December 2011

• Insurer's Contractual Right to Select Defense Counsel Upheld Where Insurer Had Incentive To Provide Vigorous Defense
• FDIC Cannot Intervene in Coverage Litigation
• Defined "Financial Products" Coverage Does Not Apply to Preparation of Allegedly Fraudulent Workers' Compensation Applications
• Eleventh Circuit Affirms that an Insured's Pre-Inception Knowledge of His Thefts from Clients Bars Coverage for All Insureds
• Insurer Cannot Rescind Policies Even Though Insured's CEO Lied on Renewal Application
• Duty to Defend Determined by Claims Actually Asserted, Not Speculation
• Facts Outside Complaint Required Insurer to Assume Duty to Defend; Corporation Entitled to Indemnification for Settlement Despite Applicability of Exclusion to Individual
• Insurer Only Required to Pay for Agreed-Upon Defense Counsel at Reasonable Rates
• District Court Finds No Coverage for Claim Not Timely Reported
• Prior Knowledge Exclusion Bars Coverage for Legal Malpractice Claim Where Insured Knew of Missed Statute of Limitations Prior to Policy Period
• Professional Services Exclusion in Policy Issued to Medical Provider Applies to All Actions Directed at Patient Treatment
• No Coverage for Claim Reported After Claims-Made-and-Reported Period
• Legal Malpractice Claim Against Law Firm Barred by Former Attorney's Prior Knowledge
• Federal District Court Declines to Abstain Where Remand of Parallel Action to State Court Was Uncertain

November 2011

• Eleventh Circuit Holds that D&O Policy Does Not Cover SEC Investigation of Insured Entity
• Claim Related Back to Previously Settled Action
• Insured's Corporate Parent Not a Proper Party to Coverage Action
• Reasonable Person Standard Is Appropriate To Assess Prior Knowledge
• Dishonesty Exclusion Triggered By Criminal Convictions, but Factual Dispute over Potential Waiver Precludes Summary Judgment on Rescission
• No Coverage Under Lawyers Professional Liability Policy Based on Business Enterprise Exclusion

October 2011

• No Excess Coverage Under Ohio Law When Insured Settles with Primary Carrier for Less Than Primary Limits
• Insurer Entitled To Discovery of Attorney Client Communications and Attorney Work Product Relating to Underlying Claim
• Utah Supreme Court: Extrinsic Evidence Relevant to Applicability of I v. I Exclusion
• Fraud Exclusion Triggered and Partial Rescission Permitted Due to CFO's Guilty Plea
• Actions Based on Same Course of Conduct Are Related Claims; Application of I v. I Exclusion Unclear Where Claims Brought by Trustee on Behalf of Debtor and Subsidiaries
• Insurer Entitled To Rescind Policy Because Policyholder Failed to Report Complaints and Regulatory Investigations on Application
• Insured's Misrepresentation in Reinstatement Application Not Material Where Policy Required Insurer to Offer Extension
• Independent Contractor Exclusion Bars Coverage
• Unnamed Individual Insureds Not Obligated to Pay Deductible
• Indiana Appellate Court: No Coverage for Claim Made After Claims-Made Policy Period
• No Coverage for Claim First Made Prior to Policy Period and Because Insureds Had Knowledge of Wrongful Act Prior to Policy's Inception
• Court Applies Criminal/Intentional Acts Exclusion to Bar Coverage for Negligence and Breach of Contract Claims
• Upcoming Speech

