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Eastern District of New York Magistrate Recommends Denial of a Motion to Remand and Recognizes the Application of the Fraudulent Joinder Doctrine, Even in the Face of the “Forum Defendant Rule”

Recently, in Mallek v. Allstate Indem. Co. No. 17-CV-5949-KAM-SJB, 2018 U.S. Dist. LEXIS 42171 (E.D.N.Y. Mar. 12, 2018), a federal magistrate in New York recommended that the Court deny a plaintiff’s motion to remand and suggested that removal was proper where the plaintiff “fraudulently” joined an insurance agent. Oftentimes, coverage actions involve a plaintiff suing … Continue Reading

Texas Department of Insurance Issues Additional Bulletins Relating to Hurricane Harvey

Last week, we wrote a post about a number of bulletins of potential interest to property insurers issued by the Texas Department of Insurance concerning the appropriate conduct of those involved in the insurance claims process in the aftermath of Hurricane Harvey. The Texas DOI has continued its response to Hurricane Harvey, issuing two new … Continue Reading

New Texas Insurance Code Chapter 542A, Effective September 1, 2017, May Reduce The Number of Harvey Lawsuits

Recently, the Texas legislature acted to curb abusive lawsuits filed by insureds as a result of hailstorm and other property insurance claims.  According to the Executive Director of The Texas Coalition for Affordable Insurance Solutions (TCAIS), the sheer quantity of abusive lawsuits filed against insurers in Texas was affecting the “availability and affordability of homeowners … Continue Reading

NAIC Releases Draft of Revised Insurance Data Security Model Law for Review

The National Association of Insurance Commissioners’ (NAIC) Cybersecurity Task Force released a revised draft of the Insurance Data Security Model Law (Model Law) last week. The Model Law’s goal is to “establish exclusive standards… for data security and investigation and notification of a data breach” for “any person or entity licensed, authorized to operate, or … Continue Reading

Robinson+Cole’s Insurance Practice Group Members Present At 1st Annual Bad Faith Litigation Strategies ExecuSummit

On November 4 and 5, a number of our Insurance and Reinsurance Practice Group members attended the 1st Annual Bad Faith Litigation Strategies ExecuSummit, which was held near New Haven, Connecticut. Deb Vennos and Greg Varga were panelists, and presented on the topic of Unfair Trade Practice Acts nationwide. The ExecuSummit was well-attended by claims adjusters … Continue Reading

Contra Proferentem in New York: A Last Resort for Resolving Ambiguity in Coverage Disputes

In insurance litigation, insureds often argue that, if a provision in an insurance policy is found to be ambiguous, that ambiguity should be resolved in favor of the insured, and against the insurer that drafted the contract, under the doctrine of contra proferentem. However, as demonstrated by the recent case of Catlin Specialty Ins. Co. … Continue Reading

Florida’s 3rd DCA Continues to Reverse Trial Court Statute of Limitations Rulings

In Linares v. Universal Property and Cas. Ins. Co., 2014 Fla. App. LEXIS 10168, (Fla. 3rd DCA, July 2, 2014), the Court reversed the trial court’s summary judgment ruling in favor of the insurer (“Universal”), which determined that the homeowners’ breach of contract action was barred by the five-year statute of limitations period. The 3rd … Continue Reading

Report from June 2014 LEA Conference

Five members of Robinson & Cole’s Insurance Practice Group (Steve Goldman, Greg Varga, Kip Dwyer, John Malloy, and Ray DeMeo) attended the 83rd Spring Meeting & Educational Conference of the Loss Executives Association (LEA) in Boston, MA from June 11-13, 2014. The LEA is an organization dedicated to furthering the advancement and education of property … Continue Reading

Superstorm Sandy Named Storm Deductible: Central District of California Denies Summary Judgment to Insurer Based on California Law

As we reported in March the issue of whether Named Storm deductibles apply will likely be the subject of Sandy litigation. As a reminder, many state insurance departments issued bulletins indicating that insurance companies should not impose hurricane deductibles on homeowners, mainly because the classification of Sandy shifted from a hurricane to a post-tropical storm as … Continue Reading

Contingent Business Interruption Coverage: Fourth Circuit Determines “Direct” Is Unambiguous In Reversal Of District Of Maryland

You may recall that we posted a summary of Millennium Inorganic Chemicals Ltd v. National Union Fire Ins. Co., 2012 U.S. Dist. LEXIS 140257 (D. Md. Sept. 28, 2012), where the federal district court of the district of Maryland analyzed whether contingent business interruption coverage was triggered where coverage applied only to “direct” contributing properties. … Continue Reading

Sandy Power Interruption Coverage: Southern District of New York Grants Partial Summary Judgment In Favor of Insurer

