December 2009

• Tenth Circuit Strictly Enforces Claims-Made Requirement
• Judge Posner: "Arising from" Is Not Literally "But for," Nor Is the Extended Reporting Period the Policy Period
• Insurer Relying on Insured v. Insured Exclusion Breached Duty to Defend and Estopped from Denying Coverage on Other Grounds
• Prior Knowledge Exclusion Bars Coverage for Law Firm But Rescission Unwarranted
• Rescission Action Barred by Statute of Limitations
• No Coverage Based on Exclusion for Employment-Related Claims
• Wage and Hour Claims of Similarly Situated Employees Held Related Under Claims-Made-and-Reported Policy
• The Hartford Did Not Assume Reliance Coverage Obligations
• Prior Knowledge Provision and Personal Profit Exclusion Bar Coverage for Claims Arising Out of Kickback Scheme
• Late Notice Precludes Coverage
• Professional Services Exclusions Bar Claims Against Architect Arising Out of Garage Collapse
• Underlying Facts, Not Claims Alleged or Actions of Insureds, Determine Applicability of Bodily Injury Exclusion

November 2009

• Dispute Over Excess Policy Exhaustion Provision Not Ripe Unless Insured Reaches Below-Limits Settlement With Primary Insurer
• Claims-Made-and-Reported Policy Neither Ambiguous Nor Subject To "Notice/Prejudice" Rule Under Washington Law
• Tennessee Federal Court Requires Showing of Prejudice for Late Notice Defense
• Michigan Federal Court: Late Notice Bars Coverage
• RICO Claim Not Excluded By Breach of Contract or Benefits Due Exclusions
• Ninth Circuit Applies Objective Standard to Prior Knowledge Exclusion; No Coverage for Malpractice Claim
• Declaratory Judgment Action Presents Justiciable Controversy
• Representation Insufficient to Void Policy Under Ohio Law
• Mortgage Repurchase Claims Exclusion Not Contrary to Reasonable Expectations of Insured Mortgage Broker
• Lawyer's Policy Does Not Respond to Services as Insurance Expert
• Insolvency Exclusion Applies to Claim Arising Out of Insolvency of a Third Party
• No Coverage Under D&O Policy for Complaint Naming Company as Sole Defendant

October 2009

• Settlement of Claim Alleging Inadequate Consideration for Tracking Stock Does Not Give Rise to a "Loss"
• Professional Services Coverage Not Applicable to Injury Pre-Dating Endorsement's Effective Date
• Interpleader Shielded Insurer from Liability for Counterclaims
• Policy Affords No Coverage for Lawsuit Where Insured Failed To Provide Notice
• Sixth Circuit Holds That Coverage for Arbitration Claims Barred by Policy Exclusion
• Failure to Mention Exclusion in Denial Letter Does Not Result in Estoppel; Might Result in Waiver
• Rescission Appropriate Based on Nondisclosure of Demand Letter in Application
• First Circuit Rules Insurer Estopped from Seeking Recoupment of Settlement Payment
• EPL Complaint Filed with Local Agency Constituted a "Claim" Made Prior to Policy Period
• Guilty Plea Triggers Dishonesty Exclusion; Insurer Entitled to Recoup Defense Costs
• Claimant's Extended Silence after Threats May Reduce Foreseeability of Claim
• Insured v. Insured Exclusion Does Not Apply to Defense of Claim Brought Jointly by Insured and Non-Insureds
• Prior Notice Exclusion Bars Coverage for Defense of Criminal Prosecution
• No Coverage When Insured's Counsel Acknowledged Impending Claim Prior to Effective Date of Policy
• Prior Knowledge Exclusion Inapplicable Where "Meaningful Avenues" for Curing Potential Malpractice Remain
• Insured Entitled to Discovery on Extent of Limit Remaining on Policy
• Notice of Claim Received by Doctor's Wife Imputed to Doctor and Medical Practice
• No Coverage for Claim Reported after Expiration of Policy Period
• Prejudice from Late Notice Is Not Precluded Simply Based on Denial on Other Grounds

September 29, 2009

• Settlement Of Claim Alleging Inadequate Consideration For Tracking Stock Does Not Give Rise to a "Loss," and Bump-Up Exclusion Applies