September 2011

• Twelve Claims Arising out of Common Embezzlement Scheme Are "Single Claim"
• Misappropriation of Client Funds Entitles Insurer To Rescind Lawyers Policy and Does Not Satisfy Prior Knowledge Condition in Accountants Policy
• Prior Knowledge of Potential Malpractice Claim Precludes Coverage Under Lawyers Professional Liability Policy
• Court Finds Legal Fees for Employees Deposed as Fact Witnesses Are Covered
• Court Finds Company Has No Standing To Seek Declaratory Judgment Under Side A Policies; Coverage Under Other Policies Too Remote Because Retention Is Unsatisfied
• Settlement with Primary Insurer for Less than Policy Limits Does Not Trigger Excess Coverage
• Reservation of Rights Letter Does Not Entitle Policyholder To Independent Counsel, and Excess Policy Does Not Cover Costs of Independent Counsel
• Exclusion for Sexual Misconduct Precludes Duty To Defend Employer
• Subsequent Related Claims Made After Inception of Reinsurance Policy Not Excluded From Coverage
• Coverage Barred By Insureds' Failure to Provide Timely Notice of Circumstances and Breach of Consent Provision
• Court Enforces Anti-Assignment Clause and Holds Parent of Named Corporation Not Insured
• Settlement with Insurer as to Claim Did Not Bar Coverage for Later-Arising Interrelated Claim
• Prior Knowledge Exclusion Bars Coverage for Legal Malpractice Claim
• Insured Entity's Purported Derivative Claim Against Former Officers Triggers Insured vs. Insured Exclusion
• Amended Complaint Unrelated To Original Complaint in Same Proceeding Because the Original Complaint Did Not Constitute a Claim
• Court Grants Relief from Automatic Stay Finding That Coverage Dispute Is Not a Core Proceeding
• Notice Condition Does Not Bar Coverage for Malpractice Claim
• No Coverage Where Complaint Alleges Lawyer Acted as Unlicensed Broker
• Exclusion Carve-Back for "Derivative Claims" Not Applicable To State AG Investigation
• Upcoming Speech

August 2011

• District Court Withdraws Reference To the Bankruptcy Court of Non-Core Coverage Actions
• No Coverage Based on Prior Knowledge Condition and Business Enterprise Exclusion
• No E&O or D&O Coverage for Investigation by Attorney General
• Insured Versus Insured Exclusion Inapplicable To Action by Bankruptcy Trustee, and Bankruptcy Exclusion Deemed Unenforceable
• General Reservation of Rights Preserves No-Voluntary Payments Defense
• Fifth Circuit: Excess Policy's Duty To Defend Not Triggered Until Actual Payment of Underlying Limits
• Exclusion for "Liability Assumed Under Contract" Does Not Exclude All Breach of Contract Claims
• Wiley Rein Wins Closely Watched Legal Malpractice Trial for Client
• D&O Policy Does Not Cover Lawsuit by Insured Person Against the Company
• Letter Seeking Repayment of Overbilled Amounts Not a "Claim"
• Breach of Contract Dispute Deemed Related To Prior Similar Dispute
• Issues of Fact Preclude Summary Judgment As To Whether Notice of Intent To Initiate Litigation Constituted a "Claim"
• Criminal Fraud Conviction Triggers "In Fact" Exclusions
• Exclusion for Derivatives Sale Applies Regardless Of Legal Theory Asserted
• E&O Policy Provides No Coverage for Lawsuit Alleging That Insurance Agent Failed To Purchase Adequate Insurance for Himself
• Property Damage Exclusion Precludes Duty To Defend
• Declaratory Judgment Ripe for Adjudication Even Though Retention Not Yet Met
• Upcoming Speech
• Hot off the Presses--2011 Lobbying & Gifts Survey Available for Purchase

July 2011

• Malpractice Claim Barred by Insureds' Prior Knowledge of Error
• Second Circuit Deems Subpoenas and Oral Requests "Securities Claims" and Treats Amounts Incurred by Special Litigation Committee as Defense Costs
• New York Trial Court Holds Excess Policies Do Not Attach When Policyholder Compromised Underlying Limits
• Untimely Notice Not Bar To Coverage Where Insurer Could Not Prove Actual Prejudice
• Settlement for Transfer of Rights and Provision of Services Is Not "Money Damages"
• Management of Client Funds Held in Trust Constitutes a "Professional Service"
• Stowers Is the Only Common Law Third-Party Claims Handling Cause of Action in Texas
• Breach of Consent Clause Turns on Facts Where Insurer Had No Duty to Defend and Reserved Rights
• Chambers USA Ranks Wiley Rein's Insurance Group in its Top Tier; Five Attorneys Receive "Leading Lawyers" Honors
• Prior Knowledge of Catastrophic Accident Insufficient To Trigger Prior Knowledge Exclusion
• Professional Liability Policy Proceeds Not Property of Bankruptcy Estate
• District Court Narrowly Interprets Bodily Injury Exclusion