One of the significant coverage issues that arose from Storm Sandy was whether property insurance policies provided coverage for loss of business income arising from the loss of electrical power. Insurers typically offer endorsements that provide coverage for this type of loss in limited circumstances — only where the power failure is caused by direct … Continue Reading

Interplay Between Two-Year Suit Limitation Provision And Replacement Cost Provision: New York Court of Appeals Holds That The Suit Limitation Period May be Unreasonable Under Certain Circumstances

Many property insurance policies contain suit limitation provisions limiting the time by which an insured may bring an action against the insurer under the policy.  In addition to a suit limitation provision, to recover the full replacement costs, as opposed to the actual cash value of the damage, many policies also require an insured to … Continue Reading

New York Trial Court: Delay In Completion Loss Is Unambiguously Tied To Scheduled Date Of Completion

Builders risk policies for large-scale projects can be complex, and the scope of losses arising from those projects can be difficult to identify. A trial court in New York recently addressed the “delay-in-completion” and “permission to occupy/operate” endorsements, concluding that both provisions were unambiguous and measured delays based on the scheduled date of completion. See … Continue Reading

The United States District Court for the District of New Jersey Concludes That Damage To Basement Wall Constitutes Collapse Under Homeowner’s Policy

In Tripodi v. Universal North America Ins. Co., 2013 U.S. Dist. LEXIS 181807 (D.N.J., December 31, 2013), The United States District Court for the District of New Jersey granted an insured’s motion for summary judgment on the basis that damage to the insured’s basement wall fell within the policy’s definition of “collapse,” because it constituted “an … Continue Reading

Extra-contractual Claims Dismissed In Hurricane Sandy Cases: Two Eastern District of New York Judges Issue Decisions Sua Sponte

In a series of recent sua sponte decisions in six Superstorm Sandy cases, Judges Seybert and Feuerstein dismissed extra contractual claims and dismissed all but the first named plaintiffs’ claims pursuant to Fed. R. Civ. P. 20. The cases involve up to two hundred and seventeen named plaintiffs (perhaps in an attempt to avoid separate filing … Continue Reading

Suit Limitation Provision Does Not Apply To Intervenor: Connecticut Supreme Court Finds Motion To Intervene Relates Back To Date Of Complaint

In Austin-Casares v. Safeco Ins. Co., 2013 Conn. LEXIS 409 (Dec. 3, 2013), the Connecticut Supreme Court, in a case of first impression, reversed a trial court’s decision, which held that the suit limitation provision unambiguously precluded a mortgagee from intervening in a suit when the motion to intervene was filed after the suit limitation … Continue Reading

New York Court of Appeals Answers Second Circuit’s Certified Questions Regarding Interpretation of Vandalism Coverage in Named Peril Policy

In Georgitsi Realty, LLC v. Penn-Star Ins. Co., 2013 N.Y. LEXIS 2857 (N.Y. App. Ct., October 17, 2013), Georgitsi Realty, LLC owned a four-story apartment building which it insured pursuant to a “named perils” policy issued by the defendant, Penn-Star Insurance Company. The policy provided coverage against “direct physical loss or damage . . . … Continue Reading

Florida Federal Court Applies Statutory Definition of “Structural Damage” in Sinkhole Case

Over the last decade, policyholders and insurers have actively litigated the meaning and scope of “structural damage” under the Florida statutory sinkhole scheme. In 2011, in an effort to resolve the dispute, the Florida Legislature adopted a five-part definition of “structural damage” to be applied when interpreting insurance policies providing coverage for sinkhole losses. Fla. … Continue Reading

Efficient Proximate Cause In Florida: 2nd DCA Reverses Judgment and Remands for New Trial Requiring Application of Efficient Proximate Cause Theory

The courts have historically grappled with the controlling rule of law in cases involving multiple causes of loss in the property insurance coverage context. The majority of jurisdictions typically employ the doctrine of efficient proximate cause: coverage is afforded if the predominant cause of loss is a covered cause of loss. The minority of jurisdictions, … Continue Reading

Second Circuit Certifies Questions to New York Court of Appeals Regarding Enforceability of Apportionment-of-Loss Clauses

In Quaker Hills, LLC v. Pacific Indemnity Co., 2013 U.S. App. LEXIS 18040 (2d. Cir., August 29, 2013), the insured Quaker Hills LLC (“Quaker Hills”) owned real property on which its principal built a home in or about 2005. From 2005 through 2009, the home was insured via a series of fire insurance policies issued … Continue Reading

New Jersey Appellate Court Rejects Insured’s Attempt to Circumvent the Pollution Exclusion in Asbestos-Related Loss by Using the Vandalism Exception to the Exclusion

When faced with the impending application of an exclusion that negates any coverage for a claimed loss, an insured may sometimes resort to far-fetched or implausible arguments to contend that the exclusion does not apply, or that an exception to the exclusion has the effect of reviving coverage. The insured in Woodcliff Lake Board of … Continue Reading