State Statutes Redefine “Occurrence” To Create Defect Coverage

December 2011 | Category: News

In many states, courts have found that the faulty workmanship of a construction contractor that damages the contractor’s own work is not an accident and, therefore, not an “occurrence.” General Sec. Indem. Co. of Arizona v. Mountain States Mut. Cas. Co., 205 P.3d 529 (Colo.Ct.App. 2009); Auto-Owners Ins. Co. v. Home Pride Companies, Inc., 268 Neb. 528, 684 N.W.2d 571 (Neb. 2004) (faulty workmanship, standing alone, is not covered under a standard CGL policy); Oak Crest Const. Co. v. Austin Mut. Ins. Co., 329 Or. 620, 998 P.2d 1254 (Or. 2000) (no occurrence where insured sought cost of correcting subcontractor's deficient work); Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 908 A.2d 888 (Pa. 2006).

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Court Agrees that Bankruptcy Trustee’s Action is “Non-Core” in IndyMac Bancorp Case

November 2011 | Category: Recent Successes

Alfred Siegel v. Certain Underwriters at Lloyds (C.D. Cal. 2011)

A California federal court agreed with BatesCarey LLP's arguments that a declaratory judgment action filed by IndyMac Bancorp's bankruptcy trustee was "non-core" to the bankruptcy. Therefore the court found that judicial efficiency supported withdrawing the reference to the bankruptcy court. After the reference was withdrawn, the trustee voluntarily dismissed the action.

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Court Says Umbrella Insurer Has No Duty to Settle When Primary Insurer Controls Defense

August 2011 | Category: Recent Successes

Kevin Fox v. Will County State’s Atty. (N.D. Ill. 2011)

BatesCarey LLP's client issued an excess policy to an insured county, which was sued, along with two sheriff deputies, for civil rights violations by a man falsely accused of murder. The primary insurer paid for the county's and deputies' defense, which resulted in an uncovered multi-million dollar punitive damage award. The insured's assignee argued that the excess insurer had failed in bad faith to accept a settlement offer and was required to pay the punitive damage award. BatesCarey LLP argued that the excess insurer did not control the defense and thus could not have breached any duty to settle. An Illinois federal court adopted BatesCarey LLP's reasoning on summary judgment and held that the excess insurer was not obligated to pay the punitive damage award.

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Court Agrees that “Follow the Fortunes” Does Not Require Payment of Additional Expenses

May 2011 | Category: Recent Successes

Pacific Emp. Ins. Co. v. GLOBAL Reinsurance Corp. (E.D. Pa. 2011)

BatesCarey LLP obtained judgment for its reinsurer client by convincing a federal court that the "follow the fortunes" doctrine did not require the reinsurer to pay expenses in addition to the limits of liability on a facultative certificate. By moving for judgment on the pleadings, BatesCarey LLP foreclosed the cedent from taking any discovery and obtained victory immediately after the cedent filed its responsive pleading.

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Getting Out From Under The “Action Over”

December 2010 | Category: News

Construction companies generally do not expect to be targets of tort liability for the injuries of their employees.  They are protected by workers compensation laws against such claims.  It follows then that general liability insurance policies do not expect to insure the tort injuries of the insured’s employees, because the insured should have no tort liability for its employees’ injuries.  However, a quirk of the various contracts that are entered into between construction companies does allow for an employer to find itself paying for the tort injuries of its employees, in which case the employer’s liability insurer may foot the bill.  This strange quirk where an employee’s damages are ultimately paid by his employer and the employer’s insurer are known as “action over claims.”  This article explains what an “action over” claim is, and what steps insurers are taking to avoid insuring such claims. 

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Court Agrees that “Follow the Fortunes” Does Not Expand Coverage of Reins Contract

October 2010 | Category: Recent Successes

Arrowood Surplus Liurancenes Ins. Co. v. Westport (D. Conn. 2010) (January 2010), aff’d (2d Cir. 2010)

The cedent sought reinsurance for $6.7 million for claims that arose from occurences taking place after the termination of the reinsurance contract. The cedent argued that the "follow the fortunes" doctrine bound the reinsurer to pay any claims under a reinsurance policy, regardless of the reinsurance contract limitations. The district and appellate courts, however, fully agreed with BatesCarey LLP's argument that the client reinsurer had only agreed to cover risks insured by the cedent during the time limits of the reinsurance contract.

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Reinsurer Can Challenge Cedent’s Post-Settlement Reinsurance Aggregation

June 2007 | Category: News

Reinsurance disputes arise when an insurer treats claims as multiple occurrences to force the insured to pay multiple retentions, but that same insurer treats the same claims as a single aggregated occurrence for purposes of reinsurance. In the past, reinsurers have found success when challenging aggregation by citing language in the reinsurance contract. However, in a recent New York case, the reinsurer was successful in challenging a cedent’s aggregation even without specific aggregation language in the reinsurance contract. The reinsurer was not required to follow its cedent’s fortunes.

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