Duane Morris Insurance Law

August 21, 2012September 8, 2014 by Paul J. Killion

Was The Wallace & Gale Holding Rejected In The API Case?

Some policyholders cite the Minnesota trial court decision in St. Paul Fire and Marine vs. A.P.I. Inc. (Minn. Dist. Court, Ramsey County, No. C9-02-8084, J. Finley Order dated May 13, 2004) as rejecting the Fourth Circuit’s holding in In re Wallace & Gale Co., 385 F.3d 820 (4th Cir. 2004). The argument is incorrect for several reasons.

First, Judge Finley’s May 2004 decision in API did not even address the core holding in Wallace & Gale but rather simply ruled on the burden of proof issue, concluding that it was insurers’ burden to prove that the claims fell within the completed operations hazard. Continue reading “Was The Wallace & Gale Holding Rejected In The API Case?”

August 9, 2012September 8, 2014 by Duane Morris

State of California v. Continental Insurance

The California Supreme Court issued its decision in the State of California v. Continental Insurance case on August 9. In a unanimous opinion, written by Justice Ming Chin, the Court held that the policy language at issue provides for “all sums” allocation and permits stacking of policy limits.

The Court’s opinion reflects a focus on the particular insurance policy wording at issue. In its first holding, the opinion states: “Under the CGL policies here, the plain ‘all sums’ language of the agreement compels the insurers to pay ‘all sums which the insured shall become obligated to pay. . . for damages . . . because of injury to or destruction of property ….” The Court went on to hold that the policy language before it “does not limit the policies’ promise to pay ‘all sums’ of the policyholder’s liability solely to sums or damage ‘during the policy period.’”

Continue reading “State of California v. Continental Insurance”

June 14, 2012September 5, 2014 by Brian A. Kelly

Any Friendly Wagers on Outcome of State of California v. Continental Ins.?

As you may be aware, the California Supreme Court heard argument in the State of California case on May 30th. (See Bill Baron’s May 4, 2012 posting to this site.) I’ve entered into a wager with my partner and insurance guru, Phil Matthews, on the outcome of State of California, which should decide two very important insurance coverage questions in California: (1) all sums; and (2) stacking of policy limits. I won’t reveal our respective wagers, and recognizing that predicting the outcome of an appellate court is not exactly a science, I invite you to email me with your prediction as to the outcome of this case. Continue reading “Any Friendly Wagers on Outcome of State of California v. Continental Ins.?”

June 14, 2012September 5, 2014 by Paul J. Killion

California Asbestos Defendants Are On A Roll In The Appellate Courts

It’s been a very good few weeks in the California appellate courts for asbestos defendants and perhaps the beginning of a broader trend towards leveling the playing field in the unrelenting asbestos litigation that continues to overwhelm California courts.

On May 21, 2012, the Second District, Division Seven, issued a decision in Campbell v. Ford Motor Company (No. B221322) holding that a premises owner and employer owes no duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer’s business – a new bright line rule that should significantly limit take-home exposure liability in California.

Continue reading “California Asbestos Defendants Are On A Roll In The Appellate Courts”

June 1, 2012September 8, 2014 by Cyndie M. Chang

California Federal Court Finds No Conflict with Allegedly Competing Other Insurance Clauses

A California federal court recently issued a summary judgment ruling after interpreting two “other insurance” clauses in California State Automobile Inter-Insurance Bureau v. Progressive Casualty Insurance Company, 2012 U.S. Dist. LEXIS 57996 (N.D. Cal, April 25, 2012). One insurer argued that the “other insurance” clauses conflicted with each other, but the Court disagreed and found no conflict where one other insurance clause specifically provided for excess coverage in certain circumstances.

The policyholder had a homeowner’s insurance policy with California State Automobile Inter-Insurance Bureau (“AAA”) and a watercraft policy with Progressive Casualty Insurance Company (“Progressive”). Both issued liability limits of $500,000.

Continue reading “California Federal Court Finds No Conflict with Allegedly Competing Other Insurance Clauses”

May 30, 2012September 5, 2014 by Paul J. Killion

Do Asbestos Rip-Out Claims And The “Abandoned Materials” Policy Exception Neutralize The Impact of the Completed Operations Aggregate?

