The appellate division of the New York Supreme Court held in Walker v. Erie Insurance Co., 210 A.D.3d 1375, 178 N.Y.S.3d 650 (NY App. Div. 11/10/22) that giving a pedicure fell within the scope of the policy’s professional services exclusion. The professional...
Firm News
ABSOLUTE POLLUTION EXCLUSION PREVAILS
In Central Crude, Inc. v. Liberty Mutual Insurance Co., 51 F.4th 648 (5th Cir. 2022), the Court found that an absolute pollution exclusion precluded coverage for a claim involving the cost of cleaning up an oil spill on the insured’s property when the evidence...
POST-LOSS ASSIGNMENT CLAUSE FOUND AMBIGUOUS
The New Hampshire Supreme Court in Keene Auto Body, Inc. v. State Farm Mutual Auto Insurance Co., 293 A.3d 1146 (NH 11/15/22) held that an insurance policy’s anti-assignment clause which precluded assignment of any benefits under the policy without State Farm’s...
TENTH CIRCUIT COURT OF APPEALS FINDS THAT INSURANCE POLICY’S APPRAISAL CLAUSE ALLOWS CAUSATION DETERMINATIONS by Jordan R. Plitt
In BonBeck Parker, LLC v. Travelers Indemnity Co. of America, 14 F.4th 1169 (10th Circ. 2021) the Court held that the Travelers’ policy permitted either party to request an appraisal on “the amount of loss,” which was a phrase with an ordinary meaning in the insurance...
THE SPLIT LANDSCAPE REGARDING DEPRECIATION OF LABOR COSTS WHEN CALCULATING ACTUAL CASH VALUE by Jordan R. Plitt
Courts are split on the question of whether it is permissible to depreciate labor costs when determining actual cash value (“ACV”). The Illinois Supreme Court’s decision in Sproull v. State Farm Fire and Casualty Co., 184 NE 3d 203 (Ill. 9/23/21), affirming the...
CALIFORNIA COURT OF APPEALS REFUSES TO EXPAND THE TRIGGER FOR WHEN “CUMIS” COUNSEL IS REQUIRED UNDER CALIFORNIA CIVIL CODE §2860 by Jordan R. Plitt
Under California Civil Code §2860 (hereafter, “§2860”), insureds have a right to obtain independent counsel at the insurer’s expense whenever there are competing interests that create an ethical conflict for the insurer-appointed counsel. Since enactment, the...
DOES A WATER-BACKUP EXCLUSION INCLUDE SEWAGE? by Jordan R. Plitt
Standard property policies typically contain an exclusion which provides that the insurer “will not pay for loss or damage caused directly or indirectly by . . . water that backs up or overflows from a sewer, drain, or sump.” A reasonable reading of that language...
OREGON COURT LIMITS SCOPE OF TRI-PARTITE RELATIONSHIP by Jordan R. Plitt
An Oregon District Court in Thompson v. Dennis Widmer Construction, Inc., 2021 WL 5235974 (D. Or., November 10, 2021) limited the insurance company’s ability to access defense counsel’s complete defense file through the tri-partite relationship. The case involved the...
CALIFORNIA COURT FINDS THAT A SUBJECTIVE STANDARD APPLIES TO AN INSURER’S PRIOR KNOWLEDGE PROVISION
Attorney errors and omissions policies universally contain a prior knowledge clause which precludes coverage for claims made during the policy period if, before the inception of the policy, the attorney had knowledge of the “actual alleged negligent act, error, or...
STEPPING DOWN INTO FELONY FLIGHT
Recently, the South Carolina Supreme Court held that a “step-down” clause within an automobile liability policy was void. In Nationwide Mutual Fire Insurance Co. v. Walls, _____ S.E.2d _____, 2021 WL 908511 (S.C. 2021) the insured was in the process of committing a...