N.C.: Insurer No Duty To Defend Environmental Contamination Claims



RALEIGH, N.C., March 29  — A North Carolina federal judge ruled as a matter of law that several insurers had no duty to defend its insured  under certain of its policies for two underlying environmental contamination claims, finding no plausible allegation of sudden and accidental release of contaminants which would have triggered coverage.

PCS Phosphate Co. Inc.sought a declaratory judgment for defense and indemnity from American Home Insurance  in two underlying actions alleging environmental contamination. American Home joined Zurich American Insurance Co. and Federal Insurance Co., seeking contribution and indemnity related to the defense and indemnity of PCS.

Between 1978 and 2002, PCS and its predecessor Texasgulf Inc. sent transformers to facilities in North Carolina for repairs. During the transformer repairs, PCBs were released, resulting in an E.P.A. investigation on the site.  The E.P.A. ultimately settled with certain potentially responsible parties (PRP’s) following an investigation launched in 2003.

In April 2008, PCS advised American Home that PCS had been identified as a potentially responsible party for the contamination, and sought defense and indemnity in any related litigation.  In April 2009, some of the PRP’s sued PCS, seeking contribution and reimbursement for costs related to their settlement with the E.P.A.

American Home accepted the defense of PCS in the Consol and CP&L actions pursuant to a reservation of rights.

Judge James C. Dever III granted Zurich American’s motion for partial judgment on the pleadings.with respect to its duty to defend or indemnify PCS in  the underlying actions against PCS.  Judge Dever ruled that American Home had not met its burden “to show that an allegation in either underlying complaint can be reasonably interpreted to allege a sudden release of contaminants or pollutants at the [site]” which would have triggered coverage under the Zurich American policy.

He wrote further, “American Home has not plausibly alleged that either the 1981-1986 policies or the 2005-2008 policy oblige Zurich American to contribute to PCS’s defense or indemnification in either of the underlying actions. Thus, the court grants Zurich American’s motion for partial judgment on the pleadings concerning both the Consol and CP&L actions.”

PCS Phosphate Co. Inc. v. American Home Assurance Co. (E.D. N.C. 2016)


Cyber Coverage Watch: Louisiana Dispute Over Ascent Cyberpro Policy


NEW ORLEANS, March 30 – Eustis Insurance Company and its insured, New Hotel Monteleone, remain embroiled in litigation over coverage for a 2014 cyberattack, centering on the insurability of exposures Hotel Monteleone faces in the wake of the attack, including fraud recovery and operational reimbursement expenses.  The case, venued in the Eastern District of Louisiana, is a signal example of the non-standard nature of cyber-coverage, and the need for experienced counsel on all sides when policies are formulated, bought, and sold.

This week, the dispute became even more complicated when Eustis  filed a third-party complaint against wholesale insurance broker, R-T Specialty, Inc., alleging that R-T failed to properly explain to the Hotel Monteleone the precise coverage of the policy, issued by Certain Underwriters at Lloyd’s, London (Lloyd’s), subscribing to Ascent Cyberpro (the Ascent) policy.  The hotel previously initiated the suit against Eustis and Lloyds In December 2015 seeking complete coverage for its losses under the Ascent Policy

Eustis engaged R-T after the Hotel Monteleone approached Eustis about cyber coverage following an earlier, 2013 cyber attack on the hotel, for which there was no insurance coverage.  Eustis did not have broad experience with cybercoverage, and brought in R-T based on R-T’s alleged representations that it was conversant in procuring such insurance.

The Ascent Policy issued through Lloyds and R-T had an overall limit of $3 million.  The coverage, however, was restricted substantially relating to costs incurred by an insured which constituted fines or penalties.

The third party complaint against R-T Specialty alleges that the broker failed to  inform Eustis that fraud recovery and operation reimbursement might be considered to be a fine or penalty, or that a $200,000 sub limit appearing in the policy’s Payment Card Industry Fines or Penalties Endorsement may apply to fraud recovery and operational reimbursement expenses arising from the cyberattack.

The case illustrates the murkiness of the current cybercoverage market, the great variability in individual coverage, and the possible exposure of agents and brokers for failing to properly produce or explain the coverage they secure for their customers.

