December 2012

• Insurer Not Liable for $1.3 Million in Pre-Tender Defense Costs
• Settlement Agreement Extends to Later Claims Covered by Scope of Release
• Insured Versus Insured Exclusion Held Inapplicable to FDIC’s Failed Bank Suit
• Complaint Filed Prior To Policy’s Inception Is Not “Claim Made” Within the Policy Period
• Intentional Acts, Professional Services Exclusions Bar Coverage for RICO Suits
• Alleged Supervisory Role Not Sufficient to Relieve Insurer of Duty to Defend Pursuant to Professional Services Exclusion
• Definition of Wrongful Act and Intentional Acts Exclusion Bar Coverage for Action Alleging Fraud and Conspiracy
• Public Policy Precludes Enforcement of Voluntary Payments Clause in Lawyers Professional Liability Policy
• Failure to Provide Timely Notice of Original Complaint Does Not Negate Coverage for Amended Complaint
• Informal Investigation Constitutes a Claim
• Allegations Concerning Malpractice Are “Related Claims” To Prior Claim Involving Same Insured, Claimant and Time Period

November 2012

• “Voluntary Payments” Doctrine Inapplicable Where Parties Reserved Rights
• Computer Software Exclusion Barred Coverage for Wrongful Death Claim Arising out of Failure to Update GPS Software
• Prior Knowledge Exclusion Bars Coverage for Innocent Insured
• Coverage for Wrongful Termination Action Not Barred by Insured’s Failure to Report Previous Demand Letter from Former Employee
• Ninth Circuit Concludes No Evidentiary Foundation for Requested Jury Instruction on Affirmative Duty to Settle
• Priority of Payments Provision Allows Insurer to Make Settlement Payments on Covered Claims Against Directors and Officers
• Federal Court Abstains from Hearing Coverage Action Where Underlying State Court Action Sought Declaration of Parties’ Rights under Policy
• Settlement of RICO Claims Not Uninsurable as a Matter of Law; Bad Faith Claim Allowed by Virtue of “Special Relationship” Between Insurer and Insureds
• New York Court Enforces Excess Exhaustion Language, Precludes “Gap-Filling”
• Overlapping Prior Claim Not Barred by Prior and Pending Litigation Exclusion
• Innocent Insured Provision Precludes Imputation of Knowledge for Application Question
• Insured Waived Attorney-Client Privilege by Providing Defense Counsel’s Memo to Insurer
• Rescission Proper Where Insureds Failed to Disclose Administrative Complaints and Resulting Investigations on Policy Applications
• Fifth Circuit Affirms Insurer’s Right to Select Defense Counsel
• Bankruptcy Court Lacks Jurisdiction over WaMu Coverage Lawsuit

October 2012

• Court Enforces Fiduciary Exclusion in Staffing Services Liability Policy
• Based on “Other Insurance” Clause, D&O Insurer Has No Duty to Defend Suit Covered by General Liability Policy
• Lawyer’s Agreement to Return Retainer Not a Claim
• Sanctions Petition Seeking Other Relief Is Within Definition of “Damages” Despite Sanctions Carve Out
• Sixth Circuit Concludes Notice of Charges Filed with EEOC Constitutes a Claim
• Amount Awarded under California Labor Code Constitutes Loss under EPL Policy
• Insurer’s Denial of Defense Based on Wage-and-Hour Exclusion Held to Be Bad Faith
• Underlying Insurance Not Exhausted by Insured’s Out-of-Pocket Payment of Defense Costs
• Insurer Has Duty to Defend Where Accountants Allegedly Used Professional Services Recklessly to Provide False Information to Authorities
• Exclusion for Misappropriation of Assets Bars Coverage for Claims Against Insured Law Firm
• Less-Than-Limits Settlement with Primary Insurer Does Not Satisfy Excess Policy’s Exhaustion Requirement

