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Policyholder PulsePublished on:
Are Denials of Coverage and Belated Defense Payments a Breach of the Duty to Defend? In Wisconsin—Not Necessarily.
When an insurer pursues a judicial determination on its duty to defend and agrees to defend its insured retroactively only five months after its insured initially requested a defense, has it breached its duty to defend? In most jurisdictions, the answer would be “yes.” In California, for example, an insurer must afford an immediate and entire defense in response to a tendered claim that is potentially covered under the Buss doctrine; belated, after-the-fact payments cannot cure that breach. But under the rule of a new Wisconsin decision, however, the same insurer would not have breached its duty to defend.
Must an insurer consider the possibility that putative class members (i.e., potential class members not named in the complaint) other than the proposed class representatives (i.e., the plaintiffs named in the complaint to represent the proposed class) have claims within the proscribed policy period in determining whether its duty to defend has been triggered? Many insurers answer “no,” arguing putative class members’ claims—many of which would otherwise be barred by the applicable statute of limitations—are too speculative to trigger coverage. But courts across the country have disagreed, repeatedly answering the question in the affirmative. Last year, the Northern District of Indiana was the latest court to decide this issue in favor of policyholders.
There has been a drumbeat of 
In recent years, Wisconsin generally has been a pro-policyholder jurisdiction when it comes to long-tail environmental coverage cases. That trend continues with a decision by a Wisconsin appellate court in a case involving coverage for environmental cleanup costs at a former manufactured gas plant site. In 
Hub City Enterprises Inc. and Wall St. Enterprises of Orlando Inc. ran an event called “Rum Fest 2017” in Orlando, Fla. Sounds like fun, doesn’t it? But one of the partygoers, who apparently paid to attend the festival, was not amused. In the middle of the party, Robert Hunt saw an oversized beach ball barreling towards his head. When he reached out to deflect the projectile, he ended up suffering injuries to the ligaments in his arms. Mr. Hunt sued Hub City and Wall St. Enterprises, who tendered the claim to Princeton Excess and Surplus Lines Insurance Co., their liability carrier, for a defense. Princeton initially assumed defense of the claim, but it soon repaired to federal court seeking a declaration that it had no duty to defend the suit. In 
Insurers have recently argued that environmental property damage claims for “closure” costs arising out of historic pollution are not covered, because the claimed damages are just “ordinary costs of doing business.” Policyholders should strongly resist denials based on this argument, which is unsupported custom and practice in the insurance industry and contradicts the terms of standard-form third-party liability policies, applicable environmental laws, and insurance law in nearly all jurisdictions.
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 
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,