Category Archives: Insurance Coverage
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New York Appellate Court Concludes That Insurer Waived Coverage Defense by Failing to Timely Deny Coverage
Courts in many jurisdictions generally recognize that coverage for an otherwise uncovered claim cannot be created through the doctrine of waiver. A New York appellate court has recently taken a different approach. In Titan Indus. Servs. Corp. v. Navigators Ins. Co., 2024 NY Slip Op 00041 (App. Div. Jan. 4, 2024), the New York ... Read More
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Fifth Circuit Proposes Expansive AI Disclosure Rule
After a pair of New York attorneys were aggressively sanctioned in June by a federal district court for submitting wholly fictional case citations they obtained from ChatGPT, lawyers, and legal scholars around the country, have rapidly become more aware of the dangers associated with irresponsible use of artificial intelligence and generative algorithms. Now, one federal appellate circuit court ... Read More
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Massachusetts Appeals Court Rules That Insured Is Entitled to Recover Costs In Bringing Coverage Suit Against Insurer
In John Moriarty & Assocs., Inc. v. Zurich Am. Ins. Co., No. 22-P-275, 2023 WL 2719362 (Mass. App. Ct. Mar. 31, 2023), the Massachusetts Appeals Court for Middlesex County vacated a lower court’s dismissal of Zurich American Insurance Co (“Zurich”) from a declaratory judgment action brought by John Moriarty & Associates, Inc. (“JMA”), a ... Read More
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Louisiana Federal Court Holds No Coverage for Oil Spill Based on Insured’s Late Notice and Applicability of the Policy’s Pollution Exclusion
In Jaxon Energy, LLC v. Admiral Insurance Company, No. CV 22-940, 2023 WL 2499135 (E.D. La. Mar. 14, 2023), the United District Court for the Eastern District of Louisiana, applying New York law, granted summary judgment to Admiral Insurance Company (“Admiral”) upon finding that the insured, Jaxon Energy LLC (“Jaxon”), failed to provide notice within the timeframe required by its ... Read More
TAGGED: insurance law
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Massachusetts Supreme Judicial Court Declines to Find Common-Law Duty for Insurer to Cover Mitigation Costs
In Ken’s Foods, Inc. v. Steadfast Insurance Co, Case No. SJC-13303 (Mass. Jan. 6, 2023), the Supreme Judicial Court of Massachusetts issued an opinion holding that there is no common law duty for insurers to cover mitigation costs incurred by an insured when the terms of the policy at issue are unambiguous and do not provide for such coverage. The ... Read More
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Colorado Federal Court Finds No Coverage Under Claims-Made Policies After Insured’s Late Notice of Underlying Lawsuits
In National Union Fire Insurance Co. of Pittsburgh, PA v. Estate of Stephen Calendine DDS et al., No. 21-cv-1541, 2022 WL 17486796 (D. Colo. Dec. 7, 2022), the United District Court for Colorado held that the insured failed to meet the notice requirements of his two claims-made and reported policies and that the notice-prejudice ... Read More
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Massachusetts Federal Court Upholds Denial of Coverage for Defense Costs Under an Excess Policy Because Insured Failed to Provide Timely Notice Under a Claims-Made and Reported Policy
In President & Fellows of Harvard Coll. v. Zurich Am. Ins. Co., Harvard University filed suit against Zurich American Insurance Company for defense costs under an excess claims made and reported policy. The United States District Court for Massachusetts sided with Zurich and found that the University failed to timely satisfy the notice requirements ... Read More
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Texas High Court: Extrinsic Evidence Permissible in Limited Exception to Eight-Corners Rule
In a decision issued on February 11, 2022, the Texas Supreme Court, responding to a certified question from the United States Court of Appeals for the Fifth Circuit, held that extrinsic evidence can be considered in determining an insurer’s duty to defend in limited circumstances. In Monroe Guar. Ins. Co. v. BITCO Gen. Ins. Corp., the United States Court of Appeals ... Read More
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Recently Signed New York Law Sets New Mandatory Insurance Disclosures
[Update] On February 25, 2022, Governor Kathy Hochul passed into law Senate Bill 7882 scaling back the Act’s most stringent requirements including, among other things, eliminating the disclosure requirements for defendants in litigation pending prior to the Act’s passage, extending the time to make disclosures from sixty days to ninety days after service of an answer, and removing from disclosures information ... Read More
TAGGED: Insurance, new law, new york, insurance law, new developments, Governor Hochul
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National Survey of COVID-19 Medical Malpractice Immunity Legislation (As of May 24, 2021)
(as of May 24, 2021) [1] The below survey of federal and state legislation, guidance, and executive action provides information regarding enacted and proposed legislation and executive orders issued to provide immunity protections for liability, in certain respects, to health care professionals, facilities, and volunteers in the course of their treatment of individuals during the course of the COVID-19 ... Read More
