Legal Insights for the Insured

Pennsylvania Supreme Court Holds That Insured May Settle Tort Claim Without Insurer Consent Under “Fair and Reasonable” Standard

In Babcock & Wilcox Co. v. American Nuclear Insurers, a divided Supreme Court of Pennsylvania, deciding an issue of first impression under Pennsylvania law, recently held that when an insurer defends its insured subject to a reservation of rights, the insured may accept a settlement over the insurer’s refusal where the settlement is fair, reasonable, and non-collusive. This is a significant statement of policyholder rights in an area that regularly generates litigation.

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Montana Joins Majority of Courts Holding That Insurers Must Establish Prejudice to Disclaim Coverage Based on an Insured’s Late Notice

Joining a majority of states that have addressed the issue, the Montana Supreme Court recently held that “an insurer who does not receive timely notice required by the terms of an insurance policy must demonstrate prejudice from the lack of notice in order to avoid the obligation to provide defense and indemnification of the insured.” The case, Atlantic Casualty Insurance Co. v. Greytak, involved a policyholder that provided notice to its insurer over a year after receiving a letter notifying the policyholder of potential claims against it.

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Policyholder Warning: What One Provision Giveth (Defense Costs), Another Provision May Taketh Away

Professional liability insurance policyholders often breathe a sigh of relief when their insurer begins funding the costs of defending against a civil claim or government investigation. That is one of the reasons they bought the insurance in the first place! However, as one policyholder recently learned, just because the insurer advances defense costs doesn’t mean that the policyholder can forever close its books on those costs. In Protection Strategies, Inc. v. Starr Indemnity & Liability Co., after several former executives of the insured pled guilty to criminal charges – triggering various exclusions in the policy – the Fourth Circuit allowed the insurer to recover all of the defense costs it had advanced to its insured.

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Louisiana Supreme Court Holds That Statute May Confer Broad Duties On Insurers

In Kelly v. State Farm Fire & Casualty Co., the Supreme Court of Louisiana recently held that an insurer can be liable for bad faith failure to settle a claim even if it has not received a firm offer to settle the claim. The court also held that the insurer could be liable for misrepresenting any pertinent facts, not only facts relating to coverage. Together, these holdings may cause carriers issuing policies under Louisiana law to consider carefully their claim handling practices.

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Bank Bond Covers Third-Party Losses Arising out of Bank Employee’s Fraud, Eighth Circuit Holds

Fidelity bonds are purchased primarily to protect against loss to the policyholder’s own assets, from things like employee theft or embezzlement. In Avon State Bank v. BancInsure, Inc., however, the Eighth Circuit interpreted the language of a bank’s fidelity bond to provide broader coverage, holding that the bond indemnified Avon State Bank for liability to third parties arising from an email scam.

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New Jersey State Court Rules Damage Caused by Superstorm Sandy Not Subject to Flood Sublimit

In a decisive victory for policyholders, Judge Thomas Vena of the Essex County Superior Court in New Jersey ruled that significant damages incurred by Public Service Enterprise Group Inc. (“PSEG”) as a result of storm surge flooding caused by Superstorm Sandy were not subject to the relevant policies’ sublimit of $250M for losses caused by “flood.” Continue Reading

Protecting Directors and Officers From Derivative Liability Arising From Data Breaches

With data breaches affecting companies across virtually every industry, cyber security has remained front page news. Lawsuits brought by aggrieved consumers and financial institutions against companies that have suffered data breaches are not uncommon. Increasingly, companies are also being subjected to shareholder derivative suits against directors and officers alleging breach of fiduciary duty relating to a data breach. As a result, corporate boards should Continue Reading

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