The Supreme Court of Virginia’s decision yesterday finding no coverage for fire damage to a building is a cautionary tale for companies acquiring other companies. Erie Ins. Exch. v. EPC MD 15, LLC, 2019 WL 238168 (Va. Jan. 17, 2019). In that case, Erie Insurance issued a property insurance policy to EPC. The policy covered EPC only and did not cover any subsidiaries of EPC. EPC then acquired the sole member interest in Cyrus Square, LLC.  Following the acquisition, fire damaged a building that Cyrus Square owned. Continue Reading Don’t Assume Your Insurance Covers A Newly Acquired Company

In Zurich American Insurance Co. v. Don Buchwald & Associates, Inc., 2018 N.Y. Slip. Op. 33325(U) (Sup. Ct. N.Y. County, Dec. 21, 2017), the Supreme Court of New York held that Zurich was obligated to defend a talent and literary agency against claims brought by Hulk Hogan alleging that the agency aided and abetted one of its agents—Tony Burton—in publishing racist and sexual footage of Hulk Hogan online.  The decision also gives ammunition to policyholders seeking to recover their fees incurred while litigating against an insurer’s improper denial of coverage.  The court found that the insureds had “been cast in a defensive posture” due to the insurer’s claims seeking a declaratory judgment, and that this justified a fee-shifting award.

Continue Reading Talent Agency Wrestles Defense Coverage From Insurers in Hulk Hogan Coverage Fight

Policyholders facing any type of products liability scored a win in a recent decision from the District Court for the Northern District of Illinois.  The court found that an insurance company must defend its insured against claims arising out of a recall while simultaneously funding the insured’s affirmative claims for recovery.

Continue Reading Defense owed for Product Recall and Insured’s Related Affirmative Claims

As the new year gets under way, cases that will shape the insurance landscape in 2019 continue to proceed.  Among them are First Acceptance Ins. Co. v. Hughes, in which the Georgia Supreme Court will address the prerequisites for a policyholder to sue its insurance carrier for bad faith based on the insurer’s failure to settle the underlying dispute for an amount within the available policy limits.  Hunton Andrews Kurth’s insurance practice head, Walter Andrews, was asked by Insurance Law360 to comment on the significance of that case.  As Andrews explained, the insurer’s position is inconsistent with Georgia law.  “Georgia law does not require some particular form of settlement offer — or even an offer at all — to create an insurer’s duty to settle claims against their insureds.” Rather, as Andrews explained, “that duty arises when the insurer knows or reasonably should know that not settling will create an ‘unreasonable risk’ of the insured suffering a judgment in excess of his or her policy limits, regardless of whether a third-party claimant has first presented a settlement offer. Most often, that should be a jury question and not something that is susceptible to summary judgment.”
Continue Reading Hunton Insurance Head Comments on Insurance Cases to Watch in 2019

The Second Circuit has ruled a claim alleging an “offer for sale” infringed on a patent constitutes an advertising injury sufficient to trigger a defense under commercial general liability insurance.  In High Point Design LLC v LM Insurance Corporation, the plaintiff High Point brought a declaratory-judgment action against Buyer’s Direct, Inc. after the latter directed High Point to cease-and-desist in the sale of its Fuzzy Babba slippers.  Buyer’s Direct responded with a counterclaim alleging trade dress infringement, claiming that High Point’s offers for sale in retail catalogs infringed on Buyer’s Direct’s own slipper trade dress.  Buyer’s Direct sought discovery of all advertising, marketing and promotional materials related to High Point’s fuzzy footwear to substantiate its claims.

Continue Reading Offer Up: Second Circuit Holds That “Offers for Sale” Constitute Advertising Injury

The United States District Court for the Middle District of Florida recently granted summary judgment in favor of developer, KB Homes, ruling that Southern Owners Insurance Co. must defend KB Homes under various Commercial General Liability policies.

Continue Reading Florida Federal Court Finds Insurer Must Defend Contractor in Defective Condo Construction Suit

Gatwick airport has been shut down since Wednesday night UK time due to the presence of multiple drones around the perimeter of the runway. A drone was first spotted Wednesday evening in the vicinity of Gatwick’s runway. After being briefly re-opened several hours later, the runway was shut down for good when several more drones were discovered. Given the public safety risk of attempting to shoot the drones down from the ground, law enforcement is instead focusing on identifying and apprehending the drone operators to ensure that the area is safe for air travel.

Continue Reading Little Drones, Big Insurance Exposure: Drones Shut Down Gatwick Airport

The Fifth Circuit in Evanston Insurance Co. v. Mid-Continent Casualty Co. recently held that multiple collisions caused by the same insured driver over a span of 10 minutes constitute a single occurrence subject to a $1 million limit in the insured’s primary policy with Mid-Continent. The holding reversed a lower court’s ruling that Mid-Continent is liable for an additional sum the excess insurer, Evanston, paid to resolve all of the claims arising from the collisions. At issue, a fundamental question about causation and coverage under commercial liability insurance.

Continue Reading Fifth Circuit Decision on Number of Occurrences Underscores Need to Carefully Tailor Your Insurance Program

In a prior post, we discussed a New York trial-court decision that found an insurance policy issued in 1966, to insure the construction of the World Trade Center, continues to cover modern-day asbestos claims, with each claim constituting an individual occurrence.  Last week, in American Home Assurance Co. v. The Port Authority of N.Y. and N.J., 7628-7628A (1st Dep’t Nov. 15, 2018), an intermediate appellate court affirmed that decision, agreeing that coverage is triggered for claims tied to alleged asbestos exposure at the WTC site in the 1960s and ’70s.

Continue Reading New York Appellate Court Affirms 1966 Insurance Policy Continues to Cover WTC Asbestos Claims