Eighth Circuit: Liberty Insurance Corporation v. HNTB Corporation

 Where the contract encompasses both construction management and independent quality assurance, the question of whether the expert was functioning as a manager or an outside expert presents an issue for trial when determining the scope of an insurance policy.

Liberty Insurance Corporation  v.  HNTB Corporation

Tenth Circuit: Team Industrial Services v. Zurich American Insurance Company, et al.

 Second company that assumed the obligations of a first company by a series of agreements consolidating and retiring the earlier agreements was not covered under the insurance of the counterparty, as the new agreements set such coverage at the discretion of the counterparty.  Use of the first company's credentials by the second company to file insurance paperwork insufficient to offset.  No cause for reformation absent evidence that the counterparty had any other intent.  If there was a fiduciary duty of the counterparty, it was owed only to the first company.  Promissory estoppel unjustified.

Team Industrial Services v. Zurich American Insurance Company, et al.

Third Circuit: Dianoias Eatery LLC v. Motorists Mutual Insurance Co

 

The existence of unfiled potential legal claims arising from the same circumstances does not mean that a court lacks statutory jurisdiction to issue a requested declaratory judgment; under the statute, such claims aren't waived by seeking declaratory judgment as to the allocation of rights and responsibilities, and can be raised in a subsequent action.

Circuit precedent requiring the court to consider the redress from a federal court judgment doesn't implicate the effect of federal rulings on state law, but looks to the ability of a court to accord final relief to the parties.

Circuit precedent requiring the consideration of the litigation of identical issues in state court assumes identity of parties as well.

Even within the context of the pandemic, the issues raised here are generic issues of contract and policy exclusion interpretation, making a prudential remand on the ground of undetermined state law unjustified.

Since the state courts have no legislative priority in matters of public health, balancing policy exclusions against state public policy interests is not peculiarly within the jurisdiction of the state courts.

DISSENT

Factors relevant to prudential abstention aren't exhaustive; states need to fashion a comprehensive plan to recover from the pandemic; federal speculation on state law risks undue delay.

https://www2.ca3.uscourts.gov/opinarch/202954p.pdf

First Circuit: Marcano-Martinez v. Coop. de Seguros Multiples

 

Although prescription is an affirmative defense, once established, the burden shifts to the plaintiff to establish an interruption; phone calls with no verification mechanism were insufficient to establish an extrajudicial claim on the insurance policy that might stop the clock.

Marcano-Martinez v. Coop. de Seguros Multiples

Ninth Circuit: Allied Premier Insurance v. United Financial Casualty

 

Question certified to California Supreme Court:  Under the statute, does a commercial vehicle insurance policy continue until notice of cancellation is delivered to the state, regardless of the expiration date of the policy?

Allied Premier Insurance v. United Financial Casualty

Eighth Circuit: Guardian Flight LLC v. Jon Godfread

 

The airline deregulation act preempts the state's restriction on air-ambulance billing, and the law is not saved under the insurance statute, as it does not have the effect of assigning or transferring risk, and the air ambulance subscription plan does not guarantee treatment or act as an intermediary.

Guardian Flight LLC  v.  Jon Godfread

Seventh Circuit: Zurich American Insurance Com v. Ocwen Financial Corporation

 

At the pleadings stage, insurer did not have the duty to defend, since the natural reading of the specific conduct in the pleadings established that the complained-of conduct violated laws that were within the explicit policy exclusions, and allegations that might encompass conduct outside the exceptions were, under the state's laws, legal labels that were meaningless until defined by the facts at trial.

Zurich American Insurance Com v.  Ocwen Financial Corporation

Fifth Circuit: Hall CA-NV v. Old Republic

 

Since the parties agreed to remove the provision of the standard form insurance contract relating to the priority of ex ante mechanics liens, the related-back ex ante mechanics liens are not covered by the general provisions of the form contract that protect claim priority generally.

Showing of costs and limited participation in negotiations insufficient to establish loss from dual representation under duty-to-defend.

Hall CA-NV v. Old Republic

Seventh Circuit: Medical Protective Company v. American International

 

Actionable refusal of settlement was within the terms of the policy as an act deemed wrongful by timely reporting, despite an earlier holding of the court that the act was ultimately not wrongful as defined by a separate exclusion within the policy.

As a claim is an assertion of an existing right, demands for damages and indemnification prior to the change in the law that created the right of recovery against the plaintiff were not considered claims under the policy.

Medical Protective Company  v.   American International

Fifth Circuit: Playa Vista Conroe v. Ins. Co. of the West

 

Where the insurance contract defines floods as occurring on normally dry land, the flood exclusion does not encompass boats damaged in harbor; given that plaintiff introduced evidence that the boats were not damaged by the change in water level, summary judgment for the plaintiff was appropriate.

Exclusions drafted within coverage provisions are addressed under the shifting burdens standard of state law; the plaintiff is not required to establish that the exclusion does not apply when establishing coverage.

