Tag: Tenth Circuit

Excess Insurance

Excess Insurance Does Not Drop Down When Primary Goes Belly Up

Insolvency of a primary insurer represents a tremendous cause for concern for the next layer of excess and umbrella insurers. The Court of Appeals for the Tenth Circuit issued an important and favorable ruling for excess and umbrella insurers last month in Canal Insurance Company v. Montello, Inc., Civil Action No. 14-5039, 2015 U.S. Lexis 20625 (10th Cir. Nov. 27, 2015).

The insured, Montello, Inc., a distributor of oil-drilling products, distributed a “viscofier” – a mud drilling liquid agent – containing asbestos from 1966 …

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Emerging Issues

Violation of Statutes Exclusion Bars Coverage for Ancillary TCPA Claims

In Emcasco Insurance Co. v. CE Design, Ltd., the U.S. Court of Appeals for the Tenth Circuit Court granted summary judgment to Emcasco, finding it had no duty to defend the insured against a junk fax suit. In doing so, the court joined a number of jurisdictions holding that an ISO exclusion in a commercial general liability policy applies to all claims that arise, even indirectly, from violations of the Telephone Consumer Protection Act (47 U.S.C. § 227).

As background, CE Design brought a …

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Policy Conditions, Considerations, Construction, and Formation

Colorado Supreme Court Holds Notice-Prejudice Rule Inapplicable to Notice Requirement in Claims-Made Policies

In Craft v. Philadelphia Insurance Co., 2015 CO 11 (Feb. 17, 2015), the Colorado Supreme Court held that the notice-prejudice rule (an insured who gives late notice of a claim to his/her insurer does not lose coverage benefits unless the insurer proves resultant prejudice) does not apply to claims-made insurance policies with date-certain notice requirements.

In the underlying action, Dean Craft was the principal shareholder and present of Campbell’s C-Ment Contracting, Inc. (“CCCI”). Craft agreed to sell some of his CCCI shares to Suburban …

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Professional Liability

Insurers Have No Duty To Defend Chiropractor Against Failure To Warn of Sexual Assault Claim

In Hanover American Insurance Co. v. Balfour, 2015 U.S. Dist. LEXIS 874 (10th Cir. Jan. 21, 2015), the U.S. Court of Appeals for the Tenth Circuit affirmed an Oklahoma federal district court’s rulings in favor of two insurers arising out of a claim against a chiropractor for negligent failure to warn her patient of the insured’s husband propensity to commit a sexual assault.  The Tenth Circuit first found that under the subject chiropractor’s malpractice policy, the underlying complaint failed to allege “professional services.”  The Tenth …

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