“Catch-All” Statutory Violation Exclusion Ambiguous The Seventh Circuit, in an opinion by Judge Rovner, applying Illinois law, affirmed the district court’s judgment on the pleadings holding that an insurer had a duty to defend two class action lawsuits alleging violations of the Illinois Biometric Information Privacy Act (“BIPA”). The court determined the language of the catch-all provision of the statutory... Read More
Exclusions Not Applicable to Bar Personal and Advertising Coverage The United States District Court for the Northern District of Illinois, in an opinion by Judge Alonso, applying Illinois law, denied an insurer’s motion for judgment on the pleadings, holding that Continental Western Insurance Company (“Continental”) had a duty to defend its insured, Tony’s Finer Foods Enterprises (“Tony’s”), in an underlying... Read More
Inability to Muster Majority Leaves Appellate Ruling Permitting Assignment Stand In a per curiam decision, the Supreme Court of Wisconsin affirmed the appellate court’s decision that the anti-assignment clause in the insurer’s policies did not prohibit the post-loss assignment of insurance rights. The ruling of the appellate court stands because no three justices could reach an agreement to either affirm,... Read More
Losses Not Covered as Physical Loss or Damage The Seventh Circuit, in an opinion by Judge Scudder, applying Wisconsin law, affirmed the district court’s holding that a Wisconsin healthcare system failed to state a claim for coverage beyond the $1 million it received under an additional coverage provision for communicable disease response for its COVID-19 losses. The insured, Froedtert Health... Read More
Duty to Defend NYC and Board of Education as Additional Insureds The Southern District of New York, applying New York law, granted the City of New York (the “City”) and its Board of Education’s (the “Board”) motion for summary judgment against Philadelphia Indemnity Insurance Corporation (“Philadelphia Indemnity”), requiring the insurer to extend coverage to the City and the Board in... Read More
By Stephen Hoke Published May 11, 2023, Law360: Expert Analysis Three and a half years ago, I addressed the subject of transferring legacy liabilities in asbestos and other mass tort cases in a Law360 guest article. Since its publication, interest in options to limit or achieve finality with respect to long-tail and legacy liabilities has grown. The national media has closely... Read More
Johnson & Johnson Refiles Talc Bankruptcy The Third Circuit, in an opinion by Judge Ambro, dismissed Johnson & Johnson’s (“J&J”) Texas Two-Step bankruptcy attempt to place one of its subsidiaries holding talc liabilities in Chapter 11 bankruptcy, reasoning that the debtor did not suffer from financial distress. Facing nearly forty thousand claims for manufacturing baby powder allegedly containing carcinogenic talc, J&J... Read More
Defense Costs Owed under Media Liability Coverage The Appellate Court of Illinois for the First District, applying New York law due to a choice of law provision, held that Certain Underwriters at Lloyd’s London (“Lloyd’s”) had an obligation to pay for defense expenses for its insured, a technology company, in an underlying lawsuit that alleged the insured violated the Illinois... Read More
$25M in Remedial Measures to Prevent Harm Not Property Damage The United States District Court for the Northern District of Illinois, in an opinion by Judge Kendall applying Illinois law, granted summary judgment in favor of three insurers holding the insurers did not have a coverage obligation to a general contractor for a multimillion-dollar settlement award relating to the subcontractor... Read More
Defense Expenses Exhaust SIR The Southern District of Florida, applying Florida law, held that class action defense expenses incurred by a Florida agricultural business eroded the applicable $1 million self-insured retention (“SIR”) despite the fact that the policy contained another contradictory SIR endorsement. The coverage dispute arose when US Sugar Corporation (“US Sugar”) successfully defended itself against a class-action lawsuit alleging... Read More
