The Court of Appeals for the Second Circuit, applying New York law, upheld the district court’s ruling that a pollution exclusion barred coverage for damages stemming from sewer repair work.  In holding that the insurer had no duty to defend or indemnify its insured, the Second Circuit found sewage to be a “pollutant.” Roy’s Plumbing, Inc. (“Roy’s Plumbing”) appealed a... Read More

Four Month Delay of Notification of Discrimination Charge in Policy With 60 Day Requirement Bars Coverage The Court of Appeals for the Sixth Circuit, applying Ohio law, held that the filing of a housing discrimination charge constituted a proceeding and, therefore, triggered the notice requirement under a tenant discrimination liability insurance policy.  The Sixth Circuit found that notice four months... Read More

A St. Louis Circuit Court jury rendered a verdict of $5.4M in compensatory and $105M in punitive damages against J & J related to plaintiff’s use of Shower-to-Shower and Baby Powder products over four decades. This is the fourth such verdict against J & J in St. Louis in the last year, although the company did recently secure a... Read More

Insurer Found to Have Breached Duty to Defend in Bad Faith. The Washington Supreme Court, applying Washington law, held that an absolute pollution exclusion does not bar liability coverage where a covered loss, such as negligence, is the efficient cause of a loss.  The court applied Washington’s “efficient proximate cause” rule, which provides that coverage exists if a covered risk... Read More

Time Period Began to Run Upon Claim Denial and Not 2 Years Earlier When Broker Allegedly Provided Negligent Advice to Family About Scope of Policy. An Illinois appellate court, applying Illinois law, reversed the trial court and held that the discovery rule applies to toll the statute of limitations when an insurance agent owes a fiduciary duty to an insured. ... Read More

Although Tapes’ Value Was Largely in Their Content, Liberally Construed Claim Also Alleged Loss of Physical Property. A Wisconsin appellate court, applying Wisconsin law, reversed the circuit court and held that Erie Insurance Company (“Erie”) had a duty to defend Country World Productions, Inc. (“CWP”) in a lawsuit which stemmed from the loss of videotapes.  The court found the duty... Read More

False “Patent Pending” Mark Does Not Implicitly Disparage Competitor’s Product Causing Advertising Injury. An Illinois appellate court, applying Illinois law, upheld the circuit court’s ruling that State Farm Insurance Company (“State Farm”) did not have a duty to defend its insured, Green4All Energy Solutions, Inc. (“Green4All”), in a patent infringement suit.  The appellate court found that the underlying complaint failed... Read More

Reverses $36M Judgment for Policyholder The Third Circuit, applying Pennsylvania law, overturned the district court’s $36 million judgment in favor of the policyholder and held that an asbestos exclusion barred coverage for thousands of underlying claims.  The exclusion at issue eliminated coverage for injuries or loss “arising out of asbestos.”  The Third Circuit held that whether “asbestos” was interpreted to... Read More

National Cancer Institute SEER data suggests a slight overall increase with long-term trends holding steady; female diagnoses increase. Thank you to our friends at Gnarus Advisors LLC, who prepared and published this analysis based on data just released on April 14, 2017 and available via the link below: http://gnarusllc.com/news/observations-on-the-latest-mesothelioma-trends-from-recent-seer-data/ Read More

Insurer Failed to Timely File a Declaratory Judgment Action The Seventh Circuit, applying Illinois law, upheld the district court’s ruling that an insurer which unjustifiably declined to provide a defense when a claim was first asserted, and did not file a timely declaratory judgment action to determine the scope of its coverage, had breached its duty to defend.   Due to... Read More