Articles Posted in Litigation

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“I continue to believe—perhaps more so with each interaction—that LLMs have something to contribute to the ordinary-meaning endeavor. They’re not perfect, and challenges remain, but it would be myopic to ignore them.” —Judge Kevin Newsom

The decision by the U.S. Court of Appeals for the Eleventh Circuit in Snell v. United Specialty Insurance Co. will be cited often for its holdings on policy interpretation and insurance applications under Alabama law. Perhaps the most groundbreaking analysis, likely to have long-term ramifications for insurance coverage litigation, was Judge Kevin Newsom’s concurring opinion addressing the role of AI large language models (LLMs) in policy interpretation. For the first time in a federal appellate decision, a judge openly explored whether ChatGPT, Bard/Gemini and similar AI tools could help courts interpret insurance policy language. His concurrence provides a roadmap for how AI may reshape insurance disputes, and where policyholders must tread carefully.

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Insurance coverage disputes often begin with a battle over the appropriate forum for litigation. This can impact matters from the judge and jury who hear the case to the body of state law that governs the coverage issues. The U.S. Supreme Court may have given policyholders (and their opponents) more options in fighting this battle.

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Torn paper with word are you coveredCompanies in certain industries have years and even decades of experience in defending and resolving “long-tail” liabilities for suits, claims and other proceedings—such as for asbestos-related disease or environmental-related third-party property damage—that involve bodily injuries or property damage spanning multiple years arising out of their historical operations.

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ant-barbells-483576367-300x225It’s said that an ant can carry fifty times its own weight. That’s nothing.

A recent decision out of the U.S. Court of Appeals for the Fifth Circuit provides a compelling reminder to policyholders and their counsel: Even the smallest word in an insurance policy—and even the placement of a punctuation mark—can carry tremendous weight. In fact, it can alter the meaning of an entire insurance policy. In Paloma Resources, L.L.C. v. Axis Insurance Co., the court vacated summary judgment in favor of the insurer based on the placement of a single word—“the”—in an exclusion clause.

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Moving-1388396620-300x225Delaware has long been the leading jurisdiction in which companies incorporate. According to Delaware’s published statistics from 2023 :

  • Delaware surpassed two million total business entities domiciled in the state,
  • 67.6% of all Fortune 500 companies were incorporated in Delaware, and
  • 80% of IPOs in the U.S. were in Delaware

Because of Delaware’s long-held title as the premiere state of incorporation, it has developed an advanced mosaic of corporate statutes and precedential law consisting of protections for both corporate officers and directors as well as shareholders. Some of the most well-known features of Delaware corporate law are:

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knot-668093380-300x200The Second Circuit Court of Appeals has weighed in (again) on a still unsettled issue in the realm of insurance law: whether arbitration provisions in insurance policies issued by foreign insurers are enforceable notwithstanding states’ anti-arbitration statutes? If they are, coverage disputes between policyholders and insurers are likely to be relegated to arbitral decision under insurer-favored arbitration clauses; if not, policyholders may pursue their rights in a more favorable forum. In Certain Underwriters at Lloyds, London v. 3131 Veterans Blvd LLC, the Second Circuit abrogated its previous decision in Stephens v. American International Insurance and answered this question in the affirmative, finding such provisions enforceable under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the “New York Convention”).

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photo looking upward and to the sky of the Illinois Supreme Court buildingThe Illinois Supreme Court has teed up a significant insurance question: Does a standard pollution exclusion bar coverage when the alleged “pollution” was not considered to be pollution when the policy issued—where the substance was lawfully emitted under an environmental permit?

The court accepted a certified question from the Seventh Circuit on April 17, 2025, in Griffith Foods International Inc. v. National Union Fire Insurance Co.—a case that springs from the Sterigenics ethylene-oxide suits. The court’s agreement to consider the question signals the potential for a landmark ruling on the scope of pollution exclusions, with far-reaching implications for companies dealing with environmental and related toxic tort claims.

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We have previously written on the evolving risks associated with PFAS—also known as “forever chemicals”—and their implications for policyholders navigating environmental liabilities involving both PFAS and PFAS-related chemicals (i.e., fluorinated chemicals that do not fit the definition of PFAS). Our prior analyses explored coverage strategies and regulatory enforcement trends. With regulatory activity and litigation continuing to accelerate, we are circling back to provide an updated look at the regulatory and legal landscape surrounding PFAS, including recent federal developments, insurer responses and practical guidance for policyholders navigating this complex and high-stakes area. To meet these risks, policyholders with potential exposure are well advised to review their general liability coverages, including both historical occurrence-based policies, pollution legal liability policies and any new terms added to current renewals.

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Contra proferentem is a foundational legal principle with particular importance in insurance law. It mandates that any ambiguities in an insurance policy are construed against the insurer and in favor of the insured. The doctrine recognizes that insurance policies generally are contracts of adhesion, in which the insurer wields the “power of the pen,” and the insured is invited to accept the terms of the pre-written agreement with little to no alteration. Contra proferentem mitigates the inherent inequality of an arrangement where insurers generally have sole drafting authority and insureds, often with limited bargaining power, must accept the insurers’ terms as written. By resolving ambiguities in those terms against the insurer, courts are able to counterbalance some of this inequity and find coverage for policyholders.

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video-game-retro-1398289137-300x150In the last few years, the video game industry has been hit with lawsuits accusing certain games of fostering addictive behaviors, especially among younger players. These lawsuits often cite features like loot boxes, microtransactions, and reward systems, which are designed to enhance player engagement, as in-game mechanisms that push players toward compulsive play and psychological harm. Plaintiffs claim that game developers either knew or should have known about these potential risks and failed to mitigate them.

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