Umbrella Insurer Must Indemnify Primary Over $6 Million

December 2012 | Category: News

On September 24, 2012, a California appellate court ruled that a housing discrimination claim was not covered by the personal injury definition of a primary policy, but that it was covered by the personal injury definition of the umbrella policy. Therefore, after the underlying dispute was over, the umbrella insurer was ordered to reimburse the primary for over $5.2 million in defense costs and $1 million in indemnity.

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BatesCarey LLP Successfully Argues that FELA Does Not Apply to Rail Switching Company and Parent Company

October 2012 | Category: Recent Successes

Smith v. Rail Link (District Court of Wyoming 2011) (February 2011), aff’d (10th Cir. 2012)

The plaintiff injured her ankle while on the job and obtained workers' compensation benefits. She attempted to increase her recovery by filing a FELA claim against both her employer, a rail switching company, and a parent company. BatesCarey LLP successfully moved for summary judgment on the grounds that FELA did not apply to the rail switching company and that FELA did not apply to the parent company because it was not the claimant's employer. A Wyoming federal court agreed with BatesCarey LLP's positions and granted summary judgment in favor of BatesCarey LLP's client. The Tenth Circuit affirmed the trial court's decision and issued its first published decision addressing these issues.

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Indiana Court Tells Insurer to Pound Sand

August 2012 | Category: News

In an unusual decision employing contorted contractual construction, an Indiana appellate court on August 28, 2012 explained that an insured that intentionally left 100,000 tons of sand on property it once leased, has caused a “personal injury” to the land and that this “personal injury” is covered by the insured’s general liability insurance. The concurring opinion found coverage was owed because the standard “occurrence” definition in the policy creates an ambiguity as to whether the policy requires the cause of the injuries to be “accidental.” or whether the policy requires that the injuries themselves to be “accidental.” While this decision may encourage policyholder counsel to use the “personal injury” coverage grant as a path to finding coverage for environmental property damage, the reasoning of the decision is likely to hold little precedential value outside the facts of the particular case and little sway for courts outside of Indiana.

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Federal Court Rules in Favor Of Client on Indemnity

May 2012 | Category: News

Clark v. Union Pacific Railroad (E.D. Ark. 2012)

On June 1, 2012, after a three-day bench trial in the U.S. District Court for the Eastern District of Arkansas, a federal judge ruled that BatesCarey LLP's client, Gunderson Rail Services, did not owe contractual indemnity to Union Pacific Railroad for Union Pacific's 50% of liability in a multi-million suit under the Federal Employers Liability Act. Joseph P. Pozen tried the case for Gunderson.

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Business Loss, Even by Any Other Name, Still Isn't Covered

April 2012 | Category: News

One of the seminal no “loss” cases is Level 3 Communications, Inc. v. Federal Ins. Co., 272 F.3d 908 (7th Cir. 2001), penned by the esteemed jurist Judge Richard Posner. This past month, Judge Posner, writing for the Seventh Circuit, issued another no “loss” decision, finding in favor of the insurer. Ryerson Inc. v. Federal Ins. Co., --- F.3d ----, 2012 WL 1216282 (7th Cir. Apr. 12, 2012) (Illinois law).

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Insured Sanctioned for Seeking Umbrella Coverage Before Exhausting Primary Coverage

February 2012 | Category: Recent Successes

Lenex Steel Co. v. Rockhill Ins. Co. (Ill. Cir. Ct. 2012) 

The insured was obligated to pay a $1.2 million settlement of an underlying bodily injury claim. The insured and one of its primary insurers argued that "additional insured" coverage applied under the client's umbrella policy, and that the client was therefore obligated to contribute to the settlement. Adopting BatesCarey LLP's reasoning, an Illinois state court held that the client umbrella insurer had no obligation to contribute to the settlement because all primary coverage, including the insured's own primary coverage, was not exhausted. The court not only granted summary judgment, but at BatesCarey LLP's request it also sanctioned the insured and its counsel for pursuing a frivolous lawsuit by awarding the client its reasonable attorneys' fees and costs.

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