Bradley R. Ryba
All articles by Bradley R. Ryba
No Defense Owed to Insured for Mediation Involving Environmental Contamination
The Illinois Appellate Court recently held that the term “suit” in a commercial general liability policy does not include a pre-suit mediation between the insured and others over the allocation of costs incurred to remediate environmental contamination. As a result, the court ruled that the insurers had no obligation to reimburse the insured for its legal fees incurred in the mediation. The insured operated a manufacturing facility on a property that was eventually declared a Superfund site by the U.S.
Eleventh Circuit: When an Insurer Has a Duty to Defend, Its Duty to Indemnify Is Not Ripe Until Resolution of the Underlying Lawsuit
With limited exception, an insurer that owes a duty to defend to its insured cannot litigate whether it also has a duty to indemnify the insured for the same matter until after the insured’s liability has been resolved. In a unanimous decision, the U.S. Court of Appeals for the Eleventh Circuit, applying Florida law, affirmed this principle and held that an insurer’s duty to indemnify is not justiciable until the insured’s liability has been adjudicated in the underlying case. Mid-Continent Cas. Co.
Fourth Circuit Holds that Insured Must Strictly Comply with Notice Conditions
The U.S. Court of Appeals for the Fourth Circuit, applying South Carolina law, recently held that an insurer had no duty to indemnify its insured for a default judgment on late notice grounds because the court found that the insured’s forwarding to the insurer’s agent of a notice of representation letter by the claimant did not constitute notice to the insurer of a lawsuit later filed by the claimant. Founders Ins. Co. v. Richard Ruth’s Bar & Grill LLC, No.
What on Earth? Court Finds Ambiguous Property Appraisal Award for Earthquake Damage
The U.S. District Court for the Southern District of Illinois recently held that outstanding coverage issues and an ambiguous notation in an appraisal award precluded a finding that an insurer satisfied its coverage obligations. Windsor Oaks, LLC v. Cincinnati Ins. Co., No. 17-CV-689-SMY-SCW, 2018 WL 4303141 (S.D. Ill. Sept. 10, 2018). The insured, a hotel owner, submitted to its insurer a property claim for earthquake damage. The insurer retained an engineering expert, who determined the hotel did not sustain earthquake damage.
In the Emerging Area of Insurance Coverage for Opioid Litigation, Ohio Court Finds No Coverage for Opioid Distributor Due to Past Claim
An Ohio federal court recently added to the limited, but growing, body of case law on insurance coverage for opioid litigation. In Miami-Luken, Inc. v. Navigators Insurance Co., No 1:16-cv-00876 (S.D. Ohio July 11, 2018), the court found that a specific litigation exclusion precluded coverage for a DEA action against an opioid distributor. Like many of the opioid coverage decisions thus far, this case stems from a 2012 lawsuit filed by the Attorney General of West Virginia against various opioid
Illinois Supreme Court Puts the Brakes on Named Driver Exclusion
The Illinois Supreme Court held in Thounsavath v. State Farm Mutual Automobile Insurance Co., 2018 IL 122558, that an insurer cannot rely on a named driver exclusion to deny underinsured motorist coverage to its insured because the exclusion is unenforceable under Illinois’ mandatory automobile insurance statutory scheme and the state’s public policy. State Farm provided automobile liability and uninsured motorist (UM)/underinsured motorist (UIM)coverage to Thounsavath, which contained a named driver exclusion stating no liability shall attach “while any motor vehicle