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Insurance Coverage Blog

Commentary on Insurance Coverage Litigation in New York
Posted: October 10, 2019

Product Cannot Serve As Its Own Advertisement for Purposes of “Advertising Injury” Coverage

Posted by Bradley J. Nash, Litigation Partner On September 26, 2019, Judge Abrams of the SDNY issued a decision in Jovani Fashion, Ltd. v. Fed. Ins. Co., Case No. 17-CV-4518, holding that a complaint alleging that a fashion designer’s garment infringed the plaintiff’s copyrighted lace textile design did not trigger “advertising injury” coverage under the designer’s general and excess liability...

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Posted: October 7, 2019

Liability Insurers Ordered to Share in Defense Costs; Facts to Be Determining In Underlying Litigation Would Determine Which Insurer Has Duty to Indemnify

On September 23, 2019, Justice Rodriguez of the New York County Supreme Court issued a decision in Wesco Ins. Co. v. Hellas Glass Works Corp., 2019 NY Slip Op 32848(U), holding that two liability insurers were required to share in paying defense costs where facts to be determined in the underlying personal injury lawsuit could trigger indemnity coverage under one...

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Posted in Duty to Defend
Posted: October 3, 2019

Insurer Fails to Establish Non-Cooperation Defense

On September 23, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Those Interested Underwriters at Lloyd’s, London v. AU Trading LLC, 2019 NY Slip Op 32803(U), denying an insurer’s motion for summary judgment on a coverage defense based on claim of noncooperation by the insured in the investigation of the claim. The insured, AU...

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Posted in Duty to Cooperate
Posted: September 23, 2019

Issues of Fact Preclude Summary Judgment on Insured’s Breach of Duty to Cooperate

On September 13, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Colony Ins. Co. v. International Contr. Servs., LLC, 2019 NY Slip Op 32717(U), holding that issues of fact precluded summary judgment on a liability insurer’s disclaimer based on the insured’s failure to cooperate with the defense. In the underlying personal injury litigation at...

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Posted: September 20, 2019

Claim for Bad Faith Claims Handling Dismissed As Duplicative of Breach of Contract Claim

On September 17, 2019, Judge Hurd of the NDNY issued a decision in Lohnes v. Liberty Mut. Ins. Co., Case No. 19-cv-00068, dismissing a claim for bad faith claims handling for failure to plead “specific conduct” by the insurer distinct from the underlying breach of the policy. As previously discussed on this blog (see here, here, and here), New York...

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Posted: September 18, 2019

Declaratory Judgment Premature Where Duty to Indemnify Depends on Issues to Be Determined in Underlying Lawsuit Against The Insured

On August 27, 2019, Judge Pauley of the SDNY issued a decision in Gemini Ins. Co. v. Titan Construction Servs., Case No. 17-cv-8963, dismissing a declaratory judgment claim as premature because the lability insurer’s duty to indemnify would depend on facts to be developed in the underlying lawsuit against the insured. Judge Pauley explained: It has long been well-established that...

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Posted: September 16, 2019

California Supreme Court Rules that New York’s “No-Prejudice” Rule Is Contrary to “Fundamental Public Policy” of California

On August 29, 2019, the California Supreme Court issued a decision in Pitzer College v. Indian Harbor Ins. Co., Case No. S239510, ruling (in response to a certified question from the Ninth Circuit) that New York’s no-prejudice rule—under which a first-party insurer can avoid coverage based on delayed notice without showing prejudice—is contrary to a “fundamental public policy” of California....

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Posted in Confict of Laws, Notice
Posted: September 13, 2019

Duty to Defend Did Not Obligate Insurance Company to Monitor Fees Charged By Defense Counsel to Prevent Exhaustion of Policy Limits Before Criminal Trial

On September 10, 2019, Judge Reiss of the WDNY issued a decision in Korn v. Federal Ins. Co., Case No. 1:17-cv-00188, ruling that an insurance carrier providing a defense to the insured in a criminal prosecution had no obligation to “monitor” the fees incurred by defense counsel to ensure that the coverage was not exhausted prior to trial. In Korn,...

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Posted in Duty to Defend
Posted: September 11, 2019

Insurer’s Claims-Handling Documents Not Privileged Even If Prepared By Attorneys

On August 30, 2019, Justice Masley of the New York County Commercial Division issued a decision in Otsuka Am., Inc. v. Crum & Forster Specialty Ins. Co., Index No. 650463/2019, ruling that coverage opinions prepared by outside counsel for an insurer are discoverable, explaining:   In the context of insurance, the payment or rejection of claims is a part of...

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Posted: September 9, 2019

Court Enforces CGL Policy Exclusion that Circumvents “Entire Action” Rule

On August 26, 2019, Judge Caproni of the SDNY issued a decision in Spandex House, Inc. v. Hartford Fire Ins. Co., Case No. 18-CV-8367 (VEC), enforcing an IP exclusion in a CGL policy that circumvented the “entire action” rule by precluding both defense and indemnity coverage for an otherwise-covered “advertising injury” claim if that claim was joined with any IP claim...

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