December 2015

• Pennsylvania Notice-Prejudice Rule Does Not Apply to Claims-Made Policies
• Insured Cannot “Fill the Gap” Between Primary Insurer’s Settlement Payment and Underlying Limit
• Insurer Obligated to Produce Underwriting Files Relating to Policies Issued to Other Policyholders
• Insurer Failed to Show Claims Were Not Interrelated; Not Entitled to Summary Judgment for Suit Seeking Disgorgement
• Action by Tennessee Attorney General Deemed to Pre-Date Claims-Made Policy Period Because Related to Earlier-Filed Customer Complaints
• Failure to Provide Notice of Related Suit and Exclusion for Insufficiency of Escrow Funds Preclude Coverage for Title and Escrow Company
• Managed Care E&O Policy Covers Suit Alleging Unfair Competition by Competitors
• No Coverage for Claims Arising from Failure to Appeal Adverse Decision
• Attorney Cannot Wait on Outcome of Appeal to Report Dismissal of Client’s Claim Due to Malpractice
• Second Circuit Affirms Applicability of Lower Limit on Liability Pursuant to Endorsement; No Bad Faith Claim

November 2015

• A Breach of Contract is not a “Negligent Act”
• Tenth Circuit Holds that Implied Duty to Investigate and Initiate Settlement Negotiations Does Not Extend to Excess Insurer
• Coverage for DOJ Investigation Not Barred Because No Way to Determine Whether There Was Substantial Overlap with Earlier Lawsuits
• Claim Asserting Innocence in Alleged Copyright Infringement “Arises Out of” Copyright Infringement and Triggers Exclusion
• Missouri Appeals Court Affirms That Insolvency Exclusion Bars Indemnity Coverage for Refusal to Pay
• Insurer Breaches Duty to Defend by Interpleading Limit
• Reimbursement of Defense Costs at Panel Rate Does Not Constitute Irreparable Harm for Preliminary Injunctive Relief
• Insurer’s Suit for Declaration that Multiple Claims Constitute a Single Claim Must Await Resolution of Insured’s Liability
• Policies Do Not Provide Coverage for Claim Stemming from Pre-Continuity Date Subpoena and Acts of Subsidiary Prior to Acquisition by Insured
• Contractual Liability Exclusion Bars Coverage for Negligence Claim

October 2015

• Attorney Sanctioned for Failure to Disclose Client’s D&O Insurance Policy
• Even Without Express Demand for Money, Pre-Policy Period Letter is a “Claim”
• Neither Bond Nor E&O Policy Covers Entity Losses from Employee Theft of Client Funds
• Professional Services Exclusions Bar Coverage for Failure to Give Prescribed Drugs to Prisoner
• Professional Services Exclusion in D&O Policy Bars Coverage for Claim Arising from Provision of Payroll Services
• Mutual Mistake Requires Reformation of Retroactive Date for Additional Insured
• Lawyer Rendered “Professional Services” in Failure to Advise Investment Transaction Counterparty Regarding Title Insurance
• Insurer’s Declaratory Judgment Action Stays in Federal Court Despite Parallel State Court Proceeding Initiated by Insured
• Advancement When Bank Customer Had Insufficient Funds Not a “Transaction in the Nature of a Loan”

September 2015

• Insurer Not Required to Advance Defense Costs Under A-Side Policy on Pro Rata Basis with Underlying D&O Policy
• Sixth Circuit Affirms That Tax Shelter Exclusion Bars Coverage for Suits against Accounting Firm
• Pennsylvania Supreme Court Adopts “Reasonableness” Standard for Enforcing Cooperation Provision When Insurer Breaches its “Duty to Settle”
• Fifth Circuit Holds That Amended Complaints Relate Back to Original Complaint That Sought Only Injunctive Relief
• Prior Acts Exclusion in E&O Policy Bars Coverage for Arbitration Award
• Fifth Circuit Reverses: Insured v. Insured Exclusion Does Not Apply To Indemnity Claim
• Spreadsheet Listing Asserted Damages is a “Claim”
• Insurer Entitled to File Suit for Unjust Enrichment Directly Against Cumis Counsel to Recover Unreasonable and Unnecessary Fees
• Contract Exclusion Bars Coverage for City but Not Individual Officials
• Notice Outside Policy’s 30 Day Reporting Requirement Untimely As a Matter of Texas Law Notwithstanding Lack of Prejudice
• No Duty to Defend Antitrust Suit Alleging Malicious Disparagement

