Steven Plitt, Expert Insurance Consultant & Witness 2026-03-09T13:38:02Z https://www.insuranceexpertplitt.com/feed/atom/ WordPress /wp-content/uploads/sites/1603851/2022/07/cropped-Plitt-site-icon-c-32x32.png On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255827 2025-01-13T16:32:39Z 2025-01-30T16:32:08Z

Mississippi Farm Bureau Casualty Insurance Co. v. Peteet, 359 So.3d 181, (2023), the Court held that before an insured can seek UM benefits from his or her automobile insurer, the insured must establish that the insurer gave consent to the settlement under the terms of the policy.  The Mississippi Supreme Court found in favor of the insurer when it concluded that the execution of a settlement agreement with the tortfeasor without the consent of the insurer unlawfully cut off the insurer’s right of subrogation without its consent and, therefore, the insurer had no duty to pay the claimant’s UM claim.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255826 2025-01-13T16:31:44Z 2025-01-23T16:31:03Z

State Auto Property & Casualty Insurance Co. v. Pritchard Engineering, Inc., 2023 WL 2731042 (N.D. Miss. 03/30/23), the Court considered whether a professional liability exclusion within a commercial general liability policy prevented coverage for claims based on the engineer’s general duties. In Pritchard Engineering, the engineering firm was insured under a CGL policy that contained a professional liability exclusion.  The incident in question involved two workers who were on the construction site as independent contractors.  While working in a trench, installing sewer lines, a large rock formation fell into the trench, killing the workers.  Wrongful death suits were filed, alleging that the insured, the project engineer for the site, had allegedly been hired to maintain safety at the construction site, as well as supervising various activities at the site, including earthwork, excavation, and installation of the sewer system.  It was alleged that as project engineer, the insured was also charged with the obligation of performing regular safety inspections at the construction site.  The claimants alleged that the insured breached its duties to warn the workers of hazardous and dangerous conditions and to maintain safety over the work. The policy’s professional liability exclusion applied to the failure to render professional services, including “supervisory, inspection, quality control, or engineering activities . . .”  The Missouri Court held that the professional liability exclusion in the engineer’s CGL policy precluded coverage of claims against the engineer alleging breach of duty specific to the installation of a sewer line in the trench, but did not preclude coverage of claims alleging a breach of general duties to warn of dangerous conditions and to maintain safety on the project site as a whole.  The professional liability exclusion was limited to claims that implicated the engineer’s specialized knowledge.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255822 2025-01-13T16:30:15Z 2025-01-16T16:27:11Z

Krewina v. United Specialty Ins. Co., 2023 Ohio 2343, 2023 221 N.E.3d 819, (Ohio, July 12, 2023), a resident in a care facility picked up a knife and stabbed the claimant.  Claimant brought suit alleging assault and battery, notwithstanding the fact that the resident lacked the requisite mental capacity to be convicted of a crime.  In enforcing the assault and battery exclusion, the Court noted that the exclusion was not dependent upon the insured’s state of mind, and that it broadly excluded coverage for any suit arising out of an assault.  The Court distinguished a prior ruling which had found that a “expected or intended” exclusion was different because the mental infirmity prevented the assailant from forming an “intent” or “expectation” to inflict harm.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255823 2025-01-13T16:29:04Z 2025-01-09T15:28:10Z

th Circuit Court of Appeals in Continental Casualty Co. v. Winder Laboratories, LLC, 73 F.4^th 934 (11^th Cir. July 13, 2023) (interpreting Georgia law) concluded that insurance companies could not recoup defense costs expended before a determination was made that no duty to defend existed absent having policy language which gave the insurer the right to recoupment.  An insurance company’s unilateral reservation of rights to seek recoupment was unenforceable under Georgia law due to a lack of consideration.  Moreover, the insurer’s payment of defense costs it was otherwise not obligated to pay, did not constitute unjust enrichment to the insured.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255821 2024-12-01T21:58:37Z 2024-11-29T17:57:49Z

