The Complex Insurance Coverage Reporter

CONTRIBUTION

Chem. Solvents, Inc. v. Greenwich Ins. Co., 2023 U.S. App. LEXIS 868 (6th Cir. Jan. 13, 2023)

A divided Sixth Circuit panel holds that, under Ohio’s “all sums” allocation scheme, “targeted” insurers may seek indemnity contribution from a policy reinsured by a captive insurer. The court rejected the insured’s argument that allowing contribution from a captive it partly owned would undermine the purpose of “all sums,” and explained that “[a]ll sums shifts the burden of calculating relative liability, but it doesn’t absolve the insured of all ... Continue Reading

On March 21, 2023, the New Hampshire Supreme Court, answering a certified question from the U.S. District Court for the District of New Hampshire, concluded that New Hampshire does not recognize a cause of action for recovery of medical monitoring costs by plaintiffs who allege they were exposed to a toxic substance. See Brown v. Saint-Gobain Performance Plastics Corp., No. 2022-013, 2023 N.H. LEXIS 23 (Mar. 21, 2023). The issue arose in a lawsuit by residents who alleged the defendants’ use of PFAS in their plastic manufacturing processes had contaminated the air, ground and ... Continue Reading

Perfluoroalkyl and polyfluoroalkyl substances, commonly referred to as PFAS or PFOS, have been a key ingredient in numerous industrial and consumer products for decades. These man-made chemicals are prevalent and are also known for their longevity in the environment. More recently, PFAS have been the focus of thousands of lawsuits alleging personal injury and property damage. Some insurers have already questioned whether PFAS could rival asbestos in scope and bottom-line impacts. It is a legacy that confronts manufacturers and other defendants and insurers today.

This ... Continue Reading

ANTI-ASSIGNMENT CLAUSE

Pepsi-Cola Metro. Bottling Co. v. Emp’rs Ins. Co., 2022 Wisc. App. LEXIS 598 (Wisc. Ct. App. July 8, 2022)

Wisconsin Court of Appeals (in a divided decision) holds that a “post-loss” assignment of rights under a liability insurance policy is valid despite lack of insurer consent. The majority believed an insurer’s consent to an assignment after “loss” occurs is not required on the basis that the assignment does not increase the insurer’s risk. It referred to Wisconsin’s “longstanding rule” that an anti-assignment clause in an ... Continue Reading

Wave of Deceptive Marketing PFAs Claims Raises “Personal and Advertising Injury” Coverage Issues
By: Gregory S. Capps and Lynndon K. Groff

Companies in various consumer products industries are increasingly facing claims alleging that they have deceptively marketed their products as safe and sustainable when, in reality, those products allegedly contain unsafe and unsustainable levels of chemicals known as per- and poly-fluoroalkyl substances, or “PFAS.” Since the beginning of 2022, plaintiffs have filed class-action lawsuits against several cosmetics ... Continue Reading

Welcome to CICR’s annual recap of insurance cases you should know about — and others in the pipeline to watch. You can read about our selections for “Cases to Know” and “Cases to Watch” below.

In the last year, we saw COVID-related business interruption disputes continue to dominate the insurance coverage landscape. According to the University of Pennsylvania’s COVID Coverage Litigation Tracker, trial courts have already issued 750+ merits rulings on motions in these cases. The results have overwhelmingly favored insurers. As one court put it, there is “[a]n ... Continue Reading

Since the American Law Institute (ALI) voted in May 2018 to approve the final draft of its Restatement of the Law of Liability Insurance (RLLI), many have closely watched to see what impact, if any, the RLLI might have on the insurance coverage landscape. On October 4, 2021, Randy Maniloff of White and Williams, co-author of General Liability Insurance Coverage – Key Issues in Every State (5^th edition), hosted a webinar titled “ALI Restatement of the Law – Liability Insurance: Lessons Learned After Three Years.” The presentation, which was attended by over 500 members ... Continue Reading

Insured gets sued. Insurer hires defense counsel to represent insured. Defense counsel takes over the case, and eventually, the case ends. Most of the time, the carrier and its insured will be satisfied with the result. There may be occasions, however, when the outcome is plainly undesirable.

Maybe there was an unusually large verdict that was unanticipated, or the case settled for what is seen as an inflated amount after a critical defense failed. In assessing the situation, the insurer may believe defense counsel mishandled the claim. This scenario raises a related thorny ... Continue Reading

The Connecticut Appellate Court recently issued a wide-ranging opinion, Continental Casualty Co. v. Rohr, Inc.,^[1] which significantly extended the current restrictive view on when a general liability policy can be considered exhausted so as to trigger overlying excess coverage. The case marks a further step away from Judge Augustus Hand’s almost-century-old ruling in Zeig v. Massachusetts Bonding & Ins. Co.,^[2] which held that an underlying policy could be “exhausted” by a below-limits settlement as long as the insured was willing to “fill the gap” between the ... Continue Reading

Commercial general liability (CGL) policies typically provide that an insurer will defend a “suit” that seeks covered “damages” that the insured may be “legally obligated to pay.” This seems simple enough.

But can an insurer have any obligation to its insured even before a “suit” is filed? Because of judicial interpretation of the policy language, the answer may be less straightforward than it would seem.

Conflicting Case Results

Consider two cases, decided less than a decade apart by federal courts in Massachusetts, which applied the same policy language to ... Continue Reading