August 2015

• Criminal Adjudication Final Upon Sentencing Under Fraud Exclusion Notwithstanding Appeal
• Dishonesty Exclusion Bars Coverage for Claim Alleging Fraudulent Inducement to Extend Loan
• Delaware Chancery Court Rejects Proposed Merger Settlement Emphasizing Need for Case-Specific Assessment of Settlement Consideration and Attorneys’ Fees
• Equitable Subrogation Allows Excess Insurer to Recover Settlement Contribution from Later Insurer After Proper Policy Period Is Determined
• Financial Institution Bond Bars Coverage for Loss Not Resulting Solely from Duties of Outside Investment Advisor
• Court Applies Subjective Standard to Prior Knowledge Exclusion
• Bad Faith Action To Go To Jury
• Summary Judgment Premature Where Insurer Reserved Rights Under Capacity and Equity Interests Exclusions
• “Regardless of Any Apparent Intent,” Excess Policy Does Not Follow Notice Condition of Primary Policy
• Policy Provision Requiring Insurer’s Consent to Incur Clean-Up Costs Not Void Against Public Policy
• Motion to Dismiss Record Insufficient to Make “Related Claims” Determination
• Dishonesty Exclusion Bars Coverage for Attorney’s Charging Exorbitant Fee

July 2015

• Notice-Prejudice Rule Does Not Apply to Fidelity Bonds
• Fourth Circuit Affirms Recoupment for Insurer Where Guilty Pleas Triggered Policy Exclusions
• Eleventh Circuit Affirms Dismissal of Insured’s Complaint in “Consent to Settle” Case
• Bond Exclusion Bars Coverage for Claims Against Property Management Company
• Contractual Liability Exclusion Bars Coverage for Insureds’ Alleged Liability under Contract, Regardless Whether Contracts Are Actually Valid
• Insurer Waived Right to Rescind Where Its Agents Knew of Facts that ‘Distinctly Implied’ Information on Policy Application Was Incorrect
• Fraudulent Overbilling Likely Is “Professional Services” But Coverage Barred by Fraudulent Acts Exclusion
• Contract Exclusion Bars Coverage for Fraud Claims Arising Out of Advertising Services Contract
• Claim based on Unsolicited Text Messages in Violation of TCPA Does Not Allege a “Privacy Wrongful Act” under Policy’s “Cyber Claims Endorsement”
• Ninth Circuit Holds Professional Services Exclusion Bars Coverage for Ponzi Scheme Lawsuit
• Insurer Has Duty to Defend Even Though Court Holds No Duty to Indemnify
• Professional Services Exclusion Bars Coverage for Claims against Bank Accused of Facilitating Ponzi Scheme
• Crime Bond Affords No Coverage Where Insured Bank Fails to Submit Complete Proof of Loss Prior to FDIC’s Appointment as Receiver
• Insurer Waives Privilege by Asserting Reasonable Basis for Coverage Denial in Bad Faith Litigation
• No Coverage Under Claims-Made-And-Reported Policy Where Claim Not Made or Reported During the Policy Period
• Fidelity Bond Provides Coverage for Third-Party Claim Arising from Employee’s Fraud
• Unpaid Compensation and Breach of Contract Exclusions Bar Coverage for Independent Contractor’s Suit
• Court Stays Litigation of Certain Coverage Defenses, Allows Others To Proceed Pending Resolution of Underlying Litigation

June 2015

• Prior Knowledge Condition Bars Coverage for Insured’s Knowing Misrepresentations to Client
• Insurer Entitled to Discover Insured’s Communications with Broker, Defense Counsel Prior to Date of Final Coverage Denial and Communications with Defense Counsel Regarding Allocation Issues
• Bad Faith Claim Fails Absent Breach of Contract or Failure to Settle
• Insurer Not Estopped from Relying on Exclusion in Unilaterally Disclaiming Duty to Defend; Business Enterprise Exclusion Bars Coverage
• Professional Services Exclusion Does Not Bar Coverage Because Alleged Wrongful Conduct Tenuously Connected to Provision of Professional Services
• Regulatory Exclusion Bars Coverage for False Claims Act Action Pursued By Qui Tam Relator
• Related Acts of Malpractice Give Rise to One Claim; Coverage Precluded by Prior Knowledge Exclusion
• Knowing Conduct Is Not An “Error, Omission or Negligent Act” Under Technology E&O Policy
• Borrower’s Bankruptcy Petition Triggers Bankruptcy Exclusion of Lender’s Political Risk Policy
• Lawyer Could Only “Reasonably Expect” Claim By Former Client—Not Her Family Members

