The Massachusetts Supreme Judicial Court recently construed the undefined term “advertising idea” in a case of first impression in the Commonwealth, holding that a footwear company’s insurers must provide a defense against an underlying claim alleging unfair use of a former Olympian’s name to promote a line of running shoes.
Hurricane Florence has yet to make landfall, but the storm has already wreaked havoc on this weekend’s college football schedule, concerts, and other events. West Virginia and NC State postponed their Saturday game indefinitely. Rescheduling remains to be seen. UCF and North Carolina cancelled their game outright, as did East Carolina and Virginia Tech. Other teams relocated their games or changed dates and start times, with many offering free tickets to fans who can accommodate the last-minute changes. The NFL also is keeping a close eye on the situation, as the storm could impact Sunday’s game between the Washington Redskins and the Indianapolis Colts at FedEx Field. Meanwhile, non-sporting events also have been cancelled, including Alan Jackson’s concert at the North Charleston Coliseum, the Zac Brown Band’s concerts in Charlotte and Raleigh, and J. Cole’s Dreamville Festival, which alone will require the refunding of some 30,000 tickets.
In a victory for policyholders, a recent decision from the Western District of Texas narrowly construed a common breach-of-contract exclusion and held that the insurer had a duty to defend its insured against an underlying lawsuit over construction defects. The allegations potentially supported a covered claim, as the conduct of the insured’s subcontractor could have been an independent, “but for” cause of the property damage at issue, thereby triggering the insurer’s duty to defend.
Kanye West’s touring company, Very Good Touring, Inc. (Very Good), and its insurer, Lloyd’s of London (Lloyd’s), have resolved their dispute over event cancellation coverage for West’s “Life of Pablo” Tour, which experienced canceled shows due to West’s health condition. The settlement resolved all claims and counterclaims. Continue Reading Insurer Settles $10M Coverage Dispute With Kanye West Touring Company
In Selective Ins. Co. of the Southeast v. William P. White Racing Stables, Inc. (http://caselaw.findlaw.com/us-11th-circuit/1882819.html), the Eleventh Circuit recently ruled that a liability insurer is not required to defend its insured against a claim for spoliation of evidence. In the underlying case a jockey, James Rivera, was paralyzed in a racing accident when the horse he was riding suddenly collapsed. Mr. Rivera sued the race track, Mr. Rivera’s employer, and the horse’s veterinarians, claiming that the horse was not fit to be raced due to the negligence of most of the defendants. His claims against his employer, White Racing Stables, did not assert negligence but alleged that by failing to preserve the horse’s remains, White Racing had violated Florida’s workers compensation law by failing to investigate and pursue Mr. Rivera’s claims against the other defendants. He also asserted a claim for spoliation.
In Universal Cable Productions LLC, et al. v. Atlantic Specialty Insurance Co., No. 2:16-cv-04435 (C.D. Cal. Oct. 6, 2017), the United States District Court for the Central District of California held that a “war” exclusion barred insurance coverage for losses arising from NBCUniversal’s decision to postpone and relocate production of its action-thriller miniseries Dig, due to an armed conflict between Israel and Hamas. During the conflict, Hamas and other militant groups fired over 4,000 rockets and mortar shells into Israel, forcing NBCU to halt filming in Jerusalem and move production to Croatia and New Mexico.
The Sports Litigation Alert has published an article written by Hunton & Williams insurance recovery attorneys Lorelie S. Masters, Michael S. Levine, and Tae Andrews. The article, entitled “Recent Catastrophic Storms Emphasize the Need for Event-Cancellation Insurance for Professional Sports Organizations,” originally ran in the October 13th issue of the Alert. In the article, Masters, Levine, and Andrews discuss the need for event-cancellation insurance for games and other events held in professional sports organizations’ stadiums.
In football as in life, the best defense is often a good offense. But, that adage does not always play well in litigation. In Riddell, Inc. v. Superior Court, No. B275482, 2017 WL 3614305 (Cal. Ct. App. Aug. 23, 2017), the California Court of Appeal blew the whistle on such a tactic, holding that an insurer could not use discovery tools in a coverage dispute with its policyholder in order to prejudice the policyholder’s defense in an underlying lawsuit.
Hunton & Williams Insurance Recovery partner, Michael Levine, was quoted in an August 29, 2017 article appearing in Business Insurance, regarding the rapid increase in lawsuits, and insurance issues, surrounding concussions in high school and college sports. Among other things, the article discusses a coverage lawsuit filed by Great American Assurance Company against Conference USA in federal court in Dallas, Texas. In the lawsuit, the insurer alleges that its policy did not afford coverage for football concussion injuries because the policy included a “limited event coverage endorsement,” which limited bodily injury coverage to a list of sports that apparently did not include football. As Mr. Levine noted, the use of policy endorsements to limit coverage for bodily injury claims to those arising in some sports, but not when they arise in football – where injuries are most likely to occur – is troubling. Football is where the coverage is needed most; yet the insurer apparently removed it using a policy endorsement that purports to afford coverage, not restrict it. As Mr. Levine notes, cases like this underscore the need for policyholders to carefully review all policy endorsements to ensure that the policy when read as a whole actually provides the coverages that are needed the most.
A federal judge has ordered an insurer to show cause why he should refrain from dismissing the insurer’s case against an NCAA football conference over the availability of insurance for concussion-related lawsuits. Back in May, Great American Assurance Company filed a complaint against Conference USA, seeking a declaration that it need not defend or indemnify the conference against a lawsuit brought by a former football player. In the underlying lawsuit, the former player alleged that he suffered neurodegenerative disorders and diseases, including chronic traumatic encephalopathy (“CTE”), Alzheimer’s disease, memory loss, mood swings, headaches, and anxiety stemming from repeated concussive brain impacts he sustained while playing for the University of Louisville. In the coverage action, Great American argues that a Limited Event Coverage endorsement added to Conference USA’s policies did not include football as a covered event and therefore the policies do not provide coverage for “bodily injury” arising from football.