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Commentary on Insurance Coverage Litigation in New York
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
Posted: April 1, 2019

Coverage Action Stayed As to Insurer’s Duty to Indemnify, But Not Duty to Defend, Pending Resolution of Underlying Civil and Criminal Proceedings Against Insured

On March 28, 2019, Judge Crotty of the SDNY issued a decision in Federal Ins. Co. v. Weinstein, Case No. 18 Civ. 2526 (PAC), granting an insured’s motion to stay a coverage action on the issue of the insurer’s duty to indemnify, pending the resolution of underlying civil and criminal proceedings against the insured, but denying the stay motion as...

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Posted in Duty to Defend
Posted: March 19, 2019

Evidence Inconclusive on Parties’ Intent to Name Property Owner As Additional Insured Under Contractor’s CGL Policy; Order Granting Summary Judgment Reversed

On March 5, 2019, the First Department issued a decision in M&M Realty of N.Y., LLC v. Burlington Ins. Co., 2019 NY Slip Op 01513, holding the extrinsic evidence of the parties’ intent precluded summary judgment on a property owner’s status as an additional insured under a contractor’s CGL policy. The standard additional insured endorsement at issue in this case...

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Posted: March 11, 2019

Priority of Coverage Determined By “Other Insurance” Clauses of Applicable Policies

On February 20, 2019, Justice Lebovits of the New York County Supreme Court issued a decision in Flintlock Constr. Servs. LLC v. Technology Ins. Co., 2019 NY Slip Op 30392(U), examining the “other insurance” clauses of two applicable insurance policies to determine the priority of coverage. In some cases, more than one insurance policy may provide coverage for a given...

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Posted in Uncategorized
Posted: February 25, 2019

Additional Insured Endorsement Required That Subcontract Be Executed Prior to Date of Underlying Accident

On January 31, 2019, Justice of Engoron of the New York County Supreme Court issued a decision in Southwest Mar. & Gen. Ins. Co. v. Main St. Am. Assur. Co., 2019 NY Slip Op 30240(U), holding that a blanket additional insured endorsement to a subcontractor’s CGL policy required that the subcontract be executed prior to the underlying injury in order...

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Posted: February 11, 2019

“Offer for Sale” Can Constitute Advertising Injury Under CGL Policy

On December 19, 2018, the Second Circuit issued a decision in High Point Design, LLC v. LM Ins. Corp., Docket No. 16-1446-cv, holding that a counterclaim alleging patent and trade dress infringement in an “offer[] for sale” triggered an insurer’s duty to defend under the “advertising injury” provision of a CGL Policy. This coverage action arose from a dispute over...

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Posted: February 6, 2019

First Department Finds “No Heightened Pleading Standard” for Consequential Damages in Claim for Bad Faith Claims Handling

On January 17, 2019, the First Department issued a decision in D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 2019 NY Slip Op 00347, holding that an insured need not satisfy a “heightened pleading standard” in alleging consequential damages arising from an insurer’s bad faith claim handling. This case involved a claim under a commercial insurance...

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Posted: January 7, 2019

Intentional Acts Covered Under CGL Policy Where Insured Did Not Intend “Specific Harmful Result”

On December 21, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Zurich Am. Ins. Co. v Don Buchwald & Assoc., Inc., 2018 NY Slip Op 33325(U), holding that an intentional tort could be a covered occurrence, triggering a CGL insurer’s duty to defend. This insurance coverage case arose from a salacious lawsuit by professional...

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Posted: December 31, 2018

Plaintiff in Bad Faith Action Against Third-Party Insurer Entitled to Collect Amount of Judgment in Excess of the Policy Limits

On December 11, 2018, Judge Garaufis of the EDNY issued a decision in Government Employees Ins. Co. v. Saco, 12-cv-5633 (NGG) (ST), holding that a plaintiff in a bad faith action against a third-party insurer was entitled to collect the amount of a judgment in excess of the policy limits, even if the insured was not actually liable for the...

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Posted: December 28, 2018

Insurer’s Conflict of Interest Entitled Insured to Select Independent Defense Counsel

On December 11, 2018, Judge Failla of the SDNY issued a decision in Liberty Mut. Fire Ins. Co. v. Hamilton Ins. Co., 17-CV-2350 (KFP), holding that an insured had the right to select defense counsel because of the insurer’s conflict of interest. Liberty v. Hamilton arose from an injury at a construction site.  The injured worker sued the construction manager...

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