SDV Insights

In the 2019 edition of SDV's Top Ten Insurance Cases, we probe wiretapping claims under an armed security services policy, delicately sniff out E&O coverage for a company using cow manure to create electricity, scour the earth for coverage for crumbling foundation claims, and inspect D&O policies for government investigation coverage. In addition, we preview some important and exciting decisions due in 2020.

Maryland's highest court recently heard arguments regarding the proper method of allocation of the covered damages from a slowly progressing asbestos injury amongst insurance policies in place over a period of years. Rossello v. Zurich American Insurance Company, Case No. 2436 (Md. 2019). The court may also be forced to determine what the proper trigger of coverage is for latent bodily injury claims, although the plaintiff has not framed the issue in that manner.

The Insurance Services Office, Inc. (ISO) issued several new and revised endorsements for use with Commercial General Liability (CGL) coverage forms, which became effective December 1, 2019, in most jurisdictions. The new ISO endorsements include several notable changes that Policyholders should be aware of, including revisions to existing Additional Insured (AI), Primary and Noncontributory, and Waiver of Subrogation endorsements, as well as a number of new AI and other endorsement forms.

Formal investigations into the activities of corporations and their directors and officers remain increasingly hot topics in the news. While many of these investigations make headlines, whether or not a company might have coverage for fees incurred defending these investigations is seldom mentioned. Depending on the policy language, Director's and Officer's Liability ("D&O") may be a crucial risk management tool for companies faced with governmental investigations.

In Draggin' Y Cattle Co., Inc. v. Junkermier, et al. the Montana Supreme Court held that where an insurer defends its insured and the insured subsequently settles the claims without an insurer's participation, a court may approve the settlement as between the underlying plaintiff and underlying defendant, but the settlement will not be presumed reasonable as to the insurer.

When renting a car, consumers are faced with the dilemma of whether or not they should purchase a protection plan to cover any damage incurred while the car is in use. Before driving out and upon return, the rental company looks over the car carefully, taking note of any scratches, dings, and dents. Consumers often leave with many questions.

Recently, the 8th Circuit addressed allocation issues between covered and non-covered claims under a general liability policy. While allocation is a common issue raised by insurers, this case involved allocation raised by an excess carrier who did not participate in the defense of the underlying action.

It is not often that a case discussing the duty to cooperate comes along, although this is an important condition of coverage in virtually all insurance policies. The Ontario Court of Appeal decision in Ruddell v. Gore Mutual Insurance Company comes as helpful and reassuring guidance to policyholders on what the "duty to cooperate" language in their policy obligates them to do.

Zurich American Insurance Company ("Zurich") offers a proprietary "General Liability Supplemental Coverage Endorsement," form U-GL-1345-B-CW (04/13), which is used to modify and, in some cases, enhance coverage terms reflected in current ISO commercial general liability ("CGL") forms. However, form U-GL-1345-B-CW includes one change that can significantly impair risk transfer when used by a trade subcontractor who has promised additional insured ("AI") coverage to an upstream party.

If you suffered damage as a result of a hurricane, you should submit a claim under any insurance policy you have that might apply. This includes, Flood insurance, Homeowner's insurance, Renter's insurance, Condo insurance, and Auto insurance. Some of these policies may have limitations, or even not apply, to losses associated with hurricanes, but the best practice is to submit the claim to ensure no opportunities for coverage missed.