On September 7, 2012, the Delaware Supreme Court, applying California law, held that Intel’s excess insurer’s defense obligations were not triggered where Intel had settled with the underlying insurer for less than policy limits and had itself funded the defense fees above the settlement amount and below the underlying insurer’s policy limit. A copy of
Guest Post: More About the Duty to Advance and the Duty to Defend
In an August 27, 2012 post (here), I discussed Central District of California Judge James Selna’s August 21, 2012 decision in Petersen v. Columbia Casualty, and in particular Judge Selna’s consideration of the insurer defendant’s duty to advance under its liability policy. Following my publication of the post, I was contacted by Jeffrey
Guest Post: Cyber Security and Data Breaches — Why Directors and Officers Should Be Concerned
I am pleased to publish below an article by my good friend Richard J. Bortnick (pictured left) concerning the directors’ and officers’ liability issues related to cyber security and data breaches. Rick is a Member of the Cozen O’Connor law firm and he is also the co-author of the CyberInquirer blog. This article first appeared
What to Watch Now in the World of D&O
Every fall since I first started writing this blog, I have assembled a list of the current hot topics in the world of directors’ and officers’ liability. This year’s list is set out below. As should be obvious, there is a lot going on right now in the world of D&O, with further changes just
While You Were Out
Labor Day has come and gone. The kids are back in school. The air is cooler and the nights are longer. There’s a definite autumnal feeling in the air. It is time to get back to work. Fortunately, The D&O Diary kept its eye on things over the summer. So if you are feeling the
The Duty to Advance Defense Expenses vs. The Duty to Defend
There is a host of well established legal principles that govern insurers’ defense obligation under the standard liability insurance policy where the insurer has the duty to defend the insureds. But many professional liability insurance policies are not written on with the duty on the insurer to defend (which is usually described as a “duty
D&O Insurance: Contract Exclusion Precludes Coverage for Negligent and Fraudulent Misrepresentation Claims
In a decision that gives broad effect to a D&O insurance policy’s contractual liability exclusion, on August 17, 2012, Middle District of Pennsylvania Judge William Nealon granted the insurer’s motion for summary judgment, holding under Pennsylvania law that the insurer had no obligation to defend or indemnify the policyholder in the underlying action. A copy
Fidelity Insurance and the Timing of the Employer’s Responsibility for an Employee Defalcation
On August 1, 2011, in a 2-1 decision characterized by a testy but interesting exchange between the majority and the dissent, the Sixth Circuit held that a fidelity policy provided coverage for nearly one million dollars a bank employee stole from client brokerage accounts. For those who (like me) are not regularly involved in fidelity
D&O Insurance: Applying the Insured vs. Insured Exclusion When Plaintiffs Include Both Insured Persons and Non-Insureds
In a June 29, 2012 opinion (here), the Seventh Circuit, applying Illinois law, held that when the defendants in a lawsuit include both persons who are insureds under the defendant company’s D&O policy and persons are not insureds, the policy’s Insured vs. Insured exclusion does not preclude coverage for the entire lawsuit, but only
D&O Insurance: Subsequent IndyMac Bank Claims Interrelated with Prior Suit, Precluding Coverage for Later Claims under Second Insurance Program
One of the perennial D&O insurance coverage questions is whether or not subsequent claims are “interrelated” with a prior claim and therefore deemed first made at the time of the prior claim. This question can be particularly critical when the subsequent claims arose during a successor policy period; the answer to the “interrelatedness” question can