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This article provides a current compendium of cases throughout the United States that considers various liability and/or coverage issues faced by participants in this growing area of litigation.

For a free copy of the article click here

Written by Tom Segalla and Matthew Lerner

https://www.goldbergsegalla.com/attorneys/Segalla.html

https://www.goldbergsegalla.com/attorneys/Lerner.html
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We are pleased to announce our first Life, Health, Disability and ERISA Quarterly, which provides a timely summary of decisions from across the country concerning life, health and disability policies, including those governed by ERISA.  The publication is distributed quarterly. Cases are organized by Circuit, then District and State Decision, and where available, hyperlinks are included providing recipients with direct access to the full decision. In addition, we provide the latest information regarding news in the life, health, disability and ERISA area.

We appreciate …

Ace American Ins. Co. v. RC2 Corp., Inc.
(7^th Cir. (Ill.)
Apr. 5, 2010)

The Seventh
Circuit recently reversed a district court’s decision ordering the insurer of a
major toy manufacturer to defend the manufacturer against several class action
lawsuits arising from the use of lead paint on toy trains. The
insured, RC2, designs, produces, and markets the popular “Thomas & Friends”
toys based on the children’s public television program. In June and September
of 2007, RC2 recalled certain of its wooden railway trains …

Simon Finger et. al. v. Audubon Ins. Co.

(Louisiana Civil District Court, Parish of Orleans, March 23, 2010)

This coverage dispute arose from the insurer’s denial of coverage for claimed damages due to the off-gasing of Chinese drywall installed in the policyholder’s home.  The insurer denied coverage based on the application of three policy exclusions: Pollution exclusion; Gradual or Sudden Loss exclusion; and Faulty, Inadequate or Defective Planning exclusion. 

The court held that under Louisiana law, the pollution exclusion “does not, …

United Healthcare Ins. Co. v. Davis

(5^th Cir. (La.), March 31, 2010)

The Fifth Circuit held that “Act 479,” which mandates the Office of Governmental Benefits (OGB) obtain proposals and contract with Louisiana HMOs is a violation of the Contract Clause of the U.S. Constitution, because it interfered with the plaintiffs’ current contracts. And, contrary to the holding of the district court, held the Act did not violate the Commerce Clause.

The OGB arranges for health insurance for State employees and their dependents, …

Aspen Ins. UK, LTD v. Dune Energy, Inc.

(United States District Court, Eastern District Louisiana, March 16, 2010)

This action arose from an oil leak caused by the catastrophic failure of a pipeline operated by Dune, which spent $1.2 million to remediate the property covered by a liability policy issued by Aspen.  Dune made a claim under the policy to recover the clean up costs, but Aspen denied coverage and sought a declaratory judgment that the policy did not afford coverage for the …

Fireman’s Fund Insurance Company v. Care Management, Inc., 2010 Ark. 110 (March 4, 2010)

The Supreme Court of Arkansas re-affirmed its status as a “no-prejudice” state for late notice of claim when notice is a condition precedent to coverage. 

The United States District Court for the Eastern District of Arkansas certified the question to the state's highest court because the Eighth Circuit recently noted “the state of Arkansas law on the subject leaves room for doubt.” The Supreme Court acknowledged the “modern …

The Supreme Court of Pennsylvania has agreed to hear a case of vital important to insurers and defense counsel, and their ability to defend claims against insureds. On March 16, 2010, the Supreme Court of Pennsylvania allowed the appeal of Gillard v. AIG Insurance, 947 A2d 836 (2008). In the trial court decision, 2007 Phila. Ct. Com. Pl. LEXIS 159, which was affirmed by the Superior Court without opinion, it was held that communications from defense counsel to the client’s claims representatives were not privileged.…

 Jobe v. Medical Life Insurance Company (8th Cir., March 19, 2010)

The issue before the circuit court was whether discretionary language included in the summary plan description ("SPD"), but not in the actual policy, prevailed. Plaintiff argued because the plan itself did not vest the plan administrator with discretionary authority, the district court erred is reviewing the benefit determination under an abuse of discretion standard. The insurer argued that language in the SPD prevails as previously stated by the Eight Circuit. In that prior …

Pendergest-Holt v. Certain Underwriters at Lloyd’s London

(5^th Cir. Mar. 15, 2010)

It has been widely reported that about a year ago the SEC sued three companies founded by R. Allen Stanford, and three individual defendants, alleging that Stanford and his cohorts had engaged in a Ponzi scheme through the sale of sham certificates of deposit evidencing billions of dollars of investments. The government subsequently brought a parallel criminal action against the same executives and James Davis, a former executive.

On August …