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.
Why Policyholders Should Hire Insurance Coverage Savvy Intellectual Property Litigators
Intellectual property litigation proceeds through a variety of causes of action. They can include a number of distinct factual allegations that often in some instances trigger insurance policy benefits entitling policyholders to a defense at their insurer’s expense. While the most common form of business insurance to secure coverage remains the Commercial General Liability (“CGL”) policy. Securing defense benefits under such policies presents increasing challenges.
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.
Three 2020 Coverage Cases Clarify Coverage Availability
Three cases in 2020 clarified key issues of law, germane to policy holder goals in securing full reimbursement of moneys expended in underlying potentially covered lawsuits.
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.
POWER OUTAGE Property Insurance Coverage
Typically, “property damage” coverage includes “physical loss or damage to covered property” referenced in the policy’s Declarations section. “Property damage” must result from any Covered Cause of Loss, such as a fire or windstorm, typically included as one of the policy’s “named perils.” But, such coverage includes not only direct loss but loss of use and functionality of the covered property.
California Supreme Court's Pitzer Opinion Unearths New Opportunities to Revisit Prior Insurer Denials of Policy Benefits
When insurers deny a defense and the law changes, or is clarified in a way that is contrary to positions insurers relied upon in denying a defense, the opportunity arises to revisit coverage denials. Many policyholders and their counsel overlook this readily available source of funding for ongoing litigation or settlements. We refer to this as “buried treasure.”
Reimbursement for Business Tort Lawsuits
Did you know that reimbursement for lawsuits may be recoverable through your insurance policies? We call this "Buried Treasure.”
Navigating the Insurance Maze World
Courts typically evaluate an insurer's duty to defend advertising injury claims using a three-part test. Coverage exists where the insured demonstrates advertising activity, . . .
David A. Gauntlett: Dean of the "Coverage B" Bar
Our principal, David A. Gauntlett, answers four questions in Coverage Opinions on the scope, character and history of utilization of "Coverage B" of the CGL policy.
Court Denies National Union's Motion to Dismiss Bad Faith Case
Judge Klausner denied National Union’s motion for summary judgment on bad faith. The court also denied its request to terminate the defense going forward finding a duty to defend the Underlying Action.
Maryland’s High Court Ignores Policy Language
In Maryland Cas. Co. v. Blackstone Int'l Ltd., No. 51, September Term, 2014, 2015 Md. LEXIS 286 (Md. Apr. 21, 2015), the Maryland Court of Appeals failed to address the salient policy language concluding that no potential coverage arose for “unjust enrichment” claims. Having conceded that the allegations evidenced “use of another’s advertising idea” under offense (f), the majority ignored “product packaging,” which the dissent and Intermediate Court both agreed evidenced an “advertisement.”
Full Award of Attorneys’ Fees and Costs Obtained
Judge James V. Selna of the United States District Court, Central District of California, Southern Division, entered an order on April 1, 2015 on behalf of Defendant, Armano Luxury Alloys, Inc. granting its motion for attorneys’ fees and costs pursuant to both 35 U.S.C. § 285 and 15 U.S.C. § 1117, awarding attorneys fees and costs against plaintiffs Dzinesquare, Inc. to Defendant, whom Gauntlett & Associates represented in trade dress Lanham Act, trade dress lawsuit.
20 Years of Success!
Founded on April 1, 1995, the firm to date has secured judgments and settlements exceeding $200 million dollars on behalf of a range of corporate clients including over 20% of the Fortune 1000 and 10% of the Fortune 500 companies. Gauntlett & Associates specializes in insurance recovery negotiation and litigation in intellectual property, antitrust/unfair competition and business tort claims lawsuits.