December 2005

• Notice of Complete Policy Defense to Insured Organization Satisfies Statutory Requirement
• Exclusion for Prior Claims Disclosed in Application Inapplicable Where Application Is Submitted After Policy Incepts
• Failure to Pay Overtime Does Not Constitute a Wrongful Act Under Errors & Omissions Policy
• Other Decisions of Note
• First Circuit Affirms Ruling for D&O Carrier Based on Prior and Pending Litigation Exclusion
• Claims Against Insured Clinic Reported Outside Policy Period Not Subject to Coverage Despite Timely Notice of Claim Against Insured Physicians Arising Out of Same Mishap
• Submission of False Financial Statements in Application for D&O Policy Justifies Rescission
• Waiver and Notice-Prejudice Arguments Do Not Apply to Notice Requirement in Claims-Made Policies
• No Coverage for Wrongful Acts in Uninsured Capacity
• Prior Acts Exclusion Requires More Than Knowledge of an Act
• Insurer Cannot Breach Duty to Defend for Rescinded Policy Unless Court Holds Rescission Was Improper
• Federal Court Allows Breach of Contract and Indemnity Claims by Broker Against Insurer to Proceed
• No Coverage under D&O Endorsement Because No Directors or Officers Named in Suit
• Law Firm Had No Reasonable Basis to Believe that an Associate Had Breached a Professional Duty Prior to Effective Date of Policy
• Media Special Perils Policies Inapplicable to Trade Secret Litigation
• Exclusion in Professional Liability Policy for Willful Violation of Penal Statute Does Not Require Conviction
• Knowledge of "Soliciting Agent" Imputed to Insurer Seeking Rescission of EPL Policy
• Breach of Contract Exclusion Bars Coverage under Media Policy for Copyright Infringement Claim
• Failure to Comply with Special S&L Statutory Notice Requirement Voids Endorsements to D&O Policy

November 2005

• Nationwide Litigation Over “Tier Rating” Constitutes One Claim; Court Also Addresses Other Common Professional Liability Issues
• Insolvency Exclusion Bars Professional Liability Coverage for Claims Against Administrator of Workers Compensation Trusts
• D&O Policy Covers Attorneys’ Fees for Defense of Criminal Action But Insured Is Estopped From Arguing That Guilty Plea Does Not Bar Coverage
• Prior Knowledge, Intentional Torts Exclusions Inapplicable
• Insured’s Claim for Indemnification of Directors and Officers Deemed a First-Party Claim
• In Louisiana, Late Notice Under Claims-Made Policy Precludes Coverage Regardless of Prejudice
• Federal Court Allows Investors to Appeal Bankruptcy Order Approving Settlement by Insurers and Trustee
• District Court Denies Cross Motions for Summary Judgment Due to Issue of Fact Regarding Materiality of Misrepresentation
• Excess Policy Follows Form of Primary Policy for Purposes of Notice Provision Even Where Primary Policy Does Not Ultimately Respond to Claim
• Other Decisions of Note
• EC Committee Approves Disappointing Model Privacy Clauses
• Supreme Court Sows Confusion as to Patients’ Information-Sharing Privacy Rights

September/October 2005

• Health-Related Privacy
• District Court Grants Summary Judgment to Insurer Under "Consent to Settlement" Provision; Denies Summary Judgment on Alleged Breach of Duty to Defend
• Coverage Barred for Claims Not Made, Reported in Same Period
• E&O Policy Covers Complaint Against Entity Even Though Policy Applies Only to Liability Arising Out of Acts of Natural Persons
• Preparation of Experience Rating Reports Constitutes Professional Activity of Insurance Broker Under E&O Policy
• Billing Services Not Covered Under E&O Policy
• D.C. Commissioner of Insurance, Securities and Banking Larry Mirel to Join WRF’s Insurance Practice
• Other Decisions of Note
• Health-Related Privacy
• This Just in...
• FTC Online Privacy Advisory Committee Holds First Meeting
• Current Litigation Focuses New Claims to Rights
• Federal Court Dismisses Rescission Action Based on Inherent Authority to Abstain From Hearing Declaratory Judgment Actions

August 2005

• Welcome To The Inaugural Issue...
• Supreme Court Declares Communications Decency Act Unconstitutional
• An Office E-mail Policy—Silence Is Not Golden
• Cyberspace Conference
• Administration Calls For No New Tax Or Regulation Of Internet
• No Coverage for Breach of Contract Claims Under D&O Policy Under Texas and Florida Law
• Failure to Disclose Nonclient Claims on Professional Liability Application Justifies Rescission
• Insurer Cannot Rescind Policy Because of Duty to Request Supplemental Forms to Application
• Ninth Circuit Affirms Cutter & Buck Rescission
• Appellate Court: Misrepresentations in SEC Filing Justify Homestore Rescission
• Reservation of Right to Recoup Defense Expenses Entitles E&O Insurer to Reimbursement When Court Determines No Duty to Defend
• Intentional Acts Exclusion Precludes Coverage for “Disparate Treatment” Racial Discrimination
• New York Federal Court Holds Insurer Has Duty to Defend Fee Dispute, Claims Are Related
• Court Applies Texas Known-Loss Doctrine and Notice Requirements to Uphold Coverage Denial
• Other Decisions of Note

