SDV Insights

Federal and state courts tackled many interesting insurance-related issues this past year. Perhaps no state had a more impactful year than Illinois, which held that construction defects could constitute an occurrence, that a LEG 3 “extension” attempting to preclude coverage for faulty or defective workmanship was ambiguous as a matter of law (applying Illinois law), and that ostensibly prohibitive “catch-all exclusions” can render policy language ambiguous in favor of coverage. Other courts wrestled with procedural inquiries, such as the legal duty of a broker in providing notice to an insurer or the ability of an insured to recoup its attorneys’ fees in pursuing a coverage action against its insurer. These are merely a sampling of the impactful insurance decisions rendered in 2023.

Each year, we endeavor to identify cases of general interest to our clients and the broader insurance community. Specifically, we attempt to identify trends, cases of first impression, cases illustrating conflicts among the courts, or cases dealing with emerging issues. We now proudly unveil the top 10 most influential coverage decisions of 2023 and look ahead to a few cases to watch as 2024 unfolds.

Case Number 1:

Regan Heating & Air Conditioning v. Arbella Protection Ins. Co.
287 A.3d 502 (R.I. 2023)
Rhode Island Supreme Court
January 27, 2023

Under a commercial package policy, does a total pollution exclusion (TPE) bar coverage for oil spilled in the interior of a building?

No, not under Rhode Island law.

Total pollution exclusions (TPEs) can severely limit an insurer’s liability for pollution-related damages by excluding coverage for damages arising from pollution-related incidents. Courts are split, however, in their interpretation of total pollution exclusions. Some courts take a narrow view and apply the exclusion only to traditional environmental pollutants, while others interpret it more broadly, encompassing a more comprehensive range of substances and circumstances.

In Regan, the Rhode Island Supreme Court faced an issue of first impression: does oil spilled in a building constitute a pollutant? Though Rhode Island precedent had already determined that oil spilled on soil constituted a pollutant, the Regan court considered spilled oil as applied here as a case of first impression. In the underlying suit, a claimant sued Regan for damages resulting from oil leaking from an appliance that Regan built and installed.  

After Regan’s insurer refused to defend and indemnify Regan, Regan brought suit in Rhode Island state court. After the insurer initially prevailed on its motion for summary judgment at the trial court level, the Rhode Island Supreme Court stated that “oil, and more specifically (170 gallons of) home heating oil, is not explicitly listed as a pollutant within the policy’s definition.” After examining other state courts’ determinations of the issue, weighing the definition of “pollutant” and what an insured may reasonably perceive as a pollutant, the Court held the policy’s definition of “pollution” was ambiguous as applied to a claim for interior damage. 

This case is an important reminder that, in the context of TPEs, fact-specific inquiries can still warrant coverage for a substance otherwise excluded in different contexts. Specifically, Rhode Island case law has now held that while oil is a pollutant in the context of soil, it might not be a pollutant when spilled or released indoors. 

Case Number 2:

Pflueger Inc. v. AIU Holdings Inc. et al.
152 Hawaii 260 (Haw. 2023)
Supreme Court of Hawaii
February 22, 2023

Must a broker demonstrate an insurer’s lack of immediate legal obligation—rather than the merits of the insurer’s ultimate D&O liability coverage obligation—to defeat a malpractice suit brought against it by its insured client for failure to provide notice of a claim to the insurer?

Yes—according to the Supreme Court of Hawaii, a broker must demonstrate that even if notice were timely tendered, the insurer would not have been legally obligated to advance its insured’s defense costs. A broker cannot refute the causation element simply by showing that the insurer would have ultimately denied coverage anyway, even with a timely tender.  

While the rest of the cases in this list deal with an insurer’s conduct, this case illuminates another overlooked aspect of coverage: the interplay between an insured, its broker, and the insurer. In a fourteen-year-long insurance broker malpractice case, Pflueger, Inc. filed negligence claims against its broker, Noguchi & Associates, Inc. (Noguchi), for failure to forward a claim concerning Pflueger’s grand jury subpoena to its D&O liability insurer. Pflueger’s insurer denied coverage for, amongst other things, late notice of loss. Initially successful at the trial court level, Pflueger later faced summary judgment in favor of Noguchi, regarding evidence that allegedly disproved causation. The appellate court disagreed, stating that Noguchi also needed to demonstrate that Pflueger’s insurer had no obligation to advance Pflueger’s defense costs prospectively. Merely proving that the insurer had no ultimate indemnity obligation was insufficient. 