June 2011

• Knowledge of Potential Malpractice Claim Bars Coverage
• Failure To Report Claim Within Claims-Made-and-Reported Policy Period Bars Coverage
• "Prior Knowledge" Clause Bars Coverage for Claims Arising out of Ponzi Scheme Created By One of the Insured's Officers/Directors
• Punitive Damages Award Fails To Implicate Dishonesty Exclusion
• Eighth Circuit Finds Notice Sufficient Under Claims-Made Policy
• Subsequent Related Claim Subject To Limit of Liability in Place When Claim First Made
• Second Circuit Certifies Question Regarding Make Whole Doctrine and Deductibles To Connecticut Supreme Court
• Applicability of Prior Acts Exclusion Not Established By Class Period But Coverage Otherwise Precluded By Late Notice
• Court Grants Objection To Interrogatory Seeking Information About Other Insureds' Claims, Denies Objection Regarding Other Claims Noticed By the Insured's Affiliates

May 2011

• Statutory Civil Damages Are "Penalty" and Therefore Not "Loss"
• Business Enterprise Exclusions Preclude Coverage for Claim "Arising Out Of" Ownership Interest Where Alleged Legal Malpractice Began Prior to Ownership
• Reasonable Dispute Over Interpretation of Policy Precludes Bad Faith
• Insurer Entitled to Reimbursement of Defense Costs But Only for Amounts Advanced Prior to Rescission
• No Coverage Under Lawyer's Professional Liability Policy for Action To Recover Legal Fees
• No Basis To Allocate Defense Fees in Partially Covered Suit; Coverage Granted for Nominal Fees Incurred in Uncovered Suit That Were "Reasonably Related" To Covered Claim
• No Showing of Prejudice Required To Deny Based on Late Notice Under Claims-Made-and-Reported Policy
• Breach of Contract Exclusion in E&O Policy Bars Coverage for Dispute Between Contractor and Subcontractor
• Severability Clause Does Not Limit Cross-Liability Exclusion
• Discrimination Exclusion Does Not Preclude Coverage for Architects' Failure To Comply With Accessibility Requirements

April 29, 2011

• In re BankAtlantic Bancorp, Inc.: Emerging Securities Damages Issues

April 2011

• Fourth Circuit Holds That Prior Knowledge Provision Is an Unambiguous Condition Precedent to Coverage to Which the Innocent Insured Provision Is Inapplicable
• Insured's Failure To Disclose Participation in Fraudulent Scheme Entitles Insurer To Rescind Initial Policy
• Dishonesty Exclusion Bars Coverage for Lawsuits Arising out of Insured's Admitted Participation in Mortgage Fraud Scheme
• Insureds' $20 Million Settlement Payment to FTC Redress Fund Held Uninsurable Restitution
• Professional Services Exclusion Bars Coverage for Insured Entity's Vicarious Liability
• Prior Knowledge Precludes Coverage Where Insured Had Reason To Foresee Possible Claim Despite Belief That Claim Would Be Meritless
• Insurer May Decline Coverage Where Claim Arises out of Facts Alleged in a Prior Civil Proceeding
• Insolvency Exclusion Bars Coverage for Allegations that Actuarial Services Firm Contributed to Client's Insolvency
• Other Insurance: D&O Policy Is Excess of CGL Policy
• Bodily Injury Exclusion Precludes Coverage for Professional Negligence Claim Arising out of Automobile Accident
• Insurance Partner Kimberly M. Melvin Named a Law360 "Rising Star"

