The Meaning of Broadcasting and Its Application to a Media Exclusion

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When is broadcasting broadcasting as opposed to transmission? And is there a difference? That was the question before the court on an appeal from a judgment that an insurer did not have to defend its insured in a copyright infringement suit. The question was pertinent because of a media exclusion in the policy.

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Insurance Coverage Only Goes So Far

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It should be pretty obvious that you only get the insurance you ask and pay for. Yet, sometimes coverage is sought well beyond the scope of the policy. In a recent case, the court made short work of the issue, but nevertheless the case went all the way to an appeals court even though it was obvious there was no coverage.

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Insured vs Insured Exclusion Precludes Coverage

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In many insurance policies, particularly directors and officers liability policies, coverage is precluded if one insured brings a claim against another insured. But what happens if one of the named plaintiffs is not an insured party? A recent Sixth Circuit Court of Appeals case addresses this issue.

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Weapons Exclusion Precludes Coverage


Courts are tough on exclusions but when an exclusion is clear it will preclude coverage. In a recent case, an exclusion for bodily injury arising out of weapons resulted in a coverage case being dismissed

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Brokers and Insurers Prevail in COVID-19 Coverage Action

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There is no question that the COVID-19 restrictions imposed by local and state governments have had an unintentional but devastating effect on businesses both large, medium and especially small. Restaurants, movie theaters, live entertainment, sports. gyms, salons and many other businesses have closed because of the lack of business. While many of these businesses purchased insurance with coverages for business income and extra expense, the lack of direct physical loss of or damage to property has meant that these policies, for the most part, do not cover the loss of business caused by the government shut-down orders.

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Broad Policy Endorsement Dooms Motion to Dismiss in COVID-19 Case

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COVID-19 business interruption rulings periodically have interesting quirks worth discussing. While the majority of cases are being dismissed at the pleading stage, some are not for various reasons. In a recent Ohio state court case, the motion to dismiss on the pleadings was denied in major part because of an endorsement expanding coverage in a business property policy for a restaurant.

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While the COVID-19 Dismissals Pile Up, the Allegations May Matter

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It’s been since September that I have blogged about business income and extra expense and civil authority order insurance coverage for COVID-19 closures and the multiple court cases addressing motions to dismiss. That’s because the cases have been coming down by the dozen, mostly, but not always, on the side of the insurance carrier.

In one of the recent cases, another motion to dismiss the complaint granted with prejudice in favor of the insurer, the court’s analysis was extremely thorough and persuasive. But what struck me most was the court’s commentary on the differences chosen by policyholder counsel in articulating the allegations in the complaint. Those differences are obvious and, although I have not done a statistical analysis, it appears those differences often account for the reasons why some courts have not dismissed these COVID-19 cases. What do you think?

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Timely Notice Is Required Under a Claims-Made Policy in New York

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Claims-made policies were created to bring more certainty to the insurance relationship. The policies apply generally to claims that are incurred and reported during the policy period or any extended reporting period. If the claim is not reported on time, there is no coverage.

This contractual result often clashes with statutory provisions, like that in New York, which preclude an insurance company from avoiding its obligations because of late notice of claim unless there is prejudice. See N.Y. Ins. Law § 3420(a)(5). In a recent decision, a New York intermediate appellate court made it clear that a claims-made policy still requires timely notice.

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Primary Insurer Loses Failure-to-Settle Dispute to Excess Insurer

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An interesting thing sometimes happens when a policyholder with a tower of insurance is sued and settlement discussions involve members of the insurance tower. The excess insurers may look to the primary insurer to defend the claim and to run point on the settlement. The primary insurer, where it is clear that the settlement will be well above the primary insurance limits may look to the excess insurers to lead the settlement discussions. But what happens if the case is not settled and the verdict impacts the excess layers? Does an excess insurer have any recourse if the primary insurer failed to settle the case?

In a recent case in the Eleventh Circuit Court of Appeals, the court found in favor of an excess insurer and against the primary insurer on a failure-to-settle dispute.

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When Claims-Made Primary and Occurrence Excess Policies Clash

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Decades ago, professional liability policies, like most liability policies, were written on an occurrence basis. If a claim was incurred during the insurance policy period, the policy would respond to the claim regardless of when the claim was made against the defendant and noticed to the insurance company. As we know from environmental and asbestos claims, that can take decades.

Then along came claims-made polices. Under a typical claims-made policy, if a claim is made against the defendant and reported to the insurance company during the policy period, that insurance policy will respond to the claim regardless of when the occurrence took place (as long as the claim occurred after the policy’s retroactive date). If the claim was made after the policy period and , that policy would

In New York, legislative and regulatory efforts to keep medical professionals practicing in New York led to a quirky medical malpractice insurance system where most primary medical malpractice policies were claims-made policies, but New York medical professionals were provided with excess policies written on an occurrence basis.

This leads to a recent case that explored the issues that arise when occurrence-based excess policies sit on top of claims-made primary policies.

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