September 18, 2009

• Senate Subcommittee Takes up Repeal of Stoneridge, Central Bank

September 2009

• Inadequate Consideration Exclusion Bars Coverage
• Delaware Supreme Court Enforces Consent To Settle Clause
• Fiduciary Liability Policies Afford No Coverage for Breach of Contract Claims and Payment of Stock Option Plan Benefits
• Excess Insurer May Challenge Whether Payments Exhausted Underlying Limits
• No Duty to Defend under E&O Policy Where Underlying Complaint Alleges Only Intentional Acts
• Allegations of Quick Denial and Cursory Investigation Raise Triable Issues as to Bad Faith Claim
• Foreclosure Does Not Constitute Damages under a D&O Policy and Officer Did Not Act Within His Insured Capacity When Violating By-Laws
• Insured's Agreement to Lift Automatic Stay Does Not Violate Cooperation Clause
• Upcoming Event: Earn CLE and Update Your Understanding of Claims-Made Policy Issues Without Charge

August 2009

• I v. I Exclusion Bars Coverage for Debtor-in-Possession's Claim Against Former Directors and Officers
• Applying Mixed Subjective/Objective Test, Third Circuit Holds that Prior Knowledge Exclusion Bars Coverage
• Insured Not "Legally Obligated" To Pay Without Finding of Liability by Court
• Notice of Claim by Loss Run Sufficient, But Notice of Suit Also Required
• Notice of Potential Claim Does Not Render Prior Knowledge Exclusion Inapplicable
• First Circuit Holds No Coverage for Claims First Made and Reported Outside Policy Period
• Minnesota Court: Failure To Disclose Claim Voids Coverage
• California Federal Court Sustains Late Notice Defense
• Insured that Controlled Defense Bears the Burden To Prove Allocation Between Covered and Non-Covered Claims
• Defense Costs Advanced Under Interim Funding Agreement Deemed Property of Debtor's Estate
• Court Holds that Criminal Indictment Does Not Constitute a "Claim for Loss" Under a D&O Policy
• Professional Services Exclusion Applies Where Construction Supervisor Should Have Drawn Upon Knowledge, Experience or Training
• Alleged Wrongdoing in Connection with Attempted Real Estate Mergers Held Not To Constitute Professional Services
• Alleged Misconduct in Personal Capacity Not Covered Wrongful Act Under Nonprofit Policy

July 2009

• Insured Must Reimburse Insurer with Interest for Defense Costs Where Claim Made Prior to Policy Period
• No Coverage for Malpractice Claim Against Real Estate Broker When Claimant Threatened Suit Prior to Policy Inception
• Independent Counsel Not Warranted Absent Explicit Factual Basis for Conflict of Interest
• Insured's Notice of Basic Facts of Incident Sufficient to Satisfy Reporting Requirement of Claims-Made Policy
• No Coverage for Attorney's Fees Awarded Pursuant to Statute to Underlying Claimant
• Dispute of Fact Precludes Summary Judgment Regarding Whether Letter Is a "Claim"
• Federal District Court Strictly Applies First-to-File Rule

June 2009

• Breach of Contract Not a Wrongful Act Under E&O Policy
• Pennsylvania High Court Affirms Notice-Prejudice Rule Inapplicable to Claims-Made Policies
• Attorneys’ Alleged Diversion of Settlement Payment Does Not Constitute Professional Services
• Late Notice Bars Coverage; Alleged Notice to Broker Insufficient
• Contract Exclusion Potentially Bars Coverage for Claim Under Construction Company’s D&O Policy
• Consideration of Documents Referenced in Pleadings Not Proper Under Texas “Eight-Corners” Rule
• No Coverage for Patent Infringement Claim Under Professional Liability Policy
• Insured v. Insured Exclusion Applies to Claim Brought by Spouse of Executive
• Disclosure of Information Regarding Reserves Required But Not Reinsurance
• Second Circuit Affirms Application of Prior Litigation Exclusion
• No Coverage Because Claim Not Made During Policy Period

May 2009

• Texas Supreme Court Holds Prejudice Required for Late Notice Defense Under Claims-Made Policy
• Unclear Whether Employee’s Demand Letter Is a “Claim” Under EPL Policy
• Dishonesty and Prior Knowledge Exclusions Bar Coverage for Claim for Misappropriation of Funds
• Illinois Appellate Court Holds Insurer Not Required to Advance Defense Costs While Coverage Action Is Stayed
• District Court Refuses to Stay Excess Insurer’s Declaratory Judgment Action on Duty to Advance Defense Costs
• Court Holds Insurer Had Duty to Defend Attorneys against Claims By Non-Clients
• Other Insurance Provision in D&O Policy Did Not Excuse Insurer from Its Duty to Defend Suits
• Libel Suit for Pre-Policy Newspaper Articles Not a “Known Loss”

