UM Insurer Loses the Form Battle But May Yet Win the Coverage War

In GEICO Indem. Co. v Perez, 2018 WL 4495557 (Fla. Dist. Ct. App. 2018), not only was Geico Indemnity Company and Geico General Insurance Company (collectively GEICO) forced to go to trial against their insured because the trial court denied GEICO’s motion for summary judgment on the issue of whether the insured was entitled to uninsured/underinsured motorist (UM) coverage but the jury also found that the insured had been severely injured due to the negligence of an un insured motorist, entitling him to
Continue reading...

Timing a Petition to Remove

It’s no secret the federal court is the preferred forum for litigating insurance coverage issues. When considering whether to remove, one factor to always consider is whether any defendant is a citizen of the State in which the action will be brought. Should that be the case, the Forum Defendant Rule dictates that the matter is no longer removable once the forum defendant has been properly joined and served. How does this impact a yet-to-be served forum defendant who is
Continue reading...

Just the Fax: New Jersey Rules that Actual Property Damage is Required for Violation of the Telephone Consumer Protection Act

Proof of a violation of the Telephone Consumer Protection Act (TCPA), without corresponding evidence of either “physical injury to tangible property” or “loss of use of tangible property,” is not enough for an insured to establish that the claims against it alleged “property damage” under a CGL policy, according to the New Jersey Appellate Division’s recent decision in Penn National Insurance Company v. Group C Communications, Inc., 2018 WL 3625424 (N.J. App. Div. July 31, 2018).  In Group C Communications,
Continue reading...

Waiver Rears its Head: Equitable Subrogation Against “Other Insurance” Waived by Failure to Preserve Rights

Questions of “other insurance” arise whenever two or more insurers could provide coverage for a claim against a common insured. If one insurer is put in the position of settling a claim when other insurers who may also owe coverage do not contribute, reserving and pursing rights against other insurers should never be an afterthought. An insurer recently learned this lesson when it failed to assert rights against another insurer before agreeing to provide coverage for the settlement of a
Continue reading...

Failure To Plead That Excess Liability Policies Were Implicated Leads To Dismissal Of Third Party DJ Complaint

In this declaratory judgment action, the court held that defendants Travelers Indemnity Company  and Travelers Casualty and Surety Company  (Travelers) had a duty to defend its insured Chicago Pneumatic Tool Company (Chicago Tool) for silica- and asbestos-related claims, prompting Traveler to file a second amended third party complaint against Chicago Tool’s other insurers, AIU Insurance Company  (AIU), Century Indemnity Company (Century Indemnity), Liberty Mutual Fire Insurance Company (Liberty Fire), Trygg-Hansa Insurance Company, Ltd. (Trygg-Hansa), and Industria Insurance Company (Industria).  In
Continue reading...

“Other Insurance” Language Irrelevant to Priority of Coverage Where Excess Policy’s Coverage Has Not Been Triggered

This declaratory judgment action arises out of a dispute between two excess insurance providers, and stems from a settlement in an underlying personal injury claim. The plaintiff, GEICO, which contributed to the settlement, sought reimbursement from defendants Ohio Casualty Group, Ohio Casualty Insurance Company and Liberty Mutual Insurance Company, which did not participate in the settlement.  The other policy provided that it was excess above $10 million, but did not specify a specific policy which it was excess to. GEICO
Continue reading...

Insured Settles for Less from Insurers, and Excess Coverage Still Must Indemnify: “Ultimate Net Loss Liability” Could Apply to Settlement Amounts with Lower Level Insurers

On Friday, August 29, 2014, the Eleventh Court of Appeals in Texas reversed the trial court’s summary judgment order finding that an excess insurance policy was triggered though the underlying policies had not exhausted their full coverage limit. Plantation Pipe Line Co. operates pipelines transporting petroleum throughout the southern and eastern United States.   In 1990, a leak was found in North Carolina, and Plantation was required to remediate the site. Plantation spent almost $12 million to clean and restore the
Continue reading...