New Hotel Monteleone, LLC v. Certain Underwriters at Lloyd’s of London, Subscribing to Ascent Cyberpro Policy No. ASC14C00944, No. 2:16-CV-00061-ILRL-JCW (Eastern District, Louisiana 2016)




Faulty Construction Workmanship Not Covered Under Commercial and Umbrella Policies


PHILADELPHIA, March 23 – A federal judge in Philadelphia has ruled that Selective Way Insurance Co. need not defend nor indemnify an insured subcontractor from allegations in an underlying suit regarding faulty workmanship, whether the workmanship is cast as negligence or breach of a construction contract.

The Villas, a  condominium owner,  filed suit against the general contractor for defective work, including cracking and water damage, and Lenick Construction was added as an additional defendant in the litigation.  Lenick tendered its defense and indemnity to Selective under a commercial liability policy, and Selective provided a defense to Lenick under a reservation of rights.

After the underlying litigation was settled between The Villas and the general contractor, the general contractor assigned its rights against the subcontractors, including Lenick to the condominium owner.

Lenick sued Selective in the Philadelphia County Court of Common Pleas, seeking a declaration that the insurer had a duty to defend and indemnify it in the underlying lawsuit. Lenick asserted a claim for breach of contract and a bad faith claim . Selective removed the case to the U.S. District Court for the Eastern District of Pennsylvania, and the parties each moved for summary judgment.

Judge Cynthia M. Rufe granted summary judgment to Selective and denied Lenick’s motion, examining the underlying pleadings and finding that defective workmanship was alleged to be the cause of the water infiltration into condominium units.   She wrote:

With regard to Lenick’s argument that the underlying joinder complaint and the Third Amended Complaint did not only allege that Lenick’s own work was deficient, but that its defective work caused damage to the work of others, the Court agrees that this is a plausible reading of the underlying complaints. However, where liability is premised upon poor workmanship, the fact that nearby work was also damaged does not change the analysis, so long as such damage is reasonably foreseeable. It is foreseeable that windows and doors which are not watertight will cause water damage inside the unit, to parts of the unit other than the windows and doors. Accordingly, these additional allegations do not give rise to a duty to defend.

The judge found no facts whch would support a tort claim against Lenick, and which would potentially be covered under the Selective Way policy.

Judge Rufe also granted summary judgment for Selective on Lenick’s bad faith claim, observing that  Selective’s interpretation of the underlying  construction litigation pleadings was not unreasonable.

Lenick Construction v. Selective Way Ins. Co.., (E.D. Pa. March 23, 2006)


Demand For Cyberinsurance Widening, Marsh Says


NEW YORK, March 24 –   Purchases of cyberinsurance by customers of insurance brokerage Marsh has increased 27% since last year, according to a report published by the broker last week.  Manufacturing and technology companies are among the largest sectors of buyers of the coverage, according to the report.

Marsh attributes the growth in demand to simple evolution:   “In the face of an evolving risk landscape and an aggressive regulatory environment, organizations no longer treat cyber as a problem to be fixed, but rather as a risk to be managed,” the report says.

There is now developing a demand for cyberinsurance coverage  among infrastructure industries like healthcare and transportation insured, Marsh reports.  And new coverages for cyber losses are evolving to cover losses such as business interruption and disruption of control systems by service providers, such as power companies.

Coverage limits are increasing with the demand for such coverage, Marsh reports.  The current average limit of coverage in 2015 was  $16.9 million in 2015, up from $14.7 million in 2014, the brokerage said. The highest average business sector limit was in the technology/communication sector, at $86.7 million, according to the report.

Marsh also reported that no new major insurers entered the cyberinsurance market during the last quarter of 2015, but that this is likely to change going forward.

5th Circuit Finds No Coverage In Crane Collapse Case


GRETNA, LA., March 22 – The U.S.  Fifth Circuit Court of Appeals  has upheld a trial court determination  that the insurer of a Louisiana-based marine crane builder owed no coverage for a 2009 accident caused by poor welding. The Court ruled that the insurance policy did not apply because it covered only  vessel-related incidents and not incidents on land.