The Supreme Court of Hawaii vacated the appellate court’s judgment, emphasizing that Noguchi must prove the insurer’s legal non-obligation for advancing defense costs, not mere denial of coverage.

While the facts of this case primarily rely on proving causation, the case suggests the setting of heightened standards for brokers in malpractice suits. When advising clients on submitting claims to insurers, brokers must know and understand their own obligations and liabilities. With the assistance of competent coverage counsel, brokers can ensure they are correctly assisting clients in claim submission, minimizing the risk of prolonged legal proceedings. Likewise, insureds must know their contractual entitlements and would be prudent to insist on tendering a claim even when coverage is ostensibly unavailable. 

Case Number 3:

John Moriarty & Assocs, Inc. v. Zurich Am. Ins. Co.
207 N.E.3d 542 (Mass. App. Ct. 2023)
Massachusetts Appeals Court
March 31, 2023

Under a CGL policy, may an insured recoup (1) unpaid defense costs incurred before an insurer reserves its rights and (2) attorneys’ fees in bringing an action against an insurer to enforce that right? 

Yes, according to Massachusetts law. In the underlying action, the general contractor, J.M.A., hired subcontractor PJ Spillane to perform waterproofing work on a college residence hall. While completing the work, the subcontractor’s employee sustained injuries. J.M.A. sued its subcontractor’s CGL insurer, Zurich, for breach of contract after Zurich initially refused to defend and indemnify J.M.A. as an additional insured in the suit (before finally accepting defense under a reservation of rights). Specifically, J.M.A. sought recovery of defense fees incurred before Zurich reserved rights as well as reimbursement of J.M.A.’s costs in bringing the coverage action. 

The trial court granted Zurich’s motion to dismiss, and J.M.A. appealed. Before the appellate court, Zurich argued that because it had compensated J.M.A. for the unpaid defense costs after J.M.A. filed the coverage action, J.M.A. was not entitled to recoup fees for prosecuting the action. J.M.A. argued that it is entitled to recover its costs to enforce its right to defense where the insurer fails to pay for the defense until forced to do so by litigation. 

Though the appellate court remanded the issue of the duty to defend to the trial court, the appellate court held that J.M.A. could recover fees incurred in bringing the coverage action if the trial court finds that Zurich violated its duty. In arriving at its holding, the appellate court cited policyholder-friendly dicta that “the insurer should not enjoy the usual freedom to litigate without concern about the possibility of having to pay the [insured’s] attorneys’ fees.” At least in Massachusetts, Moriarty may force insurers to think twice about forcing insureds to litigate to enforce their rights.

Case Number 4:

Citizens Ins. Co. of Am. v. Wynndalco Enterprises, LLC.
70 F.4th 987 (7th Cir. 2023)
United States Court of Appeals, Seventh Circuit
June 15, 2023

Do personal injuries under a state biometric privacy statute fall within the scope of coverage under federal law such that an insurer must defend, even when the relevant business liability insurance policy has an exclusion for injuries arising out of statutory damages?

Yes, according to Illinois law. In the underlying action, claimants sued information technology firm Wynndalco in two putative class actions for allegedly violating Illinois’ Biometric Information Privacy Act (BIPA) after Wynndalco sold its Clearview A.I. database, which included biometric identities, to the CDW-Government, who then resold it to the Chicago Police Department. Wynndalco’s business liability insurer, Citizens, determined that based on the relevant insurance policy’s catch-all violation-of-statutes exclusion, it had no duty to defend or indemnify Wynndalco. 

After Citizens filed a declaratory judgment, the Northern District of Illinois entered judgment for Wynndalco, finding that the policy’s catch-all exclusion was facially ambiguous when read together with the remainder of the policy. The Seventh Circuit affirmed. Specifically, both courts found that the exclusion’s overbreadth—excluding coverage for damages arising out of “any other laws, statutes, ordinances, or regulations”— conflicted with the policy’s granting of coverage for other statutory causes of action, such as slander, libel, trademark, and copyright. 

Notably, the Seventh Circuit rejected Citizens’ argument that the catch-all provision only excluded statutes concerning communication and was therefore not in conflict with the remainder of the policy. Indeed, the court found that the enumerated laws within the exclusion that preceded the catch-all provision lacked commonality sufficient to infer that the catch-all provision governed only communication statutes. Overall, policyholders should take note of the broad implications of this holding, as courts—both in Illinois and elsewhere—may find ambiguity in the presence of catch-all exclusions across various policies.

