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Insurance Coverage Blog

Commentary on Insurance Coverage Litigation in New York
Posted: April 21, 2020

Second Circuit Certifies Question to Court of Appeals: Can a Discrimination Claim Based on a “Failure to Accommodate” Constitute a Covered “Occurrence” Under a CGL Policy?

Posted by Bradley J. Nash, Litigation Partner On April 9, 2020, the Second Circuit issued a decision in Brooklyn Center of Psychotherapy, Inc. v. Philadelphia Indemnity Ins. Co., Docket No. 19-2266-cv, certifying the following question to the New York Court of Appeals:  Can a discrimination claim based on a “failure to accommodate” theory trigger coverage under a general commercial liability...

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Posted in CGL Policies, Disability discrimination, "Occurrence"/"Accident"
Posted: April 14, 2020

Court of Appeals Grants Leave to Appeal on CGL Carrier’s Duty to Indemnify Brokerage Firm for Disgorgement Payment to SEC

Posted by Bradley J. Nash, Litigation Partner On March 26, 2020, the New York Court of Appeals granted leave to appeal from the First Department’s decision in J.P. Morgan Sec., Inc. v. Vigilant Ins. Co.,126 A.D.3d 76 (1st Dep’t 2018), which held that that a disgorgement payment made as part of the settlement of an SEC enforcement action was a...

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Posted in CGL Policies, Policy Exclusions
Posted: March 30, 2020

Coronavirus and Business Interruption Claims: A Guide to Insurance Coverage for Business Losses Arising from the COVID-19 Pandemic

Posted by Bradley J. Nash, Litigation Partner Readers of this blog may be interested in my new article:  Coronavirus and Business Interruption Claims: A Guide to Insurance Coverage for Business Losses Arising from the COVID-19 Pandemic, which is available here. Business interruption insurance can provide much-needed coverage for businesses experiencing sudden losses of revenue in the wake of the Coronavirus...

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Posted in COVID-19, Business Interruption Coverage
Posted: February 25, 2020

CGL Policy’s IP Exclusion Bars Defense Coverage Despite Absence of “Direct Claims for IP Relief” in Complaint

Posted by Bradley J. Nash, Litigation Partner On February 7, 2020, the Second Circuit issued a decision in Lepore v. Hartford Fire Ins. Co., Case No. 19‐778‐cv, holding that a CGL policy exclusion for any suit alleging “an infringement or violation of any intellectual property right” was triggered even though the underlying complaint did not contain a direct IP-infringement claim....

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Posted in CGL Policies, Personal and Advertising Injury, Policy Exclusions
Posted: February 19, 2020

Courts Grants Preliminary Injunction Directing D&O Insurer to Advance Costs for Defense of Civil Fraud Action

Posted by Bradley J. Nash, Litigation Partner On February 3, 2020, Justice Sherwood of the New York County Commercial Division issued a decision in Alexander v. Starr Surplus Lines Ins. Co., 2020 NY Slip Op 30297(U), granting a preliminary injunction directing a D&O insurer to advance defense costs to a former corporate officer for an investor lawsuit alleging fraudulent inducement....

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Posted in D&O Policies, Indemnification and Advancement
Posted: February 11, 2020

Property Owner Entitled to Additional Insured Coverage Under Contractor’s CGL Policy Despite No Proof of Negligence by Contractor

Posted by Bradley J. Nash, Litigation Partner On December 26, 2019, the First Department issued a decision in Fireman’s Fund Ins. Co. v. State Nat’l Ins. Co., 2019 NY Slip Op 09399, holding that a property owner was entitled to coverage for a personal injury lawsuit as an additional insured under a contractor’s CGL Policy, even though the injuries were...

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Posted in Additional Insured Endorsement, CGL Policies, Construction
Posted: January 27, 2020

Contrary to Recent First Department Case Law, Federal Court Rules that Attorneys’ Fees Are Not Recoverable Consequential Damages on Claim for Insurers’ Breach of Covenant of Good Faith and Fair Dealing

Posted by Bradley J. Nash, Litigation Partner On December 30, 2019, Judge Briccetti of the SDNY issued a decision in Ruiz v. Liberty Mut. Fire Ins. Co., 19 CV 4399 (VB), denying an insurer’s motion to dismiss an insured’s claim for breach of the covenant of good faith and fair dealing, but ruling (contrary to recent First Department case law)...

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Posted in Bad Faith Claims Handling, Damages
Posted: January 15, 2020

Insurer Ordered to Provide Defense Coverage in Copyright Infringement Action; Whether Infringement Was Intentional Cannot Be Determined in Coverage Action

On December 17, 2019, the First Department issued a decision in McGraw-Hill Education, Inc. v. Illinois National Insurance Company, 2019 NY Slip Op 08960, ordering an insurer to provide defense coverage in a copyright infringement action, absent a “judicial determination” that the infringements were intentional.

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Posted in Policy Exclusions
Posted: December 30, 2019

Where Parties “Clearly Intended to Cover a Risk,” Inadvertently Naming Incorrect Entity As Additional Insured Does Not Negate Coverage

Posted by Bradley J. Nash, Litigation Partner On November 20, 2019, Judge Ramos of the SDNY issued a decision in United Specialty Ins. Co. v. Lux Maintenance & Ren. Corp., Case No. 18-cv-3083 (ER), holding that property owners were entitled to additional insured coverage under a subcontractor’s CGL policy even though the subcontractor agreement misidentified the corporate names of the...

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Posted in Additional Insured Endorsement, CGL Policies, Construction
Posted: December 13, 2019

Insured Properly Pleads Claim for Consequential Damages Resulting from Insurer’s Refusal to Advance Business Interruption Coverage

Posted by Bradley J. Nash, Litigation Partner On December 5, 2019, the First Department issued a decision in Certain Underwriters at Lloyd’s v. BioEnergy Development Group, LLC, 2019 NY Slip Op 08779, reversing a trial court’s dismissal of a claim based on the insurer’s bad faith delay in providing business interruption coverage, explaining: The breach of the implied duty part...

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Posted in Bad Faith Claims Handling, Business Interruption Coverage, Damages