Readers of this blog have come to expect from our lawyers incisive and reliable analysis of the most important insurance coverage issues of the day. At least one judge apparently feels the same way.
In a recent decision in the ongoing coverage dispute brought by TIAA-CREF against its various D&O carriers, Judge Jan Jurden cited a piece written by Peter Gillon in Law360 (“Another Blow Dealt to Restitution, Disgorgement Defense”) as legal authority for her conclusion that “the current trend in New York and additional jurisdictions ‘has been for courts to narrow the [disgorgement] defense considerably,’ and in some cases ‘reject insurers’ restitution/disgorgement defense outright.’”
The court had previously ruled that the insurers were wrong in denying coverage on the basis of the restitution/disgorgement defense, a decision the insurers sought to overturn on appeal.
The court denied carriers’ motion for reconsideration, holding that the issue of insurability of restitution and disgorgement damages is now resolved in New York, which holds that such damages are insurable, citing the Law360 article.
We are gratified to be cited anywhere, but particularly by a respected judge in a case of significance.