Delaware Superior Court Rules Pursuit of Affirmative Claims Was Strategically Defensive
On February 8, 2022, the Delaware Commercial Court, in Legion Partners Asset Management, LLC v. Underwriters at Lloyds of London, ordered payment of the principal amount of $1, 186, 946.08 plus prejudgment interest for defense fees at the legal rate of 5.25% pursuant to Delaware statute, 6 Del. C. sec. 2301(a) for a total sum of $1, 249, 260.75 accruing from the date of presentment of the fees to Underwriters.
In so ruling, it brought to a conclusion a coverage dispute addressing claims for wrongful conduct by an ex-employee held compensable after a counterclaim in the employment arbitration dispute incorporated mirror image fact allegations to those addressed in a stayed state court action for “breach of fiduciary” duty by an ex-employee.
Requiring Insurers to Protect Policyholders in "Mixed Action" Cases as They Head to Trial
Allocation issues involving “mixed actions” have emerged as a potent source of controversy. A developing body of case law addressing allocation limits the right of insurers to prorate their defense payment where the policies don’t allocate 100% of defense fees to the insurers.
BUSINESS OWNER’S GUIDE TO INSURANCE COVERAGE
Business owners are often confronted by the need to explore insurance coverage to evaluate whether claims or problematic events arose requiring insurer involvement and subsequently, insurance coverage expertise. Policyholders need to be mindful and may need to seek counsel expertise to properly clarify and structure their claim submission to avoid traps posed by policy exclusions and conditions in their insurance policy.
Insurance Coverage for Vehicular Accidents
Plaintiff’s lawyers often seek damages beyond those available under Defendant’s individual automobile policies. Where Defendants are working for an employer at the time of an accident, separate coverage under the Commercial General Liability (“CGL”) policy of the Defendant’s employer, which include Commercial Automotive coverage may be implicated.
Narrowly Construing COVID-19 Business Interruption Insurance Coverage
A 4th District, Division 1, California Court of Appeals panel, in The Inns by The Sea v. California Mutual Ins. Co., decided that civil authority coverage cannot be implicated because “bodily injury” or “property damage” was not the triggering event, but rather the authority’s announcement of a shutdown in mid-March of 2020. The court’s analysis emphasizing the non-event essential espouses that the egg came into life, full force, without the chicken.
When Insurance Coverage Arises for Implicit As Well As Direct Disparagement
Implicit disparagement is an insurance coverage doctrine often overlooked or misapplied. It first surfaced within the final decade of the last millennium. The reasoning was always there. But, coverage practitioners had not presented the available arguments that demonstrated that “disparagement” offense policy did not require that the allegations addressed all elements to evidence common trade libel law or product disparagement to establish coverage under offense “d”.
TRIGGERS FOR RECOVERY OF PREJUDGMENT INTEREST
Where an insurer had denied a claim and many years have ensued until an adjudication of its duty to defend, prejudgment interest recovery can be significant. This, in turn, can make choice of the forum to pursue a coverage case, as well as what law that forum may apply, a critical decision element for coverage litigation.
The “Advertiser’s Exclusion” Doesn’t Bar Coverage for Advertisers Who Act Beyond Its Scope
A number of insurers issue standard ISO policies that exclude conduct committed by an insured whose business is advertising, broadcasting, publishing or telecasting. This exclusion can be circumvented, however, where the nature of their conduct of an advertiser is not their principal business.
Insurance Coverage for COVID-19 Infection Claims by Employees Returning to Work
Businesses are beginning to re-open and their employees are returning to work. Employers need to be prepared for the evolving threat of COVID-19 infection and employee infection claims. Learn more about how to find insurance coverage when workers’ compensation may not be not enough.
The Gorilla in the Closet: Insurers Take a Superficial View of Covid-19 Science
COVID-19 is the type of all-encompassing loss event that upends the risk calculations on which insurers build their businesses.
Conservative 5th Circuit Broadly Construes "Publication" in Policy to Cover Hack
Despite generally analogous insurance policies being available across the country, the location of a lawsuit and the predispositions of particular courts can often be determining factors in coverage lawsuits, particularly where a case comes down to conventions of policy interpretation.
A Tale of Two Cases: What a Difference A Forum Makes
It is the rare set of cases that so graphically illustrates the different analytical approaches that Luna Gourmet Coffee & Tea Co.[1] and Sprint Lumber[2] follow, where the applicable law of the forum is of less import than the presumption of one court that false, frivolous, and groundless claims did not entitle the insured to defense if the court can deduce why the insured has not been sued for potentially covered claims, based on the court’s understanding of what facts would suffice to create a colorable claim for relief.
Navigating Issues of Dual Representation Where Both Appointed Counsel and Independent Counsel Jointly Defend a Covered Lawsuit
In many cases, a defendant in a lawsuit may want to select their own lawyer, even if they believe that their liability insurance obligates the insurer to appoint one. If the defendant chooses to do so: “both the counsel provided by the insurer and independent counsel selected by the insured shall be allowed to participate in all aspects of the litigation. Counsel shall cooperate fully in the exchange of information that is consistent with each counsel’s ethical and legal obligation to the insured.”
Assuring Pre-Tender Fees Are Recoverable by Providing Proper Notice to Insurers
A Failure to Provide Notice Even Where it Does Not Preclude the Right to Any Defense May Limit a Client to Recovery Of Only Post-Notice Attorneys’ Fees.
Avoiding Malpractice by Providing Prompt Notice of Intellectual Property Claims to Insurers
“Intellectual property attorneys may have a duty to apprize their clients of the need to notify their clients’ insurers of claims as part of their retention in order to fully represent their clients’ interests in a lawsuit for which they are counsel of record.”
Insurance Coverage for Intellectual Property Risks
A primer on the types of policies that one may turn to coverage for Intellectual Property issues
Insurers May Owe an Obligation to Defend Ongoing Lawsuits
Some policyholders, if queried, might presume that a lawsuit which incepts before they have a policy in force could not trigger coverage under that later-issued policy of insurance. Insurers would argue that no insurer would issue a policy that had a defense obligation as of the date of its inception so that a notice provided contemporaneously with the policy’s issuance would trigger any rights thereunder. Generally accepted insurance coverage principles, as applied to standardized commercial general liability policies, do not preclude coverage for claims/lawsuits alleging continuous tortious conduct which incept prior to issuance of “occurrence” based insurance. This article will explore circumstances where post-claim/lawsuit coverage may be available to policyholders.
Buried Treasure
Many professionals with Errors & Omissions Coverage may find that their insurance includes no “advertising injury” coverage despite their widespread use of digital marketing to reach potential new clients. One solution is to secure express coverage for intellectual property (“IP”) infringement claims through an insurer.
New Opportunities for Coverage of Intellectual Property Torts
Many professionals with Errors & Omissions Coverage may find that their insurance includes no “advertising injury” coverage despite their widespread use of digital marketing to reach potential new clients. One solution is to secure express coverage for intellectual property (“IP”) infringement claims through an insurer.