Ashlyn M. Capote
All articles by Ashlyn M. Capote
Venue Matters: Evaluating the Applicable Standard for Bad Faith Claims in New York
The insurance market has a strong interest in minimizing extra-contractual claims against it. These issues are often decided summarily at the pre-answer motion to dismiss stage or after discovery on summary judgment. Notably, however, since 2018, New York courts have articulated varying standards in evaluating a policyholder’s claim for breach of the implied covenant of good faith seeking consequential damages against its insurer in the context of these motions. Insurers have traditionally defended themselves against these extra-contractual claims by advancing
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New York Courts Continue to Differ on Interpretation of Primary and Noncontributory Clauses
Most insurance professionals encounter additional insured coverage issues on a daily basis, and priority of coverage is sometimes part of an additional insured analysis. Policies issued by insurance carriers contain primary and noncontributory language on an increasing basis, and that language is sometimes located within a separate endorsement or may be part of the additional insured endorsement. Generally speaking, a primary and noncontributory provision modifies the policy’s other insurance provision to specify that coverage provided under the policy to an
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Second Circuit Finds Insurer’s 52-Day Delay in Disclaiming Coverage Did Not Violate Insurance Law Section 3420(d)(2)’s Timely Disclaimer Requirement
The court of appeals for the Second Circuit recently confirmed that a liability insurer that waits to deny coverage so that it can investigate the facts giving rise to the disclaimer will not be estopped from denying coverage under Insurance Law Section 3420(d)(2), provided that the insurer does not use the investigation as a tactic to delay the disclaimer. United Fin. Cas. Co. v. Country-Wide Ins. Co., No. 18-3022, 2019 WL 2724267 (2d Cir. July 1, 2019). Section 3420(d)(2) requires
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The Evolving Impact of Burlington v. NYC Transit: In New York, is Proximate Causation Necessary to Trigger the Duty to Defend an Additional Insured?
In previous blog posts this year, and to keep up with how courts are interpreting the New York Court of Appeals 2017 decision in Burlington Ins. Co. v. NYC Transit Auth., 29 N.Y.3d 313 (2017), we discussed the trial court’s decision in M & M Realty of New York, LLC v. Burlington Ins. Co. and the First Department’s reversal in the same case. Recently, a New York Supreme Court Judge decided American Empire Surplus Lines Ins. Co. v. Arch Specialty
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Injured Employee Triggers Additional Insured Coverage
While awaiting the Appellate Division’s decision in M & M Realty of New York LLC v. Burlington Ins. Co., No. 153949/16, 2019 WL 1028971 (1st Dept. Mar. 5, 2019), we discussed the New York Supreme Court decision in a post in January. Last week the first department finally weighed in. Recall that the coverage dispute arises out of an underlying bodily injury case to an employee of L&M, which was hired by owner M&M to work on a project. M&M sought
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The Duty to Defend Additional Insureds in Post-Burlington New York
Anyone with a connection to the insurance coverage world in New York knows about the New York Court of Appeals 2017 decision in Burlington Ins. Co. v. NYC Transit Auth., 29 N.Y.3d 313 (2017), which held that “where an insurance policy is restricted to liability for any bodily injury ‘caused, in whole or in part’ by the ‘acts or omissions’ of the named insured, the coverage applies to injury approximately caused by the named insured.” At the time the decision
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