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National Survey of COVID-19 Medical Malpractice Immunity Legislation (As of March 8, 2021)
[1] The below survey of federal and state legislation, guidance, and executive action provides information regarding enacted and proposed legislation and executive orders issued to provide immunity protections for liability, in certain respects, to health care professionals, facilities, and volunteers in the course of their treatment of individuals during the course of the COVID-19 pandemic and the declared national ... Read More
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National Survey of COVID-19 Medical Malpractice Immunity Legislation (as of January 20, 2021)
Last updated January 20, 2021. [1] The below survey of federal and state legislation, guidance, and executive action provides information regarding enacted and proposed legislation and executive orders issued to provide immunity protections for liability, in certain respects, to health care professionals, facilities, and volunteers in the course of their treatment of individuals during the course of the COVID-19 ... Read More
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National Survey of COVID-19 Medical Malpractice Immunity Legislation (As of November 18, 2020)
National Survey of COVID-19 Medical Malpractice Immunity Legislation (as of November 18, 2020) [1] The below survey of federal and state legislation, guidance, and executive action provides information regarding enacted and proposed legislation and executive orders issued to provide immunity protections for liability, in certain respects, to health care professionals, facilities, and volunteers in the course of their treatment of ... Read More
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National Survey of COVID-19 Medical Malpractice Immunity Legislation
(as of July 17, 2020) [1] The below survey of federal and state legislation, guidance, and executive action provides information regarding enacted and proposed legislation and executive orders issued to provide immunity protections for liability, in certain respects, to health care professionals, facilities, and volunteers in the course of their treatment of individuals during the course of the COVID-19 ... Read More
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Client Alert: New York Assembly Bill Would Repeal State’s Healthcare Immunity Statute Passed in Wake of COVID-19 Citing Concerns Over Nursing Home Conduct
A New York Assemblyman has introduced a bill that would repeal Article D-30, Emergency or Disaster Treatment Protection Act of the New York Public Health Law, which was enacted on April 2, 2020, and provides health care facilities, health care providers, and volunteer organizations from immunity from civil or criminal liability for harm or damages sustained as a result ... Read More
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Client Alert: D.C. Council Declined to Vote on First-of-Its-Kind Legislation Requiring Certain Insurers to Retroactively Cover COVID-19 Business Interruption Losses; Other States Are Still Considering
On Tuesday, May 5, 2020, the D.C. Council declined to vote on a portion of the Coronavirus Omnibus Emergency Amendment Act of 2020, called the Business Interruption Insurance Amendment Emergency Act, which would have required every business interruption and loss of use or occupancy insurance policy currently in force in the District of Columbia be read to cover business ... Read More
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Client Alert: A Summary of Legislative Efforts to Compel Insurers to Pay COVID-19 Related Business Interruption Losses
Small businesses across the country debilitated by the COVID-19 crisis are searching for solutions to shrinking revenue due to nationwide stay-at-home orders. Many businesses believe their insurance should cover their losses, evidenced by a growing wave of litigation against insurance carriers. Small businesses claim that without insurer payouts, they will be unable to re-open and re-hire laid off employees after ... Read More
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Seven Tips for Preparing an Effective Reservation of Rights Letter
An insurer’s reservation of rights letter is often one of the most important documents in insurance coverage litigation. Insurers too often do not prepare coverage position letters that most effectively protect their interests. In a routine, low-value claim, this may not matter much. But in complex or potentially expensive cases, insurers should take extra care to prepare reservation of rights ... Read More
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Client Alert: The Supreme Court of Ohio Ruling in Lubrizol Advanced Materials, Inc. v. National Union Fire Insurance Company of Pittsburgh
The Supreme Court of Ohio agreed to accept the matter of Lubrizol Advanced Materials, Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., Case No. 1:17-cv-01782-DAP (N.D. Ohio) on certified question as to whether an insured is permitted to seek full and complete indemnity under a single policy providing coverage for “those sums” when the property damage occurred over ... Read More
