Massachusetts Court Holds that All Excess Policies are Created Equal

In Massachusetts, competing excess insurance policies will apply equally to provide excess coverage even if one policy is a true excess policy and the other is a hybrid policy that provides either primary or excess coverage depending on the circumstances. See Great Divide Ins. Co. v. Lexington Ins. Co., 2017 WL 4969942 (Mass. Nov. 1, 2017). In a November 1, 2017 opinion, the Supreme Judicial Court of Massachusetts held that the plain language of the insurance policies was the determinative
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Heartbreak in the First Circuit: Court Dismisses Suit Against Insurer Over Coverage for Claims Related to Attorney’s Rocky Affair with Client

In Sanders v. The Phoenix Insurance Co. (1st Cir. Dec. 7, 2016), the First Circuit held that a homeowner’s insurance company had no duty to defend or indemnify its insured, a divorce attorney, against claims stemming from his “on-again/off-again intimate relationship” with his client. The First Circuit affirmed the lower court’s dismissal of a complaint filed by the assignee of the insured attorney against his insurer, Phoenix Insurance Company , for its failure to provide coverage. As background, Phoenix issued
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Hold the Sauce: Insurer Must Indemnify Insured for Trade Disparagement and Defamation Claims Arising Out of Indian Sauce Recipe Dispute

Rass Corporation v. The Travelers Companies, Inc., No. 15-P-358, 2016 Mass. App. LEXIS 163 (Nov. 10, 2016), represents a continuation of Massachusetts law in the context of an insurer’s duty to defend, indemnify, and settle in good faith. Since the underlying settlement included covered and non-covered claims, the court concluded The Travelers Companies, Inc. and Travelers Property Casualty Companies of America were obligated to indemnify Rass Corporation for the amount the trial court allocated to covered claims. As background, Ranbir
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You Can’t Keep it Bottled Up: Defective Bottle Cap = Defective Bottled Product

The Appeals Court of Massachusetts held that a first-party property policy’s ensuing loss provision did not restore coverage for the non-defective contents of a bottle rendered unsaleable by defective bottle caps.  Since the product contained in the bottle could not be separated from the defective bottle cap, the whole product was defective and excluded from coverage. In 2008, a manufacturer entered into an agreement with a company to manufacture a milk-based shelf-stable protein drink designed to require refrigeration only after
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Massachusetts Proposes Amendments to Its Annuity Suitability Regulation

Massachusetts has proposed amendments to its Consumer Protection in Annuity Transactions Regulation with the intent of improving consumers’ understanding of annuity products for which recommendations have been made. The newly revised Massachusetts regulation conforms it to the 2010 revisions made by the National Association of Insurance Commissioners (NAIC) to the Suitability in Annuity Transactions Model Regulation. The 2010 revision of this model regulation addressed several issues, including producer training and insurer responsibility for ensuring the suitability of annuity purchases, regardless
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Colorado Court Applies Massachusetts Law to Bar Coverage for Chinese Drywall

A Colorado state court applied Massachusetts law to deny an excess carrier’s summary judgment motion that sought to disclaim coverage for defective Chinese drywall claims.  Specifically, the court found that use of the term “pollutant” within the absolute pollution exclusion to be ambiguous “at this stage in the proceedings.”  In doing so, the court set the case up for trial. The underlying claims giving rise to this coverage matter involve allegations that defective drywall, imported into the U.S. from China,
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