Archives: Emerging Trends

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Yes, construction defects are covered “occurrences” in New Jersey

Are you the parent of a teenager?  Have you ever been the parent of a teenager? If the answer to either of those two questions is yes, have you ever felt like you’re banging your head against the wall? You think you’re speaking plain English, but they’re just not getting it. That’s the way I … Continue Reading

Direct Actions against Insurance Companies

Labor Day has just passed as I write this, and this summer (that went by too quickly) was a busy one for the New Jersey appellate courts, insurance-wise.  The New Jersey Supremes, for example,  dealt with a question often posed by our clients in construction defect cases: Namely, can a claimant proceed directly against a … Continue Reading

More developments in insurance coverage for construction defects

Back in the days of the environmental insurance coverage wars, we on the policyholder side argued (eventually successfully in New Jersey) that the word “sudden”, as used in the 1973 version of the pollution exclusion, meant “unexpected” and did not have a temporal connotation. My friends in the defense bar often criticized us for trying … Continue Reading

Insurance coverage for construction defects

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, … Continue Reading

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 … Continue Reading

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 … Continue Reading

Insurance Coverage and Allocation Issues Conference

On May 20, 2014, I’ll be speaking at Perrin’s Emerging Insurance Coverage & Allocation Issues Conference at The Rittenhouse Hotel in Philadelphia, PA. My panel (shared with the inimitable Gary Kull of Carroll, McNulty & Kull, representing the insurance industry view of things), will focus on “Best Practices for Additional Insureds.” If you can make … Continue Reading

Completed operations coverage for construction defects

When I was in grammar school, the class wise guy was a kid named Nicky DeLuca.  One day, we were in gym class, and the coach was trying to teach us the importance of fundamentals in basketball.  “You have to have a strong foundation,” the coach said.  “It’s like building a house.  You have to … Continue Reading

New Developments in Cyberliability Coverage

If you’re a Rolling Stones fan, you may remember the (underrated) 1974 song, “Fingerprint File.”  (You can hear it by clicking here…“Listenin’ to me/On your satellite.”)  Who knew that, four decades ago, Mick and Keith could be so prescient about cybersnooping and leaks of sensitive data?  Edward Snowden, Bradley Manning, NSA, Nigerian scammers…even British schoolboys … Continue Reading

Insolvent Carriers and Allocation of Loss

When I started in this business (yikes, a long time ago), we used to argue with insurance companies a lot about scintillating issues like whether environmental cleanup costs constituted “damages” under CGL policies, and whether “sudden” meant “abrupt” for purposes of the pollution exclusion. In fact, many coverage lawyers have sent their kids to college … Continue Reading

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 of … Continue Reading

Insurance coverage for cyberliability

At the end of this month (January 26, to be exact), assuming that the Mayans remain incorrect, I’ll be doing a presentation to the New Jersey Institute for Continuing Legal Education on the topic of insurance coverage for cyberthreats.  Of course, I probably should be disqualified from making any comments whatsoever about trends in computer-related … Continue Reading

The “Eight Corners” Rule and the Duty to Defend

One of the issues that frequently comes up in complicated third-party cases is:  How far outside the underlying complaint does the carrier have to go to determine whether coverage exists?  New Jersey is not an “eight corners” state (in which all the court considers is the four corners of the policy and the four corners … Continue Reading

Business Risk Exclusions

Those of us who represent contractors in coverage disputes have had to wrestle a lot over the past few years with so-called “business risk” exclusions, such as the “your work” and “your product” exclusions.  Cynicism may be unhealthy, but the cynic in me says that insurance companies are twisting these exclusions far beyond their intended … Continue Reading

Coverage for class action settlements

Here’s a fairly frequent scenario in the insurance world.  The carrier takes a “no- pay” position on a liability claim.  The policyholder settles the case and then seeks reimbursement from the carrier in a coverage suit.  What exactly does the policyholder have to prove in order to get paid?   In Fireman’s Fund v. Security Ins. … Continue Reading

The “Absolute” Pollution Exclusion

In State Automobile Mutual Ins. Co. v. Flexdar, the Indiana Supreme Court has just held that the so-called “absolute” pollution exclusion contained in general liability insurance policies from 1986 forward is ambiguous and unenforceable.  The Court basically found that the exclusion does not define “pollutant” with sufficient specificity, and that, read literally, the exclusion would … Continue Reading

Fidelity insurance and Ponzi schemes

Spring is a time of rebirth and hope, especially for baseball fans.  No matter how badly your team played last year, when March rolls around, you’re tied for first!  That is, unless (like me) you’re a fan of the woeful New York Mets.  After just a few weeks of spring training, their third baseman already … Continue Reading

“Business Risk” Exclusions in CGL Policies

The late, great comedian Alan King used to tell a story that went like this:   “The other day, my house caught fire.  My lawyer said, ‘Shouldn’t be a problem.  What kind of coverage do you have?’  I said, ‘Fire and theft.’  The lawyer frowned.  ‘Uh oh.  Wrong kind.  Should be fire OR theft.’”  Recently, a … Continue Reading

Developments in insurance bad faith law

Awhile back on this blog, we were discussing developments in insurance bad faith law, and I hypothesized that Courts were generally more apt to find bad faith in cases involving a carrier’s delay of benefits, rather than outright denial.  But what if the outright denial contains a bald-faced lie, or a deliberate omission?  In that … Continue Reading

Insurance coverage for SEC investigations

The SEC has been getting more and more aggressive with investigations into alleged securities fraud, as well as with filing civil securities fraud actions.  In fact, we just got an SEC securities fraud action dismissed against one of our clients a couple of weeks ago…but it was an expensive fight.  Over at Property Casualty 360, they’ve … Continue Reading