Intoxication Not a Defense to Expected or Intended Injury Exclusion, Massachusetts Appellate Court Says

In Liberty Mutual Fire Insurance Co. v. Casey, 91 Mass. App. Ct. 243 (Mar. 29, 2017), the Massachusetts Appeals Court held in essence, that the insured (Casey)’s impairment due to alcohol and drugs at the time of the underlying assault did not render the insurance policy’s expected or intended exclusion inapplicable. The undisputed facts established that Casey had the capacity to form the requisite intent to injure the underlying plaintiff. Seventeen-year-old Casey “sucker punched” Williams, the underlying plaintiff, in the
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Minnesota Supreme Court Limits Insurers’ Extracontractual Liability: An Insured’s Recovery of “Proceeds Awarded” for Insurer’s Unreasonable Denial of Benefits Must Consider Policy Limit

In Wilbur v. State Farm Mutual Automobile Insurance Co., No. A15-1438 (Minn. April 5, 2017), the Minnesota Supreme Court greatly limited the insured’s recovery under the First-Party Bad Faith Statute, Section (Minn. Stat. § 604.18). Although State Farm was found to have unreasonably denied John Wilbur benefits under his underinsured-motorist policy, the calculation of his recovery for “proceeds awarded” had to take into account the policy’s limit of liability. As background, on January 10, 2009, Wilbur suffered serious neck injuries
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Plain Language, Surplus, and Reasonable Expectations: Utah Supreme Court Uses Entire Contract Construction Toolbox in Concluding Policy Inapplicable to Botched Real Estate Deal

In Compton v. Houston Casualty Co., 2017 UT 17 (Mar. 23, 2017), the Utah Supreme Court affirmed the district court’s grant of summary judgment in favor of Houston Casualty Company , holding that Houston Casualty had no duty to defend or indemnify its insured in an underlying real estate transaction gone bad. Essentially, Utah’s high court held that because the insured did not provide services “for a fee” in the underlying transaction, the underlying plaintiffs were barred from coverage under
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Frankly, My Dear, I Don’t Give a “Dam”: Seventh Circuit Holds Professional Liability Insurer Off the Hook in Neighborhood Dispute Tangentially Related to Unobtained Dam Permit

In Madison Mutual Insurance Co. v. Diamond State Insurance Co., No. 15-3292 (7th Cir. Mar. 21, 2017), the Seventh Circuit handed down a decision delineating the obligations between a professional liability insurer and a homeowner’s insurer. At bottom, the court refused to hold a professional liability insurer responsible for the defense of a suit that only tangentially referencing the insured’s professional services. As background, Dr. William and Wendy Dribben purchased a house in 1999 at Heartland Oaks, an exclusive development.
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Insurers Beware: Wisconsin Court of Appeals Hold Expected/Intended Injury Exclusion Inapplicable to Injuries Arising from an Insured’s Negligent Supervision of its Employee

In Talley v. Mustafa (Wisc. App., Apr. 5, 2017), the Wisconsin Court of Appeals found coverage available in an underlying negligence suit against a store owner and reversed the circuit court’s grant of summary judgment in favor of Auto Owners Insurance Company. The court’s holding, in essence, was that a reasonable person in the insured’s position would have expected that his insurance policy would cover a customer’s negligence suit, including negligence in training/supervising an employee who contributed to the customer’s
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Enough is Enough: Fifth Circuit Holds Duty to Defend Does Not Include Costs of Prosecuting Insured’s Fee-Dispute Counterclaim

Aldous v. Darwin National Assurance Co., No. 16-10537 (5th Cir. Mar. 16, 2017), presents a thicket of coverage issues. However, the clearest and most significant one for the insurance industry is that the duty to defend, under Texas law, does not extend to the cost of prosecuting an insured’s counterclaim. This coverage litigation started as an attorney-client dispute over the non-payment fees and then morphed into a legal malpractice action. Darwin National Assurance Co. insured Aldous under a professional liability
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Professional Services Exclusions Found to Bar Coverage for Insureds’ Administration of Medications Leading to Meningitis Outbreak

In Westfield Insurance Co. v. Orthopedic and Sports Medicine Center of Northern Indiana, Inc. (N.D. Ind. Mar. 28, 2017), an Indiana federal court held an insurer had no duty to defend or indemnify its insured against over scores of malpractice and negligence claims that allegedly caused a meningitis outbreak. The district court concluded that, under the subject CGL and umbrella policies, the underlying claims did not involve an “occurrence” and, further, professional services exclusions precluded coverage entirely. As background, NECC
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Insured Stuck Defending Itself Against Claims of False Advertising an Elastic Tape Product

In Cincinnati Insurance Company v. KT Health Holdings, LLC et al. (D. Mass. Mar. 27, 2017), a Massachusetts federal district court held that an insurer had no duty to defend or indemnify its insureds, finding that allegations by a putative class that the insureds falsely advertised their product did not trigger bodily injury coverage under a CGL policy. As background, the defendants, KT Health Holdings and KT Health (collectively “KT”), manufacture and sell KT Tape for sports and fitness activities.
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Congress Rolls Back FCC Privacy Regulations

On March 28, 2017, Congress passed legislation (S.J. Res. 34) that rolled back privacy regulations recently adopted by the Federal Communications Commission. The resolution passed the Senate by a vote of 50-48 and the House by a voted of 215 to 205. This is one of several sets of regulations Congress is rolling back under the authority of the Congressional Review Act of 1996. Under this statute, Congress can nullify administrative regulations by simply passing a joint resolution of disapproval.
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The NAIC Appeals to the Secretary of the Treasury Over the Covered Agreement

While the U.S. and EU governments are deliberating on whether to accept the negotiated Covered Agreement (Agreement), state insurance regulators in the U.S. are continuing to express concerns about the Agreement. In February 2017, the National Association of Insurance Commissioners (NAIC) testified before Congress against the Agreement. On March 15, 2017, the NAIC continued these efforts by submitting a letter to the U.S. Treasury Secretary Steven Mnuchin detailing the NAIC’s concerns. One of the NAIC’s central concerns centers on the
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