September 2012

• Fourth Circuit Holds That Prior Knowledge Exclusion Bars Coverage for Claims Arising Out of Ponzi Scheme
• Third Circuit Refuses to Look Beyond Underlying Complaint to Determine If Putative Plaintiffs Are Actually Insureds
• Testimony About a Wrongful Act Does Not Constitute Professional Services
• Georgia Bankruptcy Court: FDIC May Sue Officer of Failed Bank, Notwithstanding His Bankruptcy, If Defense and Recovery Limited to D&O Insurance
• Coverage Precluded by Unreasonable Delay of Notice to Excess Insurer
• Out-of-State Punitive Damages Award Precluded from Coverage under New York Law When It Would Offend the Public Policy of New York and Florida
• Prior Knowledge Provision Implicated by Insured’s Pre-Policy Inception Knowledge of Employee Allegations of Workplace Harassment
• Insured’s Failure to Provide Notice of Claim to Excess Insurer Until After an Adverse Jury Verdict Prejudiced the Excess Insurer
• Eighth Circuit Affirms that Reasonable Person Standard Applies to Prior Knowledge Provision
• Breach of Contract Exclusion Bars Coverage for Related Fraud Allegations
• Applicability of Insured v. Insured Exclusion Subject to Allocation Provision; Officer’s Alleged Misrepresentations Not Employment Practices Wrongful Act
• Declaratory Judgment Action Dismissed Due to Insureds’ Failure to Comply with ADR Clause
• Suit Against Lawyer for Return of Loaned Funds Does Not Seek Damages

August 2012

• Third Circuit Affirms That There Is No Coverage for "Kids-for-Cash" Case
• Insurer's Reservation of Rights Does Not Automatically Give Rise to Right to Independent Counsel
• Retroactive Date Precludes Coverage Despite Insureds' Failure to Read Policy
• Burden on Insurer to Prove Insured's Prior Knowledge of Potential Claim
• Insurer Not Required to Show Prejudice to Deny Coverage Based on Late Notice
• Claims for Restitutionary Relief Held Uninsurable
• Court Requires Allocation Where I v. I Exclusion Applies to Some But Not All Claimants
• Insurer Must Demonstrate Insured's Subjective Knowledge of Relevant Facts to Deny Coverage Based on Prior Knowledge
• Lawyers Professional Liability Policy Excludes Coverage for Claims that Relate to an Insured's Business Activities Other than Practice of Law
• Trustees Have No Standing To Object to Disbursement of Policy Proceeds in Interpleader Action
• Civil Rights Action Against Town Is Related to Earlier Suit Enforcing Zoning Laws
• News Report Not Notice of Potential Claim

July 2012

• Under Illinois Law, Excess Policies Do Not Attach When Policyholder Compromised Underlying Limits
• Insurer Not Liable for Amounts in Excess of Policy Limit Unless Caused by Breach of Duty to Defend
• District Court Overseeing Receivership of Investment Entity, Over Opposition By Receiver and SEC, Permits Insurer to Advance Defense Costs to Accused Individual
• Georgia Supreme Court Holds that Insurer Can Deny Coverage or Reserve Rights, But Not Both
• Insurer Not Estopped from Denying Coverage After Defending Without a Reservation of Rights
• California Statute Limiting Defense Costs Does Not Apply Where Carrier Denies Coverage
• Court Finds That a Demand To Fulfill a Contract Is Not a Claim
• "Claim" Refers to Individual Claims Within an Action, Not Entire Action
• Breach of Contract Exclusion Bars Coverage for Lawsuit Alleging That Insured Failed To Valuate Stock in "Good Faith"
• Insurer Seeking Declaration of No Coverage Must Advance Defense Expenses
• Policy Voided Where Insured Concealed Operation of Ponzi Scheme and Misrepresented Financial Status
• Prior Knowledge Condition Not Met Where Law Firm Had Pre-Policy-Inception Knowledge that Its Failure to Appear Resulted in an Adverse Judgment
• Fact Issue Precludes Summary Judgment on Prior Knowledge Exclusion
• Notice of Employment Commission Proceedings Constitutes a "Claim"
• Court Defers Ruling Concerning Whether an Insurer Is Required To Defend Insured Accused of Sexual Abuse But Holds That Public Policy Bars Indemnification for Such Acts
• Late Notice, Claims-First-Made and Misrepresentation Defenses Preclude Coverage for Lawsuit Not Reported During Policy Period of Filing
• Lawsuit Based on Negligent Property Management Services Barred by "Professional Services" Exclusion
• Without Regard to Prejudice, No Coverage for Claim Reported to Prior Insurer
• Under California Law, Medical Malpractice Policies Do Not Cover Medical Board Professional Disciplinary Actions