State National Insurance Co. insured Elevating Boats LLC, for losses payable for the liability of the policyholder, as the owner of a vessel, for any incident or loss arising out of ownership of the vessel.  In 2009 worker Larry Naquin Sr. had sued Elevating Boats for personal injuries on the theory negligent welding of the crane in question.  During a test Naquin was running on the crane, the crane separated from its base and fell over, killing one, and causing Naquin two broken feet and a hernia.  The accident occurred on land and nowhere near a vessel, according to the opinion:

“Naquin’s incident in no way arose out of EBI’s conduct as ‘owner of the vessel …Furthermore, the land-based crane did not break on or even in close proximity to a vessel. Thus, EBI’s attempts to craft a causal connection to a vessel are discharged, plainly and simply, by the underlying facts and Naquin’s holding.”

In May 2012 a Louisiana federal jury found that EBI was negligent in welding the crane to its platform and that it was therefore liable for Naquin’s injuries.  During those proceedings the trial judge granted State National’s motion for summary judgment, finding that the policy did not cover incidents on land. 

Naquin urged an interpretation of a  “blanket reading” of State National’s policy such that it would provide coverage for  “any casualty or occurrence,” but the Appeals Court found the argument “strained,” and contrary to common law which required a vessel- related loss in such circumstances.

The 5th Circuit Court concluded,  “Naquin’s incident in no way arose out of EBI’s conduct as ‘owner of the vessel.’”

Naquin v. Elevating Boats, et. al., (5th Cir., March 22, 2016)

Property Value Admissible By Allstate To Prove Arson Fraud


SPRINGFIELD, Feb. 29 –  A federal judge in Missouri has denied an insured couple’s attempt to exclude expert evidence Allstate Insurance  intends to submit  in a declaratory judgment action in which it seeks to have its denial of a homeowners insurance coverage claim upheld.

In Allstate Indemnity Company v. Joseph Dixon, et al., No. 14-cv-03489-MDH. W.D. Mo.; 2016 U.S. Dist. LEXIS 24678, U.S. District Judge Douglas Harpool denied a motion to strike Allstate’s expert disclosures filed by Allstate insureds Joseph Dixon and his wife, ruling that the value of the couple’s home could be probative of the couples’  financial motive to commit arson fraud. The Court found that Allstate’s proposed testimony from a county assessor as to the value of the insured couple’s home would not prejudice the homeowners, although it reserved final judgment about the precise nature of the allowed testimony until later in the case.

Allstate  denied coverage for the April 2014 fire, claiming that the Dixons falsified material facts with regard to the claimed loss. A cause and origin and claims investigation by Allstate revealed that the fire was intentionally set.  The Dixons contended in their motion to strike expert disclosures that the value of their home was not in dispute, and that expert testimony concerning the value of the property would be confusing to the jury as well as irrelevant, cumulative and prejudicial.

In denying the motion, Judge Harpool cited to an Eighth Circuit U.S. Court of Appeals’ ruling which discussed proper evidence of motive in arson fraud cases,  Gen. Cas. Ins. Companies v. Holst Radiator Co. (88 F.3d 670, 672 [8th Cir. 1996]).

Allstate v. Dixon (W.D. Mo. 2016)

Pennsylvania Asbestos Reinsurance Dispute Stayed Under First Filed Rule


PHILADELPHIA, March 3 — A federal judge has granted a motion filed by R&Q Reinsurance Company to stay a reinsurance coverage suit filed by St. Paul Insurance arising out of more than $10 million in asbestos – related payments made by St. Paul on behalf of an insured.  St. Paul sought reimbursement  from R&Q pursuant to a reinsurance treaty with INA Reinsurance, to which R&Q has become a successor in interest.

The case  has now been stayed pending the outcome of a previous case filed by R&Q in United States District Court in Illinois in 2015. That case is captioned R&Q Reinsurance Company, f/k/a Ace American Reinsurance Company, f/k/a Cigna Reinsurance Company, f/k/a INA Reinsurance Company v. St. Paul Fire & Marine Insurance Company (No. 15-cv-07784, U.S.  N.D. Ill.).

U.S. District Judge Judge Joel H. Slomsky originally denied the motion to stay in the Pennsylvania action  on Dec. 18, but vacated that ruling as part of a decision he rendered on a motion to dismiss subsequently filed by R&Q in Pennsylvania .  R&Q sought dismissal or stay in Pennsylvania  pursuant to the first filed rule, citing to the Illinois litigation filed in 2015.

