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Insurance Coverage Blog

Commentary on Insurance Coverage Litigation in New York
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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Posted: August 29, 2019

Delay in Issuing Reservation of Rights Letter Did Not Waive Insurer’s Right to Disclaim Duty to Defend

On July 25, 2019, Justice Crane of the New York County Supreme Court issued a decision in American Empire Surplus Lines Ins. Co. v. Burlington Ins. Co., 2019 NY Slip Op 32221(U), holding that a CGL carrier was required to provide a defense to an additional insured for a personal injury claim, but concluding that, absent a showing of prejudice to the...

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Posted in Duty to Defend
Posted: August 27, 2019

Excess Policy’s New York Forum Selection Clause Trumps Primary Policy’s Appraisal Provision

On August 15, 2019, Justice Perry of the New York County Supreme Court issued a decision in Villas of Ocean Dunes Assn., Inc. v. First Specialty Ins. Corp., 2019 NY Slip Op 32435(U), denying an insured’s petition to compel an excess insurer to submit a disputed property damage claim to appraisal under an appraisal provision in the primary policy. The...

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Posted in Appraisal
Posted: July 31, 2019

“Knowing Acts” Exclusion Did Not Excuse Duty to Defend Where Insured’s Liability Could Be Established Without a Finding of Intentional Wrongdoing

On May 29, 2019, Justice Crane of the New York County Supreme Court issued a decision in Continental Cas. Co. v KB Ins. Co., Ltd., 2019 NY Slip Op 31513(U), holding that an exclusion for “Knowing Acts” did not excuse a CGL carrier’s duty to defend Lanham Act claims against the insured.  In the underlying litigation, the insured, Value Wholesale,...

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Posted: May 7, 2019

“Insured versus Insured” Exclusion Did Not Preclude Coverage for Claims By Creditor Trust In Chapter 11 Bankruptcy

On April 25, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Westchester Fire Ins. Co. v. Schorsch, 2019 NY Slip Op 31188(U), holding that a D&O policy’s “insured versus insured” exclusion did not preclude coverage for claims against corporate officers by a Creditor Trust. In Schorsch, corporate officers sought coverage under the corporation’s D&O policies for...

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Posted: April 30, 2019

Presentation on D&O Insurance Coverage for City Bar White Collar Crime Committee

Posted by Bradley Nash, Litigation Partner This evening at 6, I will be making a presentation to the White Collar Crime Committee of the New York City Bar on D&O Coverage for White Collar Defense Attorneys.  I will be discussing insurance coverage issues in the Platinum Partners hedge fund case, which is now on trial in the Eastern District of New York.   As...

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Posted: April 8, 2019

Property Insurance Policy’s Appraisal Procedure Cannot Be Used to Resolve Legal Question Regarding Interpretation of the Policy

On April 3, 2019, the Second Circuit issued a decision in Milligan v. CCC Information Servs. Inc., Dkt. Nos. 18-1405-cv, 18-1407-cv, holding that the appraisal procedure in a property insurance policy could not be used to resolve legal questions regarding the interpretation of the policy, but only to determine the amount of the covered loss. Milligan is a putative class...

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Posted in Appraisal