Steven Plitt, Expert Witness Steven Plitt, Expert Witness
Insurance Bad Faith Claim Handling Expert Serving Clients Nationwide

December 2016 Archives

Louisiana Supreme Court Adopts Pro Rata Allocation Of Defense Costs Approach On Long Latency Disease Cases

In Daniel Arceneaux, et al. v. Amstar Corp., et al., 2015-0588 (La. 9/7/16), 2016 WL 4699163 (La. 9/7/16), the Louisiana Supreme Court held that in long latency disease cases the cost of the duty to defend should be prorated between the insurers and the insured when occurrence-based policies provide coverage for only a portion of the time during which the exposure occurred. The weight of authority in the country supports the conclusion that in situations where the insured is self-insured for part of the coverage periods involved that the insured must bear a pro rata share of the defense costs. See Barry R. Ostrager & Thomas R. Newman, Handbook on Insurance Coverage Disputes, ยง 6.02(a)(2) (17th ed. 2014). The Court noted that the joint and several approach was not reasonable because it would treat an insured who had uninterrupted policies for 20 years the same as an insured who had a triggered policy for one year. Under the joint and several approach, the insured would be entitled to receive coverage for a period in which it did not pay a premium. Additionally, the joint and several allocation approach provided disincentives to insureds to purchase uninterrupted insurance coverage and would provide a windfall to companies that failed to obtain continuous coverage. The pro rata allocation method, by contrast, promoted risk spreading.

The Wyoming Supreme Court Recently Adopted The Notice-Prejudice Rule In A Historic Jurisprudential Review Of Why The Notice-Prejudice Rule Is A Better Approach Than The Traditional Rule Which Does Not Require Prejudice

The Wyoming Supreme Court in Century Surety Co. v. Jim Hipner, LLC, 2016 WY 81, 377 P.3d 784 (2016), engaged in a jurisprudential review of the enforceability of non-prejudicial notice requirements in insurance policies and why courts have moved away from the traditional rule by adopting the modern view which is commonly called the notice-prejudice rule. The case provides an excellent expose of the rationales supporting the notice-prejudice rule and is a must read.

Colorado Supreme Court Rejects The Use Of Extrinsic Evidence To Create Ambiguity In An Insurance Contract

In American Family Mut. Ins. Co. v. Hansen, 2016 CO 46, 275 P.3d 115 (Colo. 2016), the Colorado Supreme Court found that when a discrepancy exists between the policy declarations page and an extrinsic lienholder statement regarding who was an insured, the discrepancy did not create an ambiguity because the ambiguity can only be used under Colorado law to determine whether an ambiguity exists within the four-corners of the insurance contract itself and ambiguity could not be created by an extrinsic document which was not part of the insurance contract. For ambiguity to exist, it must appear in the four-corners of the document before extrinsic evidence could be considered. Extrinsic evidence could only be used as an aide in ascertaining the intent of the parties once an ambiguity was found.

Wisconsin Supreme Court Eliminates Any Doubt That There Is No Exception To The Four-Corners Rule In Duty To Defend Cases In Wisconsin

In a split decision, the Wisconsin Supreme Court in Water Well Solutions Service Group, Inc. v. Consolidated Ins. Co., 2015 WI 54, 369 Wis.2d 607, 881 N.W.2d 285 (2016), reaffirmed the "four-corners" rule governing a liability insurer's duty to defend in Wisconsin. The Court unambiguously reaffirmed the rule and confirmed in the majority opinion that there were no exceptions to the rule that would permit extrinsic evidence to create a duty to defend where no duty to defend otherwise existed. According to the majority's view, the four-corners rule promoted certainty and avoided speculation over the underlying plaintiff's true allegation. A vigorous dissent by two Justices challenged the majority opinion both in principle and application. The dissent noted that Wisconsin was in a shrinking minority of jurisdictions clinging to a strict application of the four-corners rule and that Wisconsinites would be better served by a rule that recognized substance over form in allowing extrinsic evidence to inform the duty to defend decision.

The Ninth Circuit Court Of Appeals Finds That The Absence Of A Litigated Judgment Did Not Preclude An Equitable Subrogation Claim From Being Brought By An Excess Insurer For Bad Faith Failure To Settle

In RSUI Indemnity Co. v. Discovery P&C Ins. Co., 649 Fed.Appx. 534 (9th Cir. 2016), the primary insurer unreasonably had refused to pay a settlement demand within policy limits. In order to achieve a settlement, the excess insurer paid a portion of the settlement within its policy limits. The question before the Court was whether an excess insurance company could contribute to the settlement on behalf of the insured, and then sue the primary insurer to recover the amount of the settlement under the theory of equitable subrogation. The Ninth Circuit answered that question in the affirmative.

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