St. Paul had already filed and fully briefed a motion to transfer venue in the Illinois proceeding.  Judge Slomsky stayed the Pa. proceeding pending rulingson jurisdictional motions in the Illinois action.

St. Paul Fire and Marine Insurance Company v. R&Q Reinsurance Company, No. 15-cv-5528, E.D. Pa. March 3, 2016.


Insurer May Be Vicariously Liable for Negligent Oil Spill Remediation Contractor


BROOKLYN, N.Y., March 2 — The Second Department of the New York Supreme Court Appellate Division has held that a negligence claim alleged against an insurer in a dispute regarding the remediation of oil contamination should have been permitted to proceed, reversing the trial court’s dismissal of the claim.

In  Richard Bennett, et al. v. State Farm Fire and Casualty Co., Plaintiff  Richard Bennett and his family sustained a home heating oil spill in 2011. Bennett’s house at the time was insured by State Fire Farm and Casualty Co.,  and the policy included a third party liability claim protection.   State Farm paid for remediation  overseen by the NY State Dept. of Environmental Conservation, which acted as the third party claimant because of the spill.

A dispute arose, and Bennett sued a number of parties involved in the remediation, including State Farm.   The trial court granted State Farm’s motion to dismiss claims against it, including a claim that H2M, a remediation contractor allegedly  supervised and directed by State Farm, acted negligently in the cleanup.

While the Appellate Division affirmed the trial court’s ruling as it pertained to fraud, breach of fiduciary duty, and punitive damages claims against State Farm, it ruled that a negligence claim against State Farm was viable:

“The complaint also alleges that State Farm supervised and directed the work of H2M, potentially giving rise to vicarious liability on the part of State Farm for negligence, if any, of that contractor…Under these circumstances, the complaint states a cause of action for negligence against State Farm.”

Editor’s Note:  Extracontractual avenues of liability on the part of insurers continues to evolve.  Insurers must take care to place the necessary protective layers between themselves and third party repair and remediation vendors.  If they do not, they risk negligence liability on vicarious liability theories.

Bennett v. State Farm et al, (N.Y. App. 2nd Div. March 2, 2016)

Bullet-Proof Insurance Coverage Opinions – Part II

Choices of a businessman

In Part I of this post we looked at the beginnings of a good coverage opinion – clear identification of the issues, and a comprehensive matrix of facts upon which the coverage opinion is based.  In Part II, we examine the remaining building blocks of a bullet-proof coverage opinion.

 Include The Policy Provisions At Issue

In order to launch into the meat of the coverage opinion, the applicable provisions of the policy should be included in the coverage opinion.  I prefer to actually “snapshot” .pdf cuts of the actual policy terms into the body of the opinion so that the reader sees not just the provision, but how it appears in the policy.  This is by no means mandatory, but verbatim inclusion of the policy provisions at issue is, however.

The opinion writer should take care to not only produce coverage terms, but applicable exclusions, and exceptions to the exclusions, so that all of the tools are in full view of the reader.

Analysis and Discussion of Applicable Law

There is nothing totally new under the sun, which means more likely than not the policy provision on which outside counsel is providing opinion has been interpreted in prior opinions.  These prior rulings provide the important, and in some cases binding, context in which the applicable policy terms will be viewed.

Any judicial guidance of the same or similar coverage issues  is useful, but the best guidance comes in the form of cases with similar factual backgrounds (yet another reason for a comprehensive discussion of the known facts near the top of the coverage opinion).   While the opinion writer needn’t necessarily provide an answer to the coverage question in this phase of the opinion,  good analysis of applicable law may start to orient and point the reader in the direction the opinion is going to read.  As we said, there is nothing really new under the sun.

While jurisdictional case law is obviously ideal, outside counsel should also include opinions from other jurisdictions which bear factual similarity to the coverage analysis  being undertaken.

Tying It Together: Legal Analysis and Opinion

With the groundwork laid, outside counsel can now gather all of the materials she has collected in the opinion, and provide a logical analysis of the coverage question presented to outside counsel by the client.  The conclusion of the opinion letter should be the culmination of the facts, the policy provisions implicated, and the applicable law.

