November 2021

• Insured-Versus-Insured Exclusion Bars Coverage for Underlying Lawsuit Brought by Both Insured and Non-Insured Plaintiffs
• Sixth Circuit: No Coverage for Defense Costs Resulting from Qui Tam Action
• Fifth Circuit: No Fiduciary Liability Coverage for Claim Against Third-Party ESOP Trustee
• Multiple Acts of Legal Malpractice Alleged In A Single Lawsuit Constitute “Related Acts”
• No Coverage for Second Lawsuit Alleging Acts that Correlate to Acts Alleged in Earlier Lawsuit Predating Claims-Made Policy Period
• Email Expressing Intention to Discuss Settlement Constitutes “Claim”
• Insurer May Rescind Policy and Recoup Defense Costs Based on Insured’s Failure to Disclose Known Potential Claim
• Petition to Remove Trustee Constitutes Covered Claim
• Court Declines to Recognize Scrivener’s Errors in D&O Policy’s Capacity Exclusion
• E&O Insurer Has No Duty to Defend Dispute Limited to Recovery of Fees
• Written Consent Must be in Writing: Insured Breaches Consent Requirement and Loses Coverage
• Coverage for Negligence Claim Against Law Firm Arising from Wire Fraud Barred by Professional Liability Policy’s “Theft Exclusion”
• Broker Has No Tort-Based Duty to Claimants to Notify Insurance Carriers of Claims Against Insured

October 2021

• 'McMorris Factors' Create Obstacles For Data Breach Plaintiffs
• Fifth Circuit Holds That Settlement Obligations Create Legal Liability to Pay and Constitute “Loss” Under D&O Policy
• No Showing of “Appreciable Prejudice” Required Because Insured Violated Consent to Settle Provision
• Insured’s False “Expression of Personal Belief or Opinion” Insufficient to Warrant Rescission of Policy
• Montana Federal Court Holds that Notice-Prejudice Rule Does Not Apply to Claims-Made Policy

September 2021

• "Inadequate Consideration” Provision Bars Coverage for Securities Fraud Settlements
• Delaware Superior Court Holds that Appraisal Actions Not Securities Claim “For a Wrongful Act”
• Insured Versus Insured Exclusion Does Not Bar Coverage for Claims Brought by Member of Insured LLC
• E&O Policy’s Securities Exclusion Bars Coverage For Amended Complaint Alleging Only Federal Securities Fraud
• No Allocation for Defense Costs Incurred in Lawsuit Comprised of Covered and Uncovered “Claims”
• Federal Court Declines to Exercise Jurisdiction Over Rescission Action
• Prior Knowledge Exclusion Bars Coverage for Entire Lawsuit Alleging Multiple Instances of Wrongdoing
• No Coverage for Wrongful Acts Alleged in Lawsuit Received Prior to Policy Period
• Sexual Misconduct Exclusion Bars E&O Coverage for Title IX Claim
• Eastern District of Michigan Holds Selling Unregistered Securities, as Defined by the Securities Act of 1933 and Securities Exchange Act of 1934, Constitutes “Professional Services”

August 2021

• D&O Policy’s Pollution Exclusion Bars Coverage For Claim Arising from Alleged Conspiracy to Submit Fraudulent Regulatory Filings
• Fifth Circuit Holds Payment Card Breach Lawsuit Triggers Coverage for “Personal and Advertising Injury”
• Breach of Contract Exclusion Does Not Bar Coverage for Underlying Arbitration Award Against an Insured for Negligent Misrepresentation
• Arbitration Demand Letter Constitutes a Claim Requiring Timely Notice
• D&O Insurer Has Duty to Defend Where Counterclaim Allegations Against Directors Arguably Involve Insured Capacity
• Texas Federal Court Denies Insurer’s Motion to Dismiss Pending Choice-of-Law Determination

July 2021

• Delaware Superior Court Holds Opt-Out Case is “Fundamentally Identical” to Original Securities Class Action First Made Before Policy Period
• Florida Supreme Court Allows Defending Insurer To Pursue Malpractice Action Against Defense Counsel
• Innocent Insured Provision Applies Where Insured Failed to Comply with Policy’s Reporting Provision
• No Coverage under EPL Policy for “Wrongful Act” Committed Against Non-Employee
• Insurance Commissioner’s Suit Brought in his Capacity as Receiver of Insolvent Insurer Does Not Constitute A “Governmental Claim”
• Contract Exclusion Bars Coverage for Fraudulent Representation and Concealment Claims Arising from Purchase and Lease Agreements

June 2021

• Contract Exclusion Bars Coverage for Deceptive Practices Claims Arising Out of Gym Membership Contracts
• Derivative Exception to Insured v. Insured Exclusion Applies Only to Derivative Suits Brought by Non-Insureds
• Single Lawsuit Comprised of Multiple “Claims”
• No Coverage for Lawsuit Based Only on Insured Law Firm’s Business Decisions
• No Coverage for Claim First Made and Reported After Policy Expired
• No Coverage for Malpractice Action Alleging Undisclosed “Wrongful Acts” Pre-Dating Policy’s Effective Date

