Adam H. Fleischer Publishes Article on Football Brain Injury Litigation in London Publication, Insurance Day
April 2014 | Category: Articles and PresentationsAdam H. Fleischer published an article in the London publication, Insurance Day, entitled, "US brain injury litigation threatens future of American football." In the article, Mr. Fleischer analyzes the recent spate of litigation arising from chronic traumatic encephalpathy (CTE) experienced in athletes suffering blows to the head - an issue front and center in the NCAA, NFL and high school football programs across the nation. Insurers can expect claims and costs to rise as CTE becomes more easily diagnosable, and the resulting litigation continues to grow. The article is attached here.
David M. Alt Speaks on Independent Counsel Issues at the Claims Litigation Management Conference
March 2014 | Category: Articles and PresentationsOn March 6, 2014, David M. Alt spoke at the Claims Litigation Management Conference on "Reservation of Rights and the Insured's Right to Independent Counsel." The conference was part of CLM's ongoing training seminars for insurance professionals. The presentation spanned several topics concerning Independent Counsel, including the proper protocol for acknowledging a claim, assessment of the insurer's duty to defend, the insured's right to independent counsel, state-specific statutory requirements for reservation of rights letters, waiver and estoppel, and bad faith issues. David M. Alt speaks regularly at litigation and insurance conferences, as well as in-house for a number of our insurer clients.
Maria G. Enriquez Teaches at Wake Forest University School of Law on Liability Insurance – Defense and Settlement
February 2014 | Category: Articles and PresentationsMaria G. Enriquez teaches a section on "Liability Insurance – Defense and Settlement" in a course on Insurance & Regulation at Wake Forest University School of Law. Ms. Enriquez taught for three days concerning defense and settlement issues in connection with insurance issues. She also spoke at a Lunch & Learn at Wake Forest concerning recent developments and topics in insurance law.
Ellen J. Zabinski and Adam H. Fleischer Publish a 2013 Year-End Review of Environmental Coverage Cases in Mealy’s
December 2013 | Category: Articles and PresentationsEllen J. Zabinski and Adam H. Fleischer offer insights and analysis of a number of leading insurance coverage decisions in the environmental realm in their article published in Mealy’s Litigation Report, entitled, Environmental Coverage Summary: 2013. To review a copy of the article, please click here.
Vermont Court: Insurer Can Introduce Extrinsic Evidence To Negate Duty To Defend
December 2013 | Category: Articles and PresentationsProSelect Insurance Co. v. Springfield Hospital, Docket No. 227-4-12 (Vt. Sup. Ct. Windsor Unit May 16, 2013)
On May 16, 2013, the Vermont Superior Court, Winsor Unit, held that an insurer could introduce extrinsic evidence in a declaratory judgment action to negate the duty to defend its insured. The court’s well reasoned opinion provides guidance for insurers grappling with the issue of whether an insurer can introduce extrinsic evidence to negate a duty to defend, and, if so, when.
Adam H. Fleischer Conducted Mock Arbitration at May ARIAS Conference
December 2013 | Category: Articles and PresentationsAdam H. Fleischer conducted a mock reinsurance arbitration argument at the ARIAS Spring May conference in Palm Beach, Florida. Adam’s presentation addressed issues involving follow the fortunes and the duty of utmost good faith as these doctrine apply to the reinsurance of captive insurers. Attendees also received a detailed article Adam has authored on the topic.
Expected or Intended Exclusion Bars Duty To Defend Negligence Claim Where Defendant Allegedly Knew Of Predator’s History
December 2013 | Category: Articles and PresentationsA significant ruling on May 13, 2013 in a sexual molestation case may benefit insurers’ “expected and intended” arguments far beyond the context of molestation claims. An Illinois Appellate Court held that the expected and intended exclusion can preclude a duty to defend even a negligent supervision claim if the facts allege that the insured had reason to expect the predator’s predilections. The court found that the terms “expected” and “intended” are not synonyms, and that an insurer has no duty to defend “expected” injury even if that injury was not “intended” by the insured.
Spring Forward Into Recent Professional Liability Decisions
December 2013 | Category: Articles and PresentationsAdam Fleischer and Jason Minkin highlight five recent professional liability decisions from the past month. The topics addressed are: 1) whether “circumstances” that may lead to a claim constitute a claim; 2) whether a broker can be sued for its client’s purely financial loss; 3) whether a broker can be sued by an investor of one of its clients; 4) whether the insured can sue the broker directly for negligence; and 5) whether similar claims over two policy periods constitute the same or related claims. The case summaries are presented below.
Koransky, Bouwer & Poracky, P.C. v. Bar Plan Mut. Ins. Co., 712 F.3d 336 (7th Cir. (Ind.) Apr. 2, 2013)
Sixth Circuit Finds Exception to “Your Work” Exclusion
December 2013 | Category: Articles and PresentationsForrest Construction, Inc. v. The Cincinnati Insurance Company, 703 F.3d 359 (6th Cir. Jan. 11, 2013) (applying Tennessee law)
On January 11, 2013, the U.S. Court of Appeals for the Sixth Circuit held that an insurer cannot rely on the “your work” exclusion if the underlying complaint against a general contractor potentially suggests that the allegedly faulty work was performed by a subcontractor. The court held that the allegation that a general contractor “caused” work to be performed in the construction of an allegedly defectively built home implied the existence of a subcontractor and, therefore, triggered the subcontractor exception. In a standard CGL policy, coverage is excluded for damage to the insured’s own work, except if the damaged work or the work out of which the damages arises was performed on the insured’s behalf by a subcontractor.
U.S. District Court in Nevada Construes General Contractor’s Policy to Cover Amounts Due Under Contract
December 2013 | Category: Articles and PresentationsBig-D Const. Corp. v. Take it for Granite Too, 2:11-CV-00621-PMP, 2013 WL 222260 (D. Nev. Jan. 22, 2013)
On January 22, 2013, the U.S. District Court for the District of Nevada predicted that the Nevada Supreme Court would find that a CGL carrier can owe a duty to indemnify a contractor for damages caused by defective construction even if the contractor was never been sued and the duty to defend was never triggered. The court found that the term “legally obligated to pay as damages” contained in the standard CGL insuring agreement is ambiguous and could be construed to cover damages the insured is contractually required to pay.