This is not the time for surprise endings:  a good coverage opinion will logically flow to the conclusions drawn.  Conclusions which are incongruent with anything that has come before, whether it be the facts, the policy provisions, or the law, is a sign that something is amiss, either with the predicates to the conclusion, or the conclusion itself.  It is not the kind of disconnect a client is looking for, so during the draft phase, the inconsistencies must be reconciled for the opinion to be reliable.

Going The Extra Mile:  Providing for Contingencies

The best outside coverage lawyers anticipate the needs of their clients.  They also recognize, in cases where investigation is ongoing, that further developments might impact the opinion.  Such possibilities should be included in the coverage opinion, so that the client knows how the validity of the opinion could be impacted by newly developed facts.  It is also a good reminder to the legal department requesting the opinion that the process is a fluid one, and an updated opinion might be the best course after new, significant information is learned.

Insurance company legal departments want solid coverage opinions which will withstand scrutiny of not just themselves, but others should that become necessary down the road.  For that reason, a comprehensive statement of facts, of the applicable policy, and of the relevant law should be provided.  The analysis of coverage and conclusion should flow from these elements, and the client should be notified that there may be contingencies in an ongoing investigation which could impact the opinion, requiring supplementation.


Bullet-Proof Insurance Coverage Opinions, Part I


In this post, we begin a brief look at the building blocks of a bullet-proof legal opinion on an insurance coverage issue.  Legal departments should look for these elements and insist on them in written coverage opinions from outside counsel, and outside counsel should make sure to use these elements as touchstones, in order to provide the most reliable coverage opinion possible.

Identify and Clarify The Precise Coverage Issue(s) Examined

Clarity and precision are required up front — if they are not, the entire opinion will falter and fail to provide what the client is asking for.  This seems obvious, but I am continually surprised by how often I get the question (or at least of piece of it)  wrong during the first phone call from general counsel or a claims executive.  It should be mandatory for outside counsel to state verbally or in a preliminary note to the client what she believes the coverage issue to be.  Why?  Because it is the first and best chance the client will get to make sure it is going to get what it believes it is asking for.  And it is the first and best chance to clear the legal opinion of any  confusion, mistake, and misunderstanding.

Another reason for this exercise is to identify sub-issues, or follow-on coverage issues which may present themselves.  If the client wants an opinion on Exclusion A, might it also want opinion on Exclusion D, as well as the exceptions to exclusions A and D?  Should it want one?   Not only does this ensure that the client gets an opinion on what it wants, it ensures the client gets an opinion which serves the purposes behind it:  advice and protection.   A partial coverage opinion which ignores related issues is likely to be criticized as myopic or artificially crafted in favor of insurer.    A complete coverage opinion, on the other hand,  covering all related issues, is much less assailable down the road.

Once the issues are clarified and refined, they should be stated at or near the outset of the written coverage opinion.

Identify  and Lay Down the Factual Matrix of the Coverage Opinion

A good legal opinion contains a thorough recitation of all known, relevant  facts germane to the coverage determination.  The written opinion should also advise the insurer that if there are additional facts the legal department would like outside counsel to consider, those facts should be provided to counsel and a supplemental opinion offered.   While this serves to protect outside counsel in the proffering of an opinion, it also ensures again that the client gets precisely what it wants from outside counsel.  It provides the legal department seeking the opinion to make sure that all of the facts it wants considered  to be taken into account, and ensures that mistakes can be fixed before the coverage opinion is provided.

All key facts should be stated in the written coverage opinion.  This also implies that facts which are peripheral, irrelevant, and unnecessary to the coverage determination need not be continued.  Heft does not equal value, and no in-house general counsel is going to appreciate you providing a 20-page  coverage opinion when 8  would have done the job just as well.  The coverage  opinion will only be as good as the foundation of facts upon which it is based, and set down in the opinion itself.

In Part II of Bullet-Proof Coverage Opinions, we will take up the importance of inclusion of the applicable policy terms and conditions at issue, analysis and discussion of applicable legal precedent interpreting those provisions, thoughtful legal analysis, and providing for contingencies in the opinion.

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