Case Number 5:

5 Walworth L.L.C. v. Engerman Cont., Inc. et al.
408 Wis.2d 39 (Wis. 2023)
Wisconsin Supreme Court
June 20, 2023

Under Wisconsin law, does a finding of initial coverage for property damage under a CGL policy require damage to “other property” beyond the product itself?

No. Under Wisconsin law, one must look to policy language rather than the formerly precedential “integrated systems analysis” to determine whether there has been “property damage” caused by an “occurrence.”

In 5 Walworth L.L.C. v. Engerman Contracting, Engerman was hired to build an in-ground pool. Once finished, the pool cracked and caused water to leak and destabilize the surrounding soil. The insured sued Engerman and its subcontractor, who sued the supplier of the concrete mix used to construct the pool. The trial court agreed with the insurers’ argument that a finding of initial coverage for property damages requires damage to “other property” beyond the pool itself.  Wisconsin established the “other property” requirement in the precedential case Wisconsin Pharm. Co., L.L.C. v. Ne. Cultures of Ca., Inc., 876 N.W.2d 72 (Wis. 2016). Specifically in that case, the Wisconsin Supreme Court employed an “integrated systems” test, wherein a court would hold that no coverage was available if the damage occurred to “an integrated system” where the product and other property were inseparable. In the present case, the appellate court reversed, and the insurers appealed.

Here, the Wisconsin Supreme Court rejected the insurers’ argument that the allegedly defective concrete was part of an integrated system (i.e., the pool complex) and held that faulty work causing the pool to crack and leak, thereby causing damage to the surrounding soil, could constitute “property damage” caused by an “occurrence.” Had the integrated systems theory been applied in 5 Walworth, the theory would preclude coverage for any injury to the product itself (e.g., the pool) and any integrated system—as the insurers claimed, the entire pool complex.

By removing the applicability of the tort-based integrated system analysis to insurance coverage law, the Wisconsin Supreme Court substantially broadened coverage for property damage under CGL policies. This case will likely impact future Wisconsin insurance coverage cases involving construction defects.

Case Number 6:

HDI Glob. Specialty S.E. v. P.F. Holdings LLC
No. 22-12146, 2023 WL 6143351 (11th Cir. Sept. 20, 2023)
United States Court of Appeals, Eleventh Circuit
September 20, 2023

(1) Does an insurer breach its duty to provide a defense where an additional insured fails to elect coverage?
(2) Is an insurer bound to a legal judgment against its additional insureds where the additional insureds breached their duty to cooperate with the insurer?

Under Georgia law, the Eleventh Circuit Court answered both questions in the negative, affirming the District Court’s holdings in favor of the insurer.

In late October 2019, claimants’ counsel sent a pre-suit demand letter to HDI, which identified HDI as the insurer for the named insureds “Ralston GA” and “PF Ralston[,]” defendants in an action seeking damages for poor apartment living conditions. However, additional insureds, “P.F. Holdings” and “Schoolhouse” were only acknowledged in a footnote. On January 3, 2020, HDI—the purported additional insured carrier for P.F. Holdings and Schoolhouse—received notice that underlying claimants included P.F. Holdings and Schoolhouse as defendants in the action. However, P.F. Holdings and Schoolhouse did not provide HDI with a formal request for defense coverage until January 23, 2020. HDI then offered a defense within a month of that date. 

Following negotiations with the claimants, P.F. Holdings and Schoolhouse requested that HDI accept the claimant’s demand offer within the combined primary and excess policy limits. After HDI denied the request, the additional insureds entered a binding arbitration upon which they later sought indemnification from HDI. HDI denied indemnification because the additional insureds breached their contract by not cooperating with the settlement provision, which required them to obtain HDI’s consent before accepting a settlement offer. The additional insureds claimed that HDI waived the right to deny coverage for the insureds’ failure to cooperate. In their mind, HDI waived its right when it failed to provide coverage in early January 2023 when it received constructive notice of the suit, albeit without an accompanying request for additional insured coverage. 

