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The cooperation clause in an insurance policy is an essential part of the insurance bargain.  If the policyholder does not cooperate in the reporting or investigation of a claim, the coverage the policyholder paid for may be lost.  In a recent case, a policyholder whose employees lied to investigators was found to have breached the cooperation clause and the insurer was relieved of its duty to indemnify the policyholder.…
It is pretty common for D&O and E&O and other professional liability claims-made policies to have exclusions that preclude coverage for incidents that took place and were noticed prior to the inception of the policy.  Unless the policyholder has purchased “nose” coverage or has a retroactive date that goes back far enough, a prior noticed claim will not be covered by a current policy.  Additionally, these same policies typically have related claim provisions that tie…
Typically, a fire insurance policy pays a policyholder for the actual cash value or the replacement value of the property destroyed.  But in 20 states, if there is a total loss, the amount the insurer must pay is equal to the value of the property at the time the insurance policy was issued.  What happens if the policy covers a multi-building complex and one of the buildings is destroyed?  The Eighth Circuit Court of Appeals…
Superstorm Sandy was devastating to many people.  Those who had flood insurance through the National Flood Insurance Program (“NFIP”) obtained some additional relief.  But the NFIP, through the Standard Flood Insurance Policy (“SFIP”), has limits and requirements that cannot be ignored.  And apparently, the relaxation of some of those requirements for the purpose of expediting claims after Superstorm Sandy was not a waiver of one of the more important requirements:  the Proof of Loss.…
The policyholder bears the burden of demonstrating that a loss suffered falls within the terms of the insurance policy.  In other words, the existence of coverage is an essential part of a policyholder’s claim.  Where the insurance company raises an exclusion, the initial burden is on the insurer to show that all the allegations within the complaint fall completely within the exclusion.  Many homeowner’s and other property policies have exclusions for losses caused by water…
Environmental damage claims are often very technical.  Those technical aspects tend to permeate insurance coverage disputes.  This is especially true where the policyholder seeks coverage in the face of a pollution exclusion.  As we know, the pollution exclusion has evolved over the years.  Some pollution exclusions are not absolute and provide coverage for discharges that are “sudden and accidental.”  Proving that contamination found at an industrial site resulted from sudden and accidental discharges of chemicals…
The Supremacy Clause of the U.S. Constitution nullifies state laws that conflict with federal law and treaties of the U.S.  But, under the McCarran-Ferguson Act, state insurance law reverse preempts federal law that interferes with the business of insurance as regulated by the states.  This issue comes up in conflicts between anti-arbitration provisions in certain state’s insurance laws and the Federal Arbitration Act (the “FAA”).  But what happens if it is not the FAA,…
Notice provisions in insurance policies are there to inform an insurer of a claim in a timely manner so that the insurance company can properly investigate and address the claim.  Most notice provisions are conditions precedent to an insurer’s liability. While there has been some erosion to the defense of late-notice to coverage, a recent case shows that late notice is still a viable defense if you have the right facts.…
The US Supreme Court’s pronouncements on class arbitration have little to do with reinsurance arbitrations.  But, when the Supreme Court speaks on arbitrations and construes the Federal Arbitration Act (“FAA”), there may be statements or even holdings by the court that could affect aspects of reinsurance arbitrations, so we pay attention.  In the most recent class arbitration decision, the Supreme Court provided some useful tidbits.…
Some reinsurance contracts have a provision in the arbitration clause that allow the parties to ask a court to appoint the umpire if the parties cannot agree on the selection of one.  A court’s analysis of the candidates and whether they are qualified or should be disqualified from consideration as an umpire is always interesting for those who know the candidates and their backgrounds.  It is a bit like vetting umpire questionnaires and ranking candidates,…