November 2022

• 2 Illinois Cases Poised To Shape BIPA Litigation Landscape
• No Coverage for Claim That “Correlates” to Claim Made Before Policy Period
• Appealed Trial Court Conviction Qualifies as “Final Adjudication”
• New Jersey Appellate Court Holds No Coverage for Broker Malpractice Lawsuit Noticed Three Years After It Was Filed
• Lawsuit Deemed Related to Notice of Circumstances Submitted During Prior Claims-Made Policy Period Under Florida’s “Sufficient Factual Nexus” Test
• Warranty Letter Bars Coverage for Claim Against Chief Legal Officer Arising From CEO’s Alleged Fraud
• “Theft of Funds” Exclusion Precludes Coverage Where All Underlying Claims “Arose Out of” Theft
• Professional Services and Contract Exclusions Do Not Bar Coverage for Settlement of False Claims Act Investigation

October 2022

• Third Circuit Holds No Showing of Prejudice Required Under Delaware Law to Enforce Late Notice Provision in Claims-Made Policy
• Excess Insurer Cannot Challenge Payments by Underlying Carriers
• Notice-Prejudice Rule Inapplicable Where Insured Fails to Provide Any Notice Under Claims-Made Policies
• No Coverage for Consequential Losses Stemming from Computer System Failure
• Irreconcilable “Other Insurance” Clauses Result in Pro Rata Allocation of Defense Costs
• Exchange Offer Constitutes “an Offer to . . . Sell any Securities” of Insured Triggering Coverage for “Securities Claims”
• Insurer’s Declaratory Judgment Complaint Plausibly Alleges Violation of Cooperation Clause at Motion to Dismiss Phase
• Court Requires Insurer Show Prejudice for Coverage Denial Where Notice of Claim Given After Reporting Window but Within Policy Period
• No Coverage under Commercial Liability Policy for Penalties and Costs Incurred Administering Employee Benefit Plan

September 2022

• “Unregistered Securities Exclusion” Applies to Lawsuits Alleging Violations of State Securities Laws
• Defense Costs Presumed Reasonable if Insurer Breaches Duty to Defend
• Related Wrongful Acts Preclude Reinsurer’s Duty to Reimburse
• ‘Violation of Laws Applicable to Employers’ Exclusion Bars Coverage for BIPA Suit
• Court Holds Social Engineering Fraud Does Not Trigger Computer Fraud Coverage
• Renewal Correspondence to Underwriter Fails to Satisfy Claims-Made-and-Reported Policy’s Notice Requirement
• No Coverage Under Claims-Made Policy Where No 'Claim' Made Against Insured During Policy Period

August 2022

• Investment Advisor’s Unauthorized Copying of Trade Publication Held Not to Constitute a Wrongful Act in the Performance of Investment Advisory Services
• Deceptive Advertising Claim Does Not Allege “Covered Professional Service”
• No Coverage Under Claims-Made Policy Where No 'Claim' Made Against Insured During Policy Period
• Material Issues of Fact Preclude Summary Judgment that Insurer Waived or was Estopped from Asserting Coverage Defenses
• Negotiation of Severance Agreement with Employee Who Ended Affair With Company President Constitutes a Claim That Was Not Timely Reported Under EPL Policy

July 2022

• First Circuit Joins Other Circuits in Finding COVID-19-Related Losses Do Not Trigger “Business Interruption Coverage” Under Commercial Property Insurance Policy
• No Coverage for Loss in Consequence of Social Engineering Fraud
• Delaware Federal Court: No Coverage Under D&O Policy For Claims Based On Acts Alleged To Have Occurred Prior To Insured Entity’s Formation
• Revising Prior Order, Georgia Court Holds Two EEOC Charges and Resulting Lawsuit by the Same Claimant Are All Claims “Made or Brought” Before the Applicable Policy Period
• No Notice-Prejudice Exception Applies to Financial Institution Bonds under Oklahoma Law
• Insured Cannot Bring Bad Faith Allegation When Coverage “Fairly Debatable”
• Coverage for SXSW Refund Lawsuit Barred by Contract Exclusion
• Losses Reported by Property Insurer’s Customers Constitute “Claims” Under Insurer’s E&O Policy
• Bodily Injury Exclusion in Real Estate Agents E&O Policy Bars Coverage for Car Accident Claim

June 2022

• Louisiana Federal Court Latest to Find Pandemic-Related Losses Not to Trigger “Business Interruption Coverage” Under Commercial Property Policy
• Insured v. Insured Exclusion Bars Coverage For Entirety of Suit Brought By Insureds and Non-Insureds
• No Duty to Defend When Demand Letter Received Prior to Policy Period
• Definition of Third-Party Wrongful Act and Sexual Misconduct Exclusion Bar EPL Coverage for Claim Alleging Negligent Supervision
• No Coverage for Claim Deemed Made After Policy Expired When Insured First Received Actual Notice of Lawsuit
• Insured Cannot Amend Complaint to Add Bad Faith Claim Where Coverage Issue is “Debatable”
• Third-Party Wire Fraud Triggers Conversion Exclusion Under Professional Liability Policy, Despite No Direct Insured Involvement in Theft of Funds

