The Supreme Court of Texas delivered good news to policyholders insured under a “Joint Venture Provision” endorsement commonly used in the oil and gas industry. In Anadarko Petroleum Corp. v. Houston Casualty Co.—a case arising from the 2010 Deepwater Horizon disaster—the court held that insurers assumed the obligation to reimburse the full amount of a joint venture partner’s defense costs, rejecting the insurers’ argument that their obligation was reduced by the “scaling” language of a Joint Venture Provision. As a result, the court held the insurers liable to Anadarko for over $100 million in defense costs, not just the $37.5 million they had already paid.
Does the coverage in commercial general liability (CGL) policies for violations of the right to privacy extend to unwanted intrusions, or is it limited to the disclosure of personal information to a third party? On a recent request for clarification from the U.S. Court of Appeals for the Ninth Circuit in Yahoo Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, the California Supreme Court may be poised to answer this question under California law, which could have wide-ranging effects on companies seeking CGL coverage for Telephone Consumer Protection Act (TCPA) claims.
Latin America continues to be a prime market for business development and expansion; however, insurance coverage for businesses based in or doing business in the region sometimes lags behind what is necessary to sufficiently protect them against risk. Evaluating coverage for companies operating in Latin America requires a specialized skill set—for example, a key consideration when evaluating claims and reviewing coverage programs is that multiple languages are at play for programs that span the Americas. Master policies for companies based in the United States and global policies for multinational corporations will generally be written in English. Companies with operations or offices in Latin America will likely also have in place local policies written in Spanish and/or Portuguese.
A recent decision in the Middle District of Florida, Southern Owners Insurance Company v. Gallo Building Services, Inc., reminds us of the high bar an insurer must clear to avoid its duty to defend an insured—even when that insured is out of business.
Last week, the Ohio Supreme Court unfortunately narrowed the scope of coverage for a subcontractor’s faulty workmanship. The court held in Ohio Northern University v. Charles Construction Services, Inc. that faulty workmanship in a construction defect case is not an “occurrence” under standard-form CGL policies in Ohio. The circumstances will sound familiar to anyone involved in the construction industry: Ohio Northern University retained Charles Construction to build a hotel and conference center on campus. The contract required Charles to maintain a CGL policy with Products-Completed Operations-Hazard coverage. Charles obtained a policy from Cincinnati Insurance Company with the required coverage.
A federal court in Michigan just breathed new life into a long-running legal saga—while at the same time issuing a warning shot across the bows of insurers—by declining to dismiss an insured’s bad faith cause of action alleging its insurer wrongly decided to pay one claim before another, to the insured’s detriment.
As the old adage goes, “the devil is in the details.” Insurance policy terms do not always apply in ways that policyholders expect. For this reason, it is imperative to understand how coverages, definitions and exclusions work together to avoid surprise gaps in coverage. The Fifth Circuit found a coverage gap in a recent case holding that settlement contributions from co-defendants met an excess policy’s broad definition of “Other Insurance,” preventing the policyholder from securing coverage for a significant part of its losses.
The conflict between policyholders and insurers over “long-tail” insurance coverage took an unfortunate turn with a recent decision by the New York Court of Appeals on the issue of allocation for long-tail claims. On March 27, 2018, the court issued a decision in Keyspan that significantly impacts policyholders by decreasing the insurers’ proportionate share of financial responsibility and increasing the share imposed on the insured. This case involved long-term and continuous environmental contamination that began before comprehensive general liability insurance became available in the marketplace and continued, unobserved, across multiple policy periods. At issue was whether, under the “pro rata time-on-the-risk” method of allocation, Century Indemnity Company was liable to its insured, KeySpan Gas East Corporation, for years outside of its policy periods when there was no applicable insurance coverage offered on the market.
A little over two months ago, we analyzed the recent decision in Black & Veatch Corp. v. Aspen Insurance (UK) Ltd., which placed the U.S. Court of Appeals for the Tenth Circuit in line with a consistently expanding number of jurisdictions finding that a subcontractor’s faulty work constitutes an “occurrence” (defined as an accident) under standard form CGL language. The Tenth Circuit’s decision emphasized the “near unanimity” of state supreme court decisions since 2012 finding that construction defects constituted an occurrence (for example, New Jersey). Days after publishing our post on the Tenth Circuit’s decision, the Kentucky Supreme Court faced the same question. But rather than join the growing trend, the Kentucky court doubled down on its previous decision addressing the issue, finding for a second time since 2010 that a contractor’s faulty workmanship was not an “occurrence” under a CGL policy.
By statute, California law holds that willful misconduct—where an insured intends to cause someone harm—is not insurable as a matter of public policy. For years, insurance companies have sought to expand this prohibition to exclude coverage where anyone acts deliberately, regardless of the intent of the insured, or the insured’s intent to cause harm.