In the subsequent declaratory judgment action HDI filed, the District Court determined that, under Georgia law, additional insureds must elect coverage, which requires them to forward a copy of the complaint and summons to the insurer. Notice by someone other than the purported insured is not sufficient. HDI’s initial delay in agreeing to defend P.F. Holdings and Schoolhouse did not constitute a denial because it hadn’t received proper notice. Therefore, it did not constitute a waiver of the insurer’s rights. 

The District Court held that where the relevant insurance policies require insureds to cooperate with their insurer in their defense, insureds cannot assume an obligation that subjects their insurer to liability without the insurer’s consent. Because the additional insureds chose to reach an arbitration agreement and failed to involve HDI in the arbitration proceedings, they breached the policy condition. Accordingly, they waived their right to coverage. 

The case cautions insureds that in the face of a third-party complaint, insureds—including additional insureds—must be prompt and proactive in providing notice and a tender of coverage to all potentially applicable carriers. Even if an initial complaint or tendered correspondence purports to identify additional insureds as parties in an action, this does not comport with the necessary notice requirements under Georgia law. Instead, additional insureds must expressly and unequivocally request coverage for themselves to give rise to the insurer’s duty to defend. 

Case Number 7:

South Capitol Bridgebuilders v. Lexington Ins. Co.
No. 21-CV-1436 (RCL), 2023 WL 6388974 (D.D.C. Sept. 29, 2023) (applying Illinois law)
United States District Court, District of Columbia
September 29, 2023

Under a Builders Risk policy, does a LEG 3 “extension” preclude coverage for alleged “damage” composed of the costs of fixing concrete flaws that weakened a bridge?

No, not under Illinois law. 

S.C.B. was hired to build a bridge and obtained a builder’s risk policy from Lexington. During installation of the bridge’s supports, S.C.B.’s poor vibration of concrete resulted in malformations, impacting the bridge’s structural integrity. Consequently, S.C.B. replaced the bridge’s supportive structures and sought insurance reimbursement. Lexington refused to pay, and S.C.B. then sued Lexington for breach of contract and bad faith.

Both parties agreed that S.C.B.’s work was indeed faulty. Still, the parties moved for summary judgment on whether the Builder’s Risk Policy provided coverage. The court addressed two issues concerning the LEG 3 extension: (1) whether the faulty work constituted “damage” at all; and (2) if damage was established, whether an exception applied. As to question #1, the court held that the “honeycombing and voiding” of the concrete did constitute damage, which the court defined as a “detrimental change in the condition of the insured property.”

As to question #2, the District Court found the LEG 3 language ambiguous insofar as it was unclear whether the damages sought to rebuild the faulty components constituted an excluded “cost incurred to improve the original material workmanship design plan or specification.” S.C.B. argued that the exclusion for an “improvement” would apply only if the reimbursement sought would render the construction better than initially planned. Lexington adopted a broader interpretation, arguing that simply replacing damaged material constitutes an improvement. Considering this ambiguity, the court construed the language against its drafter, Lexington, and in support of coverage.

Notably, the District Court rejected Lexington’s reliance on authority that “insured property” must be altered, not merely defectively constructed, to constitute “physical loss” or “damage[.]” This is sometimes referred to as the “satisfactory state” argument, wherein insurers argue that for coverage to apply, the workmanship must achieve an “initial satisfactory state” which is then subsequently altered.

Significantly, South Capitol is the first decision in the U.S. interpreting LEG 3 language. As such, South Capitol stands as persuasive authority for policyholders to use when confronted with this insurer position in the context of a policy with LEG 3 language. 

Case Number 8:

Scott Fetzer Co. v. Am. Home Assurance Co., Inc.
2023-Ohio-3921 (Ohio 2023)
Supreme Court of Ohio
November 1, 2023

Is Bad Faith considered a tort for purposes of choice of law analysis?

Yes, under Ohio law.

In pursuing a bad faith action against its insurers under CGL, umbrella, and excess policies, Scott Fetzer Company sought discovery of Travelers’ claims-handling procedures, guidelines, internal documents, and communications, which Travelers claimed were privileged and not discoverable.

To determine discoverability of the documents, the Ohio Supreme Court had to decide which state’s law applied. This inquiry was critical because under Ohio law, the materials sought were discoverable. Under the laws of either Indiana or Michigan, which Travelers argued applied, the materials were protected from disclosure.  