June 27, 2012

• Policies' Interrelated Claims, Prior Notice and Prior Litigation Provisions Bar Coverage for Multiple Lawsuits Arising Out of Bank's Collapse

June 2012

• Criminal Acts Exclusion Triggered by Insured's Admission of Elements of Crime
• Complaint and Amended Complaint in Same Litigation Are a Single Claim
• Court Orders Insurer To Disclose Communications Between the Insurer and Its Outside Counsel in Discovery Concerning Insured's Bad Faith Claim
• Insurer Provided Timely Notice of Non-Renewal
• District Court: Lodestar-Multiplied Attorney Fee Award Not "Multiplied Damages" Because Exception Clause Ambiguous
• Underlying Policies Must Be Read As a Whole When Incorporated Equally Into Excess Policy
• D&O Policy Affords No Coverage for Officer's Personal Contractual Obligation
• Nature of Consumer Class Action, Not Percentage of Meritorious Claims, Determines Coverage and Allocation
• Malpractice Claim Deemed Made at Time of Insured's Legal Error

May 2012

• Lawyer's Policy Voided Based on Misrepresentation in Application, and Disbarment Order Triggers Dishonesty Exclusion
• Bankruptcy Court Lifts Automatic Stay To Allow Insurers To Pay Defense Costs
• Pre-Suit Demand for Services Constitutes "Claim"
• Prior Proceeding Exclusion Does Not Bar Coverage for Qui Tam Action
• "In Fact" Requirement Triggered By Jury's Guilty Verdict
• Payment for Settlement of Restitution Claim Is Not an Insurable "Loss"
• Severability Provisions Do Not Apply to Prior Knowledge Exclusion
• Despite Insurer's Breach of Duty to Defend, State Insurance Guaranty Association Can Deny Coverage Under Unambiguous Professional Services Exclusion
• Suit Alleging Failure to Provide Notice of Plan Benefits Triggered ERISA Exclusion
• Exclusions in Real Estate E&O Policy Foreclose Duty to Defend
• No Breach of Contract Where Excess Insurer Timely Pays After Underlying Insurer Exhausts, But Fact Issue Exists on Bad Faith
• Default Judgment Against Insureds Unenforceable Against Insurer
• Exclusion Bars Coverage for Claims Against Lawyer Acting as a Mortgage Broker
• Former Employee's Suit for Unlawful Termination Not a Claim for "Wrongful Acts"
• Suit Seeking Referral Fees from Law Firm Arises Out of Professional Services

May 9, 2012

• Home Depot ERISA Stock Drop Case: Eleventh Circuit Adopts Moench Presumption of Prudence and Rejects Duty to Disclose Non Public Corporate Information under ERISA

April 2012

• Excess Policy Triggered Even Though Underlying Insurers Paid Less Than Their Policy Limits
• Violation of Consent to Settle Clause Precludes Coverage for Consent Judgment
• I-v-I Exclusion Held Not to Preclude Coverage for Claims Brought by Chapter 7 Trustee
• Judgment Creditor Asserting Statutory Bad Faith Claim Entitled to Discover Other Bad Faith Allegations Against Insurers
• Misappropriation and Personal Profit Exclusions Do Not Preclude Duty to Defend Negligent Supervision Claim
• Coverage Triggered by Claim for Failure to Pay Wages Under Fair Labor Standards Act
• Claims Made After Policy Period Involving Different Wrongful Acts Not Related; No Duty to Defend Based on Untimely Notice, Failure to Request Defense and Lack of Damages
• Letter From Insured's Receiver Noting Intent to Assert Claims Constituted Notice of Circumstances
• Coverage Properly Denied Where Insured Sends Notice of Claim to Wrong Address
• Insurers Entitled to Production of Otherwise Privileged Documents From Underlying Case Where Insurers Provided Defense
• Improper Use of Funds Exclusion Did Not Render Coverage for Escrow Agent Illusory
• Excess Policy Triggered by Exhaustion of Primary Policy Even Though Insured Paid Deductible to Primary Insurer
• Court Holds that Property Damage Exclusion Does Not Bar Claim for Title-Search Malpractice
• No Coverage for Claim Not Reported Within 30 Days After Notice to the Insured

March 2012

• No Duty to Defend Where Allegations in Underlying Lawsuit Showed That Insureds Could Reasonably Foresee Claim
• Insurer Not Liable for Excess Default Judgment Where Claimants and Insureds Colluded By Falsely Declaring the Insureds Had No Prior Knowledge of the Claim
• No Coverage for FDIC Suit for Erroneous Appraisal Performed Before Prior Acts Date
• Claim First Made When Insured Received Writ of Summons
• Lost Earnings Awarded as Breach of Employment Agreement Excluded as "Amounts Owed Under a Written Contract"
• Settlement of Underlying Suit Precluded Determination that Professional Services Exclusion Applied as a Matter of Law
• No Bad Faith Where Policy Exhausted Under "First in Time, First in Right" Principle
• Fiduciary Liability Coverage Limited to Fiduciary Acts

February 2012

• Court Must Consider Extrinsic Evidence to Determine Ambiguity Under California Law
• Covered Loss Includes Enhanced Portion of Fee Award in Bump-Up Suit
• Wiley Rein Named an "Insurance Group of the Year" by Law360
• No Duty to Defend in Suit Seeking Non-Monetary Relief
• FTC Investigation Is a Claim Triggering Reporting Requirements
• Settlement of Suits Alleging Breach of Contract Constitutes "Damages"
• Employees' Claims for Unpaid Medical Benefits Not "Loss" Under Company's Fiduciary Liability Policy
• Right to Rescind Waived by Failure to Raise Misrepresentation During Policy Renewal
• Insurer Liable for Default Judgment Against Insured Where Asserted Policy Exclusions Did Not Apply
• Insurer May No Longer Delay Notifying Insured of Known Grounds for Denying Death or Bodily Injury Claim While Investigating Other Potential Grounds
• Undefined Term "Services" Ambiguous in Context of E&O Exclusion
• Claim for Negligent Overdraft of Attorney Escrow Account Arises out of Provision of Legal Services
• Failure to Report Claim During Claims-Made and Reported Period Not a "Coverage Defense" for Purposes of Florida Waiver Statute
• Insurance-Broker Exclusion Does Not Bar Coverage for Accounting Firm's Alleged Negligence
• Insurer Did Not Waive Right to Rescind Policy
• Insurer's Retention and Reliance on Outside Counsel in Handling Claim Does Not Negate Privilege and Work Product Protection

January 2012

• Stipulated Judgment Coupled with Covenant Not to Execute Against Assets Other than Insurance Not "Loss" Because Insured Was "Absolved from Payment"
• Disgorgement Payment for SEC Settlement Held to be Uninsurable Loss
• Insurer Has Duty to Defend Where It Cannot Demonstrate that Insured "In Fact" Committed Fraudulent or Dishonest Acts
• No Duty To Defend or Reimburse Claim Expenses Arising from an SEC Action
• Insolvency Exclusion Bars Coverage for Claims Due to Underfunded Employee Benefit Plans
• Insurer Deemed to Have Breached Duty to Defend Even Though Prior Knowledge Exclusion Barred Indemnity Coverage
• Malpractice Complaint and Previous Counterclaim in Fee Dispute Constitute Single Claim Made in Prior Policy Period
• Failure to Report Abuse Was Wrongful Act Predating Retroactive Date; Also Constitutes Professional Services for Purposes of Exclusion
• Ninth Circuit: Insured v. Insured Exclusion Bars Coverage for Statutory Wage and Hour Claims
• Failure to Disclose Counterfeiting Scheme Entitles Insurer to Rescission
• Insurer Must Defend Claim for Non-Covered Damages