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Maurice Pesso
Greg Steinberg

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

floridaIn a June 6, 2016 opinion (here), Middle District of Florida Judge Sheri Polster Chappell, applying Florida law, held that subsequent claims filed in 2011 and 2012 were interrelated with claims first made in 2008, and therefore deemed made at the time of the initial claim. Because the initial claim was filed before the relevant policy incepted, there is, Judge Chappell concluded, no coverage for the claims under the relevant policy.

In reaching these conclusions, Judge Chappell rejected the policyholder’s argument that the policy’s related claim provision conflicted with the policy’s prior and pending litigation provision (which had a May 2003 date), and therefore should be construed against the insurer and disregarded in light of the prior and pending litigation date. Judge Chappell’s opinion quite sensibly and correctly rejects arguments that other courts (applying different jurisdiction’s law) have accepted, as discussed below. A July 22, 2016 post on the Wiley Rein law firm’s Executive Summary Blog about Judge Chappell’s opinion can be found here.
Continue Reading D&O Insurance: Prior and Pending Litigation Provisions Do Not Undercut Interrelated Claims Provision

Fourth CircuitIn a December 30, 2015 unpublished per curiam opinion, the Fourth Circuit affirmed the district court’s holding that a 2010 lawsuit filed to enforce a judgment was interrelated with the 2006 lawsuit in which the judgment had been entered, and therefore because the later was deemed first made at the time of the earlier lawsuit, the later suit was not covered under the management liability insurance policy in force when the later lawsuit was filed. The Fourth Circuit’s analysis is interesting in light of other recent appellate case law decisions interpreting D&O insurance policy’s interrelatedness provisions. A copy of the Fourth Circuit’s opinion can be found here.
Continue Reading D&O Insurance: Subsequent Claim Interrelated With Prior Lawsuit Not Covered Under Policy in Force at Time of Later Claim

lawboks2When I started out as a law firm associate doing D&O insurance coverage work more than three decades ago, there was virtually no interpretive case law available. Legal research in connection with D&O insurance tended to be a meagre, frustrating process. Things have changed so much in the interim that now we can have two appellate decisions from two different federal circuit courts on D&O insurance issues in just a single day. On October 21, 2015, both the Second and Fifth Circuits issued D&O insurance coverage rulings, in both cases finding that the there was no coverage under the D&O insurance policies involved for the matters in dispute.

The Second Circuit’s October 21, 2015 summary order in Nomura Holding America, Inc. v. Federal Insurance Company can be found here. The Fifth Circuit’s October 21, 2015 opinion in Martin Resource Management Corporation v. Axis Insurance Company can be found here. I discuss the two appellate decisions below.
Continue Reading D&O Insurance: Two Federal Appellate Courts Issue Rulings Confirming Carriers’ Coverage Denials

caliIn an interesting September 30, 2015 opinion, Southern District of California Cynthia Bashant, applying California law, held that a series of HIPAA-related subpoenas that the U.S. Department of Justice served on Millennium Laboratories were not interrelated with prior qui tam lawsuits that had been filed against the company, and held further that coverage under Millennium’s D&O insurance policy for the company’s costs of responding to the subpoenas was not limited by the policy’s $100,000 sublimit for Regulatory Claims. A copy of Judge Bashant’s opinion can be found here.
Continue Reading D&O Insurance: HIPAA Supoenas, Interrelatedness, and Regulatory Claim Sublimits

prOn July 9, 2014, in yet another in the ever growing line of cases examining whether or not separate D&O claims involving interrelated wrongful acts, District of Puerto Rico Judge Gustavo Gelpi, applying Puerto Rico law, held that the FDIC’s claims against the former directors and officers of the failed Westernbank did not involve …