April 2009

• Rescission Appropriate Despite Lack of Intentional Misrepresentation
• Court Orders Insurer to Disclose Claims Information of Other Insureds and Underwriting Materials
• Court Applies Exclusion for Suits Seeking Solely Declaratory Relief
• Colorado District Court Narrowly Construes “Related Claims” Provision
• No Written Consent to Settlement, No Coverage under New York Law
• Insurer Entitled to Rescind Policy Based on False Statement in Application
• Fifth Circuit Rejects Exception to Texas’s Eight-Corners Rule But Nonetheless Holds No Duty to Defend Fiduciary Liability Claim
• Insurer’s Duty to Defend Individual Terminates If No Longer Sued in Capacity as Director or Officer
• Nebraska Supreme Court Upholds Regulatory Exclusion
• Court Rejects Insurer’s Attempt to Rescind Lawyers Policy and Holds Prior Knowledge Exclusion Does Not Bar Coverage
• Insurer Has Duty to Defend Class Actions Suits Alleging Fee Kickback Scheme under Lawyers Liability Policy
• Insurer Bound by Award in Arbitration of Which It Had Notice But in Which It Decided Not to Participate
• Notice to One Insured Did Not Trigger Reporting Requirement for Other Insureds
• Coverage Action Dismissed Based on Insured’s Failure to Allege Facts Showing Timely Notice of Claim

March 2009

• Tenth Circuit Addresses Loss Causation and “Leakage” under Dura
• Insurer Denied Discovery of Communications Between Insured and Defense Counsel
• Demand Letter and Draft Complaint Constitute a “Claim”
• Insurer Obligated to Advance Defense Costs Despite Contract Exclusion and Despite the Uninsured Capacity in Which a Director Was Sued
• No Coverage Where Counterclaim Filed Prior to Policy Inception Was Revived in a Separate Lawsuit
• Same Clients, Same Money and Same Damages: Same Legal Malpractice Claim
• Insurance Agents’ Referral of Clients to Debt Adjustment Services Company Constitutes Professional Services
• Advertising Is Not a Professional Service under Insurance Agents and Brokers Policy
• No Duty to Defend Where Claim Would Not Exist But for Excluded Conduct
• Kentucky District Court Denies Insurer’s Motion to Intervene and Interplead Policy Limits
• Refco Court: Prior Knowledge Exclusion Bars Coverage

February 2009

• Exclusion for Claims Arising Out of Professional Services Performed for Related Entity Applies Only When Entities Were Related at Time Professional Services Rendered
• Court Applies Exclusion for Claims Based Upon a Failure to Pay or Collect Money
• Discrimination Complaint Filed with Local Agency Constituted a “Claim” Made Prior to EPL Policy Period
• Notice of Intent to Sue Attorney for Malpractice Triggered Duty to Defend Claim for Sanctions
• Insurer’s Denial of Coverage for Negligence Claim Arising Out of Breach of a Statutory Duty Constituted Bad Faith
• Insured’s Liability for Breach of Agreement Excluded by “Contractual Liability” Exclusion
• Professional Services Exclusion Did Not Preclude Duty to Defend Claim Alleging Negligence
• Breach of Contract Exclusion Bars Coverage for Conspiracy Claim Arising Out of Construction Contract

January 2009

• Coverage Barred by Breach of Consent-to-Settle Provision in D&O Policies
• Exclusion for Claims “Arising out of” Misappropriation of Trade Secrets Interpreted Broadly
• New Jersey Court Holds Failure to Report Claim Letter Timely Barred Coverage for Related Suit Filed in Subsequent Policy Period
• Suit That Did Not Seek Relief against Director or Officer Held Not a Claim against an Insured Person
• Bankruptcy Court Holds Inadequate Consideration Exclusion Bars Coverage
• Missouri Federal Court Holds Insured Breached Cooperation Clause by Invoking Fifth Amendment
• Supreme Court of Louisiana Holds Claims-Made Policy Does Not Violate Public Policy
• Court Upholds Denial Based on Late Notice and Rejects Estoppel and Waiver Arguments
• Pending and Prior Litigation Exclusion Bars Coverage for Professional Liability Claim
• Litigator Benjamin C. Eggert Joins Insurance Practice