Publications

December 11, 2020

Constitutionality Under the Contracts Clause of Proposed Legislation Enabling Policyholders to Obtain Insurance Coverage for Coronavirus Claims

In addition to its human toll, the coronavirus pandemic has had massive economic effects. It has produced staggering layoffs, millions of claims for unemployment compensation, and unprecedented federal aid. Given these economic effects, it is not surprising that the pandemic has also affected the insurance industry. Lloyd’s of London has stated that it “expects  coronavirus-related losses […]

April 03, 2014

Redbox Covers the Nation with Red Box DVD Rental Units, But its CGL Policy Doesn’t Cover Redbox

Companies facing liability for possible violations of privacy protection statutes are continuing to look to their traditional commercial general liability policies (“CGL”) for coverage.  But, as Redbox recently discovered, coverage for privacy issues remains a case-by-case question.  In its recent CGL coverage dispute, Redbox argued that coverage for an alleged privacy violation was available under […]

March 24, 2014

Despite Often Presumed Limitations, Policyholders May Have General Liability Coverage for Supply Chain-Related Breaches of Contract and Damages That Result in Recall

The Eighth Circuit recently confirmed that the all-too-common conceptions that breaches of contract and damages that result in recall are never covered by general liability insurance are, in fact, misconceptions. In Netherlands Insurance Co. v. Main Street Ingredients, LLC, 2014 WL 1012793 (8th Cir. Mar. 18, 2014), the policyholder, Main Street Ingredients, LLC (“Main Street”) […]

February 03, 2014

Delaware Decision Makes It Increasingly Difficult for Insurers to Evade Coverage for Dissolved Corporations

Can an injured plaintiff obtain compensation from a dissolved company with unexhausted insurance policies and force the insurer to pay? The Delaware Supreme Court says yes—in certain circumstances. On November 26, 2013, the Delaware Supreme Court issued a ruling with significant implications for insurers, policyholders, and creditors of dissolved corporations when it held that injured […]

January 28, 2014

Texas Supreme Court Rejects Insurer Expansion of Limited Exclusion for Liability Assumed by Contract, Compelling Insurer to Defend Construction Defect Dispute

In a highly anticipated ruling earlier this month, the Texas Supreme Court rejected Amerisure Insurance Company’s attempt to radically expand the scope of a common exclusion for liability assumed by contract found in many comprehensive general liability insurance policies.  See Ewing Constr. Co., Inc. v. Amerisure Ins. Co., No. 12-0661, 2014 WL 185035 (Tex. Jan. […]

July 24, 2013

Broken Records – Addressing Insurers’ Improper Attempts to Evade Their Discovery Obligations Based on Their Own Poor Record Keeping Systems

The scope of discovery is a hotly contested issue in many insurance coverage disputes. Discovery is an insured’s opportunity to gather information to support its coverage claims, test an insurer’s positions, and respond to an insurer’s defenses.  Some of the most valuable information an insured can gather during discovery concerns an insurer’s handling of similar […]

July 17, 2013

Déjà Vu All Over Again: Insurers Argue That Below-Limits Settlements With Underlying Insurers Negate Excess Coverage

If an insured faces liability that demonstrably exceeds the limits of underlying insurance, can an excess insurer avoid its coverage obligations because underlying insurers have not actually paid their limits of liability?  Common sense says no.  But insurance industry bloggers, citing the recent decision by the Second Circuit in Ali v. Federal Insurance Co., No. […]

March 22, 2013

Substance Over Form: Insurance Notice Requirements Are Met When An Insurer Has Notice From Any Source

Insurers frequently attempt to avoid their coverage obligations by contending that their insureds provided late notice of claims or occurrences. Most jurisdictions follow the commonsense rule that insurers cannot defeat coverage based on allegedly late notice unless they demonstrate that they suffered significant prejudice as a result — which insurers rarely can do.  See, e.g., […]

January 28, 2013

Sixth Circuit Rules in Favor of Asbestos-Containing Product Manufacturer-Policyholders

Comprehensive general liability policies limit the amount the insurer has to pay for each “occurrence”, which is typically defined as an “accident” or “exposure to [injurious] conditions”.  Insurers and policyholders frequently battle over the number of occurrences that result from asbestos lawsuits and other toxic-tort claims. Miriam Smolen, a partner at Gilbert LLP, recently won […]

September 27, 2012

Protecting Your Bottom Line from the Cost of National Association of Securities Dealers and FINRA Investigations

When self-regulatory organizations (“SRO”), such as the Financial Industry Regulatory Authority (“FINRA”), commence an investigation or proceeding, member firms are typically concerned with the financial impact that both the defense costs and any ultimate payment obligation will have on their bottom line.  With the United States Second Circuit Court of Appeal’s decision in Fiero v. […]

September 11, 2012

Recent Ethics Charges Against Attorneys Demonstrate Need for Full Understanding of “Do’s and Don’ts” of Using Social Media As Litigation Tool

As we discussed in an earlier post regarding the use of social media to research potential jurors, the information available through social media can be a potent litigation tool.  Indeed, far from being limited to a juror-research device, practitioners in the insurance realm and beyond are now using social media sites as a potential source […]