Progressive County Mutual Ins. Co. v. Freeman, 694 S.W.3d 924, (Tex. App. [Houston], 2024), the injured claimant was occupying a police patrol car as a member of the Houston Police Department.  The tortfeasor who caused the accident had a per person policy limit of $50,000.  Because of this, the claimant patrolwoman submitted a UIM claim to her own personal auto insurance issued by Progressive.  The claim was denied under Progressive’s “regular use” exclusion.  The trial court found the exclusion was contrary to public policy and unenforceable.  The Texas Court of Appeals reversed. Progressive’s UIM coverage had an exclusion for injuries sustained while occupying a vehicle that was owned by or available for regular use of the insured or a relative.  The majority opinion for the Court of Appeals observed that “public policy” was not a generic formless basis for striking down policy language that courts disliked.  In a unique aspect of the case, the patrolwoman received workers comp benefits.  In the summary judgment briefing, the patrolwoman did not identify the amount of workers comp benefits that she had received, thereby not establishing that in the pleadings she suffered a financial loss when the exclusion was applied.  Additionally, she had not shown that the regular use exclusion violate Texas public policy.  Therefore, the trial court’s judgment in favor of coverage and against the exclusion was reversed. There was a dissenting opinion.  In relevant part, the dissenting opinion noted that there was a split in the country on whether regular use exceptions were enforceable in the UIM context absent specific legislative authorization.  The majority of the Court had not identified in any Texas statutes or case law that the exclusion in a UM or UIM policy was enforceable.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255820 2024-12-01T21:57:24Z 2024-11-21T21:56:49Z

Kuhn v. Owners Ins. Co., 241 N.E.3d 397, 2024 Ill. 129895 (Ill. May 23, 2024), the Illinois Supreme Court issued an anti-stacking decision involving situations where an insurance policy insured multiple vehicles.  In this case, Owners Insurance Co. issued a commercial vehicle liability policy to a trucking company.  One of the insured’s semi tractor trailers caused an accident involving a school bus, injuring multiple passengers on the school bus and killing one of the passengers.  Each of seven tractor trailers were listed on the declarations page of a policy. The policy contained a limit of insurance section which provided that the limit for coverage was not to be added to the limits for the same or similar coverage applying to other autos insured under the policy in order to determine the coverage for any one accident.  The Court referred to this provision as an “anti-stacking clause.” Claimant brought a lawsuit for declaratory judgment relief, arguing that the liability limits for each of the seven covered vehicles in the single multi-vehicle Owners Insurance policy could be aggregated or “stacked” so as to maximize the liability insurance coverage available to pay claims arising out of a single accident.  Notwithstanding the fact that the declarations page had separate listings for the liability limits for each covered vehicle, the Illinois Supreme Court ruled that the policy’s “anti-stacking clause” was unambiguous on its face.  The Court, therefore, concluded that the anti-stacking clause was enforceable.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255819 2024-12-01T21:56:28Z 2024-11-14T16:54:53Z

Progressive Direct Insurance Co. v. Groves, 882 S.E.2d 464, 2022 (S.C. 2022) rehearing denied (2023), the South Carolina Supreme Court reversed the trend in coverage regarding deliberate shootings.  In Groves, Jimi shot another driver while stopped at a stop light, and then drove away.  Two automobile policies were involved which provided UM coverage to the victim.  One policy was issued by Progressive and another by USAA.  In the ensuing declaratory judgment action, the trial court held that there was no UM coverage under either policy because the shooting failed to arise from the use of the shooter’s vehicle.  The trial court decision was reversed by the Court of Appeals and the South Carolina Supreme Court accepted Progressive’s Petition for Review. There was a long-standing precedent in South Carolina to use a three-prong test for determining when an injury arose from the ownership, maintenance, or use of an uninsured vehicle.  Under the three-prong test, for coverage to exist there must be (1) a causal connection between the injury and the uninsured vehicle; (2) an absence of an act of independent significance that drove the chain of causation; and (3) the UM vehicle had to be used for transportation.  Conspicuously absent from the three-prong test was any inquiry regarding intentionality.  In order to find a causal connection between the injury and the uninsured vehicle, South Carolina law required the claimant to establish that the uninsured vehicle was an active accessory to the injury, that the uninsured vehicle played some role other than being the mere site of the incident, and the injury was foreseeably identifiable with the normal use of the uninsured vehicle. Notwithstanding prior precedent, the Supreme Court reversed course and found that it would be unreasonable to expect coverage under an auto policy for a shooting event which did not arise from the use of a vehicle within the meaning of the first coverage prong.  Even if that were the case, the insured would not be able to satisfy the second prong because the intentional shooting would be an act of independent significance, distinct from the use of the vehicle.  The Court held that “gunshot injuries do not arise out of the use of an automobile” in no uncertain terms.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255818 2024-11-10T15:42:19Z 2024-11-07T15:41:55Z

