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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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28 Nov 2016 Exercise Your Bargaining Power at Renewal Time

  Co-authored by Scott Godes and John Fischer.   As the end of the year approaches, many policyholders are facing Jan. 1 renewals of their insurance programs or are looking at replacing part or all of their programs with new policies or carriers. Some are considering augmenting their insurance programs with specialty coverages pertinent to their particular needs. This is a friendly reminder to those whose renewals are coming up (and an advance reminder to those with renewal dates throughout the year) that although insurance policies frequently are made up of boilerplate language on pre-printed forms, some carriers will amend their coverages with endorsements that can enhance the coverages offered. Also, not all carriers’ standard forms are the same.   The opportunity to obtain coverage enhancements is…

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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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12 Jul 2016 In Determining Duty to Defend, Wisconsin Supreme Court Clarifies Four-Corners Rule

  In coverage actions, policyholders (and their attorneys) frequently rely on the well-accepted principle that an insurer’s duty to defend is broader than its duty to indemnify. Indeed, given the ever-escalating costs of litigation, obtaining coverage for a policyholder’s defense can be just as, if not more, important than obtaining coverage for the resulting settlement or judgment.   Recently, however, the Wisconsin Supreme Court issued two opinions that serve as reminders that an insurer’s duty to defend, while broad, is not unlimited. The cases provide insight into how courts evaluate an insurer’s duty to defend and reveal some factors policyholders should consider when confronted with an insurer that denies such coverage.   Marks v. Houston Casualty Company   In Marks v. Houston Casualty Company, No….

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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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20 Nov 2015 Barnes & Thornburg Bronze Sponsor of the 2015 ABA Women in Litigation Conference Kara Cleary and Andrea Warren Provide Some Key Takeaways for Policyholders Discussed at the Conference

Barnes & Thornburg was proud to be a bronze sponsor at this year’s ABA Women in Litigation Conference held in Chicago from Nov. 11-13. Kara Cleary and Andrea Warren of the firm’s Insurance Recovery and Counseling Practice Group attended the conference, which featured a host of excellent panels ranging from hot topics in insurance coverage to product liability litigation, as well as jury selection and trial tips. A large focus of the conference also was dedicated to empowering female litigators in the courtroom and at their firms. Some key takeaways include:   the rise of privacy claims and types of policies that can respond; the rise of false claims act suits and potential coverage issues relating to the same; and jury selection tips for insurance…

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28 Oct 2015 You Snooze; You Lose: When The Carrier’s “Investigation” (Read: Delay) Breaches The Duty To Defend

Earlier this month, a California federal court issued a stern warning to liability carriers: failing to provide an immediate defense forfeits your right to control the policyholder’s defense, including any right to select counsel, and, once forfeited, the right to control irrevocably vests with the policyholder. The carrier cannot regain control, even if it reimburses pre-acceptance defense fees. Travelers Indem. Co. v. Centex Homes, Case No. 11-CV-03638-SC (N.D. Cal. Oct. 7, 2015).   Carriers and policyholders have long been engulfed in the battle as to when a carrier’s delay (usually couched in terms of an “investigation”) leads to forfeiture of the right to control; and, when it does, whether the carrier may re-gain control by paying pre-acceptance defense fees. Policyholders are all too familiar with…

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04 Aug 2015 Join Us for an Insurance Law Webinar: You’re Covered, But…

Mark your calendar and join us for an insurance webinar on Tuesday, August 25 at 3 p.m. (Eastern). The Barnes & Thornburg Insurance Recovery and Counseling attorneys will provide tips to help your company get all the coverage it bargained for. The program is complimentary, and 1.5 hours of CLE credit is pending. You don’t want to miss this!   Full Coverage – An Insurance Agent’s Duty to Advise? Robert G. Devetski, Partner, Barnes & Thornburg Absent a “special relationship,” an agent generally owes no duty to advise a policyholder about the adequacy of coverage. Here we consider factors which can create that “special relationship” and a resulting duty to advise.   Your Liability Insurer Agreed to Defend? Don’t Relax Yet John Fischer, Partner, Barnes…

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14 Jul 2015 Scott Godes Quoted in Law360 Article, “4 Insurance Takeaways from Lloyd’s Cyberattack Report”

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, was recently quoted in Law360’s article, “4 Insurance Takeaways from Lloyd’s Cyberattack Report.”   Lloyd’s of London recently co-wrote a report predicting that a major cyberattack on the East Coast could trigger $70 billion in covered insurance claims. The article examines four takeaways for insurers and policyholders.   Godes noted that the report admits there could be coverage for cyber-based events in multiple types of insurance policies.  He also suggests that the insurance industry should introduce a cyberinsurance policy parallel to a commercial package policy, providing coverage for all types of losses resulting from a cyber event.   He is quoted multiple times in the article.  In one, he is quoted…

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15 Jun 2015 Indiana Supreme Court Sets Up Future Coverage Battles Over Allocation, Defense Costs

  The Indiana Supreme Court recently declined to accept jurisdiction over a major insurance coverage dispute, leaving intact an Indiana Court of Appeals opinion that may now become a landmark decision on a number of insurance coverage issues in Indiana. The Supreme Court’s declination of jurisdiction over Thomson, Inc. v. Ins. Co. of N. America, 11 N.E.3d 982 (Ind. Ct. App. 2014), on May 15, could have far-reaching effects that are helpful to policyholders in some respects, and potentially contrary to policyholders’ interests in others.   First, the good:   The Supreme Court left intact the Court of Appeals’ adoption of a policyholder-friendly test for determining whether defense costs are reasonable and necessary, and thus owed by the carrier as part of its duty to…

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