National Insurance Law Forum is a public service intended to facilitate discussion and an exchange of ideas and information among insurance industry professionals, risk managers, attorneys, policyholders, students, and others with an interest in the development of American insurance law. Members of the Forum are attorneys who concentrate their practice in insurance and bad faith law and litigation. These authors are Kevin Merriman, Sara Thorpe, Michael Aylward, Diane Polscer, and Christopher Martin.
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The U.S. Court of Appeals heard oral argument last week in Emhart Ind. v. Century Ind. Co. a large and complicated insurance dispute that promises to say much about the future of environmental coverage jurisprudence in the Ocean State. The dispute in Emhart involves a chemical...
A recurring issue in coverage litigation is the extent to which insurers are entitled to obtain the file of defense counsel in cases where the insurer has either denied coverage or is at least reserving rights with respect to whether certain claims are covered. This is an issue of particular...
In American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 489 (1997), the Illinois Supreme Court determined that the pollution exclusion only applies to injuries caused by “traditional environmental pollution.” If the emissions released by the insured are...
Coverage B of the CGL policy provides coverage for “personal and advertising injury.” That term is usually defined to include “infringing upon another’s copyright, trade dress or slogan in your [the...
In the past year, numerous courts have addressed whether various intellectual property claims were covered under the commercial general liability (“CGL”) policy. There is no question that Coverage B, the “personal and advertising...
Where A "Known Loss" Defense Fails, A CGL Insurer May Be Estopped from Relying on its Defenses To Coverage.
After writing on the known loss issue presented by the Nipponkoa case (which was the subject of my Feb. 21, 2012 blog), I was alerted to a January 15, 2011 decision rendered by US District Court Judge Lefkow in Zurich Specialties London Ltd. v. Village of Bellwood, et. al, No. 07 CV...
With respect to the fortuity doctrine, Oregon courts generally recognize that there is a public policy against providing insurance for intentionally inflicted injury. A-1 Sandblasting v. Baiden, 293 Or. 17, 26, 643 P.2d 1260 (1982) (although painter acted intentionally, his act was not the...
Does an Insurer "Waive" the Fortuity Requirement under an All Risk Policy By Failing to Exclude a Risk It Knows About?
It is black letter law that in order to recover under an all risk policy, the insured has the burden of showing that its loss resulted from a fortuitous event. "Fortuitous" means happening by chance or accident, or occurring unexpectedly or without known cause. Black's...
After thirty years in this business, there are a few colleagues who have both earned my respect and still have a full head of hair that they can call their own. One is Michael Blair of Gen Re, who has now agreed to shave his head to raise funds for the St. Baldrick's Foundation for...
Although unexpectedly large jury verdicts have prompted disputes between excess and primary insurers for years, the phenomenon of excess carriers suing defense counsel hired by the primary insurer is relatively new. The issue presented in such cases is whether, in the absence of a direct...