The ongoing battles over construction defect coverage remind me of the good old days in the ‘80’s and ‘90s when we used to fight over asbestos and environmental coverage claims (we still have some of those claims, but to a much lesser extent). Construction defects even involve battles over the appropriate trigger of coverage! Ah
Duty to defend
Developments in cyberliability coverage
We in business are all overwhelmed with reading material, but I try to make sure that I read at least some legal and business publications every day to keep up with developing trends. And, it seems that every day I see another article about a new hacking incident, or another dire warning about cyber-risk. (The…
Insurance Coverage for Alleged Intentional Harm
I’ve sometimes commented on this blog that my first boss in the business warned me: “If you assume there’s no coverage, you won’t find any.” There are plenty of risk managers and brokers who believe that general liability insurance coverage exists primarily to protect against people falling down in the parking lot. Not suprisingly, many…
Independent Counsel and the Insurance Company’s Duty to Defend
I know that this is hard to believe, but even when an insurance company complies with its duty to defend, the interests of the insurance company and its policyholder may not be aligned. The policyholder may want to settle, while the insurance company wants to roll the dice; or, vice-versa. Or, the policyholder may want…
Additional Insured Coverage
Years ago, there was a Bell Labs facility behind my house, and on Sunday afternoons, the engineers (mostly Indian and Pakistani) would get together and play cricket on the large lawn. I watched the matches quite a bit, but I never could get a grip on the rules. Then a British friend told me that…
The Allocation of Defense Costs in Long-Tail Claims
The great CLE instructor Jim McElhaney, a Professor Emeritus at Case Western, used to tell the story of a “professional expert” testifying at trial on cross-examination. The guy was apparently a kindly old gentleman with an Irish brogue, and also an engineer, and indeed made most of his money in the litigation game.
“You’re a…
When is a “reservation of rights” letter enforceable?
Lawyers and insurance companies are forever reserving their rights. Sometimes I think it’s a reflex action against ever being forced to take an actual position. But in the world of insurance coverage, “reservation of rights” letters do serve a function. Insurance companies fear that if they undertake the investigation or defense of a claim, for example…
Insurance coverage for “intentional” torts
One of the celebrities we lost in 2013 was the novelist Tom Clancy. I wasn’t a Clancy devotee, but I have to admit that “Red Storm Rising” and “The Hunt for Red October” were excellent military thrillers. In “Red October,” the KGB officer on board the Russian submarine (Red October) thinks that, rather than surrendering…
The “Wrongful Acts” Exclusion and the Duty to Defend
There’s a funny (perhaps unintentionally so) website called The Robing Room, on which lawyers rate judges in various categories. The site is funny mostly because, from reading the reviews, you can generally predict who won and who lost a case before that particular judge. Take, for example, Judge Joseph F. Bianco of the Eastern District…
Claims-Made Coverage and “Related Wrongful Acts”
Claims-made policies were supposed to simplify things. In an article a few years back, insurance expert Fred Fisher noted that the idea behind such policies was to provide greater actuarial certainty for insurance companies, by ensuring that there would be no more claim activity following the end of a policy period (eliminating the “incurred…