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27 Feb 2018 The Tenth Circuit Hands Another Win to Policyholders Seeking to Insure Defective Workmanship By Their Subcontractors

Occurrence, Policy | John Corbett

  Your company, an engineering firm, is hired by an agent for coal-fired plants to serve as contractor on projects to build jet bubbling reactors, which eliminate contaminants from the plants’ exhaust.  Your company, in turn, subcontracts the engineering and construction of the reactors’ internal components to another firm.  After the contractor’s work is done, the plants discover that the components are defective, causing the reactors to deform, crack or even collapse.   The agent notifies your company of the problem and asserts that it is liable for the costs of repairing and replacing the defective components, an amount which will run well into the hundreds of millions of dollars.   Your company tenders the claim under its commercial general liability (“CGL”) policy, which says that…

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09 Jan 2018 New Year’s Resolutions for Policyholders

Insurance, Policy | Kenneth Gorenberg

  The champagne bottles are empty, the football games are over, and the kids are back in school. That can only mean one thing – it’s time for New Year’s resolutions! If you are having a hard time coming up with the perfect resolution for 2018, here are some ideas for policyholders.   “I resolve to review at least the declarations pages of all my policies.” Confirm that the insured’s name is legally accurate and spelled correctly and that its address is up to date. Make sure the policy isn’t about to expire without renewal or replacement, unless you’ve already decided you don’t need the coverage anymore. Check that the coverages you selected during the application or renewal process are included and that the limits…

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15 Aug 2017 Should Independent Counsel Fees Be Charged Against Policy Limits?

Insurance, Policy | David Wood

  In a number of states, when an insurance company has a duty to defend its insured and reserves its rights in a certain way, the carrier must pay for independent counsel selected by the policyholder to defend the action alongside insurer-selected panel counsel. This is to cure the panel lawyer’s conflict of interest created where the interests of the carrier and the defended policyholder diverge.   The U.S. Court of Appeals for the Fifth Circuit decided recently that the carrier’s duty to pay independent counsel’s fees under Moeller v. American Guar. & Liab. Ins. Co. is governed by the terms of the policy, including erosion of limits. In a case from this spring, Fed. Ins. Co. v. Singing River Health Sys., the Fifth Circuit…

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23 Jan 2017 Where There is No Meeting of the Minds About the Scope of Coverage, Must the Insurer Pay the Claim?

Insurance, Policy | David Wood

  Authored by David E. Wood and John L. Corbett   When a consumer buys an insurance policy and an important limitation on coverage is not expressed clearly and conspicuously, many courts will not enforce that limitation. Some courts hold that provisions in a preprinted policy offered to the consumer on a take-it-or-leave-it basis – that is, a contract of adhesion – are unenforceable to the extent they contradict laws governing insurance or public policies established by the courts. Other courts conclude that where a policy excludes a certain risk by way of small print or technical language, the policy is considered ambiguous and construed against the drafter (the insurance company). Those rules of construction rest on the assumption that the parties to the insurance…

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16 Sep 2016 Renewal is a Time to Think Critically About Your Insurance Program

Insurance, Policy | Christian Jones

  The approaching year-end means many commercial policyholders will be going through the process of renewing their property and casualty insurance coverage. Whether renewal occurs at year-end or mid-year, it is a time when smart policyholders will be thoughtful and proactive about making sure their insurance program provides the best possible protection. No single checklist could possibly capture the numerous and varied issues that commercial policyholders might want to carefully consider. That said, below is a list of issues policyholders may want to examine as they go through the renewal process, keeping your own individual circumstances in mind.   Defense of liability claims – Having coverage for the costs of defending litigation can be one of the most important benefits of commercial liability insurance. The…

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06 May 2016 When a “Pollutant by Any Other Name” Is Not a Pollutant

Insurance, Policy | John Fischer

In most jurisdictions, determining whether a pollution exclusion in a commercial general liability (CGL) policy precludes coverage for a particular claim can be a thorny issue. Under some historical policies, coverage may depend on factual arguments over whether the pollution was “sudden and accidental” or gradual. Under others containing so-called “absolute” pollution exclusions, coverage may depend on whether or not the claim arises out of “traditional” environmental pollution (for example, cleanup of groundwater in response to a governmental demand vs. toxic tort claims based on workplace exposure).   Indiana has traditionally taken a different approach to the pollution exclusion than most other jurisdictions. Rather than become entangled in factual thickets over whether pollution is sudden or gradual, or arises in a “traditional” environmental context, Indiana…

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28 Aug 2015 Louisiana Federal Court Finds in Favor of Coverage for Work Required by Clean Air Act Consent Decree

Policy | Timothy Haley

A federal court in Louisiana recently interpreted the coverage under a Pollution Legal Liability (PLL) policy and found that certain costs required by a Consent Decree under the Clean Air Act constituted “remediation costs” covered by the PLL policy. Louisiana Generating LLC v. The Illinois Union Insurance Company, et al. Case 3:10-cv-0056. On Aug. 5, 2015, the United States District Court for the Middle District of Louisiana granted Louisiana Generating LLC’s motion for summary judgment against its insurer, Illinois Union Insurance Company, finding in favor of coverage for the installation of pollution controls and performance of mitigation projects required under the Consent Decree.   The Consent Decree resolved a prior suit in which EPA and the Louisiana Department of Environmental Quality sued Louisiana Generating LLC…

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