The rare insurance dispute has appeared on the horizon for the nation’s highest court. Last month, the U.S. Supreme Court granted certiorari and agreed to take up the case of Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, on appeal from the Third Circuit. The key issue: whether a choice-of-law provision in a marine insurance policy can be rendered unenforceable if its enforcement would conflict with the “strong public policy” of the forum state.
Location matters. Some states are more protective of policyholder or consumer interests than others. And so, where the case is ultimately litigated, and what law applies, can have profound implications for a policyholder’s recovery.
In an effort to secure the application of a body of jurisprudence they perceive to be more favorable to them, insurance companies will sometimes include provisions in policies mandating either that cases arising under the policy be filed in a certain court or conducted under a specified state’s laws. We have previously noted the limits of such choice-of-law provisions, especially when the selected state’s laws conflict with the fundamental public policy of the state in which a coverage suit is filed. Now, a recent decision from a New York State court illuminates the limits of forum-selection clauses in an insurance policy.
Last month, the U.S. Court of Appeals for the Ninth Circuit awarded Pillsbury client Northrop Grumman a significant appellate victory, reversing an adverse decision from the U.S. District Court for the Central District of California on a question of first impression within the circuit. The court’s decision in AXIS Reinsurance Company v. Northrop Grumman Corporation not only restores Northrop Grumman’s access to millions of dollars in insurance coverage; it provides stability and predictability in insurance law by rejecting an excess insurer’s assertion of wide-ranging authority to “second-guess” coverage decisions made by underlying insurers.
As coverage counsel, we witness firsthand the precarious positions policyholders are often left in due to the actions (or inactions) of their insurance carriers. A prime example of such a catch-22 scenario is when an insurer refuses to consent to a settlement offer while defending under a reservation of rights.
In November 2018, we noted that the California Supreme Court had agreed to resolve Pitzer College v. Indian Harbor Insurance Company, a case that hinged on the importance and application of California’s notice-prejudice rule. On August 29, 2019, the court issued its decision: a policyholder-friendly ruling that opposes technical forfeitures of insurance coverage. Although further proceedings are needed to determine whether Pitzer will ultimately benefit from this victory, the principles it articulates are of immediate interest to policyholders in California and across the country.
Before a court can resolve a dispute, it often needs to determine what law applies to that dispute. In certain insurance cases, that question will appear to have an easy answer. Some policies include explicit choice-of-law provisions indicating that they should be interpreted and applied according to the laws of a particular state, and such provisions are generally enforceable. But a case currently before the California Supreme Court highlights an important exception to this general rule and—should the policyholder prevail—would offer potential relief from the impact of stringent policy requirements.
A critical step in a property insurance claim is the investigation undertaken by the insurer to gather information about the claim. Insurers generally have obligations and rights to conduct a prompt 
investigation of claimed losses, but policyholders often do not fully understand the investigation process or coverage issues it raises. They may not review the policy requirements to understand their obligations with respect to the claims process. This post addresses insurance coverage considerations when the insurer wishes to investigate your claim for loss under a property policy.
Of course, you can’t change the unfortunate fact that you’re facing a loss, but there are certain steps that you can take before, during and after an investigation to put yourself in the best possible position for coverage under your policy.
As summer comes to a close, road repair crews across the country are identifying the street repairs and potholes that must be filled before the cold weather approaches. Now is also a good time for policyholders to identify some of the “potholes” that may accompany their claims-made insurance policies and get them filled before it is too late.
If the White Rabbit in Alice in Wonderland bought insurance and suffered a loss he almost certainly would be an unhappy customer. Why? Recall his famous opening line in the Disney version of the story: “I’m late, I’m late for / A very important date. / No time to say hello, good-bye, / I’m late, I’m late, I’m late.” In the world of insurance claims—often compared to Wonderland—being late is an increasingly intolerable trait. Indeed, even the diligent may find themselves upside down and out of luck.
Policyholders today usually are aware that insurance policies contain some form of notice provision. Nonetheless, the many different forms of timing provisions and the varying requirements the law places upon them can be bewildering and can lead to unexpected and unsatisfactory results.
What a difference a word makes! Today’s words are “the,” “an,” “any,” and especially “you.”
Most Commercial General Liability policies include a coverage enhancement known as a “separation of insureds” or “severability of interests” clause. This clause states that the policy’s coverage is to apply “separately” to each insured against whom a claim is made. When reviewing coverage for a CGL claim in which more than one insured is involved, it’s vital to consider the separation of insureds provision. This clause is too frequently overlooked. Continue Reading ›
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