First Circuit Limits Insurers’ Right to Recoup Defense Costs or Settlement Payments
April 02, 2024 —
Eric Hermanson, Austin Moody & Victoria Ranieri - White and Williams LLPWeighing in on an issue that has divided courts nationwide, the U.S. Court of Appeals for the First Circuit has ruled that an insurer under Massachusetts law has no right to recoup defense costs, or amounts the insurer pays in settlement – even if the insurer reserves rights prior to payment and obtains a ruling, after the fact, that no defense or indemnity was owed. Berkley Natl. Ins. Co. v. Atlantic-Newport Realty LLC, No. 22-1959, 2024 U.S. App. LEXIS 4115 (1st Cir. Feb 22, 2024) (“Granite Telecomm"). However, the First Circuit rested its ruling on narrow procedural grounds, which may prolong the controversy rather than resolve it.
The insureds in Granite Telecomm owned a company cafeteria. They were sued by a food service worker who suffered a foot infection after being exposed to bacteria during a sewage backup. They sought coverage from their insurer, Berkley. Berkley argued that coverage was barred by a fungus and bacteria exclusion in the policy. The insureds disagreed. They threatened suit under M.G.L. ch. 93A, and demanded that Berkley defend the case.
Reprinted courtesy of
Eric Hermanson, White and Williams LLP,
Austin Moody, White and Williams LLP and
Victoria Ranieri, White and Williams LLP
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
Ms. Ranieri may be contacted atranieriv@whiteandwilliams.com
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IRMI Expert Commentary: Managing Insurance Coverage from Multiple Insurers
May 11, 2020 —
Gregory D. Podolak, Philip B. Wilusz & Ashley McWilliams - Saxe Doernberger & VitaWhat do you do when less is more? In many loss scenarios, triggering coverage under multiple policies can be a critical and effective strategy. However, doing so has the potential to complicate the insurance recovery proceedings immensely, and possibly even undermine those overall goals. The relation of "other insurance" clauses, allocation schemes, and the practical impacts of interacting with multiple insurers can all leave the insured with some difficult questions.
We present here several scenarios that illustrate how these concerns can arise and how they should be addressed to avoid running into what The Notorious B.I.G.—had he been a coverage lawyer—would have called "The More Coverage We Come Across, the More Problems We See."
The "Other Insurance" Issue
This first scenario is where a single-year loss implicates multiple lines of coverage. Consider the following: a general contractor (GC) faces a property damage liability claim from an owner. As a prudent insured, the GC notifies its customary first line of defense, its commercial general liability (CGL) insurer, to provide a defense. As knowledge of the claim evolves, it appears an element of pollution may be involved. The GC also places its pollution insurer on notice. Later, it's determined that the GC may have a professional liability exposure, so it tenders a claim to its professional liability insurer. Now assume that each insurer accepts coverage.
Reprinted courtesy of Saxe Doernberger & Vita attorneys
Gregory D. Podolak,
Philip B. Wilusz and
Ashley McWilliams
Mr. Podolak may be contacted at gdp@sdvlaw.com
Mr. Wilusz may be contacted at pbw@sdvlaw.com
Ms. McWilliams may be contacted at amw@sdvlaw.com
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Montana Federal Court Holds that an Interior Department’s Federal Advisory Committee Was Improperly Reestablished
December 09, 2019 —
Anthony B. Cavender - Gravel2GavelOn August 13, 2019, in a case that may have an impact on the leasing of federal lands for energy development in the future, the U.S. District Court for the Missoula, Montana Division, issued a ruling in the case of Western Organization of Resource Councils v. Bernhardt, which involves the application of the Federal Advisory Committee Act (FACA) to the Department of the Interior’s Royalty Policy Committee. This advisory committee, initially established in 1995 to provide advice to the Secretary on issues related to the leasing of federal and Indian lands for energy and mineral resources production, is subject to the provisions of FACA, codified at 5 U.S.C. app. Sections 1-16. The plaintiffs challenged the operations of this advisory committee, which was reestablished for two years beginning in 2017, because it allegedly “acts in secret and works to advance the goals of only one interest: the extractive industries that profit from the development of public gas, oil, and coal.” More specifically, the plaintiffs alleged that this advisory committee violated FACA because: (a) it was not properly established as provided in the implementing GSA rules (which are located at 41 CFR Section 102-3); (b) did not provide public notice of its meetings and publicly disseminate its materials; (c) ensure that its membership was fairly balanced; and (d) failed to exercise independent judgment without inappropriate influences from special interests.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
No Coverage Under Property Policy With Other Insurance and Loss Payment Provisions
September 17, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe court determined that the other insurance and loss payment provisions relieved the insurer of coverage obligations. Moroney Body Works, Inc. v. Central Ins. Co., 2015 Mass. App. LEXIS 97 (Aug. 6, 2015).
