Does an excess insurer have an absolute right to veto a settlement under a policy’s “no action” and “no voluntary payments” clauses? The Ninth Circuit has predicted that, under California law, the answer is no. In a March 21, 2017 decision, the Ninth Circuit affirmed a district court’s $6,080,568 judgment in favor of an insured in a breach of contract and bad faith lawsuit against its excess general liability insurer arising from an underlying patent infringement dispute. (Teleflex Med. Inc., v. National Union Fire Ins. Co. of Pittsburgh, PA., No 14-563666, 9th Cir., 2017 U.S. App. LEXIS 4996.)
In reaching its decision, the Ninth Circuit confirmed the California rule set forth in Diamond Heights Homeowners Ass’n v. Nat’l Am. Ins. Co. (1991) 227 Cal. App. 3d 563, which provides that an excess insurer has three options when presented with a proposed settlement of a covered claim that has met the approval of the insured and the primary insurer: (1) approve the proposed settlement, (2) reject it and take over the defense, or (3) reject it, decline to take over the defense, and face a potential lawsuit by the insured seeking contribution toward the settlement
Continue reading Excess Insurer’s Obligations Regarding Settlement Offers of Underlying Claims
Is talc the elusive “next big thing” long sought by the plaintiffs’ bar? Recent verdicts against cosmetic talc defendants, including Johnson & Johnson (“J & J”), suggest that talc litigation, at a minimum, is a material threat to talc defendants and the insurance industry. In 2016, J & J and other defendants suffered three large verdicts for exposure to its baby powder in St. Louis, Mo.: $72M, $70M and $55M. All three verdicts, in a jurisdiction considered favorable to asbestos plaintiffs, included substantial punitive damages. The plaintiffs in each of these cases alleged that exposure to talc contained in J&J’s baby powder caused them to contract ovarian cancer. Also in 2016, a Los Angeles jury awarded $18M to a plaintiff who sued a cosmetic talc defendant alleging exposure to cosmetic talc cause the plaintiff to contract mesothelioma.
Assuming talc litigation is not going away any time soon, several questions are raised. Are all talc claims the same? What is the relationship between talc and asbestos, if any? What defendants are at risk in the talc litigation? What are the insurance implications of talc claims, and are they alike or different from asbestos and other long-tail coverage claims? Continue reading Talc Litigation and Insurance Implications
Duane Morris is pleased to announce that several of the firm’s attorneys will be presenting at the American Bar Association (ABA) Section of Litigation’s Insurance Coverage Litigation Committee CLE Seminar, to be held on March 2–5, 2016, in Tucson, Arizona. Duane Morris is a sponsor of the program and partner Terrance J. Evans is serving as a seminar co-chair. In addition, partners Philip R. Matthews, Ray L. Wong, Lida Rodriguez-Taseff and Jessica E. La Londe and associate Audra L. Thompson will all be presenters at the seminar.
For more information about the seminar, please visit the Duane Morris website.
Today the California Supreme Court issued its decision in Fluor Corporation v. Superior Court. In a unanimous decision, authored by the Chief Justice, the Court rejected the enforceability of “consent to assignment” clauses as a bar to coverage when the loss pre-dates the assignment, based on California Insurance Code section 520, and overruled its prior decision in Henkel Corp. v. Hartford Acc. & Indem. Co. (2003) 29 Cal.4th 934.
Continue reading California Supreme Court Issues Fluor Decision, Reverses Henkel Anti-Assignment Rule
A California Court of Appeal has affirmed a summary judgment in favor of the insurer on defense and indemnity with respect to claims that arose from circumstances known to the policyholder when it applied for professional liability insurance but that were not disclosed to the insurer in the application. Crown Capital Securities, L.P. v. Endurance American Specialty Ins. Co. (Cal.Ct.App, 2d Dist., Div. 5, 4/10/15). Because the application stated that a claim is excluded from coverage if arising from any undisclosed circumstance that was required to be disclosed in response to a question asked, and the application requested disclosure of circumstances that may result in a claim, the policyholder was not entitled to coverage for claims arising from the known but undisclosed circumstance.
Continue reading Application Exclusion Bars Coverage for Claims Arising from Known, Undisclosed Circumstance
On January 13, 2015, the Illinois Appellate Court issued its opinion in Illinois Tool Works, Inc. v. Travelers Casualty and Surety Co., 2015 IL App. (1st) 132350 (1st Dist. 2015), wherein the court held the insurer had a duty to defend its insured against numerous vaguely pleaded toxic tort complaints. The central issue in Illinois Tool Works was whether facts extrinsic to the underlying complaint, known to both the insurer and insured, can abrogate the duty to defend. The Illinois Appellate Court held that undisputed extrinsic facts not pleaded in the underlying complaint cannot relieve an insurer of its duty to defend unless and until proven in the underlying action. Continue reading The Illinois Duty to Defend: Litigation Insurance against Groundless Suits Even When Extrinsic Facts Known to Both Insurer and Insured Would Otherwise Abrogate Coverage
In Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Company of Pittsburgh, Pa., 2013 NY Slip Op 03264 (May 7, 2013), the New York Court of Appeals, New York’s highest court, held that a priest’s multiple incidents of sexual abuse against one victim over a span of six years constituted multiple occurrences. The Court of Appeals also held that the underlying settlement amount should be allocated on a pro rata basis over the seven policy periods, requiring satisfaction of the SIR attendant to each implicated policy.
Continue reading New York Court of Appeals Holds That Multiple Incidents of Sexual Abuse Constitute Multiple Occurrences
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?
In Admiral Ins. Co. v Joy Contractors, Inc., 2012 NY Slip Op 4670 (N.Y. June 12, 2012), the New York Court of Appeals, New York’s highest court, held that an insurer may seek rescission against an additional insured for the named insured’s misrepresentations during the underwriting process.
The coverage dispute arose from the deadly collapse of a tower crane operated by Joy Contractors, Inc. during construction of a luxury high-rise condominium in Manhattan. Admiral Insurance Company, which issued an excess commercial general liability policy to Joy, denied coverage to Joy and other entities claiming additional insured status under the policy on the basis of a residential construction exclusion. Continue reading New York Court of Appeals Holds an Insurer May Rescind a Policy to an Innocent Additional Insured’s Detriment
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?