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Supreme Court of Virginia Holds That Insurer is Entitled to Equitable Contribution From Another Covering Insurer and that Consent to Settlement Conditions Are Waived by Denial of Coverage on Other Grounds
In a decision issued on July 18, 2019, the Supreme Court of Virginia vacated a judgment entered in favor of a liability insurer seeking contribution against another liability insurer and remanded the case to the trial court on the grounds that the complaint had stated a claim for equitable contribution. Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exchange, 829 ... Read More
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Changes in Legal Landscape That Could Impact Medical Malpractice Risks | August 2019
In researching and reviewing recent legal developments in the medical malpractice field, Jackson & Campbell, P.C. has identified recent changes in the law and the legal landscape that could impact medical malpractice claims and the risk associated with such cases. Below highlights some of these issues. Impact of Increase in Successful Challenges to Caps on Non-Economic Damages Louisiana (October 2016): Supreme ... Read More
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SCOTUS Opinion: Medicare Act Requires Notice And Comment Before Any Changes To “Medicare Fraction”
Under the Medicare Act, the enforcing agency is required to go through a public notice and comment period before changing any “substantive legal standard” affecting Medicare benefits. 42 U.S.C. sec. 1395hh(a)(2). Under Medicare Part A, the federal government paid hospitals who served low-income patients through a “Medicare fraction,” which was calculated by dividing the time spent by a hospital ... Read More
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Virginia Supreme Court: Collateral Source Rule Can Apply To Contract Cases
In Dominion Resources, Inc. v. Alstom Power, Inc., the U.S. District Court for the District of Connecticut certified the following question to the Virginia Supreme Court: “Does Virginia law apply the collateral source rule to a breach of contract action where the plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the ... Read More
Congratulations to our Attorneys and Practice Groups
Jackson & Campbell, P.C. is proud to announce our 2019 Super Lawyers. Please join us in celebrating Nathan J. Bresee, Richard W. Bryan, Arthur D. Burger, David H. Cox, William E. Davis, Christopher P. Ferragamo, Robert N. Kelly, James N. Markels, Nicholas S. McConnell, and Brian W. Thompson; and ... Read More
What’s in a Name? Well-Known Insurance Coverage Case Concepts That All Claims Handlers and Insurance Coverage Professionals Should Know
By Christopher P. Ferragamo and Susan Knell Bumbalo “You have the right to remain silent. Anything you say or do can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford one, one will be provided to you …” Anyone that has ever watched a crime drama ... Read More
TAGGED: Insurance Coverage Case Concepts, Insurance Coverage Professionals, Miranda rights, Allocation Concepts, Boston Gas Allocation, Carter Wallace Allocation, Keene Allocation, Keyspan Gas East Rule, Lamb-Weston Rule, Holt Demand Letter, Rova Farms Claim, Shamblin Demand, Stowers Demand, Tyger River Doctrine, Morris and Damron Agreements, Bashor and Nunn Agreements, Bashor Agreement, Nunn Agreement, Coblentz Agreement, Miller-Shugart Agreement, Truck Insurance (or “537.065”) Agreement, Truck Insurance Agreement, 537.065 Agreement, Buss Rule, Cumis Counsel, Monstrose (Known Loss) Doctrine, Peppers Counsel, Peppers Doctrine, Mighty Midgets Rule, White Waiver, Wilton/Brillhart Abstention Doctrine
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Decisions, March 2019, Volume 5, Issue 2
Christopher P. Ferragamo, a Director in Jackson & Campbell, P.C.'s Insurance Coverage Practice Group, prepares a bi-monthly newsletter that addresses healthcare issues and healthcare coverage issues called Decisions. Read the latest issue here. Please see below for prior issues of Decisions: January 2019 - Volume 5, Issue 1 November 2018 - Volume 4, Issue 6 September 2018 - Volume ... Read More
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Virginia Supreme Court: Newly-Acquired Subsidiary Does Not Receive Coverage Under Owner’s Property Insurance
After EPC MD 15, LLC purchased commercial property fire insurance from Erie Insurance Exchange, it purchased another company that owned a separate building on another property. The new subsidiary was not a named insured under the original policy. When that building sustained fire damage, EPC submitted a claim, claiming that the purchase of the subsidiary made the subsidiary’s property “newly ... Read More
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Susan Knell Bumbalo article published in DRI’s For the Defense
Susan Knell Bumbalo, an attorney in our Insurance Coverage group, wrote an article entitled "Examining Insurers' Obligations to Their Insureds Post-Verdict", which appears in this month’s edition of DRI’s For the Defense. The article addresses insurer’s duty to appeal and issues associated with various issues that arise when insureds/insurers face an adverse jury verdict. The article is a good roadmap and ... Read More