In an effort to avoid the impact of the completed operations aggregate limit, policyholder counsel sometimes attempt to characterize claims as (1) rip-out exposures, or (2) as relating to “abandoned or unused materials,” so as to come within a common insurance policy carve-out from the Completed Operations Hazard. Both arguments are a stretch.

Continue reading “Do Asbestos Rip-Out Claims And The “Abandoned Materials” Policy Exception Neutralize The Impact of the Completed Operations Aggregate?”

May 30, 2012September 9, 2014 by Duane Morris

“Every Breath” of Asbestos Is Not a Substantial Factor in Pennsylvania

The Pennsylvania Supreme Court unanimously found that plaintiffs cannot rely on the theory that “every breath” is a substantial contributing factor in causing an asbestos-related disease in an asbestos case involving friction exposures, i.e., brakes and clutches. The May 23, 2012, ruling in Diana K. Betz v. Pneumo Abex LLC (“Simikian”) overturns the en banc decision of the state Superior Court, which the Pennsylvania Supreme Court found to be based on an “unduly cramped perspective.” This decision changes the face of asbestos litigation in Pennsylvania and may have farther-reaching impact. Plaintiffs can no longer lump together exposures and say all exposures contributed to disease. This brings asbestos litigation in line with the mainstream causation requirements for other substances—plaintiffs must be able to prove that each product was a substantial factor in their disease. (Note: Duane Morris represented defendant Ford in this case.)

To read the rest of this alert, please visit the Duane Morris website.

May 4, 2012September 9, 2014 by William J. Baron

State of California v. Continental Ins. Co., Oral Argument Set for May 30

The California Supreme Court has set oral argument in State of California v. Continental Insurance Co. for May 30, 2012 at 9:00 a.m. in San Francisco.

This case presents two issues for review by the Court: (1) the so-called “all sums” issue, and (2) “stacking” of policy limits. First, when continuous property damage occurs during the periods of several successive liability policies, can each insurer be liable for all damage both during and outside its policy period, up to the amount of the insurer’s policy limits, or is each insurer only liable for property damage that took place during its policy period? Second, if each insurer can be liable for damage taking place outside its policy period, can the insured “stack” policy limits – that is, can the insured recover the combined limits of successive policies?

Philip R. Matthews and William J. Baron of Duane Morris submitted an amicus curiae brief in the case, on behalf of certain London Market Insurers.

April 20, 2012September 5, 2014 by Jess R. Booth

Virginia Supreme Court Reaffirms Ruling that Insurer has No Duty to Defend or Indemnify Global Climate Change Suit

Today, the Virginia Supreme Court reaffirmed that Steadfast Insurance Co. does not have a duty to defend or indemnify AES Corporation in an underlying climate change liability suit. See AES Corporation v. Steadfast Insurance Company, No. 100764, 2012 Va. LEXIS 81 (Va. Sup. Ct. April 20, 2012). The Virginia high court is the first state Supreme Court in the nation to issue an opinion concerning insurance coverage for climate change liability suits, which may proliferate in the years ahead.

Continue reading “Virginia Supreme Court Reaffirms Ruling that Insurer has No Duty to Defend or Indemnify Global Climate Change Suit”

April 19, 2012September 5, 2014 by Brian A. Kelly

Court Considers Equitable Allocation Among Multiple Insurers, and Precludes Allocation to Insurer Absent From Coverage Action

It is becoming more common for courts to consider the nuts and bolts of an equitable allocation among insurers that cover the same risk. Along comes another such decision in the very heavily litigated coverage dispute that already has many lengthy trial court decisions. The latest decision in MGA Entertainment v. The Hartford, 2012 U.S. Dist. LEXIS 55281 (C.D. Ca., April 18, 2012) involves the equitable sharing of many tens of millions of dollars in defense costs incurred by Bratz doll manufacturer, MGA, in an acrimonious lawsuit with Mattel involving copyright infringement and trade secret theft, among other issues.

Continue reading “Court Considers Equitable Allocation Among Multiple Insurers, and Precludes Allocation to Insurer Absent From Coverage Action”