No Privilege for Communications Between Insurance Adjuster and In-House Counsel

Courts around the country continue to refine the scope of the attorney-client privilege and the attorney work-product doctrine in the context of communications between an insurance company adjuster and the insurer’s in-house counsel. Recently, the United States District Court for the District of Colorado held that a claims adjuster’s emails, claim notes, and interoffice memoranda are not privileged, even though they involved the carrier’s in-house attorney. Olsen v. Owners Ins. Co., No. 18-CV-1665-RM-NYW, 2019 WL 2502201 (D. Colo. June 17, 2019)

In Olsen, …

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Courts Continue to Raise the Bar for ROR Letters

Recently, it seems like courts are finding reservation of rights (ROR) letters to be ineffective, more often than not. Such was the case when the District Court for the Northern District of Georgia, applying Georgia law, held that an insurer that defends its insureds before reserving rights is estopped from later denying coverage. While this may seem obvious, the facts giving rise to the court’s decision are so common that this case should give us pause. 

Recently, it seems like courts are finding reservation of …

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Timing a Petition to Remove

It’s no secret the federal court is the preferred forum for litigating insurance coverage issues. When considering whether to remove, one factor to always consider is whether any defendant is a citizen of the State in which the action will be brought. Should that be the case, the Forum Defendant Rule dictates that the matter is no longer removable once the forum defendant has been properly joined and served. How does this impact a yet-to-be served forum defendant who is keen on removing? A Pennsylvania …

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Insured’s Decision to Manufacture A Dangerous Product Knowing No Insurance Is Available Doesn’t Sway Court To Create An Equitable Exception To The Unavailability Rule

The Supreme Court of New Jersey recently resolved an 18-year-old asbestos coverage row, encompassing 330 policies and thousands of claims. In reaching its decision in Cont’l Ins. Co. v. Honeywell Int’l, Inc., No. 078152, 2018 WL 3130638 (N.J. June 27, 2018), the court confirmed that lex loci contractus is dead in New Jersey for purposes of resolving choice of law issues in contract cases and declined to recognize an equitable exception to the “unavailability of insurance” allocation principle it had announced in its seminal …

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Pro Rata v. All Sums: When Viking Pump Applies

The United States Court of Appeals for the Second Circuit recently changed the tune of a decades-old insurance coverage dispute when it decided to apportion liability exposure for multiple instances of environmental contamination on an “all sums” basis.

In the matter of Olin v. OneBeacon, Olin, a manufacturing company, sought indemnity for remediation costs and other sums related to pollution cleanup at five of its manufacturing sites under several excess general liability policies. OneBeacon insured Olin under three excess umbrella insurance policies, each …

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Waiver Rears its Head: Equitable Subrogation Against “Other Insurance” Waived by Failure to Preserve Rights

Questions of “other insurance” arise whenever two or more insurers could provide coverage for a claim against a common insured. If one insurer is put in the position of settling a claim when other insurers who may also owe coverage do not contribute, reserving and pursing rights against other insurers should never be an afterthought. An insurer recently learned this lesson when it failed to assert rights against another insurer before agreeing to provide coverage for the settlement of a defamation lawsuit against well-known attorney …

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