Ellen J. Zabinski and Adam H. Fleischer offer insights and analysis of a number of leading insurance coverage decisions in the environmental realm in their article published in Mealy’s Litigation Report, entitled, Environmental Coverage Summary: 2013.  To review a copy of the article, please click here.

ProSelect Insurance Co. v. Springfield Hospital, Docket No. 227-4-12 (Vt. Sup. Ct. Windsor Unit May 16, 2013)

On May 16, 2013, the Vermont Superior Court, Winsor Unit, held that an insurer could introduce extrinsic evidence in a declaratory judgment action to negate the duty to defend its insured.  The court’s well reasoned opinion provides guidance for insurers grappling with the issue of whether an insurer can introduce extrinsic evidence to negate a duty to defend, and, if so, when.

A federal court in Illinois recently ruled the alleged misuse of Tax Increment Financing Redevelopment Act (the “TIF Act”) monies by the City of Marion, Illinois did not allege covered “loss” under the policy of BatesCarey LLP’s client, U.S. Specialty Insurance Company, even when USSIC withdrew from its initial agreement to provide a defense without a reservation of rights.  City of Marion, Illinois v. U.S. Specialty Insurance Company, Case No. 12-cv-0999-SCW (S.D. Ill.  April 30, 2013).

Robert J. Bates, Jr. was elected as a founding member of the American College of Coverage and Extracontractual Counsel ('ACCEC"). The ACCEC is composed of preeminent coverage and extracontractual counsel in the United States and Canada, representing the interests of both insurers and policyholders. The College is focused on the creative, ethical and efficient adjudication of insurance coverage and extra-contractual disputes, peer-provided scholarship, professional coordination and improvement of the relationship between and among our diverse members. The ACCEC held its Inaugural May Meeting in Chicago, Illinois.

Adam H. Fleischer conducted a mock reinsurance arbitration argument at the ARIAS Spring May conference in Palm Beach, Florida. Adam’s presentation addressed issues involving follow the fortunes and the duty of utmost good faith as these doctrine apply to the reinsurance of captive insurers. Attendees also received a detailed article Adam has authored on the topic.

A significant ruling on May 13, 2013 in a sexual molestation case may
benefit insurers’ “expected and intended” arguments far beyond the context of
molestation claims. An Illinois Appellate Court held that the expected and
intended exclusion can preclude a duty to defend even a negligent supervision
claim if the facts allege that the insured had reason to expect the predator’s
predilections. The court found that the terms “expected” and “intended” are not
synonyms, and that an insurer has no duty to defend “expected” injury even if
that injury was not “intended” by the insured.

Adam Fleischer and Jason Minkin highlight five recent professional liability decisions from the past month.  The topics addressed are: 1) whether “circumstances” that may lead to a claim constitute a claim; 2) whether a broker can be sued for its client’s purely financial loss; 3) whether a broker can be sued by an investor of one of its clients; 4) whether the insured can sue the broker directly for negligence; and 5) whether similar claims over two policy periods constitute the same or related claims.  The case summaries are presented below.

Koransky, Bouwer & Poracky, P.C. v. Bar Plan Mut. Ins. Co., 712 F.3d 336 (7th Cir. (Ind.) Apr. 2, 2013)

Forrest Construction, Inc. v. The Cincinnati Insurance Company, 703 F.3d 359 (6th Cir. Jan. 11, 2013) (applying Tennessee law)

On January 11, 2013, the U.S. Court of Appeals for the Sixth Circuit held that an insurer cannot rely on the “your work” exclusion if the underlying complaint against a general contractor potentially suggests that the allegedly faulty work was performed by a subcontractor. The court held that the allegation that a general contractor “caused” work to be performed in the construction of an allegedly defectively built home implied the existence of a subcontractor and, therefore, triggered the subcontractor exception. In a standard CGL policy, coverage is excluded for damage to the insured’s own work, except if the damaged work or the work out of which the damages arises was performed on the insured’s behalf by a subcontractor.

Big-D Const. Corp. v. Take it for Granite Too, 2:11-CV-00621-PMP, 2013 WL 222260 (D. Nev. Jan. 22, 2013)

On January 22, 2013, the U.S. District Court for the District of Nevada predicted that the Nevada Supreme Court would find that a CGL carrier can owe a duty to indemnify a contractor for damages caused by defective construction even if the contractor was never been sued and the duty to defend was never triggered. The court found that the term “legally obligated to pay as damages” contained in the standard CGL insuring agreement is ambiguous and could be construed to cover damages the insured is contractually required to pay.

Engineering & Const. Innovations, Inc. v. L.H. Bolduc Co., Inc., 825 N.W.2d 695 (Minn. 2013)

On January 23, 2013, the Minnesota Supreme Court adopted a narrow interpretation of a blanket additional insured provision in a liability policy issued to a construction sub-contractor. The Court found that an additional insured endorsement which limited coverage to injury or damage caused by the acts or omissions of the named insured only provided coverage for loss due to the vicarious liability of the additional insured.

ECI subcontracted with Bolduc to build a shoring system to be created by driving metal sheeting into the ground to act as walls for the underground pits necessary to construct a sewer pipeline. Under the subcontract, ECI was responsible for determining where to drive the metal sheeting into the ground and Bolduc was responsible for installation of the sheeting. The subcontract also required Bolduc to indemnify ECI as follows: