December 2013

• No Coverage for “Innocent” Insureds Based on Broad Language of Customer Funds Exclusion
• Professional Liability Insurer Has Duty to Defend Insured Against Claim for Failure to Comply with Prevailing Wage Laws
• Insurance Agent’s Employee Not an “Insured” When Alleged to Be Acting on Behalf of an Uninsured Agency
• Prior Settlement Agreement Does Not Provide Basis for Denial Under Prior Knowledge Exclusion
• Criminal Conduct Exclusion Bars Coverage for Broker’s Falsification of Insurance Policy Applications
• No Coverage Under E&O Policy for Claim for Tortious Interference
• Insured v. Insured Exclusion Does Not Bar Coverage for Claim by Former Executive of Pre-Acquisition Subsidiary; Possible—but Unpled—Allegations Do Not Trigger Coverage
• Reinsurer Not Obligated to Provide Coverage for Contract Action Even Though Insurer Funded the Defense
• Insurer Not Entitled to Dismissal of Coverage Action Based on Late Notice of Claim
• Violations of Consumer Protection Law Considered Intentional Acts That Do Not Constitute a “Wrongful Act”
• Material Misrepresentations on Medical Center’s Insurance Application Entitle Insurer to Rescind Policy
• Complaint Filed With Department of Insurance Is a “Claim”
• Wiley Rein’s Kimberly Melvin Honored by Business Insurance Magazine
• Wiley Rein’s Daniel Standish Receives 2013 PLUS Award
• Nonprofit Management Liability Policy Does Not Afford Coverage for Reimbursement of Stolen Social Security Benefits
• Excess Policies Not Triggered Where Insured Settles with Primary Carrier for Less Than Full Limit

November 2013

• Court Finds That “Defense Costs” Include In-House Legal Costs
• Maryland Notice-Prejudice Statute Potentially Applies to Notice Provision of Claims-Made-and-Reported Policy
• Property Damage Exclusion Bars Coverage for Negligence and Breach of Fiduciary Duty Claims
• Possible Future Judgment Against Insured Does Not Support Claimant’s Motion to Intervene as of Right
• Failure to Supervise Employee Does Not Constitute “Professional Services”
• Prior Acts Exclusion Is Inapplicable When Acts Took Place During Prior Policy Issued by Same Insurer
• Mere Notice of Potential Extra-Contractual Liability Is Not a Claim
• No Bad Faith for Settling Claim Against Insured
• No “Wrongful Act” Where Complaint Alleges Only Fraud
• Suit for Misuse of Investment Funds Does Not Allege Act in Performance of “Mortgage Broker Services” Within Definition of “Insured Services”
• Prior Knowledge Condition Not Met Where Attorney Had Pre-Inception Knowledge of Disciplinary Complaint Asserting Failure to File Suit in a Timely Manner
• Lawsuit Alleging Defective Architectural Design Barred by “Professional Services” Exclusion
• Evidence of Prevailing Industry Standards Necessary in Bad Faith Action
• Vague Description of “Possible Claim” Not Sufficient Under Claims-Made-and-Reported Policy
• California Court of Appeal Holds That There Can Be No Bad Faith Failure to Settle Where Claimant Has Not Made a Settlement Demand or Shown Interest in Settlement
• No Duty to Defend Suit Demanding Only Injunctive Relief
• Injured Party Cannot Pursue Direct Action Against Insurer Before Obtaining Judgment Against the Insured

October 2013

• Claim for Employee Embezzlement Alleges a Wrongful Act But Is Excluded
• No Coverage for Claim First Made Before Policy Inception But After Retroactive Date
• Dishonesty and Profit Exclusions Bar Coverage for Suits Against Former City Employee for Approving Excessive Salaries
• Municipal Insurer’s Professional Liability Policy Does Not Cover Settlement Within Limits of the Underlying Policy
• Exclusion for Claims Arising Out of Bankruptcy or Insolvency May Bar Coverage for Claim Under Broker’s E&O Policy
• Consent Judgment Coupled With Agreement Not to Execute Against the Insured Is Enforceable Under New Jersey Law
• Exclusion for Liability “Assumed or Asserted” Under Contract Is Not Limited to Claims Under Indemnity Agreements
• No Coverage for Employment Action Filed After Policy’s Expiration
• No Coverage for Claim Expenses Where Insured Did Not Obtain Prior Written Consent of Insurer

September 2013

• Insured’s Failure to Provide Timely Notice of a Potential Claim Defeats Coverage
• Insurer’s Equitable Estoppel Defense Raises Issue of Fact with Respect to Insurer’s Reasonable Reliance on Information Provided by Insured
• Coverage for Qui Tam Action Barred by Prior and Pending Litigation Exclusion
• Primary Insurer Does Not Owe Direct Duty of Care to Excess Insurer
• Insurer’s Declaratory Judgment Action Stayed Because of Overlapping Issues With Underlying Litigation Against Insured
• Insured Bears the Burden to Allocate Settlement Between Covered Losses and Excluded Contract Damages
• Fifth Circuit Says Insurers Do Not Have to Show Prejudice to Enforce Notice Provisions in Pollution Buyback Endorsements
• Texas Court Finds Ambiguity Between Related Claims Provision and Prior or Pending Litigation Exclusion
• Intentional Misrepresentation Claim Within “Liable in Absence of Contract” Carve-Back to Contract Exclusion; Fraud of VP and Chief Technology Officer Not Imputed to Company Under Severability Provision
• By Delaying Disclaimer of Coverage for 105 Days, Insurer Waived Right to Rely on Policy Exclusions
• Louisiana Statute Providing for Automatic Damages Is a Penalty and Not Covered Loss
• Eighth Circuit Holds Prior Knowledge Exclusion Bars Coverage for Title Insurer Indemnification Claim
• Insured vs. Insured Exclusion Bars Coverage for FDIC Failed Bank Suit
• No Coverage for Restitution of Illegal Overdraft Fees
• Seventh Circuit Holds That Multiplied Portion of Attorneys’ Fees Award Is Covered
• Fee Dispute Not Covered Under Legal Malpractice Policy

August 2013

• No Coverage for Attorneys’ Fees Award Where Underlying Contract Action Did Not Allege “Wrongful Act”
• Sales of Allegedly Defective Products Are Not Excluded Professional Services
• Oral Suggestion That Company Settle a Potential Suit Gives Insured a “Reasonable Basis” for Believing That a Claim Might Be Made
• Conspiracy Did Not Occur “Solely” in the Rendering of “Professional Services”
• Court Finds No Coverage for a Claim First Made During Policy Period of a Claims-Made-and-Reported Policy But Not Reported Until After Inception of Successive Policy
• New York Trial Court Enforces Late Notice Provision
• Legal Services Provided Without Charge in Settlement of Prior Claims Constitute “Professional Services”
• Insurer Prejudiced by Insured’s Failure to Report Adverse Trial Court Decision in Underlying Action
• Real Property Investment Transaction Does Not Constitute a “Covered Product” Under an Insurance Agents E&O Policy
• Dishonesty Exclusion Bars Coverage for Legal Malpractice and Breach of Fiduciary Duty Claims
• No Duty to Defend Where Employee Participated in Scheme to Siphon Millions of Dollars of Class Action Settlement Proceeds

July 2013

• New York High Court: Insurer May Not Rely on Policy Exclusions If It Breaches Duty to Defend
• New York High Court: Public Policy Does Not Bar Coverage for Portion of “Disgorgement” Not Traceable to Policyholder’s Own Improper Gains
• Illinois Supreme Court Holds TCPA Damages Are Insurable
• Email Clarifying Oral Conversation That Included Demand for Monetary Relief Is a Claim
• Unfair Trade Practices Exclusion Inapplicable to Claims Arising Under Fair Debt Collection Statutes; Statutory Damages Covered
• Malpractice Complaint and Previous Counterclaim Constitute a Single Claim Made in Prior Policy Period
• Connecticut Supreme Court: Losses Caused by Different Sets of Negligent Acts with Common Precipitating Factor Are Not “Related”
• Actual Notice Through an Intermediary Sufficient to Provide Notice Under Policy
• Criminal Acts Exclusion Bars Coverage After Escrow Agent Pleaded Guilty to Stealing Funds from Account
• Coverage for Architect’s Alleged Negligence Barred by Professional Services Exclusion
• Court Looks Outside Underlying Pleadings to Hold That Criminal Conduct Exclusion Barred Coverage for Misrepresentation
• Insurer Entitled to Rescind Lawyers Malpractice Policy Based on Material Misrepresentations in Application
• Tenth Circuit Holds That Multiple Arbitrations Concerning “Churning” of Annuity Accounts Constitute “Interrelated Wrongful Acts”
• Underwriting Exclusion Bars Coverage for Claim for Failure to Notify Life Insurance Applicants of Adverse Test Results Obtained as Part of Application Process

June 2013

• Fee Exclusion Deemed Ambiguous
• Professional Services Exclusion Precludes Coverage for Design Defect Claims
• Court Dismisses Claim for Coverage for a First-Party Loss Under a Third-Party Liability Policy
• California State Law Does Not Bar Defense for Federal Prosecution
• Prior Acts Exclusion Bars Coverage for Suit Against Bank Alleging Lending Act
• Sexual Harassment Suit Interrelated With Earlier Disparate Treatment Proceeding Before Division of Civil Rights
• Settlement for Statutory Damages, Calculated Without Reference to Actual Damages Incurred, Is for Penalty, Not Covered Loss
• Insurer Not Required to Establish Prejudice Under Claims-Made-and-Reported Policies
• Eighth Circuit Rejects Multiple Trigger Theory and Applies Reasonable Expectations Doctrine to Find Coverage Under One Policy Year
• Judgment Creditor Collaterally Estopped by Default Judgment Against Insured
• No Coverage for Complaints Against Insured Law Firm Alleging Improper Withholding of Fees
• Prior Knowledge Exclusion Bars Coverage for Utility’s Failure to Repair Dam
• Breach of Contract Exclusion Bars Coverage for Claims Naturally Resulting from Breach
• False Claims Act Qui Tam Action Over Billing Practices Does Not Involve Professional Services; Claim Is Barred by Fraud Exclusion
• Qui Tam Claim and Anti-Retaliation Claim Based on Alleged False Reporting by Company Are Single Claim
• Trial Court Concludes That Grand Jury Subpoenas Are “Claims”
• FTC Investigation Does Not Constitute a Claim for a Wrongful Act
• No Coverage for Claim First Made Prior to Inception of Claims-Made-and-Reported Policy

June 12, 2013

• New York High Court: Insurer May Not Rely on Policy Exclusions If It Breaches Duty to Defend

May 2013

• Prior Knowledge Exclusion Bars Coverage Where Law Firm’s Mistake Allowed a Seller to Void Client’s Deal
• Fraud Exclusion Bars Coverage for Suit Against Bank Regarding Life Insurance Premium Loans
• Court of Appeals Affirms That “In Fact” Requirement Was Triggered By Jury’s Guilty Verdict
• Claimant May Use Connecticut Direct Action Statute To Sue Carrier After Compromising Claim With Policyholder
• Controlling Shareholder’s Bankruptcy Does Not Render Entity Insolvent; Fraud Claim Uninsurable as a Matter of Law
• Malpractice Actions by Multiple Clients for Separate Services Do Not Constitute Related Claims
• Allegations of Misleading Statements Regarding Scope of Coverage Not Sufficient to Support Insureds’ Fraud Claim
• “Based Upon, Arising From, or In Consequence Of” Language in Exclusion Requires Causal Connection, Not Proximate Causation
• Bond Exclusion and Insured vs. Insured Exclusion Bar Coverage for Claims Against Property Management Company

April 2013

• Chiropractor’s Failure to Warn Against Sexual Assault Not “Professional Services”
• Reporting Condition in Claims-Made-and-Reported Policy Binds Third-Party Claimants
• Sending Unsolicited Faxes “Is Neither the Rendering Nor the Failure to Render Professional Services”
• No Coverage for Contractual Obligation
• E&O Policy Does Not Respond to Lawsuits Filed After the Expiration of the Policy
• Sixth Circuit Holds that Insurer Did Not Waive Right to Rescind Policy
• Dishonesty Exclusion Precludes Coverage for Claim Based in Part Upon Knowingly Wrongful or Fraudulent Acts
• Factual Issues Preclude Application of Prior Knowledge Provision and Exclusions as a Matter of Law
• Insured Entitled To Underlying Defense Costs and Attorney’s Fees for Coverage Litigation Where Insurer Breaches Duty To Defend
• Insurer Waives Right to Allocate Settlement
• Wrongful Acts “Related” If there Is Factual Tie Between Acts
• Professional Services Exclusion in D&O Policy Bars Coverage for Claims Against Financial Advisor

March 2013

• Supplemental Extended Reporting Period Does Not Supplant Automatic Extended Reporting Period
• District Court: “Other Insurance” Provisions Mutually Repugnant and “Loss” Does Not Require That Insureds Pay Settlement
• Missouri Court Holds Coverage for Wrongful Conviction Triggered by Arrest
• Court Rejects Insured’s Motion to Stay Coverage Action Pending Resolution of Underlying Claims
• Prior Notice Exclusion Does Not Bar Coverage Where Notice of Circumstances Was Not Valid Under Prior Policy
• No Common Interest Exception to Attorney-Client Privilege for Insurer Paying Defense Costs
• No Estoppel Because Excess Insurer Has No Duty to Reserve Rights in the Absence of a Duty to Defend
• No Coverage for Breach of Contract Claims
• Excess Policies Do Not Attach When Policyholder Cannot Prove That Settlements with Underlying Insurers Exhausted Policy Limits
• Insured’s Breach of Cooperation Clause Negates Coverage for Underlying Action
• Prior Knowledge Exclusion Inapplicable Where Imputation Unavailable
• Mortgage Backed Securities Are Not “Securities of an Organization”
• “Innocent Insureds” Provision Does Not Bar Rescission

February 2013

• Complaints of Discrimination Based on National Origin Alleging “Same Basic Acts” of Discrimination Deemed Interrelated
• Allegation of Negligence Sufficient to Overcome Handling of Funds Exclusion to Trigger Duty to Defend
• Court Finds Ambiguity Applying Insured v. Insured Exclusion to FDIC Lawsuit
• Prior Knowledge of Previously Affiliated Attorney Bars Coverage for Action Against Insured Law Firm
• Hurricane Damage Claim Barred by Property Damage Exclusion
• California Court Enforces Professional Services Exclusion
• When Other Insurance Provisions Conflict, Standard Escape Provisions Will Not Prevail Over Excess Provisions
• Court Holds That Personal Profit Exclusion Bars Coverage for Claims of Interference with Contract and Violation of Consumer Protection Laws
• Insured Gave Adequate Notice of Potential Claim
• “Additional Insured” Does Not Fall Within Definition of “Insured”
• Policy Affords No Coverage to Law Firm for Claim Arising from Attorney’s Business Enterprise
• Bankruptcy Court Exercises Jurisdiction Over Trustee’s Adversary Proceeding Against Insurer
• Statutory Claim Barred by Contract Exclusion Because It “Arises Out of” Contract

January 2013

• Insurer’s Claim Files Not Discoverable Where Policy Language Found Unambiguous
• Sole Equity Partner of Dissolved Law Firm Held Liable for Judgment
• Federal Court Exercises Jurisdiction Over Insurer’s Declaratory Judgment Action Arising Out of FDIC Demand
• No Duty to Defend Where Insured’s Actions Clearly Fell Within Business Enterprise Exclusion
• Coverage Barred Where Claim Deemed First Made Prior to Policy’s Inception
• First Circuit Reverses Summary Judgment for Policyholder, Holds That Existence of Sexual Harassment Prior to Retroactive Date Is Issue for Factfinder
• Accident During Traffic Stop Is Covered Under Professional Liability Policy, Not Automobile Liability Policy
• Prior Knowledge Exclusion Does Not Apply Where Acts Occurred Before and After Policy Period
• Endorsement Retroactively Terminated Coverage
• Court Dismisses Breach of Contract Claim But Allows Bad Faith Claims to Go Forward Against D&O Insurer
• Application of Insured v. Insured Exclusion Turns on Whether Plaintiff Was in Fact Duly Elected or Appointed as a Director
• Professional Services Exclusion Ambiguous as to Service Not Specified Within Exclusion