May 2015

• Georgia Supreme Court Unanimously Holds That Insured Cannot Sue Insurer for Amounts Paid to Settle Claim Without Insurer’s Consent
• Insurer Entitled To Recoup Settlement Payment Made in Underlying Action
• Insurer’s Recoupment Claim Still Alive After Appellate Court Rejects Dismissal Based on Waiver
• Prejudice Irrelevant to Late Notice Where Timely Notice Is Condition Precedent
• Federal District Court Concludes No Coverage for Untimely Claim
• No Coverage Under Claims-Made-and-Reported Policies for Claims Not Timely Reported
• Insurer Need Not Demonstrate Prejudice to Disclaim Coverage for Late Notice under Excess Claims-Made Policy
• Insurer Owes No Duty to Defend “Related Claim” Where Suit is Based on Same Course of Discriminatory Conduct Alleged in Prior Litigation
• California Court Holds Claims by Separate Investors in the Same Ponzi Scheme All Barred by Application Exclusion
• No Duty to Defend Where Insured Received Demand Prior to Policy’s Inception
• Indiana High Court Holds Settlement of Managed Care Organization Multi-District Litigation Is Covered under E&O Policies
• Invasion of Privacy Exclusion Blocks Basketball Team’s Shot at D&O Coverage for TCPA Claims
• Insurer Has Duty to Defend under Claims-Made Policy Where Insured Potentially Received Notice of the Claim During the Policy Period
• Unserved Qui Tam Complaint Does Not Satisfy “Claim First Made” Requirement of Claims-Made Policy

April 2015

• Borrowing Funds from Client Does Not Constitute Professional Services and Profit Exclusion Bars Coverage for Accountant's Failure to Repay Client
• Delaware Trial Court: “Final Adjudication” Exclusion Trumps “No Loss” Argument
• Contract-Related Breach and Negligence Damages Constitute “Loss;” Coverage Precluded by Warranty Exclusion
• Eleventh Circuit Holds No Coverage for Online Banking Theft
• No Coverage for Prosecuting an Affirmative Counterclaim
• Lawyer’s “Don’t Ask” Policy on Associate Misconduct Leads Court to Apply Prior Knowledge Exclusion
• Finding of Fraud for ERISA Violation Implicates Fraud Exclusion

March 2015

• No Coverage Where Underlying Complaint Did Not Allege Conduct After Retroactive Date; Suits Involving Nearly Identical Course of Conduct Are Related
• Pollution Exclusion in E&O Policy Bars Coverage
• Colorado's Notice-Prejudice Rule Does Not Apply to Claims-Made Policies
• Neither "Insured vs. Insured" Exclusion nor "Investment Loss Carve-Out" Bars Coverage for Receiver's Action Against Bank's Former Directors and Officers
• Court Applies Objective Standard to Hold that Prior Knowledge Exclusion Bars Coverage
• Insurer Not Liable for Bad Faith in Absence of Special Relationship with Insured or Unreasonable Denial of Coverage

February 2015

• Bad Faith Exclusion Bars Coverage for Bad Faith Failure to Settle Claim That Also Alleges Negligence
• Claimant Has No Right to Policy Proceeds as Judgment Creditor of Insured Who Defaulted in Underlying Action
• Ninth Circuit Finds Breach of Fiduciary Duty Claim Seeks Damages, Not Restitution
• Insured v. Insured Exclusion Does Not Bar Coverage for Claim by Assignee
• No Coverage for SEC Investigation Where Initial Investigative Order First Issued Before the Policy Period
• SEC Consent Order Does Not Trigger Dishonesty Exclusion Where Insured Does Not Admit Guilt; Loss May Be Uninsurable by Law
• Ninth Circuit Holds Professional Services Exclusion Ambiguous
• No Coverage Under a Claims-Made Policy for Former Employee Even When Insured Alleged to be Vicariously Liable
• Settlement Returning Overdraft Fees Deemed Not To Be Restitution Absent Final Adjudication
• No Coverage for Suit Based on Unreported Demand Made in Prior Policy Period
• FDIC's Suit Against Law Firm for Acceptance of Advanced Retainer Not Covered
• Renewal of Claims-Made-and-Reported Period Does Not Extend Claim Reporting Period

January 2015

• Communications Stating That Insured May Be Liable For Damages Constitute a “Claim”
• Contract Exclusion Does Not Bar Coverage for Intentional Misrepresentations During Pre-Contract Negotiations
• Notice of Violation Alleging Refusal to Tender Benefits Owed Constitutes a “Claim”
• Business Pursuits Exclusion Bars Coverage for Activities after Alleged Ponzi Schemer Left Law Firm
• Professional Association’s Investigation of Ethical Complaints and Credentialing of Members Constitute Professional Services
• No Rescission of Renewal Policy Where Original Application Not Incorporated into Application for Renewed Policy
• Coverage Determined By Date Notice Is Received By Insurer, Not By Date It Is Sent
• Civil Lawsuit Alleging Ethical Violations Is Not a “Disciplinary Proceeding” Under a Lawyers Professional Liability Policy
• Health Care Professional Services Exclusion Applies Where Injury Would Not Exist But-For Failure to Provide Medical Attention
• Automated Calls to Advertise Insurance Services Do Not Constitute Professional Services