Selecting the applicable choice of law rules first depended upon classifying the bad faith claim as either sounding in contract or tort. Travelers argued that the bad faith claim is ancillary to a contract claim and therefore § 193 of the Restatement (Second), Conflicts of Laws applied to determine the appropriate choice of law. Because bad faith is a tort claim in Ohio, the court applied the Restatement (Second), Conflict of Laws, § 145 (“Section 145”) which governs choice of law for tort claims. After applying the “most significant relationship” test of Section 145, as noted in bad faith actions from other jurisdictions (for example Arizona, the 5th Circuit applying Mississippi law, 8th Circuit applying Missouri law, and 9th Circuit applying Arizona law), the Supreme Court held that Ohio law governed the discovery dispute.

As illustrated, choice of law plays an important role in insurance coverage litigation, particularly bad faith claims. Policyholders’ counsel are reminded to assess the choice of law issue before instituting litigation.

Case Number 9:

Westfield Ins. Co. v. Sistersville Tank Works, Inc.
895 S.E.2d 142 (W. Va. 2023)
Supreme Court of Appeals of West Virginia
November 8, 2023

For CGL claims arising from chemical exposure that contributed to developing a latent illness, does the continuous-trigger theory apply to determine the applicable date(s) of occurrence?

Under West Virginia law, yes. In occurrence-based policies, it’s critical to determine when an injury occurred, especially when a continued exposure or injury spans multiple policy periods. 

Across the country, courts apply different trigger theories to determine which policies apply to losses spanning multiple policy periods. In several jurisdictions, the “continuous-trigger theory” determines when the “injury” occurred. Under this theory, any policy in effect from an initial exposure through the onset of disease or bodily injury is triggered and must cover the claim.

In the underlying action here, three men who worked at plants around S.T.W.’s tanks from 1960-2006 were diagnosed with cancer. They alleged that S.T.W. carelessly manufactured and maintained the tanks, causing repeated exposure to cancer-causing chemicals. From 1985 to 2010, S.T.W. obtained CGL coverage from Westfield. Without precedent from the highest court of West Virginia, the Fourth Circuit certified a question of first impression: “[a]t what point in time does bodily injury occur to trigger insurance coverage for claims stemming from chemical exposure or other analogous harm that contributed to the development of a latent illness?”

Westfield contended that since S.T.W. could not establish that the claims occurred within the policy period, the disease’s manifestation should be the sole coverage trigger. However, the West Virginia Supreme Court noted that “we have found no court that currently follows the manifestation trigger in the context of a bodily injury, sickness, or disease claims.” It held instead that the continuous-trigger theory, which many courts use, should be applied.

In so holding, the West Virginia Supreme Court adopted a strong pro-policyholder stance that permits recovery under multiple policies. The applicability of multiple policies provides an advantage to policyholders; insureds may elect to tender coverage under a policy with broader coverage terms than previous or subsequent policies that may also apply to the same illness or injury.

Case Number 10:

Acuity v. M/I Homes of Chicago, L.L.C.
2023 IL 129087 (Ill. 2023)
Illinois Supreme Court
November 30, 2023

Does an insurer have a duty to defend its additional insured under a subcontractor’s commercial general liability policy for property damage resulting inadvertently from faulty work?

Yes—the Illinois Supreme Court held that “property damage that results inadvertently from faulty work can be caused by an ‘accident’ and therefore constitute an ‘occurrence’” sufficient to satisfy an initial grant of CGL coverage. Further, the absence of damage to “other property” beyond the work itself does not eliminate the initial coverage grant, subject to further exclusions and exceptions.

M/I Homes of Chicago, L.L.C. (“M/I Homes”) constructed a townhome development. After the project’s completion, water entered the townhomes, resulting in interior water damage. The townhome owners’ association filed suit against M/I Homes, alleging it, or its subcontractors, caused the damage by using defective materials, conducting faulty workmanship, and failing to comply with applicable building codes. 

M/I Homes demanded a defense from Acuity, the general liability insurer for subcontractor H&R Exteriors, Inc., as an additional insured under the subcontractor’s policy. Acuity filed a declaratory judgement action that it did not owe coverage because the underlying suit failed to seek damages for property damage beyond M/I Homes’ work. The Court held that the underlying suit need not allege property damage to property outside the insured’s scope of work to trigger coverage. 

