Publications

The “ensuing loss” clause is a provision that restores coverage for property insurance claims that are subject to certain policy exclusions, such as “faulty workmanship” and “faulty design.” It applies in cases where there is damage from a covered cause of loss that ensues, or results from, the excluded cause of loss. Courts across jurisdictions […]

While analyzing liability policies, courts grapple with a common issue: what constitutes a claim under a claims-made or claims-made-and-reported provision? When third-party claimants file suit, the analysis is often straightforward; the complaint itself is the claim. The analysis becomes murkier, however, when courts must determine whether a pre-suit notice—such as a demand letter—constitutes a claim. […]

Across the country, there is a split in authority as to whether an insurance company should be allowed to recoup defense costs where it is ultimately determined that the carrier has no duty to defend under the policy and the policy is silent as to such reimbursement. The Hawaii Supreme Court is the latest to […]

Insurance is supposed to give us some level of confidence that should coverage be needed, it will be there. Often, however, this expectation does not correlate with reality, and beneficiaries are faced with unexpected denials on technical grounds. Life insurance is no exception. A common life insurance policy provision referred to as a “contestability clause,” […]

The construction industry, like many other industries, has experienced an increased reliance on, and implementation of, technology in the past few years. Smart phones and tablets are used on most project sites, computers are an integral part of the planning process, and various software programs are used throughout the construction process. Likewise, much of the […]

In a lawsuit resulting from Zurich American Insurance Company (“Zurich”) and American Guarantee and Liability Insurance Company’s (“AGLIC”) sudden change in coverage position, the First Circuit recently certified to the Massachusetts Supreme Judicial Court the question of whether rainwater accumulating on a roof meets the definition of ‘surface waters’ under Massachusetts law. Zurich and AGLIC’s […]

In Kayle Flores v. Life Insurance Company of North America1 (“Flores II”), the Ninth Circuit agreed with the insured and reversed the Central District of California’s finding that her Long-Term Disability claim was barred by res judicata. This case has a happy ending for the insured, but really underscores the importance of proceeding against a disability insurer […]

In National Casualty Company v. Georgia School Board Association – Risk Management Fund1, the Eleventh Circuit recently affirmed a Georgia rule under which irreconcilable “other insurance” clauses will not be enforced. The Eleventh Circuit found that, under Georgia law, when insurance policies’ “other insurance” clauses are “functionally the same” and cover the same risk, they […]

Federal and state courts tackled many interesting insurance-related issues this past year. Perhaps no state had a more impactful year than Illinois, which held that construction defects could constitute an occurrence, that a LEG 3 “extension” attempting to preclude coverage for faulty or defective workmanship was ambiguous as a matter of law (applying Illinois law), […]

The Tenth Circuit’s recent broad application of Oklahoma law on “interrelated acts” creates concerning precedent for policyholders seeking to maximize coverage under a professional liability policy with per claim limits. In this regard, careful pre-loss planning and policy modifications may prevent unexpected coverage gaps and avoid surprise exposure. In addition, post-loss strategic planning may prove […]

When an insurer handles a claim in violation of its duty to act in good faith, policyholders are often eager to sue the insurer for bad faith, seeking extra contractual damages. Before filing suit, however, it is critical that policyholders consider what state’s law applies to the bad faith claim. In the recent case of Scott […]

A majority of insurance policies require the insured to cooperate with the insurer. The cooperation clause generally states, “the insured agrees to Cooperate with us in the investigation, settlement or defense of the suit.” The “cooperation clause” is often an afterthought because once litigation has ensued an insured is focused on other important considerations. However, […]