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BT Policyholder Protection Blog
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06 Mar 2017 Overcoming That Sinking Feeling Beating Earth Movement Exclusions in CGL Policies

  Co-authored by John Corbett and Andy Detherage.   The recent rainstorms in California rightly have been hailed as the end of a lengthy drought.  The inches of rain which fell in the span of a week have filled reservoirs and raised the water table in the parched ground.  Such a large volume of water, however, increases the danger of landslides in California’s notoriously unconsolidated hillsides and bluffs, and with it, the possibility of disputes over whether particular ground movement claims are covered by their liability policies.   Let’s look at a hypothetical example.  XYZ Construction is laying pipes under an existing street at the top of a bluff.  In the course of digging trenches to hold the pipes, one of XYZ’s diggers accidentally breaks…

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12 May 2016 Georgia Supreme Court Expands Scope of Absolute Pollution Exclusion

The Georgia Supreme Court recently addressed and reversed the Georgia Court of Appeals on the question of whether lead paint is a “pollutant” for purposes of an exclusion within a commercial general liability.   In a recent case, Georgia Farm Bureau Mutual Insurance Company v. Smith, a tenant sued her landlord for personal injury after her daughter ingested lead-based paint found in the home.  The landlord’s commercial general liability insurer brought a declaratory judgment action to determine whether the personal injury claim was excluded under the policy’s absolute pollution exclusion.  See 2016 WL 1085397 (Ga. Mar. 21, 2016).   The policy defined “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”  Id. at…

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24 Mar 2016 Will The Fourth Circuit Overturn a Decision Finding CGL Coverage For a Data Breach?

  As reported by Law360’s Jeff Sistrunk, this week, the Court of Appeals for the Fourth Circuit will hear appellate arguments as to whether a Commercial General Liability (CGL) insurance policy provides coverage for a data breach:   The Fourth Circuit will hear arguments Thursday on whether Travelers must defend a medical records company against a class claim that its failure to secure a server caused records to be accessible to unauthorized users, a case experts say will have an impact on the availability of data breach coverage under commercial general liability policies.   Policyholders should hope that the Fourth Circuit’s rate of reversal – reported to be 4.2 percent for “Other U.S. Civil” and 7.3 percent for “Other Private Civil” cases – will give…

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

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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20 Mar 2015 Recent Decision Determines Retail Displays May Qualify as ‘Advertisements’ Under CGL Insurance Policies

A recent decision interpreting insurance coverage for “advertising injury” under commercial general liability (CGL) insurance policies ruled that claims of allegedly infringing product displays can trigger the duty to defend.  Most businesses purchase CGL insurance as a key part of their liability insurance programs.  The current version of the typical form used by insurers in connection with CGL policies provides coverage for “advertising injury” caused by an offense committed in the course of “advertising” the insured’s goods, products or services.  That form typically defines “advertisement” as notice published to the general public at large or specific market segments for purposes of attracting customers or supporters.   A recent Illinois appellate court decision, however, has recognized that advertising injury coverage extends to certain product displays.  Specifically,…

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28 Jan 2015 2014 Year in Review

On Tuesday, Jan. 27, Barnes & Thornburg insurance recovery attorneys presented on 2014’s major legal developments and trends in insurance coverage and recovery. Approximately 145 people joined the webinar and learned more about how past events affected:   Directors and Officers (D&O) coverage Excess umbrella liability coverage Coverage for business torts and consumer false advertising claims Coverage for environmental contamination claims Cyber liability and data breach   Charlie Edwards opened the discussions with comments about directors and officers liability insurance coverage, what D&O coverage decisions were issued in 2014, what key terms insureds should consider when looking at D&O coverage, and what insureds should expect in the marketplace for 2015. Chris Lynch then discussed developments in excess and umbrella liability insurance cases in 2014. He…

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18 Dec 2014 COVERAGE FOR “DISPARAGEMENT”: A POWERFUL TOOL FOR TRIGGERING THE DUTY TO DEFEND IN BUSINESS DISPUTES

By the time a business dispute has evolved into litigation, the relationship between the parties has often become acrimonious. In addition to a claim for breach of contract, interference with economic relations or unfair competition, the plaintiff may also allege that the defendant made false or disparaging statements to third parties—customers, competitors, financiers—that harmed the reputation or business of the plaintiff. The existence of even a single allegation of such disparagement within a complaint is often sufficient to trigger a duty to defend by the insurer of the defendant business. If your business is on the receiving end of a lawsuit, it is critical to examine the lawsuit for such allegations of disparagement and to consider tendering the lawsuit to your general liability insurer to…

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27 Jun 2014 Personal and Advertising Injury Coverage Is Fertile Ground for Policyholders

  Many policyholders overlook or don’t understand the “personal and advertising injury liability” section of a standard commercial general liability (CGL) policy. That section is fertile ground for policyholders, and this lesson is taught even from two recent California cases that policyholders lost.   In Street Surfing, LLC v. Great Amer. E&S Ins. Co., (9th Cir. June 10, 2014), the policyholder began selling a skateboard with the Street Surfing brand name and logo in December 2004. It purchased a CGL policy in August 2005. Street Surfing was later sued for trademark infringement, unfair competition and unfair trade practices by the owner of the “Streetsurfer” trademark. Importantly, the insurance company conceded that the lawsuit was potentially covered as arising from “[t]he use of another’s advertising idea…

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