summary judgment ruling in favor of a professional liability insurer in the insured’s lawsuit seeking coverage for underlying claims that she breached a subcontract by wrongfully soliciting the underlying plaintiff’s clients, finding that the insurer has no duty to defend because the insured’s alleged breach did not arise from her provision of “professional services” to trigger coverage.
March 25, 2024
Panel Reverses Court In Coverage Suit Over $1M Settlement Of Canceled Music Festival

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals reversed a lower federal court’s summary judgment ruling in favor of an insurer in the insured’s lawsuit seeking coverage for an underlying $1 million class action settlement arising from its refusal to refund ticket sales for the South by Southwest festival that was canceled due to the COVID-19 pandemic, finding that the policy’s contact and professional services exclusion do not bar coverage.
March 25, 2024
Judge Grants Summary Judgment On Driver’s UCL Claim For ‘Unfair’ COVID Premiums

SAN FRANCISCO — A California federal judge granted GEICO’s motion for summary judgment on an insured’s claim against it for violating California’s unfair competition law (UCL) by unfairly profiting from a premium giveback program initiated during the COVID-19 pandemic, in part citing evidence that state insurance regulators deemed GEICO’s givebacks sufficient.
March 21, 2024
Panel Reverses ‘Rare’ Case Where Diner Has Alleged Direct Physical Loss, Damage

SAN DIEGO — A California appeals panel held that a diner insured’s lawsuit seeking coverage for its business losses arising from the COVID-19 pandemic is “one of those rare cases” where the insured has adequately asserted a direct physical loss or damage under its commercial property insurance policy “at least raising the specter of coverage,” reversing a lower court’s judgment in favor of the insurer and remanding.
March 21, 2024
California Panel Affirms Ruling In Coverage Suit Over Postponed Metallica Shows

LOS ANGELES — A California appeals court affirmed a lower court’s summary judgment ruling in favor of an insurer in the insured’s breach of contract and bad faith lawsuit seeking coverage under a “Cancellation, Abandonment and Non-Appearance Insurance” policy for the postponement of the last six shows of Metallica’s South American tour in 2020, finding that the policy’s “communicable disease” exclusion is not ambiguous and that its ordinary meaning includes the pathogen that underlies the disease.
March 20, 2024
8th Circuit Refuses To Rehear Coverage Suit Over Tax Revenue Losses Due To Closures

ST. LOUIS — The Eighth Circuit U.S. Court of Appeals denied a Missouri city’s request to reconsider its ruling that a commercial property insurer owes no coverage for the city’s tax revenue losses due to governmental closure orders in response to the coronavirus pandemic, refusing to address the city’s argument that the “inartful” policy is not clear and unambiguous.
March 20, 2024
5th Circuit Reverses, Remands Coverage Suit Arising From Worker’s Salt Mine Death

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals held that a lower federal court legally erred in finding that the Louisiana Oilfield Anti-Indemnity Act contains a universal “well” requirement, reversing a coverage dispute arising from a worker’s death at a salt mine and remanding for the lower court to determine, in the first instance, whether fire-suppression and electrical-work contracts between the salt mine owner and its contractors “pertain[] to . . . drilling for minerals.”