August 4, 2005

• Ninth Circuit Affirms Cutter & Buck Rescission

July 2005

• Partners and Partnership Policy Rescinded Based on Material Misrepresentation
• New York Does Not Require ERP Coverage for Certain Policies Issued to Large Commercial Insureds
• Policy Void Ab Initio Because of Material Misrepresentations
• Washington Bankruptcy Court Holds that Insurance Proceeds Are Property of the Estate; Refuses to Lift Automatic Stay
• Prior Litigation Exclusion Applies to All Insureds Despite Lack of Knowledge
• No Duty to Defend Where Alleged Wrongful Acts Occurred Before Retroactive Date
• Preliminary Injunction for Advancement of Attorneys’ Fees Denied
• Prior Knowledge Exclusion Requires Subjective Belief that Claim Will Be Made
• Court Excuses Reporting Requirement of Claims-Made and Reported Policy to Avoid Forfeiture
• Court Enforces Exclusion for Amounts Due Under Insurance Policy
• Counterclaims Seeking Declaration of Rights and Attorneys’ Fees Give Rise to ‘Loss’ Under D&O Coverage Form
• Insured’s Stipulation of Liability Does Not Preclude Application of Policy Exclusion
• Pennsylvania Law Permits Misrepresentation Claim Based on E&O Insured’s ‘Reasonable Expectations’
• Other Decisions of Note
• Important Internet Development for Franchisors

June 2005

• Officers Denied Preliminary Injunction to Require Insurer to Advance Defense Costs
• I v. I Exclusion Precludes Coverage for Suit Filed by Former Director
• Professional Liability Policy Rescinded for Failure to Disclose Existence of Cease and Desist Orders
• I v. I Exclusion Does Not Apply to Bankruptcy Trustee Listed As Insured on D&O Policy
• Breach of Contract Claim for "Failure to Adhere to Professional Standards" Covered
• Contractual Relationship Claim Barred by Breach of Contract Exclusion
• New Publication Analyzes Insurance Regulatory Arena
• Insurer Properly Denied Coverage to Bank Directors Who Were Not Indicted "Soley" in Capacity As Directors
• Insurer Must Advance Defense Costs Despite Fraud Exclusion
• Disciplinary Action Ending in Consent Order May Be Material Misrepresentation Justifying Rescission
• Court Holds Personal Profit and Dishonesty Exclusions, Definition of "Loss" Preclude Coverage
• Eighth Circuit Affirms Actions Are Related Claims; Coverage Precluded
• No Coverage for Complaint Filed Prior to Inception of Policy
• Pleadings Test, One Claim-All Claims Principle Determine Insurer's Obligations Requiring Advancement of Defense Costs
• Terms “Arising Out Of” and “Resulting From” Are Unambiguous
• Insurer's Voluntary Dismissal of Coverage Action May Entitle Insured to Legal Fees
• Arbitration Provision Governs Claim First Made Prior to Policy Period
• Declaratory Judgment Action Not Ripe for Adjudication
• Prior Knowledge Exclusion Precludes Coverage for Accountant's Professional Liability
• Prior Litigation Exclusion Bars Coverage for Only Some Opt-Out Claims in Connection with Prior Class Action
• Other Decisions of Note

May 2005

• Do You Conduct Business Internationally?
• Fourth Circuit Advances Patients’ Constitutional Privacy Suit
• State Privacy Laws and Their HIPAA Implications for Pharmaceutical Manufacturers
• FTC Takes New Privacy Initiatives
• Calculation of Profits Not "Administration" of Benefits Program
• Criminal Acts Exclusions Bar Coverage for Assault by Jailer
• Policyholder Has Viable Fraud Claim After Insurer Relies on Illinois Law to Deny Coverage for Punitive Damages
• Court Denies Insurer Summary Judgment on Capacity, Loss and Public Policy
• Court Finds Coverage for Alleged Breach of Contract
• I v. I and Breach of Contract Exclusions Do Not Preclude Coverage for Former CEO
• Failure to Settle Within Policy Limits Not Statutory Bad Faith
• Law Firm Has No Rights Under D&O Interim Funding Agreement
• Court Broadly Construes E&O Extension Endorsement in CGL Policy
• Sexual Activity Exclusion Inapplicable Where Therapist Had Relationship With Patient's Ex-Wife
• Court Rescinds Policy Based on Fraud in Application
• Collateral Estoppel Does Not Apply to Coverage Issue
• Virginia Supreme Court Unmasks Anonymous Online Poster

