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Commentary on Insurance Coverage Litigation in New York
Posted: June 1, 2021

“Intentional Nonperformance” of Contractual Obligations Does Not Trigger Policy’s “Willful Acts” Exclusions

Posted by Bradley J. Nash, Litigation Partner On April 9, 2021, the Second Circuit issued a decision in Fabrique Innovations, Inc. v. Federal Insurance Company, 20-1396-cv, holding that a policy’s “willful acts” exclusions were not triggered by a “simple breach of contract.” The insured (“Fabrique”) made a claim under a cargo insurance policy that covered damage to fabric and plush merchandise...

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Posted in Policy Exclusions
Posted: February 10, 2021

Knowledge of Risk of Hazardous Consequences Does Not Establish Intent to Cause Harm Sufficient to Bar Coverage Under CGL Policy

Posted by Bradley J. Nash, Litigation Partner On December 29, 2020, Justice Masley of the New York County Commercial Division issued a decision in Certain Underwriters at Lloyd’s London v NL Indus., Inc., 2020 NY Slip Op 34331(U), denying CGL carriers’ motions for summary judgment, despite a final judgment in the underlying action holding the insured liable for “intentionally and affirmatively...

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Posted: December 21, 2020

New York Federal Judge Dismisses COVID-19 Business Interruption Claim for Failure to Allege “Physical Damage to the Insured’s Property”

Posted by Bradley J. Nash, Litigation Partner On December 15, 2020, Judge Schofield of the SDNY issued a decision in 10012 Holdings, Inc. v. Sentinel Ins. Co. Ltd., Case No. 10-cv-4471(LGS), dismissing an art gallery’s claim for business interruption coverage arising from the suspension of business operations due to the government-ordered closure of non-essential businesses during the COVID-19 pandemic. As...

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Posted: December 16, 2020

Lawsuit Deemed to Constitute Multiple “Claims” For Purposes of Determining Applicable Policy Period Under D&O Policy

Posted by Bradley J. Nash, Litigation Partner On November 27, 2020, Justice Masley of the New York County Commercial Division issued a decision in Alvarez v. XL Specialty Ins. Co., 2020 NY Slip Op 33917(U), holding that a lawsuit against the insureds was not wholly excluded from coverage under a D&O policy where only one part of the lawsuit involved...

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Posted: December 3, 2020

Facts Outside the Complaint Establish Insurer’s Duty to Defend Personal Injury Action

Posted by Bradley J. Nash, Litigation Partner On November 24, 2020, the First Department issued a decision in Wesco Ins. Co. v. Hellas Glass Works Corp., 2020 NY Slip Op 06975, holding that consideration of facts outside the complaint established an insurer’s duty to defend a personal injury action. Affirming the motion court’s decision, which was previously discussed on this...

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Posted in Duty to Defend
Posted: November 23, 2020

Federal Court Stays Coverage Action Where Insurer’s Duty to Defend and Indemnify Is Contingent on Facts at Issue In Underlying State Court Action

Posted by Bradley J. Nash, Litigation Partner On October 22, 2020, Judge Román of the SDNY issued a decision in U.S. Specialty Ins. Co. v. Village of Chester, Case No. 19-cv-467(NSR), staying an insurer’s declaratory judgment action pending the resolution of a parallel state court action that would determine the factual issues underlying the coverage dispute. The Village of Chester...

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Posted in Policy Exclusions
Posted: October 29, 2020

Insurer Had No Duty to Defend Complaint Alleging Intentional Assault Despite Conclusory Allegations of Negligence

Posted by Bradley J. Nash, Litigation Partner On August 20, 2020, the Fourth Department issued a decision in Scalzo v. Central Co-op. Ins. Co., 2020 NY Slip Op 04639, holding that an intentional assault was excluded from coverage under a liability policy, despite conclusory language in the complaint asserting a negligence claim in the alternative. The plaintiff in the underlying...

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Posted in Duty to Defend
Posted: October 26, 2020

North Carolina Judge Grants Summary Judgment to Restaurant Owners on Claim for COVID-19 Business Interruption Losses

Posted by Bradley J. Nash, Litigation Partner On October 7, 2020, North Carolina Superior Court Judge Orlando F. Hudson, Jr. handed down an important victory for policyholders seeking business interruption insurance for losses arising from closures relating to the COVID-19 pandemic.  In North State Deli, LLC v. The Cincinnati Ins. Co., Case No. 20-CVS-02569, Judge Hudson granted summary judgment to...

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Posted: September 23, 2020

CGL Insurer Had No Duty to Defend Where Undisputed Facts Showed Policy Exclusion Applied

Posted by Bradley J. Nash, Litigation Partner On September 16, 2020, Judge Failla of the SDNY issued a decision in Philadelphia Indemnity Ins. Co. v. Streb, Inc., Case No. 19-CV-366 (KFP), ruling that a CGL carrier had no duty to defend a personal injury action because undisputed “extrinsic evidence” (i.e., facts not alleged in the complaint) conclusively established that an...

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