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

Posts tagged "liability"

Indiana Supreme Court Finds That UIM Suit Limitation Clause Was Ambiguous

In State Farm Mutual Auto. Ins. Co. v. Jakubowicz, 56 N.E.3d 617 (Ind. 2016) the Supreme Court of Indiana struck down State Farm's suit limitation clause in its UIM policy which imposed a three-year deadline for pursuing UIM benefits because it conflicted with the policy's requirement to exhaust the tortfeasor's liability coverage which created an ambiguity.

The 11th Circuit Court Of Appeals, Interpreting Georgia Law, Recently Enforced A UIM Excess Policy Exhaustion Requirement In Disallowing A UIM Claim

The 11th Circuit held in Coker v. American Guarantee and Liability Insurance Co., 825 F.3d 1287 (11th Cir. 2016), interpreting Georgia law, that Georgia's UIM statute did not transform excess UIM policies into primary UIM policies.

MISSOURI HIGH COURT CALCULATES UIM ATTACHMENT POINT

The Missouri Supreme Court in Swadley v. Shelter Mutual Insurance Co., 513 S.W.3d 355 (Mo. 2017) held that UIM coverage did not apply when the underinsured motorist had liability coverage limits greater than the insured's underinsured motorist limits. Previously, the Missouri Court of Appeals had explained the purpose of UIM coverage. "The purpose of underinsured motorist coverage is to provide insurance coverage for insureds who have been bodily injured by a negligent motorist whose own automobile liability insurance coverage is insufficient to pay for the injured person's actual damages." Wasson v. Shelter Mutual Insurance Co., 358 S.W. 3d 113, 117 (Mo. App. 2011).

AN INSURANCE COMPANY CAN AFFIRMATIVELY CREATE A NEW AND INDEPENDENT TORT TO A CLAIMANT AS A RESULT OF THE INSURER'S CLAIM HANDLING ACTIVITIES SAYS THE ALASKA SUPREME COURT

In Burnett v. GEICO, 389 P.3d 27 (2017) the Alaska Supreme Court, as a matter of first impression, held that a liability insurer can owe a tort duty to a third-party claimant when the insurer's claims handling actions affirmatively create a new and independent duty to the claimant. In Burnett, GEICO's insured crashed into a cabin which caused, in part, a fuel leak. The fuel leak was required to be remediated environmentally in accordance with the Alaska Department of Environmental Conservation (DEC) standards. GEICO hired a contractor to perform an environmental site assessment and to coordinate the necessary clean-up of the spill. However, GEICO delayed in the remediation effort. As a result, the fuel spill spread underneath the cabin itself. Because of this, the cabin owner sued not only the GEICO insured for the accident, but also GEICO for its negligent activities in timely cleaning up the environmental spill.

INSURANCE COMPANIES HAGGLING OVER RELEASE LANGUAGE CAN RESULT IN BAD FAITH LIABILITY

In Barickman v. Mercury Cas. Co., 2 Cal.App.5th 508, 206 Cal.Rptr.3d 699 (2d Dist. 2016), an insurance company's refusal to consent to additional release language which was designed to preserve the claimant's rights to receive criminal restitution from the insured tortfeasor caused the case not to settle and, as a result, it was found that the insurance company breached the implied covenant of good faith and fair dealing by not doing all that it could do within its power to effectuate the settlement.

NEW YORK APPELLATE COURT REJECTS THE CREATION OF AN UNAVAILABILITY EXCEPTION TO NEW YORK'S RULE REQUIRING UNINSURED PERIODS TO BE ALLOCATED TO THE INSURED IN CONTINUOUS AND PROGRESS LOSS CASES

New York law requires insurance companies to allocate continuous, progressive losses on a pro rata basis among all triggered policies based upon a time-on-the-risk allocation model. The New York Appellate Court recently rejected an invitation to create an unavailability exception to the allocation rule so that insurers were not required to indemnify the insured for periods when liability insurance was unavailable in the marketplace. 

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.

In A Surprising Decision, A Federal District Court, Applying Florida Law, Granted Summary Judgment To An Insurance Company On A "Failure To Settle" Claim Because The Insured's Liability Was Not Clear

Florida is a testing ground for creative lawyering designed to set up insurance companies on failure to settle claims. However, in Welford v. Liberty Ins. Corp., 2016 WL 3360431 (N.D. Fla., 6/2/16), at least one Federal District Court refused to countenance yet another attorney's attempt to create a failure to settle claim against an insurance company under Florida law. In this case, the insurance company tendered its limits within two days after receiving the lawsuit. Nevertheless, the claimant argued that the insurance company had failed to promptly tender the limits earlier in the matter when it was first notified of the accident. The District Court found that no reasonable trier of fact could have determined that the insured's liability was "clear" when the claim was first reported. The facts before the Court were complicated and disputed.

Is Advertising Injury In The Bag? United States Second Circuit Court Of Appeals Finds That The Sale Of Counterfeit Branded Goods Was Not Covered As Advertising Injury

In United States Fidelity & Guaranty Co. v. Fendi Adele S.R.I., 823 F.3d 146 (2nd Cir. 2016), the United States Court of Appeals held in favor of USF&G finding that USF&G's policy did not provide coverage for the legal liability of its insured for selling counterfeit handbags and other goods with counterfeit brand labels. The insured, Ashley Reed Trading, Inc., was in the business of purchasing and selling off-price branded handbags and other luxury goods. Ashley Reed was insured by USF&G under two liability policies for "advertising injury." Under the policies, "advertising injury" was defined by the policies as the act of "attracting the attention of others by any means for the purpose of seeking customers or supporters or increasing sales or business." The policies listed four advertising injury offenses which included the "use of another's advertising idea in your 'advertising,'" as well as "infringement of another's copyright, trade dress or slogan in your 'advertising.'"

Does a Parent Corporation Have Standing to Bring a Declaratory Judgment Action Against One of Its Subsidiaries Insurers? This question was recently answered by the California Court of Appeals.

The California Court of Appeals recently held in D.Cummins Corp. v. U.S. Fidelity & Guar. Co., 246 Cal.App.4th, 201 Cal.Rptr.3d 585 (1st Dist., 2016), that a parent corporation lacked standing to sue one of its subsidiary's insurers for declaratory relief. In this case, the parent corporation did not qualify as an insured under the subsidiary's liability policies. Therefore, the Court held that the parent company lacked standing to seek a declaratory judgment establishing the duties of the subsidiary's liability insurers to defend and indemnify for asbestos claims. The Court found that a mere practical interest in the outcome of a contractual dispute was not sufficient to establish standing. Under the Declaratory Judgment Act the plaintiff must show the existence of an "actual controversy" which required the court to evaluate the rights and duties that the plaintiff was asserting in making a standing determination. The Court found that the parent corporation's responsibility for the subsidiary's litigation strategy, which included making decisions about when to settle the personal injury actions, did not give the parent corporation sufficient direct in the subsidiary's liability policy to support jurisdiction. The California Declaratory Judgment Act gave discretion to the trial court in which the court could refuse to exercise the power granted by the Act in any case where the declaration or determination was not necessary or proper at the time under all of the circumstances presented. When the trial court declined jurisdiction under the Act, the trial court's decision would be viewed on an abuse of discretion standard.

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