Insurers Have An “All Sums” Duty to Defend Long-Tail Claims. A New York Federal Magistrate Judge, applying New York law, issued a Report and Recommendation finding that insurers with a duty to defend a policyholder against asbestos bodily injury claims have an “all sums” duty to pay all defense costs up front.  In other words, a pro rata allocation of... Read More

“All Sums” And “Vertical Exhaustion” Apply to Policies Containing Non-Cumulation/Prior Insurance Provisions. A New York Supreme Court, applying New York law, held that the Liquidator for Midland Insurance Company must apply all sums and vertical exhaustion to Midland policies that follow form to policies containing non-cumulation/prior insurance provisions. ASARCO was engaged in the milling and selling of asbestos products.  As a... Read More

Prior Known Acts Exclusion Negates Insurer’s Duty to Defend. The U.S. District Court of New Jersey, applying New Jersey law, granted the insurer’s motion for summary judgment and denied the insured’s cross-motion for summary judgment.  The Court held that the insurer does not have a duty to defend a public school district from sexual abuse claims under its policy because... Read More

Damage From Defective Product Was “Expected” Despite Negligence Allegations.    Illinois district court Judge Elaine E. Bucklo, applying Illinois law, found the mere inclusion of a negligence theory in an underlying complaint could not satisfy a policy’s occurrence requirement where there were no allegations of an unforeseen or accidental event that produced property damage.  Thus, while the court found the... Read More

Pro Rata Allocation Not Required in Insurer v. Insurer Contribution Action. An appellate court in Ohio, applying Ohio law, held that National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) was liable for its equitable share of the costs of defending and indemnify its insured, Rust Engineering Company (“Rust”), against thousands of asbestos-related bodily injury claims.  The court determined... Read More

Common Interest Doctrine Applicable as Exception to Attorney-Client Privilege in Case Between Insured and its Broker. On interlocutory appeal, the Illinois Appellate Court for the Second District, applying Illinois law, held that the “common-interest” doctrine applies as an exception to the attorney-client privilege when an insured sued its insurance broker for malpractice based on the denial of a claim.  Thus,... Read More

Pro Rata Allocation Not Required in Insurer v. Insurer Contribution Action An appellate court in Ohio, applying Ohio law, held that National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) was liable for its equitable share of the costs of defending and indemnify its insured, Rust Engineering Company (“Rust”), against thousands of asbestos-related bodily injury claims.  The court determined... Read More

Focus is on Insurance Policies and Place of Contracting, Not Claims, in Determining Applicable Law. The Delaware Supreme Court reversed the superior court’s ruling that Wisconsin law applied to the dispute at hand and instead held that Texas law applied to the coverage dispute because focusing on the policies of the corporate-wide insurance program, Texas had the most significant relationship... Read More

Pre-1972 Excess “Occurrence” Policies Pro Rata, Excess Post-1972 Claims-Made Coverage not triggered.    The Delaware Supreme Court, applying Michigan law, held that costs associated with General Motors Company’s (“GM”) asbestos claims were subject to pro rata allocation under GM’s pre-1972 excess level occurrence-based policies.  The court also held there was no coverage under GM’s post-1972 excess level policies.  Those policies... Read More

Omission That Resulted in Reduced Premium Didn’t Automatically Establish That Misrepresentation Was Material. The Illinois Appellate Court for the First District, applying Illinois law, affirmed the judgment of the circuit court and held that an increase premium, standing alone, without any actual evidence of an increased risk to the insured, is insufficient to justify rescission of an automobile insurance policy. Andrew... Read More