The scope of the pollution exclusion in liability policies continues to be a highly-contested insurance coverage issue. One of the more recent debates in this area is whether the pollution exclusion’s application is limited to “traditional environmental pollution” or whether the exclusion should be afforded its plain and ordinary meaning, similar to other policy exclusions. The Vermont Supreme Court recently sided with insurers on this issue, holding that a policy’s pollution exclusion should be treated with the same analysis as any other policy exclusion. …
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Logical Construction: Federal Court Relies on Practical Considerations in Finding No Coverage for Lost Future Earnings
In 3M Co. v. National Union Fire Insurance Co., 2015 U.S. Dist. LEXIS 131197 (D. Minn., September 28, 2015) a federal judge for the District of Minnesota determined that a policyholder was not entitled to coverage for earnings on its investment in a trading company engaged in a Ponzi scheme because it did not own the earnings.
The policyholder invested its employee-benefit plan assets in the trading company. The investment took the form of a limited partnership in the trading company. In 2009, …
Continue ReadingAre You My Agent? Insured’s Notice to Broker Deemed Sufficient
In First Chicago Insurance Company v. Molda and Wilson, 2015 IL App. (1st) 140548, First Chicago appealed an adverse verdict finding that it had a duty to defend its insured in the underlying lawsuit. The Appellate Court affirmed the district court’s ruling, finding, in pertinent part, that the insured’s notice of the claim and suit were proper and timely.
The insured’s employee, Molda, was involved in an automobile collision while driving as a salesman for the policyholder, Metrolift. First Chicago subsequently filed a declaratory …
Continue ReadingNew York Appellate Division Finds No Coverage Under Bond For Losses Arising From Madoff’s Ponzi Scheme
In Jacobson Family Investments, Inc. v. Nation Union Fire Insurance Co. of Pittsburgh, PA, 2015 N.Y. App. Div. LEXIS 5175 (1st Dep’t; June 18, 2015), the New York Appellate Division, First Department reversed the Supreme Court, New York County’s decision and found that National Union Fire Insurance Company of Pittsburgh, PA is not required to pay the claimant for losses arising out of Bernie Madoff’s infamous Ponzi Scheme.
National Union provides coverage to the insured pursuant to a Financial Institute Bond. The insuring agreement …
Continue ReadingBlast from the Past: First Circuit Reverses Dismissal of Coverage Dispute Concerning 50-Year Old Missing Policy
In Cardigan Mountain School v. New Hampshire Insurance Co., 2015 U.S. App. LEXIS 8725 (1st Cir. May 27, 2015), the U.S. Court of Appeals for the First Circuit reversed the dismissal of an action based on events that occurred nearly 50 years ago, nixing the ruling that the lawsuit failed to state a claim under Rule 8 of the Federal Rules of Civil Procedure. The First Circuit instead held that the complaint survives dismissal by pleading the existence of an insurance policy from a …
Continue ReadingTotal Frat Move: Eastern District of Arkansas Holds CGL Policy’s Exclusions Preclude Coverage for Injuries Arising Out of Hazing
In Admiral Insurance Co. v. Bradley, 2015 U.S. Dist. LEXIS 70490 (E.D. Ark., June 1, 2015) a federal judge sitting in the U.S. District Court for the Eastern District Court addressed whether a fraternity and individual fraternity members were entitled to coverage under a standard CGL policy for injuries sustained by a pledge of the fraternity on the night of his initiation. The underlying claimant alleged that he was caned, paddled, and hit by the fraternity’s members, resulting in his being hospitalized due to …
Continue ReadingWisconsin Supreme Court Determines Notice-Prejudice Rule Does Not Apply To Claims-Made-and-Reported Requirement
In Anderson v. Aul, 2015 WI 19 (2015), the Wisconsin Supreme Court reversed the decision of the court of appeals and held that Wisconsin’s notice-prejudice statutes did not apply to the reporting requirements in claims-made-and-reported policies.
The underlying case involved a malpractice lawsuit filed by Melissa and Kenneth Anderson against their former attorney, Thomas Aul, alleging that Mr. Aul continued to represent the Andersons in a purchase of commercial property transaction, although he had an unwaivable conflict of interest. On December 23, 2009, Mr. …
Continue ReadingWhat’s That Smell? Supreme Court of New Hampshire Holds That Cat Urine Odor Constitutes First-Party Property Damage
In Mellen v. Northern Security Insurance Co., Inc., 2015 WL 1869572 (N.H. April 24, 2015), the Supreme Court of New Hampshire issued a declaratory judgment that a homeowners policyholder was entitled to first-party coverage for cat urine odor. The court further held that coverage was not barred by the pollution exclusion.
The policyholders leased an apartment unit, but the tenant moved out in the middle of the lease term due to cat urine odor from the policyholders’ downstairs neighbor. After the tenant moved out, …
Continue ReadingLead Paint is Not an Excluded Pollutant in CGL Pollution Exclusion
In a personal injury action involving ingestion of lead-based paint in the house the claimant rented from the insured, the majority of the First Division Georgia Court of Appeals held that a policy’s pollution exclusion does not bar coverage for underlying personal injury claims, because lead-based paint was not specifically listed as a pollutant in the policy. Therefore, the exclusion did not exclude coverage for injuries arising out of the ingestion or inhalation of lead-based paint. This decision reversed the trial court grant of summary …
Continue ReadingAfter Hours: New Jersey Superior Court Holds Definition of Employee and Exclusion for Employee’s Criminal Acts Both to be Unambiguous
In Union Hill Supremo Pharmacy v. Franklin Mut. Ins. Co., No. L-705-13 (N.J. Super. Ct. App. Div., March 4, 2015) the Superior Court of New Jersey, Appellate Division decided that an insurance policy’s definition of “employee” was unambiguous. The court further held that a part-time employee fell within the definition of “employee” and that a policy exclusion based on an “employee’s” criminal acts applied even when the employee was not working at the time of the crime’s commission.
The insured, a pharmacy, incurred a …
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