Millard Gutter Co. v. Shelter Mutual Ins. Co., 312 Neb. 606, 980 N.W.2d 420 (Neb. 2022), the Nebraska Supreme Court held that an insured’s assignee lacked standing to bring a first party bad faith lawsuit in Nebraska.  This case involved Millard Gutter Company as the plaintiff, who had repaired damage sustained by multiple insured property owners arising from a 2013 storm.  Millard Gutter accepted the homeowners’ assignments of their rights against Shelter Insurance Company as compensation for the repairs.  Millard then sued the insurers in its own name to enforce the insureds’ rights against the insurer.  Millard Gutter also argued that the insurance company owed a direct duty of good faith and fair dealing to Millard Gutter once it succeeded to the insured homeowners’ rights and that Shelter’s post-assignment conduct in handling its claims constituted a breach of that duty.  The trial court dismissed the action. The Nebraska Supreme Court considered the case on appeal.  The High Court held that by Nebraska law, insureds may assign a post-loss breach of contract claim for insurance proceeds due under a homeowners policy, and that the assignee of such a claim would have standing to bring the breach of contract claim in its own name.  However, the Nebraska Supreme Court rejected Millard Gutter’s two theories of standing.  First, Millard Gutter argued that it had standing to bring the bad faith claim as an assignee for already existing bad faith claims that the insurer’s policyholders had when the assignment was made.  Second, Millard Gutter relied on the assignments to argue that it could assert its own claims for first party bad faith based on post-assignment conduct.  Both of these arguments were rejected by the Nebraska Supreme Court. Regarding the first theory regarding standing, the Court acknowledged that Nebraska law generally allowed a party to assign the proceeds from personal injury actions, but that Nebraska law did not allow assignment of the right to prosecute or control such actions.  The Court noted the intentional nature of the tort of insurance bad faith, and reasoned that “plaintiffs in such actions are entitled to seek and recover traditional injury damages.”  In that regard the Court held that the insured homeowners could not assign plaintiffs standing to prosecute or control their personal rights to sue for bad faith because it was a personal cause of action. Addressing the second theory of recovery, i.e., that once Millard acquired the right to the proceeds of the homeowner claims, the insurer then owed Millard the same covenant of good faith and fair dealing obligation it owed to the homeowners.  In rejecting this argument, the Court found that the duty of good faith and fair dealing was dependent on a contractual relationship between the policyholder and the insurer, and that it did not extend to non-policyholder beneficiaries.  Millard Gutter, as a non-policyholder, lacked standing to bring a first party bad faith claim against the insurer.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255817 2025-06-26T19:36:50Z 2024-10-31T14:40:33Z

Cherokee Nation v. Lexington Ins. Co., 2022 Ok. 71, 521 P.3d 1261 (2022) rehearing demand 12/19/2022, the insured Indian tribe sought coverage under its tribal property insurance program.  The policy covered business income losses that were caused by “direct physical loss or damage . . . to real and/or personal property”.  The insurer denied coverage for the claim on the ground that the Tribal Nation’s inability to use its properties for their intended purpose was unconnected to any direct physical loss or damage.  The Oklahoma Supreme Court agreed. In this case, the Indian tribe failed to allege that its business income loss during the pandemic resulted from coverage-triggering “physical loss or damage.”  The Tribe acknowledged in the litigation that it closed its business operations to prevent harm to its employees and customers, and not because the virus had affected its properties physically.  The High Court found that the Tribal Nation was not forced to close due to contamination of the virus or by any emergency order regarding Covid-19.  The Court noted that if it were to allow coverage under those circumstances, any business could unilaterally close for a myriad of reasons and recover under a business interruption clause.]]> On Behalf of Steven Plitt, Expert Insurance Consultant & Witness https://www.insuranceexpertplitt.com/?p=255816 2024-11-10T15:38:50Z 2024-10-24T14:37:52Z

Brilliant National Services, Inc. v. Travelers Indemnity Co., 349 S.3d 581 (La. App. 2022), the insured had exposed various individuals to asbestos.  The insured later transferred some of its assets to a successor company.  The Court found that the transferred assets did not include the insurance policy.  Additionally, a transfer of liability, generally, did not transfer insurance coverage by operation of law.  Therefore, allegations brought against the successor entity did not trigger a duty to defend because the successor entity was not within the definition of “persons insured.” As a general principle, a successor company does not assume its predecessor’s liabilities except when the successor company purchases all or substantially all of the predecessor’s assets.  The extent of purchase is a fact issue.  Under the facts of the Brilliant case, a successor business, Coastal Chemical Co., Inc., did not purchase all of the assets of the predecessor, but only the assets “necessary to operate a chemical distribution business.”  The predecessor company retained its other assets and continued to operate thereafter.  The insurance policy was not transferred to the successor in the sale.  Under Louisiana statute, Civil Code Article 1821, the Louisiana legislature required that a person’s assumption of another’s liability must be done in writing to be enforceable against a third party.  Under the statute, liabilities did not automatically transfer.  As such, a successor was not entitled by operation of law to its predecessor’s insurance coverage.  In order to transfer coverage, the transfer needed to be in writing.]]>