Agreement reached between parties after summary judgment placing fault for damage on the acts of a third party while liquidating the remaining damages did not undo the grant of summary judgment.

Playa Vista Conroe v. Ins. Co. of the West

Sixth Circuit: Karst Robbins Coal Co. v. OWCP

 

Earlier administrative determination of employer's identity does not bind later adjudication under claim preclusion, since the earlier determination found no liability, and the determination of the employer's identity was therefore not essential to the decision.

Administrative regulation, state law, and equitable considerations of delay prevent an ex ante rescission of workers' compensation insurance contract, where that rescission would defeat the insurer's liability for adjudicated claims.

No 5A DP violation where the agency's administrative error was in a proceeding that eventually proved nondispositive.

Karst Robbins Coal Co. v. OWCP

Eighth Circuit: LM Insurance Corporation v. Dubuque Barge and Fleeting Svc

A seaman normally excluded from the company's Workman's Compensation plan does not stand outside that exclusion for purposes of calculating premiums due by the fact that his or her work might be reclassified as covered work.  If that were to happen, the company would subsequently be compelled to list them as a covered employee.

LM Insurance Corporation  v.  Dubuque Barge and Fleeting Svc

Fifth Circuit: State Farm Lloyds v. Janet Richards, et al

Under the law of the state, an insurer's state law duty to defend is determined by the eight corners of the most recent pleadings and the policy; extrinsic evidence about whether the incident actually occurred on the property and the true residence of the claimant are too intertwined with merits to be considered at this stage, given sufficient pleadings.

State Farm Lloyds v. Janet Richards, et al

Second Circuit: Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Cas. Co.

The term "occurrence" in the policy generally signifies an unexpected event; under state law, except for some strict liability events, the test is actual subjective expectation, not that which a reasonable person would expect.

The challenging of claims by the insurer did not violate state trade practice laws. 

http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/1/doc/16-2999_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/1/hilite/

Eighth Circuit: William Hatcher v. MDOW Insurance Company

Insurance policy renewed at discretion of policyholder and insurer can be modified during the course of the policy with sufficient notice; continued premiums serve as considerations for any changes.  Boilerplate letters instructing policyholder to review the terms of the policy prior to renewal constitute sufficient notice.

No prejudice from improperly sustained objection to testimony, as the objection was at sidebar, the jury was not informed, and there was no proffer as to what might have been revealed in that line of testimony.

http://media.ca8.uscourts.gov/opndir/18/09/172410P.pdf

Fifth Circuit: SCF Waxler Marine, L.L.C., et al v. Aris T M/V, et al.

Appellate court does not have jurisdiction over an interlocutory appeal challenging the trial court's holding that contractually, the excess insurers liability under the state's direct recovery statute is limited to the insured vessel.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30805-CV0.pdf

Fifth Circuit: Swinterton Builders v. Oklahoma Surety

Insurer had duty to defend, since the written agreement establishing the company as an insured party did not need to be countersigned by the company to be a written agreement; the company's consent can be inferred.

Where the claim is for breach of contract, an insurer still has a duty to defend against a claim for property damage where the factual situation alleged might present a claim for property damage.

Whether or not anti-stacking provisions apply to duty to defend, it would be inequitable to apply them here.

Damages in suit where insurer breached duty to defend qualify for state statute requiring prompt payment for the schedule.

Damages can be recovered under statute regardless of independent injury from the lack of payment.

http://www.ca5.uscourts.gov/opinions/pub/16/16-20195-CV1.pdf

First Circuit: Medical Mutual Insurance Co. v. Burka

Given the terms of the policy, the insurer has no duty to defend a physician who allegedly improperly accessed medical records, since the records were not acquired in the course of professional treatment.

http://media.ca1.uscourts.gov/pdf.opinions/17-1872P-01A.pdf

Sixth Circuit: American Tooling Center, Inc. v. Travelers Cas. & Surety Co

Funds were lost under the policy when they were transferred to the fraudulent interloper, despite the fact that they were owed to a third party.

The policy's definition of computer fraud includes funds transferred as a result of fraudulent emails; the scope is not limited to losses incurred by hacking.

Loss was sufficiently proximate to the computer fraud, as each review step before the transfer of funds was prompted by the initial fraudulent email.

As the exclusions only preclude payment for losses caused by entry of data into the computer system, the employees entry of the details of the fraudulent money transfer were the entry of instructions to the machine, which are definitionally excluded under the the policy.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0138p-06.pdf

Eighth Circuit: Alexandra Sims v. State Farm

Erroneous denial of insurance claim does not suffice to establish bad faith under state law; court's holding that bad faith hadn't been established did not preclude that oppressiveness (which is also listed in the disjunctive) was also not found.

No abuse of discretion in refusal to admit evidence of insurer's systematic practices, since they were possibly confusing.

http://media.ca8.uscourts.gov/opndir/18/07/171333P.pdf