Insurance Coverage

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As I have frequently noted on this site, Delaware’s courts have a well-earned reputation for being policyholder friendly. Accordingly, policyholders aiming to sue their insurers frequently seek to file their coverage lawsuits in Delaware. However, a recent ruling in a coverage dispute, in which the Delaware Superior Court concluded it lacked personal jurisdiction over two of the defendant insurers, underscores the fact that there are limits on the circumstances on which insurers can hauled into Delaware’s courts. The Delaware Superior Court’s February 19, 2025, opinion in the case can be found here. A February 27, 2025 LinkedIn post by Paul Curley of the Kaufman, Borgheest & Ryan law firm about the court’s ruling can be found here.Continue Reading Limits of Delaware Courts’ Personal Jurisdiction Over Non-Resident Insurers

In the following guest post, Sarah Abrams, Head of Claims Baleen Specialty, a division of Bowhead Specialty, Anne Ray, Lead Counsel of D&O and EPL Claims, Bowhead Specialty Underwriters, Inc., Elan Kandel, Member, Bailey Cavalieri LLC, and James Talbert, Associate, Bailey Cavalieri LLC, take a look at the top professional liability insurance coverage decisions from 2024. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article.Continue Reading Guest Post: Lessons from 2024: A Review of Key Insurance Coverage Decisions

In the following guest post, Syed S. Ahmad, Geoffrey B. Fehling and Evan J. Warshauer of Hunton Andrews Kurth LLP’s Insurance Coverage Group analyze a New York federal judge’s recent decision to grant an insured’s motion to transfer venue in a coverage matter, highlighting key considerations related to forum selection and related strategy. This article was originally published on October 4, 2024 online with Westlaw Today. Reproduced with permission from Thomson Reuters. Further duplication is prohibited.Continue Reading Guest Post: New York Federal Court Reinforces Importance of Forum Selection for Insurance Disputes

As readers know, issues surrounding the timeliness of notice of claim are among the most frequently litigated insurance coverage issues. Notice of claims delays occur for many reasons; sometimes, for example, the policyholder does not recognize a particular matter as constituting a claim within the meaning of the policy; sometimes there are process or communications issues that interfere with notice timeliness.

In a recent case and that touches on many of these issues, the Second Circuit, applying New York law, held that an earlier demand letter met the policy’s claim definition, and that the question of whether the provision of notice of claim on Monday morning just after the Saturday expiration of the policy was untimely must be remanded for further consideration by the district court. This case is a cautionary tale in many ways and provides an appropriate occasion to review of some of the first principles of claim notice. The Second Circuit’s August 13, 2024, Summary Order can be found here. (Hat Tip to Geoff Fehling of the Hunton Andrews Kurth law firm for his August 15, 2024 LinkedIn post about the decision, here).Continue Reading Thinking About Notice of Claim Timeliness

Policyholders are often surprised when their professional liability insurers contend they (that is, the insurers) have the right, after a determination of non-coverage, to seek recoupment of amounts paid under the policy. These disputes can be controversial enough even when the policy expressly provides the insurer with the right to seek recoupment; the controversy is greater when the policy does not expressly provide for recoupment but the insurer nonetheless seeks reimbursement in reliance on its reservation of its rights to seek recoupment.

A recent decision by the Sixth Circuit, applying Michigan law, explored these issues and ultimately affirmed the district court’s ruling that the insurer was entitled to recoup amounts paid in defense after the underlying complaint was amended to remove the only covered claims, even though the policy contained no express recoupment provision. The appellate court’s decision raises several interesting issues, as discussed below. A copy of the Sixth Circuit’s April 8, 2024, opinion can be found here. (Hat tip to Geoffrey Fehling of the Hunton Andrews Kurth law firm whose LinkedIn post linked to the appellate opinion, here).Continue Reading 6th Circ. Affirms Insurer’s Recoupment Right Even Without Express Policy Grant

In the following guest post, Anne Catapano, VP Financial Lines Claims, Ascot Insurance Company, Christina Errico, VP, Professional Liability Claims Manager, Ascot Insurance Company, Elan Kandel, Member, Bailey Cavalieri LLC, James Talbert, Associate, Bailey Cavalieri LLC and Tyler Hopkins, Associate, Bailey Cavalieri LLC, review the past year’s key management and professional liability insurance coverage decisions. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article.Continue Reading Guest Post: Year in Review: 2023 Key Management and Professional Liability Insurance Coverage Decisions

Section 533 of the California Insurance Code provides that an insurer is not liable for loss caused by an insured’s willful act. The applicability and impact of Section 533 are frequently litigated issues in insurance coverage cases to which California law applies. The following guest post surveys the recent significant case law involving Section 533. The article’s authors are Marisa DeMartini, Vice President, Management Claims Liability Manager, Ascot Insurance Company, James Talbert, Associate, Bailey Cavalieri LLC and Elan Kandel, Member, Bailey Cavalieri LLC. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is the author’s article.Continue Reading Guest Post: 2023 Survey of Significant Decisions Involving California Section 533

In an insurance coverage dispute arising out of an unusual underlying criminal proceeding, the Fourth Circuit Court of Appeals, applying Maryland law, has held that a Maryland attorney indicted for his alleged actions on behalf of certain Somalian entities is not entitled to insurance for his fees incurred in defending against the indictment. The Court’s decision raises interesting issues about the applicable professional liability insurance policy’s definition of Claim and the definition’s application in the context of the attorney’s criminal proceedings. A copy of the Fourth Circuit’s January 4, 2024 opinion can be found here.Continue Reading Attorney’s Post-Indictment Defense Fees Not Covered Under Professional Liability Policy

Frank Hülsberg
Burkhard Fassbach

In the following guest post, Burkhard Fassbach and Frank Hülsberg take a look at alternative litigation risk insurance products. These products allow insurance buyers to manage risks arising from known litigation. Frank is a Chartered Accountant and Tax Advisor in Dusseldorf, Partner and Member of the Executive Board at ADKL AG Wirtschaftsprüfungsgesellschaft in Germany and Burkhard is a D&O lawyer in private practice in Germany. I would like to thank Burkhard and Frank for allowing me to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Burkhard and Frank’s article.Continue Reading Guest Post: Eye on Litigation Risk Insurance

Policyholders and their representatives have long pushed to have the definition of “claim” in professional and management liability insurance policies expanded, to bring an increasingly larger kinds of circumstances within the policies’ coverage. However, there are consequences when more kinds of circumstances constitute a “claim,” such as, for example, with respect to the claims-made date and notice obligations. A recent insurance coverage ruling by a New York state court interpreting a lawyers’ professional liability insurance policy underscores how an expanded definition of the term “claim” — in this case, pertaining to a request to toll the statute – can affect the availability of coverage. The court, applying New York law, determined that a tolling request prior to the policy period met the applicable policy’s definition of claim, and therefore, because the claim was first made before the policy incepted, the subsequent claim during the policy period was not covered.Continue Reading Tolling Agreement Prior to the Policy Period Precludes Coverage for Later Claim