Battling for Equity-Securing Appropriate Fee Rates in C. C. §2860 Disputes
The rates insurers pay their appointed counsel to defend similar actions in similar communities sets the benchmark when California Civil Code § 2860 is applied. To pay a rate less than the reasonable rate virtually every other forum requires strict and complete compliance with California Civil Code § 2860.
Arbitrator Rules Delay in Paying Defense Fees Constitutes Bad Faith
Where an insurer withholds policy payments on grounds that are unreasonable or without proper cause, the insurer tortuously breached the implied covenant of good faith and fair dealings. A recent arbitration decision – Independent Physicians Associates Medical Group, Inc. dba AllCare IPA v. Ironshore Specialty Insurance Co. – clarifies why delaying defense fees payments while pursuing another insurer for contribution, or negotiating a settlement of defense fees due, breached of the insurer’s duty of good faith and fair dealing.
Insurance Coverage for Antitrust Disputes
Express coverage for antitrust lawsuits arise under a variety of policy forms that do not expressly reference antitrust tort. Potentially applicable policies include: Directors and Officers (“D&O”), Errors and Omissions (“E&O”), Commercial General Liability (“CGL”), and, on occasion, Media[1] policies as well as sublimited antitrust policies or endorsements.
Unpresented Arguments Should Not Be Alternative Grounds for Decision
In the recent Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20-915, 2022 U.S. LEXIS 1226 (Feb. 24, 2022), Supreme Court case, Unicolors failed to comply with a copyright registration technicality. The argument that prompted certiorari review was that joint mistakes of both law and fact secured a safe harbor protection for the registrant. The Court determined that section 411(b)(1)(A) was satisfied so long as the copyright holder lacked “knowledge that it was inaccurate.” In so ruling, the Court did not follow any prior precedent.
Deadline Looms for Business Interruption Insurance Coverage COVID-19 Claims
Counsel who seek to benefit from any coverage recognition by their property insurer to secure business interruption loss reimbursement arising from COVID-19 events must make a critical decision soon. Drafting a complaint in an appropriate forum is critical before the deadline. For most property policies, that is 3/19/2022 — two years from civil authority shut down.
Coverage for Restitutionary Relief Based on Disgorgement
While many insurance policies define “Loss” to include settlements, judgments, damages, and litigation expenses, restitutionary awards for disgorgement are on occasion expressly excluded from the definition of “Loss” where it is deemed “uninsurable” under the statutes and laws of the controlling jurisdiction of the lawsuit. Where no policy provisions address this issue, jurisdictions vary on the rules that govern insurance coverage for restitutionary relief. Insurer’s argument that disgorgement claims are overbroad especially where the intuition monies secured were not obtained illegally.
Are Insurance Policy Applications Traps for the Unwary?
When applying for insurance coverage, the policyholder must complete a policy application. Completing the policy application can be a tedious process containing a number of questions that, to the average person, can seem convoluted and confusing. This is especially the case as policyholders face questions that do not have objective answers. The complicated nature of policy applications raises serious issues where insurers have the ability to rescind the policy contract if the policyholder misrepresents information provided in their policy application.
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.
Why Securing Broad Crime Coverage is the Best Protection Against Cyber-Threats
Our prior blogs have addressed Cyber/Media policies as well as aspects of “social engineering fraud,” one of the most prevalent, problematic, and challenging theft plagues sweeping the country. The best resource against such incidents of Loss is a comprehensive separately secured Crime policy. A recent decision from the Ninth Circuit reversing the district court’s ruling in favor of the policyholder clarified why Crime Policy may be the best to address this risk in Ernst & Haas Management Co. v. Hiscox Inc.
WHAT A CEO NEEDS TO KNOW ABOUT INSURANCE
When is the last time you thought about your company’s insurance coverage? How broad is its scope? How might it address litigation which could arise out of the company’s operations?
Insurance concerns are rarely a priority for CEOs. But, a CEO brings a unique perspective to the oversight of insurance acquisition and use. CEO involvement is inescapable where a Lawsuit becomes an “existential” concern for the Company.
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 Recovery for Restitutionary Intellectual Property Claims
Insurance recovery in intellectual property lawsuits is often not limited to “compensatory damages”. Claimants who suffer a Loss in an intellectual property dispute may secure recovery that is not limited to “compensatory damages”. Licensing revenue is commonly recoverable in the successful pursuit of trademark infringement lawsuits.
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.
Preferred Pathways to Secure Trade Secret Coverage
Many trade secret litigators presume that insurance coverage for trade secret lawsuits is not readily available. But, this overstates the viability of the insurer’s arguments against coverage. Trade secret disputes often include fact allegations that address an array of different liability theories often articulated under counts such as tortious interference as well as misappropriation offering coverage that trade secret litigators should explore.
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.
Coverage for Malware Attacks – Crytpojacking and Ransomware
With malware attacks on the rise and evolving, policyholders need to secure proper cyber insurance coverage to protect them against the costly expenses of these attacks.
Policyholder's Rights to Challenge Insurer's Control of Counsel
Commercial General Liability (“CGL”) policies, however, rarely bestow a right on the policyholder to select counsel. Nonetheless, policyholders may still secure its choice of counsel where an ethical conflict arises because of the insurer’s “reservation of rights” (“ROR”).
ESTATE LITIGATION AND INSURANCE COVERAGE
While probate and civil litigation address legal issues in separate spheres, those distinct lawsuits often address interwoven factual disputes. Where procuring Professional Liability Trustee insurance is, more times than not, a viable solution, proactive acquisition of insurance coverage trustees placed in a fiduciary duty role. This, access to insurance coverage is more broadly available than many policyholders recognize.
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”.