March 2011

• SEC Lawsuit Does Not Create Coverage for Costs of Voluntary Response To Preceding Investigation
• Insurer Entitled Unilaterally To Reserve the Right To Recoup Amounts Paid for Defense and Settlement
• Award of Attorneys' Fees in Derivative Action Constitutes Covered "Loss"
• Insurer Cannot Claim California Mediation Privilege When It Fails To Attend Mediation in Person
• Massachusetts Appeals Court Evaluates Reasonableness of Defense Counsel's Hourly Rate
• Insurer Testimony Regarding Underwriting and Interpretation of Policies Deemed Irrelevant in Determination of Coverage
• Loss Run Reports Could Serve as Notice of Claim
• No Coverage for a Claim First Made During Extended Reporting Period
• Maryland High Court Holds Statute Requires Insurer To Show Prejudice To Deny Coverage Under Claims-Made-and-Reported Policy Based on Late Notice
• Insolvency Exclusion Bars Broker's Claim for Coverage and Broker's Payments Deemed Not Amounts It Was "Legally Obligated To Pay"
• Setoff for Defective Construction Work Is Not "Damages" or Insurable Loss
• Claim Against Broker Barred by Exclusion for Claims Involving Unauthorized Securities
• Mobile Content Charges "Involve" Content Provider's Product and Trigger Products Exclusion
• No Coverage Where Insured Had Subjective Knowledge of Fraud
• No Coverage for Lawsuit Where Insured Should Reasonably Have Foreseen Claim Based on Earlier Suit Involving Same Alleged Pollution Condition
• "Other Insurance" Clause Inapplicable Where Policies Cover Different Risks

February 2011

• California Appellate Court Declines To Follow Qualcomm and Holds that Excess Insurer Waived Exhaustion Argument
• Disgorgement of Contingent Commissions Constitutes Restitution, Not a "Loss"
• Eighth Circuit Holds Criminal Claim Need Not Allege Loss for Policyholder To Have Defense Coverage; Factual Adjudication Needed on Personal Gain, Dishonesty Exclusions
• Grand Jury Subpoena for Documents Not Claim, But Audit Letter from State Comptroller Was a Claim for Which Timely Notice Was Required
• Primary Insurer and D&Os of Insured Not Required Parties for Rescission Claim by Excess Insurer
• Ohio Court Rules Insured's Application Statements Were Not Warranties and Were Insufficient to Void Policy
• Court Holds Louisiana Statutory Damages and Attorneys' Fees Do Not Constitute Covered "Damages," But Insurer Must Defend
• Notice of Potential Claim and Reporting of Claim Adequate Despite Failure to Comply with Written Notice Requirement
• Notice of Circumstances Does Not Excuse Obligation To Provide Timely Notice of Claim
• "Insured v. Insured" Exclusion Does Not Turn on Insured's Status at the Time of Claim
• Insured's Breach of Contract Claim, But Not Bad Faith Claim, Subject to Arbitration
• Notice To Primary Insurer Through Common Broker Does Not Constitute Notice to Excess Insurer
• Payments by Captive Insurer Count as Loss for Purposes of Excess Coverage
• Magistrate Judge Recommends Stay of Coverage Action Where Coverage Issues Overlap with Underlying Lawsuit and Insureds Would Suffer Prejudice if Action Allowed To Proceed

January 2011

• Insurer Not Entitled To Recoup Settlement Payment Absent Express Provision in the Policy
• Insurer Has Duty To Advance Defense Expenses as They Are Incurred
• Insured v. Insured Exclusion Precludes Coverage for Suit Brought by Insured in any Capacity
• Notice by a Third Party Deemed Insufficient Where Policy Required Notice by the Insured
• "Business Enterprise" Exclusion Bars Coverage for Suit Against Law Firm
• "Might" Does Not Render a Prior Knowledge Exclusion Ambiguous
• Court Finds Reinsurance Information Relevant and Discoverable
• Fiduciary Liability Policy Affords No Coverage for Lawsuit that Did Not Allege Breach of Fiduciary Duty by Insured
• Settlement Payment by Company to Shareholders of Recombined Tracking Stock Constitutes Loss; Insurer Has No Right To Recoup Settlement Payment
• Arkansas Court Reaffirms No Prejudice Rule for Late Notice Under Claims-Made Policies
• Financial Interest Exclusion Bars Coverage for Real Estate Agents' Dispute with Joint Venturer
• Gary Seligman Elected Partner