Northern District of New York Grants 12(b)(6) Motion Dismissing Extra-Contractual Damages

On March 30, 2020, Judge Lawrence E. Kahn of the Northern District of New York granted a carrier’s 12(b)(6) motion seeking dismissal of the insured’s extra-contractual claims.  The case was filed by a homeowner seeking payment for alleged water damages at her home.  She alleged that the water damage loss occurred January 6, 2017, but acknowledged that she had not reported the claim until a year later. 

Plaintiff alleged that the carrier wrongfully denied her claim, although the carrier pointed out that it never actually …

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Eleventh Circuit Upholds Florida’s Strict Interpretation of Eight Corners Rule in Stabbing Case

In Mt. Hawley Ins. Co. v. Roebuck, the liability insurer for the owners of a Florida outdoor shopping mall sought to avoid coverage in connection with a stabbing that occurred at the mall based on the insureds’ failure to comply with conditions precedent to coverage. The Eleventh Circuit, however, in agreement with the district court, found that because the facts extrinsic to complaint that were necessary to establish the conditions’ application were in dispute, the insurer owed a duty to defend.

Mt. Hawley …

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New Jersey Legislature Considers Bill Requiring Insurers to Pay for Coronavirus-Related Business Interruption Losses Regardless of Policy Terms

In an effort to curb the spread of the Coronavirus (COVID-19), federal, state and local governments are asking people to stay home. New Jersey, for instance, declared a state of emergency on March 9, 2020 and cities and townships have followed suit, imposing restrictions on local gatherings and business hours. Such mandates – and the general effort to flatten the curve – will impact small businesses as fewer people venture out and otherwise limit non-essential activities. In turn, businesses will suffer financial losses, some forced …

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Coronavirus Consumer Protection Class Action: First Up – Germ-X

In what will likely be the first of many consumer protection lawsuits involving the Coronavirus (COVID-19), a group of California consumers filed a federal class action complaint alleging Vi-Jon, Inc. falsely advertised, marketed, and sold its Germ-X brand hand sanitizers as being able to prevent viruses, including COVID-19. As the COVID-19 pandemic grows in size and scope, consumers are gravitating to products to provide some degree of security and comfort. In light of the CDC’s recommendations to use hand sanitizer to prevent the spread of …

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New Jersey Appellate Division Dismisses Broker’s Attempt to Hold Defense Counsel Jointly Liable for Failure to Report D&O Claim

The Appellate Division recently rejected an attempt by an insurance broker to assert contribution and common law indemnity claims against two law firms that represented a mutual client as part of a professional malpractice case the client filed against the broker. The holding confirms the narrow circumstances in which such claims can be successful under New Jersey law. The case is South Brunswick Furniture, Inc., et al. v. Acrisure LLC d/b/a Beckerman & Co. No.:A-2981-17T1, 2020 WL 1043114 (N.J. App. Div. March 4, 2020).

In …

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Part 5: A Game of “Who’s Who” Under the CCPA

This is our fifth blog post in a multi-part series addressing what insurers need to know about the California Consumer Privacy Act (CCPA). This post focuses on the differences between data collectors, service providers, and third parties. We also discuss data brokers and their specific obligations under the CCPA. While this post does not require any background on the CCPA, if you would like the benefit of our preliminary discussions before diving into this post we invite you to start with Part 1: The California

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North Carolina Supreme Court Holds the Term ‘ACV’ Unambiguously Includes Depreciation of Labor Costs

Key Takeaways:

  • The term ACV is not susceptible to more than one reasonable interpretation and unambiguously includes depreciation of both material and labor costs
  • Split decisions in other jurisdictions on whether ACV includes depreciation of both labor and materials does not result in the term being ambiguous under North Carolina law

The Supreme Court of North Carolina held that the term Actual Cash Value (ACV) in a homeowners policy is unambiguous and is calculated by depreciating both labor and material costs. The decision in Thomas

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Illinois Federal District Court Determines Policy Intent Trumps Policy Language

In an interesting decision handed down late last year, an Illinois federal district court in Ohio Security Insurance Company v. Truck Tire Sales, Inc. determined coverage was not available after carefully considering the policy intent and application for insurance. The district court held that irrespective of broad policy language, “the policy reflects that it was sought for the purpose of insuring [the insured’s] activities related only to [one part of its business].”

The dispute arose when an employee of the named insured, Truck Tire Sales, …

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No Liability Coverage for Vicariously Liable Punitive Damages in Florida

The Southern District of Florida issued a ruling favorable to insurers in interpreting whether punitive damages are insurable in Florida–even when awarded for vicariously liable acts.

The case, Ranger Constr. Indus., Inc. v. Allied World Nat’l Assurance Co., No. 17-81226-KAM (S.D. Fla. Dec. 23, 2019), was an insurance coverage dispute arising over an excess policy issued by Allied World to the plaintiff. The policyholder had been hired for a construction project involving building a highway, and various subcontractors were ultimately hired. One such subcontractor’s …

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Court Finds That Insurer’s Duty to Defend is Not Cut Off by Judicial Admission by Insured

An insured’s admission in an answer to a declaratory judgment complaint dispositive of coverage was not considered by the Middle District of Pennsylvania. Instead, the court looked only to the allegations in the underlying complaint and held that an insurer had a duty to defend its insured.

The insured was sued in an underlying bodily injury lawsuit arising from a motor vehicle accident. In the complaint against the insured, the underlying plaintiff alleged that the vehicle driven by the insured’s employee was an auto covered …

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