May 2022

• Ninth Circuit Upholds Broad Interpretation of “Arising out of” in Goods & Products Exclusion
• Insured’s Failure to Allocate Settlement Between Covered and Uncovered Claims Precludes Recovery
• Delaware Superior Court Reaffirms That Appraisal Action Is Not A Claim For A Wrongful Act Under D&O Policy
• Court Declines to Dismiss Coverage Litigation Based on Potential Applicability of Prior Notice Exclusion
• Excess “Other Insurance” Clause Relieves Insurer of Duty to Contribute to Defense
• Over $141 Million in Trading Losses for Illegal Trade Deemed “Direct Financial Loss” for “Malicious Act”
• Outside Entity Exclusion Precludes Duty to Defend Claim for Misappropriation of Confidential Information
• No Coverage for Wrongful Termination Claim After Employer Ceased to be an Insured Under D&O Policy
• Failure to Plead Compliance with Condition Precedent Held Fatal to Declaratory Judgment Action
• No Duty to Defend Lawsuit Alleging Remuneration to which Insured was Not Legally Entitled
• Accounting Services Do Not Implicate Professional Liability Policy When Not Performed “for Financial Institutions”

April 2022

• Delaware Supreme Court Affirms Decision Below in Favor of Insurers, Holds “Relatedness” is Determined By Policy Language and Not “Generic Fundamentally Identical Standard”
• Commercial Crime Policy Covers Loss Involving Fraudulent Email Directing Employee to Make Payments
• Professional Services Exclusions Bar Coverage for a Pharmacy Technician’s Mistake in Dispensing Medication
• Applicability of Insured v. Insured Exclusion Can Be Determined By Reference to Complaint Alone
• Attorney Communications Regarding Undisclosed Contamination Found to Constitute Late-Noticed “Claim” Under Professional Liability Policy
• Southern District of New York Holds Multiple Lawsuits Alleging Different Instances of Fraud Constitute Single Related Claim
• Fiduciary Duty Claim Triggers Contract Exclusion Because Duty was Created by Contract
• Kansas Federal Court Holds Notice-Prejudice Rule Inapplicable to Claims-Made Policies
• Intentional Acts Exclusion Bars Coverage for Wrongful Death Lawsuit
• Lawyers Professional Liability Policy Does Not Cover Non-Insured Construction Management Company; Insurer Justified in Requesting Segregated Invoices
• Claims under Illinois False Claims Act Not Uninsurable under Illinois Law
• A Defending Insurer’s Reserving Rights and Seeking Declaratory Judgment Does Not Constitute Bad Faith in California
• Settlement Paid to States to Resolve HIPAA and Consumer Protection Law Claims Constitutes Non-Covered “Fines and Penalties”
• Duty to Defend Where Complaint Contains Potentially Covered Allegations

March 2022

• Legal Malpractice Lawsuit Not Covered Where Insured Knew or Reasonably Should Have Known Pre-Inception of Conduct that Might Be Basis of Claim
• No Coverage Under Claims-Made Policy Where Insured Reported Alleged Injury, But No Claim Was Made, During the Policy Period
• Ohio Court Rules that “Frivolous Conduct” Exclusion Precludes Duty to Defend
• Delaware Superior Court Reaffirms That Appraisal Action Is Not A Claim For A Wrongful Act Under D&O Policy
• D&O Insurer Has Duty to Defend Wrongful Death Suit Because of “Discrepancy” Between Exclusions
• Sexual Misconduct Exclusion Eliminates Duty to Defend Civil Lawsuit

February 2022

• Massachusetts Court Confirms No Prejudice Required to Deny Coverage for Late Notice under Claims-Made Policy
• Ninth Circuit Holds Three Printing Errors Constitute Single Wrongful Act
• Breach of Contract Exclusion Precludes Duty to Defend Vendor’s Claim Against Travel Agency for Non-Payment
• Insured Barred From Settling Without Insurer’s Consent Absent Breach of Duty to Defend But Insurer Must Exercise Good Faith in Settlement Negotiations
• Date of Wrongful Acts, Not Harm Caused By Acts, Relevant Factor in Determining Application of Retroactive Date Exclusion
• Insurer Owes Duty to Defend and Indemnify Nuisance Litigation
• WARN Act Exclusion Bars Coverage for Breach of Fiduciary Duty Lawsuit

January 2022

• Sixth Circuit Holds E&O Policy’s ERISA Exclusion Bars Coverage for Claims Against Trustee of Employee Stock Ownership Program
• Policy Requires Allocation of Defense Costs Based Upon Parties’ Relative Legal Exposure
• On Motion for Reconsideration, Southern District of New York Holds that Late-Notice Defense as to Claims-Made-And-Reported Policies Cannot Be Waived
• Court Rules that EEOC Charge for Retaliation Based on Prior Charge for Discrimination Is Separate Claim
• Lawyer’s Professional Liability Insurer has Duty to Defend Suit Alleging Sexual Assault of Client
• Law Firm’s Misrepresentations in Insurance Application Warrant Recission Under Utah Statute
• California Court Finds Insolvency Exclusion Ambiguous, Limits Application to Insolvency of Third Parties Other Than Claimant
• Excess “Other Insurance” Provision Does Not Relieve Insurer’s Duty to Defend