A fire destroyed Moroney's custom-built bookmobile that had just been completed. Moroney had two policies: a commercial property policy issued by Central, and a garage insurance policy issued by Pilgrim Insurance Company. Central denied liability for the bookmobile. Pilgrim covered the cost of repairing the bookmobile. It paid $12,449.82 based on the appraiser's estimate of the repair costs. Moroney thought this amount was inadequate given its own estimate of the repair costs.
Moroney sued both insurers. Pilgrim settled by paying Moroney an additional amount which, when added to Pilgrim's earlier payment, resulted in Moroney receiving more than the repair cost. Moroney and Central both moved for summary judgment. The trial court granted Moroney's motion.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Meet the Forum's Neutrals: TOM DUNN
October 21, 2024 —
Marissa L. Downs - The Dispute ResolverCompany: Pierce Atwood LLP
Office Location: Boston, MA
Licensed in: Massachusetts, Rhode Island, California (inactive)
Email: rtdunn@pierceatwood.com
Website: https://www.pierceatwood.com/people/r-thomas-dunn
Law School: McGeorge School of Law (2004 JD)
Types of ADR services offered: Arbitration
Affiliated ADR organizations: American Arbitration Association
Geographic area served: Massachusetts, Rhode Island, and New England
Q: Describe the path you took to becoming an ADR neutral.
A: Arbitration and alternative forms to avoid and resolve disputes has interested me since law school. Serving as an arbitrator is rewarding both as a neutral helping people close out disputes, but also as an advocate as it reminds me about how best to communicate with the fact finder.
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Marissa L. Downs, Laurie & Brennan, LLPMs. Downs may be contacted at
mdowns@lauriebrennan.com
A Word to the Wise: The AIA Revised Contract Documents Could Lead to New and Unanticipated Risks - Part II
October 16, 2018 —
George Talarico - Construction ExecutivePart I addressed general conditions, revised insurance terms, revisions that affect owner’s required insurance and revisions that affect contractor’s required insurance.
REVISIONS THAT AFFECT DISPUTE RESOLUTION
A seemingly minor but noteworthy change is to the definition of “Claim.” Under Section 15.1 a “Claim” is defined to:
- include a request for a modification of contract time; and
- exclude any requirement that an owner must file a claim to impose liquidated damages.
Notably, any request relating to contract time must be brought within the specified time period for Notice of Claim and in the prescribed manner. There are at least two traps for the unwary. First, even though email is regularly used for communications among the parties, the revised contract documents do not recognize email as an acceptable form of delivery of a Notice of Claim. Second, an unwary contractor may wrongly assume that an owner’s failure to assert a claim for LDs means that LDs will not be imposed. This may lull the contractor into failing to timely assert its own claim for a time extension and thereby waiving its ability to do so.
Reprinted courtesy of
George Talarico, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Talarico may be contacted at
gtalarico@sillscummis.com
Creeping Incrementalism in Downstream Insurance: Carriers are Stretching Standard CGL Concepts to Untenable Limits
October 17, 2023 —
Eric M. Clarkson - Saxe Doernberger & VitaIn the construction sector, the importance of closely vetting downstream parties’ insurance has never been more critical. The markets have been hardening with no seeming end in sight and carriers are looking for any way to get an edge. Owners and general contractors need to be on the lookout for ever broader carrier-specific expansions of standard insurance provisions that are perilous for risk transfer. We are seeing more and more terms that go against the intent of ISO standard which is what is almost universally required in construction contracts.
One area where carriers are deviating from standard concepts is within pre-existing injury or damage exclusions in Commercial General Liability (“CGL”) policies. It is almost a universal requirement that downstream parties provide additional insured coverage to owners and general contractors on ISO form CG 00 01. Generally, ISO standard language provides coverage for sums the insured becomes legally obligated to pay as damages because of bodily injury or property damage. One of the few main requirements to trigger coverage is that the injury or damage must occur during the policy period. Over the years, ISO standard language has evolved to exclude injury or damage if an insured or certain persons knew that it had occurred before the policy period. Additionally, injury or damage is deemed to have been known to have occurred under certain circumstances.
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Eric M. Clarkson, Saxe Doernberger & VitaMr. Clarkson may be contacted at
EClarkson@sdvlaw.com
Godfather Charged with Insurance Fraud
July 01, 2011 —
CDJ STAFFTexas-based Godfather Construction is a recipient of a fraud suit from the Cook County state attorney’s office. The firm incorporated in Illinois in April 2010, moving there to do business after storms damaged homes in the Chicago suburbs, according to a report in the Chicago Tribune. The state attorney alleges that Godfather brought unlicensed out-of-state workers and the work they performed was “incomplete or shoddy.” Godfather is claimed to have received about $60,000 from Illinois homeowners. The prosecutors are seeking restitution for Godfather’s clients and seek to forbid the firm from doing business in Illinois.
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