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In a victory for policyholders, a recent decision from the Western District of Texas narrowly construed a common breach-of-contract exclusion and held that the insurer had a duty to defend its insured against an underlying lawsuit over construction defects. The allegations potentially supported a covered claim, as the conduct of the insured’s subcontractor could have been an independent, “but for” cause of the property damage at issue, thereby triggering the insurer’s duty to defend.…
A New York district court has held that an insurer must provide coverage under three excess insurance policies issued in 1970 for defense and cleanup costs incurred by Olin Corporation in remediating environmental contamination at seven sites in Connecticut, Washington, Maryland, Illinois, New York, and Washington. Seven of the remaining sites at issue presented questions of fact for trial, with only one site being dismissed due to lack of coverage.…
A Connecticut court recently denied a motion to compel appraisal of a claim for coverage of a commercial property damage claim, holding that, where the insurance policy at issue provides for appraisal of disputes related to the value or quantum or a loss suffered—not the rights and liabilities of the parties under the policy—appraisal is premature. The decision relied on law that equates insurance appraisal to arbitration and follows a number of decisions holding that…
May 25, 2018 should be a day circled on many company calendars. On that day, the European Union’s long-awaited Global Data Protection Regulation (“GDPR”) will go into effect.  It is crucial for U.S. companies to prepare for the GDPR, as they, too, will be required to comply with a new set of data privacy rules if they are handling data from EU-based customers, suppliers, or affiliates. As long as you collect personal or behavioral…
On April 20, 2018, the Eleventh Circuit affirmed an Alabama district court decision finding that an “absolute pollution exclusion” did not bar coverage for environmental property damage and injuries from a sewage leak. Evanston Ins. Co. v. J&J Cable Constr., LLC, No. 17-11188, 2018 WL 1887459, (11th Cir. Apr. 20, 2018).…
Two recent decisions addressing allocation of long-tail liabilities demonstrate that resolution of the issue under New York law depends upon the policy language at issue. Judge-made rules on “equity” and “fairness” do not control.  As the New York Court of Appeals held on March 27, 2018, in Keyspan Gas East Corp. v. Munich Reinsurance America, Inc., 2018 WL 1472635 (2018), under New York law, “the method of allocation is covered for most by the particular…
In this final post in our Hunton & Williams Bermuda Form Arbitration Series, we discuss case law involving the Bermuda Form.  As explained in a prior post, the Bermuda Form includes an arbitration clause specifying that disputes be submitted to arbitration in London under the English Arbitration Act, but applying the substantive law of New York. The natural consequence of this arbitration provision is that reported decisions analyzing the substantive provisions of the…
Earlier this month, the California Supreme Court agreed to review Montrose Chemical Corporation’s appeal from a September appellate court ruling that rejected Montrose’s preferred “vertical exhaustion” method of exhausting excess-layer policies in favor of a policy-by-policy review to determine which policies are triggered. The California high court’s grant of Montrose’s petition for review is potentially significant in clarifying the appropriate excess policy exhaustion trigger under California law, not to mention in addressing a significant insurer…
A prior post in the Blog’s Bermuda Form Arbitration Series discussed several strategic considerations for the discovery and briefing stages of Bermuda Form arbitrations. This post focuses on the final stages of arbitration: The final hearing, and awards of interest and costs. *                      *                      * The Final Hearing The presentation of evidence in the “final hearing” of a London arbitration differs substantially from traditional trial practice in the United States. A party’s direct or affirmative…