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BT Policyholder Protection Blog
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29 May 2018 Eleventh Circuit Reaches Different Conclusions While Examining Pollution Exclusion

The Eleventh Circuit recently examined two insurance coverage cases involving the applicability of the pollution exclusion.  In one case it held that sewage was not a pollutant, but in the other case it held that storm water was a pollutant.  These cases provide guidance to policyholders who may face a pollution exclusion argument from their carrier in the Eleventh Circuit.    In the case Evanston Insurance Company v. J&J Cable Construction, LLC, the Eleventh Circuit held that damage caused by a sewage leak was not barred by the pollution exclusion. (Case No. 17-11188, April 20, 2018).  The court looked to a prior Alabama case that distinguished industrial waste from residential sewage.  However, the Eleventh Circuit reached the opposite conclusion in the case Centro Development Corp….

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25 May 2018 Minnesota Court of Appeals Confirms Agent Comments Can Bind Insurer

  In January 2017, a jury awarded Prospect Foundry $53,300 on a counterclaim for breach of the implied covenant of good faith and fair dealing. At the heart of the case was a representation by an insurance agent that certain workers’ compensation claims would be closed, or reserves reduced, allowing Prospect to receive a dividend on their workers’ compensation insurance premiums.   The insurer appealed, claiming in part that Prospect’s description of the representations of the agent should not have been permitted into evidence. In an April 16 decision, the Minnesota Court of Appeals affirmed in Western Nat’l Mut. Ins. Co. v. Prospect Foundry, A17-0992, 2018 WL 1787687 (Minn. Ct. App. April 16, 2018).  In relevant part, the court held:   In the past, Minnesota…

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24 May 2018 The Cloud: Selected Benefits, Risks, and Insurance Coverage Issues – Part 1

This article was prepared in connection with PLI’s Cloud Computing conference. It was authored by Barnes & Thornburg attorneys, Scott Godes, Kara Cleary, Heidi Fessler and Michael Baumert.   The reality that business data of all kinds is now stored, managed, accessed and maintained in the cloud is inescapable.  The reasons for this migration of data from within an organization’s network computing system to a vended cloud provider are infinitely varied.   Whatever the reason fueling the migration of data, one thing is certain – coupled with the movement of data and the use of cloud services is the introduction of additional risk.  It’s true that many companies will actually improve the security of their data by shifting to the cloud.  In many cases, companies…

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17 May 2018 Upcoming Webinar: Insurance Coverage for Opioid Litigation and Lessons for Other Types of Claims

  The number of lawsuits involving opioid pharmaceuticals continues to skyrocket. Hundreds of cases have been filed nationwide, many of which have been consolidated into multidistrict litigation, and the trend shows no signs of stopping soon. Related litigation over the scope of insurance coverage available for these lawsuits also continues to increase, and courts have begun to issue decisions addressing insurers’ coverage obligations. Other coverage disputes are just beginning to wind their way through the courts. This webinar will focus on insurance coverage for opioid litigation, including:   What types of policies might provide coverage for opioid claims The most commonly disputed or litigated coverage issues The current landscape of judicial decisions regarding coverage for opioid litigation What the future may hold for opioid coverage…

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29 Aug 2017 Back to School: Time to Revisit the Basic Principles of Business Interruption Coverage

  This time of year is always a good reminder to brush up on basic insurance coverage principles relevant to your industry. Business interruption risk poses a problem for every company, no matter its size or industry; making sure your company understands what coverage it has to protect against this risk is important.   After doing a presentation on business interruption coverage with Grant Thornton’s Forensics Advisory Services Group this summer, I was reminded how complex a claim for business interruption can be and the value that is added by having a good forensics accountant and coverage counsel aiding in the claims process.   Generally speaking, business interruption and extra expense coverage provides for lost revenues and expenses spent to restore your company. This type…

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13 Jul 2017 Is a Claimant’s Misnomer the Be-All, End-All in an Insurance Coverage Dispute?

  Does your company have subsidiaries, a parent corporation, or a sister company? If so, one scenario you should consider is when a claimant that should have sued your company instead sues one of those other entities. Because you know the claimant’s grievance is ultimately with your company, your company defends and pays the claim despite not technically being named in the litigation. To make matters worse, you then realize the entity named as a defendant is not listed as a named insured under your insurance policy. If you find yourself in this situation, are you out of luck when it comes to getting insurance coverage for that claim?   Not always. Your insurance carrier will surely pounce on this technicality and try to convince…

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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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11 Oct 2016 When the Damage is Done Are You Prepared to Litigate Against Your Insurance Company?

In the wake of Hurricane Matthew, there will certainly be a wave of claims and possible denials of coverage by insurance companies.  Before the storm hit, we heard a great deal about “preparedness” for the storm.  But, how prepared is your company if it has to litigate a claim against its insurance company?  Litigation against any party is often a costly and lengthy process.  Insurance coverage disputes are no different and often involve more aggressive tactics by the insurance company early in the case.   Here are some best practices for companies facing insurance coverage denials:   Re-review the denial letter and consider whether litigation is the best strategy You may want to consider other tactics against the insurance company, like using renewal time or…

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07 Mar 2016 Join us: Insurance Considerations in Mergers and Acquisitions

  Mark your calendar and join us for an insurance webinar on Wednesday, March 16 at 3 p.m. (Eastern) to help your company identify and navigate important insurance coverage issues in M&A deals. Reflecting the collaboration that is valuable in many transactions, attorneys from our Insurance Recovery and Counseling Practice Group are teaming up with our corporate attorneys for this online roundtable and live Q&A.   Topics will include: Buyer’s Insurance Due Diligence: How a buyer can assess the seller’s insurance coverage program, as well as its own. M&A Contract Terms Relating to Insurance: What coverages the parties will require and the wording of those requirements in the agreement. Underwriting and Modification of Insurance to Accommodate the Deal: What the buyer or seller may want…

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03 Mar 2016 Sing The Jingle: Four Tips Inspired By Insurance Ads

  Advertisements for auto and homeowners insurance have become ubiquitous, and their humor often ranges from irritating to clever. You can probably hear one in your head right now. That humor is apparently intended to be the spoonful of sugar to help the medicine go down; valuable messages about insurance are sometimes conveyed subtly but effectively. As an insurance coverage lawyer, also known as a geek, I see how some of that information also can be useful in the business insurance context.   Double Check Your Coverage Before and After You Buy   Fifteen minutes may save you 15 percent (or more). Make sure you’re actually covered for “this” rather than “this.” The point is that your insurance program needs your time and attention. When…

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