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Insurance Coverage Blog

Commentary on Insurance Coverage Litigation in New York
Posted: March 15, 2018

Choice of Law in Insurance Coverage Action Determined by “Principal Location of the Insured Risk”

Determining which state’s law applies is an important issue in any insurance coverage dispute.  Indeed, the outcome may depend on it, as different states have different rules on the interpretation and enforcement of policy provisions, what the claims the insured can bring, and a host of other issues.  Frequently, however, insurance policies do not have choice-of-law provisions.  Thus, the applicable...

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Posted in Confict of Laws
Posted: March 8, 2018

Standard Policy Forms May Serve as Secondary Evidence of a Lost Policy’s Terms

On February 26, 2018, United States Magistrate Judge H. Kenneth Schroeder of the WDNY issued a decision in American Precision Indus., Inc. v. Federal Ins. Co., Case No. 14-CV-1050-RJA-HKS, holding that an insured could obtain discovery of standard forms used by the insurer as “secondary evidence” of a lost insurance policy’s terms. An insurance policy is a contract, and the...

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Posted: March 2, 2018

Policy’s Anti-Assignment Provision Only Precludes Assignments Before Loss

A recent decision by Nassau County District Court Judge Scott Fairgrieve (M.V.B. Collision Inc. v. State Farm Ins. Co. (Dist. Ct. Nassau Co. Feb. 20, 2018), 2018 NY Slip Op 28043) provides a helpful survey of the case law on the enforceability of a policy provision prohibiting assignment or transfer of the insured’s rights under the policy.  As Judge Fairgrieve explains, the...

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Posted: February 27, 2018

Accident that was the “Unintended Consequence of an Intentional Act” is a Covered “Occurrence” under CGL Policy

On February 21, 2018, the Second Circuit issued a decision in Philadelphia Indemnity Ins. Co. v. Central Terminal Restoration Corp., Case No. 17‐1636‐cv, holding that a car accident caused by a driver to whom the insured had served alcohol when he was visibly intoxicated, in violation of New York’s dram shop law, was a covered occurrence under a commercial general...

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Posted in CGL Policies
Posted: February 15, 2018

Court Recognizes “Narrow Exception” to Duty to Defend Where Extrinsic Evidence, Unrelated to the Merits of the Underlying Claim, Negates any Duty to Indemnify

On January 31, 2018, Judge Spatt of the EDNY issued a decision in Striker Sheet Metal II Corp. v. Harleysville Ins. Co. of N.Y., Case No. 16-cv-5916 (ADS)(AYS), holding that an insurance company was relieved of its duty to defend where “extrinsic evidence” (including an email from the insured in response to questions from the insurer) demonstrated conclusively that the accident...

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Posted in Duty to Defend
Posted: February 5, 2018

Law Firm Entitled to Business Interruption Coverage Even Though Its Contingency Fees Would Not Have Been Earned Until After the Policy Period

On January 23, 2018, Justice Masley of the New York County Commercial Division issued a decision in Bernstein Liebhard LLP v. Sentinel Ins. Co., Ltd., 2018 NY Slip Op 30169(U), holding that a law firm was entitled to business interruption coverage for the loss of new matters, even though its contingency fees for those matters would not have been received...

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Posted: January 31, 2018

Insurer Not Entitled to Rely on Facts Outside Complaint to Avoid Duty to Defend

On January 18, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Zurich Am. Ins. Co. v. Don Buchwald & Assocs., Inc., Index. No. 655533/2016, holding that an insurer could not rely on “extrinsic discovery” to avoid its duty to defend. In Zurich, an insurer sought a declaratory judgment that it had “no duty to...

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Posted in Duty to Defend
Posted: January 29, 2018

Undefined Term in Policy Exclusion Not Ambiguous Where it Has a “Clear Meaning in Federal Law”

On January 22, 2018, the Second Circuit issued a decision in Beazley Ins. Co. v. ACE American Ins. Co., Case No. 16‐2812‐cv, holding that an undefined term in a policy exclusion was not ambiguous because it had a “clear meaning in federal law.” Beazley Ins. Co. is an insurance coverage action relating to investor lawsuits against NASDAQ in connection with Facebook’s IPO....

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Posted in Policy Exclusions
Posted: January 23, 2018

Generalized Request for Coverage Not Sufficient to Establish Claim Against Insurance Broker for Failure to Procure Policy Covering a Specific Risk

On December 21, 2017, the Third Department issued a decision in Cromer v. Rosenzweig Ins. Agency Inc., 2017 NY Slip Op 08926, affirming the dismissal on summary judgment of negligence and breach of contract claims against an insurance broker because the plaintiff failed to establish that the insured made a specific request for coverage that was not provided in the...

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Posted in Insurance Brokers
Posted: January 16, 2018

Court Grants Preliminary Injunction Directing Excess Insurers to Advance Defense Costs in Prosecution for Alleged Securities Fraud

On December 27, 2017, Justice Sherwood of the New York County Commercial Division issued a decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2017 NY Slip Op 32728(U), granting a preliminary injunction directing three excess D&O insurers to advance defense costs for the defense of a federal securities fraud prosecution, and related civil actions. (N.B. Our firm represents one...

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