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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.  Following a work-site accident,

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10th Circuit Holds that the Phrase “That Particular Part” in a CGL Policy’s “Damage To Property” Exclusion is Ambiguous

Noting the inconsistent treatment given to the “Damage To Property” exclusions commonly found in standard commercial general liability coverage forms, the United States Court of Appeals, Tenth Circuit, applying Oklahoma law, has held that the phrase “that particular part” in the exclusion is ambiguous. In MTI, Inc. v. Employers Insurance Company of Wausau, No. 17-6206, — F.3d —, 2019 WL 321423 (10 Cir. 2019), an insured contractor, MTI, Inc. (MTI) was retained by Western Farmers Electrical Cooperative (WFEC) to remove

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Not So Fast – Pennsylvania’s Bad Faith Statute Is Not A Blank Check for Fees

The Third Circuit recently held that a jury bad faith damage award does not automatically entitle a successful claimant to an award of attorney’s fees under Pennsylvania’s bad faith statute. In affirming the district court’s denial of an award of attorney’s fees, the Third Circuit formally endorsed the view that where a fee-shifting statute provides a court with discretion to award attorney’s fees, such discretion includes the ability to deny a fee request that is outrageously excessive. In doing so, the

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NY Court Clarifies Pleading Standard for “Consequential Damages” in Coverage Litigation

The Appellate Division of New York’s Supreme Court, First Department, recently overturned a trial court’s dismissal of an insured’s claim for consequential damages on a pre-answer motion to dismiss.  While the decision sheds light on the degree of specificity required at the pleading stage to sustain an insured’s claim for consequential damages, it does little to clarify the level of proof required to prevail on such claim at trial.       The coverage dispute among the parties in D.K. Property, Inc.

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Vicarious Liability and Additional Insured Coverage: Illinois Appellate Court Clarifies Factual Allegations Sufficient to Trigger Defense Duty

The Appellate Court of Illinois recently considered whether an underlying complaint against an a general contractor (additional insured), filed by the estate of an independent contractor/subcontractor’s employee who was killed in a job site accident, triggered the defense of the general contractor under the subcontractor’s liability policy. The subcontract at issue contained the standard additional insurance requirements. The court first decided that the liability policy’s additional insured endorsement did not protect an additional insured for its own negligence; and the

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FEMA Rescinds Prior Ruling that Halted National Flood Insurance Program during Government Shutdown after Wave of Backlash from Insurance Industry

In the midst of the partial federal government shutdown, on Wednesday, December 26th, the Federal Emergency Management Agency (FEMA) announced that the National Flood Insurance Program (NFIP), the main source for flood insurance in the U.S., would have limited ability to issue new or renewal policies, or issue increased coverage on existing policies, although claims would be paid on policies that were in force before midnight on December 21, 2018.  A wave of backlash from the insurance, banking, and housing

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FEMA Rescinds Prior Ruling that Halted National Flood Insurance Program during Government Shutdown after Wave of Backlash from Insurance Industry

In the midst of the partial federal government shutdown, on Wednesday, December 26th, the Federal Emergency Management Agency (FEMA) announced that the National Flood Insurance Program (NFIP), the main source for flood insurance in the U.S., would have limited ability to issue new or renewal policies, or issue increased coverage on existing policies, although claims would be paid on policies that were in force before midnight on December 21, 2018.  A wave of backlash from the insurance, banking, and housing

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