May 2021

• Ninth Circuit Holds Notice-Prejudice Rule Inapplicable to Claims-Made-And-Reported Policies
• Common-Law Claims Associated with Unsolicited Faxes Held to be “Arising Out of” Violation of the TCPA
• Multiple Lawsuits Arising Out of Employee’s Alleged Sexual Abuse of Multiple Children are “Single Claim” Under Claims-Made Policy
• Indiana Supreme Court Revives Insured’s Case for Ransomware-Related Coverage Under Commercial Crime Policy
• Coverage for Suit Arising from Settlement of Previous Litigation Not Barred by Prior and Pending Proceeding Exclusion
• Prior Knowledge Provisions Barred Coverage for Malpractice Claim Based on Pre-Policy Sanctions and Default Judgment
• Wrongful Acts Alleged in Class Action Based on Corporate Policy Are Not “Related Acts”
• Alleged Breach of Fiduciary Duty Not a “Securities Claim”
• SEC Investigation of Company Not a “Claim” or “Securities Claim”
• Lawsuit Filed After Expiration of Policy Period for Lawyer’s Negligent Drafting of His Own Trust Agreement Not Covered Under Claims-Made Professional Liability Policy

April 2021

• Delaware Supreme Court Applies Delaware Law in D&O Coverage Dispute Involving California Company Incorporated in Delaware
• Under “Law Most Favorable” Provision, Delaware Law Applies and Does Not Prohibit Coverage for Settlement of Alleged Ill-Gotten Gains
• Delaware Trial Court Holds that Fraudulent Transfer Claim by Bankruptcy Trustee is a “Securities Claim”
• Coverage for Stockholder Suits Not Barred By Prior Acts Exclusion or Bump-Up Provision
• Where Policy Contains no Duty to Defend, Reasonableness of Insurer’s Decision to Withhold Consent to Settlement Judged from Insurer’s Perspective
• No Coverage for Three Lawsuits Related to Email Not Timely Noticed; No Showing of Prejudice Required Where Notice Not As Soon As Practicable
• Insurer Has Duty to Defend Suits Seeking Only Declaratory and Injunctive Relief
• No Coverage Under Legal Malpractice Policy for Solo Practitioner’s Family Disputes
• Negligent Misrepresentation Claim Not Barred By Exclusion for Dishonest Conduct
• Insurer Entitled to Rescind Policy Due to Insured’s Failure to Disclose Contract Dispute and Potential Claim on Application
• Kentucky Court Holds That Notice-Prejudice Rule Does Not Apply to Claims-Made-And-Reported Policies
• Nevada Supreme Court Holds Insurer May Recoup Defense Costs

March 2021

• Changes at the FTC Could Increase D&O Exposure
• Pandemic-Related Losses Not “Direct Physical Loss of or Damage to Property” And Do Not Trigger Coverage Under Commercial Property Policy
• Lawyer’s Multiple Acts of Negligence Constitute A Single Claim
• Lawsuits Concerning Same Housing Development Project Are Related Claims
• No Coverage for Lawsuit Alleging Intentional Conduct to Circumvent Estate Plan
• Professional Services Exclusion Does Not Bar Coverage for Lawsuit Alleging “Business Decisions” of Healthcare Facility
• Consumer Protection Claims Not Barred By Antitrust Exclusion

February 2021

• Private Investment Funds: Major Developments from 2020
• Insured-versus-Insured Exclusion Precludes Coverage For Entire Suit Brought by Insureds and Non-Insureds
• Insurer’s Refusal to Participate in Settlement Negotiations Waives Consent-to-Settle Requirement
• New York Insurance Law Does Not Preclude Enforcement of Claims-Made-and-Reported Policy’s Notice Requirements
• Insurer Entitled to Rescind Due to Misrepresentations on Application
• No Coverage for Lawsuit Alleging Same Circumstances Asserted in Email Received Prior to Policy Period
• Prior Knowledge and Prior Notice Exclusions Barred Coverage For Legal Malpractice Claim

January 2021

• Insured Failed to Timely Report Grievance Letter as ‘Professional Claim,’ But Insurer’s Late Notice Denial Waived By Seven-Month Delay
• Ninth Circuit Holds that Excess Carrier May Challenge Allocation of Primary Carrier’s Settlement that Resolves Both the Underlying Claim and a Coverage Dispute
• No Coverage for Lawsuit That Related Back to Claim Made During Prior Policy Period
• No Coverage for Employment Lawsuit Where Insured Failed to Notice Earlier EEOC Charges
• Joint Venture Qualifies as a ‘Subsidiary’ Where Insured Holds Partial Economic Interest But 100% of Voting Rights
• Disclosure of False Claims Act Investigation Not Required by Policy Application Questions
• Prior Acts Exclusion Bars Coverage for Shareholder Suits Based on Failure to Disclose Related-Party Transactions to SEC