April 2005

• Hospital and Professional Liability Policy Covers Economic "Injury"
• Eleventh Circuit Finds the Term "Matter" Ambiguous As Applied Under Communications Liability Policy
• Claim Made After Policy Expired Is Related to Claim Made During the Policy Period
• Issuance of New Stock to Class Action Plaintiffs Is Not “Loss” Under Excess Liability Policies
• Management Carveback in E&O Exclusion Applies to Customer Suit
• D&O Policy Covers Wrongful Termination Claim Against Entity But Not Officer
• Exclusion for Bodily Injury Claims Unambiguously Precludes Coverage
• Promissory Note to Fund Shareholder Litigation Settlement Does Not Constitute Loss Where the Insureds Cannot Be Held Liable
• U.S. Supreme Court Rejects the Price Inflation Approach to Pleading and Proving Loss Causation in Its Decision in Dura Pharmaceuticals

April 20, 2005 Alert

• U.S. Supreme Court Rejects the Price Inflation Approach to Pleading and Proving Loss Causation in its Decision in Dura Pharmaceuticals

March 2005

• Appellate Court Holds Insurer Must Advance Defense Costs Despite Rescission of Policies
• Insurer Can Deny Coverage Where Notice Arrives Hours after Policy Expired
• Church’s Failure to Disclose Allegations of Sexual Misconduct Permits Insurer to Rescind Coverage
• Illegal Acts by City and Police Fall within Deliberate Acts and Law Enforcement Exclusions of Policy
• Loss Due to Theft Not Covered under E&O Policy
• Federal Court in New York Grants Preliminary Approval of Settlement in Consolidated “Laddering” Cases
• Federal Court in California Denies Motion to Stay Rescission Action
• Lawyer Can Pursue Coverage from Reinsurer That Acted As Undisclosed Principal for Insolvent Insurer
• Employee Benefit Liability Endorsement Does Not Cover Intentional Acts
• Court Upholds Application of Professional Services Exclusions

February 2005

• Excess Insurer Must Advance Defense Costs under Unilaterally Rescinded D&O Policy
• Alleged Kickback Scheme Constitutes "Professional Services"
• Insurer Rescinds Law Firm’s Professional Liability Policy Based on Material Misrepresentations in Policy Application
• Contractual Liability Exclusion Precludes Coverage for Breach of Contract and Negligence but not Breach of Fiduciary Duty
• Letter to State Board Seeking Guidance Does Not Constitute Claim
• Sexual Abuse Is Not "Professional Service" under Malpractice Policy
• Policy Does Not Provide Coverage for Acts Pre-Dating Attorney’s Service
• Court Halts D&O Policy Payment to Trustee

January 2005

• Notice Provided Nine Months After Underlying Suit Filed but Before Expiration of Claims-Made Policy Precludes Coverage
• Material Misrepresentation Renders Policy Voidable, not Void Ab Initio
• Counterclaims Filed as "Defensive Strategy" Are Covered Defense Costs
• Insurer’s Rescission Claim Dismissed Because of Failure to Establish Condition Precedent and Failure to Demonstrate Reliance
• Enron Court Issues Dual Injunctions to Preserve Interplead Excess D&O Policy Proceeds While Evaluating Payment of Proposed Settlements
• Insurer Allowed to Rescind EPL Policy Based on Material Misrepresentations in Renewal Application
• Texas Appellate Court, Applying “Eight Corners Rule,” Determines that D&O Policy’s Contractual Liability and Prior Litigation Exclusions Bar Coverage
• Jury to Decide Whether the Policyholder’s Answer on an Insurance Application Was Subjectively Truthful or a Material Misrepresentation
• Louisiana Federal Court Holds Prior and Pending Litigation Exclusion Bars Coverage
• Court Refuses to Reform Claims-Made Policies into Occurrence Policies
• No Coverage under Professional Liability Policy for Doctor’s Intentional Acts
• Personal Profit Exclusion Does Not Bar Coverage in Absence of Evidence of Receipt of Personal Profit or Advantage
• Other Decisions of Note
• Attorney’s Drafting of Will Is Covered “Act” under Professional Liability Policy
• Contingent Commissions and Broker Compensation: What to Do
• WRF Insurance Practice Group Announcements
• E&O Insurer Not Required to Speculate about Facts When Analyzing Underlying Complaint for Potential Coverage