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
It is a standard D&O insurance policy feature that if two claims are “related” within the meaning of the policy then they are “deemed” a single claim first made at the time of the earlier claim. However, in a recent coverage dispute, a Delaware court held, in reliance on policy language the court found to be clear and unambiguous, that two related claims were deemed first made not at the time the earlier claim but rather during the policy period of the policy in force at the time the later claim was made. Confused? Read on!Continue Reading Two Claims Related But Deemed Made During the Later Claim’s Policy Period
In an interesting decision that explores the standard to be used in determining whether an earlier claim and a later claim are interrelated, the Delaware Supreme Court has affirmed a lower court ruling that a later filed opt-out action is related to a securities lawsuit earlier filed against First Solar, and therefore that the opt-out action is not covered under the D&O insurance program in place at the time the opt-out action was filed. Interestingly, the Supreme Court affirmed the lower court even though the appellate court held that the lower court had erroneously applied a “fundamentally identical” standard to the relatedness question rather than the relatedness standard defined by the policies. The Delaware Supreme Court’s March 16, 2022 opinion can be found here.
Continue Reading Del. Supreme Court: Opt-Out Action “Related” to Securities Class Action, Precluding Coverage
In a June 23, 2021 opinion (here), a Delaware Superior Court Judge held that a subsequent opt-out action is interrelated with the prior securities class action lawsuit; that the opt-out action claim is deemed made at the time of class action suit’s filing; and therefore that the D&O insurers whose policies were in force at the time the opt-out action was filed do not have coverage for the opt-out action. The court’s conclusion that an opt-out action is interrelated with the underlying class action lawsuit arguably is unremarkable, but, as discussed below, there are features of this dispute and of the court’s ruling that make the court’s decision noteworthy.
Continue Reading Opt-Out Action Held Interrelated with Underlying Securities Class Action Suit
As the policy definition of the term “Claim” has expanded in recent years, the range of incidents and procedures for which the policyholder must provide notice to the insurer has also grown. Among the recent expansions has been the inclusion in many policies of a “subpoena” within the meaning of the term “Claim.” As a result, a policyholder’s failure to notify its insurer of a “subpoena” could imperil coverage for a later related lawsuit. However, as a federal district court recently held, applying New York law, the notice requirement is not triggered if the prior “subpoena” does not meet the professional liability insurance policy’s definition of the term “claim,” and, the court further held that the failure to notify the insurer of the subpoena did not preclude coverage for a later suit. The court’s decision sheds interesting light on a number of frequently recurring coverage issues.
Continue Reading Not Providing Notice of Subpoena That Wasn’t a Claim Doesn’t Bar Coverage for Later Lawsuit
In numerous prior posts, I have meditated on the meaning of “relatedness” and what it takes to make two claims sufficiently similar that they should be treated as the same claim. That was the question that a Pennsylvania federal district court addressed in a recent decision in an insurance coverage dispute. As discussed below, on January 27, 2020, Eastern District of Pennsylvania Judge Timothy J. Savage, applying Pennsylvania law, concluded that, despite overlaps, a subsequent shareholder derivative suit was not sufficiently related to another shareholder’s prior demand letter and lawsuit to preclude coverage for the later claim. The court’s decision provides abundant grounds for further ruminations on the meaning of relatedness.
Continue Reading Despite Factual Overlap, Later Claim Unrelated to Prior Demand and Suit
In a noteworthy decision that raises a number of interesting issues, District of Minnesota Judge Ann D. Montgomery, applying Minnesota law, held that a company’s excess D&O insurance policy’s prior acts exclusion precludes coverage for the entirety of claims asserted against the company, even with respect to wrongful acts alleged to have taken place after the prior acts date. This case involves a number of twists and turns, while raising some important questions. Judge Montgomery’s June 4, 2019 opinion in the case can be found here. The Wiley Rein law firm’s June 20, 2019 post about the ruling on its Executive Summary Blog can be found here.
Continue Reading D&O Insurance: Prior Acts Exclusion Precludes Coverage for Post-Past Acts Date Conduct
I have frequently written on this blog about relatedness issues and how they affect the availability of D&O insurance coverage for a series of lawsuits that have been filed over time against a company. D&O insurers frequently argue, in order to try to avoid coverage, that a later lawsuit is related to an earlier proceeding in order to try to argue that the subsequent suit is deemed made at the time of the earlier proceeding. In an interesting case in the Southern District of Texas, the insurer took the opposite position and tried to argue that two securities class action lawsuit complaints filed after the end of the policy period were unrelated to an earlier securities suit that had been filed during the policy period, in order to try to avoid coverage for the subsequent lawsuits.
In an October 4, 2018 decision (here), Magistrate Judge Nancy K. Johnson ruled that the later securities lawsuits filed against Nobilis Health were interrelated with the earlier lawsuit against the company, and therefore that the insurer was obligated to cover the costs the insured company incurred in defending all three lawsuits. The court’s decision underscores the breadth of the relatedness in D&O insurance policies and highlights the fact that relatedness issues can, depending on the circumstances, result in a coverage expansion and not only a narrowing of coverage.
Continue Reading D&O Insurance: Insurer Must Defend Later Securities Lawsuits Related to Earlier Claim
As I have noted in earlier posts, questions of whether or not two sets of circumstances are interrelated for purposes of determining insurance coverage can be vexing; at a minimum, they are always fact-intense. In a recent decision, the Tenth Circuit examined the question of whether or not a later civil lawsuit was interrelated with an earlier SEC investigation, and therefore deemed first made at the earlier date (prior to the policy period). The appellate court affirmed the district court’s conclusion that the lawsuit was interrelated with the investigation, precluding coverage for the claim. As discussed below, while the appellate court’s conclusion arguably is unremarkable, it still does highlight the elusive problems involved with relatedness issues. The Tenth Circuit’s September 10, 2018 decision in the case can be found here.
Continue Reading Tenth Circuit: Later Lawsuit Interrelated with Earlier SEC Investigation
As I have frequently noted on this blog (for example, here), problems involving relatedness between claims present recurring coverage issues under D&O insurance policies. In the following guest post, Maurice Pesso and Greg M. Steinberg of the White and Williams LLP law firm take a look at a recent decision out of the Northern District of Illinois applying New York law to a D&O insurance dispute involving related claims issues. I would like to thank Maurice and Greg for their willingness to allow me to publish their article 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 Maurice and Greg’s guest post.
Continue Reading Guest Post: Another Court Applies New York’s “Sufficient Factual Nexus” Test to Related Claims