As a matter of first impression and citing persuasively to dicta from policyholder-friendly jurisdictions, the Illinois Supreme Court overturned prior Illinois appellate court precedent. Formerly, the Appellate Court applied a rule requiring damage to third-party property to establish “property damage” caused by an “occurrence.” Rejecting that view in Acuity, the Illinois high court emphasized that this narrow coverage view is unsupported by policy language—a win for policyholders. The Court reasoned that specific business risk exclusions would be meaningless if all losses due to faulty or defective workmanship could never constitute an occurrence and trigger coverage under the insuring agreement. The Court emphasized that all provisions should be “read together, rather than in isolation, and given effect.”

Nationally, courts are consistently trending towards finding that construction defect claims constitute “property damage” caused by an “occurrence” under standard commercial general liability forms. Given that Illinois has newly clarified this common law, other state high courts may find this reasoning persuasive. 

CASES TO WATCH

Case Number 1: 

Aloha Petro., Ltd. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA
CV 22-00372 JAO-WRP, 2023 WL 5724744 (D. Haw. Sept. 5, 2023)
United States District Court for the District of Hawaii
September 5, 2023

(1) For a CGL policy defining a covered “occurrence” in part as an “accident,” can an “accident” include recklessness?

(2) For an “occurrence” insurance policy excluding coverage for “pollution” damages, are greenhouse gases considered “pollutants”?

The United States District Court for the District of Hawaii certified these questions to the Hawaii Supreme Court to answer in 2024.  

Underlying claimants filed suit against Aloha Petroleum, among other oil manufacturers, alleging that it “kn[ew] for nearly half a century that unrestricted production and use of [their] fossil fuel products create[d] greenhouse gas pollution that warms the planet and changes our climate.”

The District Court found that neither the insurer nor the insured could point to controlling case law on whether recklessness can constitute an accident under a CGL policy. The insured argued that it can because Hawaii case law dicta has stated that recklessness can constitute an occurrence under the analysis of an “expected or intended injury” exclusion. The insurer argued the dicta merely analyzed whether “recklessness” could satisfy the requisite mental state for that specific exclusion, not whether recklessness could satisfy the definition of “accident” under the meaning of “occurrence[.]” 

The District Court further found that neither party could point to controlling case law on whether greenhouse emissions constitute a “pollutant[.]” The insured argued that because greenhouse gas effects occur miles above the atmosphere, they are “figuratively and literally” different than “traditional environmental pollution.” The insurer countered that an average person would believe greenhouse emissions to be traditional pollutants and that the exclusion was not that narrow regardless.

This case is indeed one to watch, as the answer to the first of the two certified questions is critical because the interpretation of “accident” and “occurrence” could affect CGL policyholders across various industries.

Case Number 2:

Great Lakes Ins. SE v. Raiders Retreat Realty Co. LLC
No. 22-500 (3rd Cir. 2023)
United States Court of Appeals for the Third Circuit
October 10, 2023 (case argued)

Under what circumstances is a state’s “strong public policy” thwarted by applying a policy’s choice of law provision, such that the choice of law provision is unenforceable?

The Third Circuit will answer this question in early 2024. This case stems from a marine insurance coverage dispute where the insurer, Great Lakes, sought declaratory judgment that a yacht owner, Raiders, could not bring forth several Pennsylvania law-based counterclaims since the insurance policy included a New York choice of law provision

In earlier litigation, the District Court upheld the policy’s choice-of-law provision and dismissed Raiders’ Pennsylvania law-based counterclaims. However, the Court of Appeals for the Third Circuit reversed, holding that the District Court failed to consider if Pennsylvania had a strong public policy that would be frustrated if the Court were to apply New York law. The Court recognized that under M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972), a forum-selection provision is unenforceable under federal admiralty law “if enforcement would contravene a strong public policy of the forum in which suit is brought.”

Although there has been a longstanding preference of treating choice of law provisions as presumptively valid, the holding of this case will speak to which public policy preferences might overcome these provisions. Specifically, for maritime insurance policies, if enforcing choice of law provisions would be “unreasonable or unjust[,]” the strong public policy of the forum state could overcome contractual choice of law provisions. This case could potentially create a list of circumstances which require choice of law provisions to yield to the forum state. Moreover, this holding may be important to consider when drafting contracts, because if a court liberally construes what constitutes “strong public policy[,]” the weight of choice of law clauses would diminish. Policyholders should be conscious of this, as it may provide them additional ammunition in dealing with choice of law issues—even contrary to a policy’s explicit language.

CONCLUSION

Thank you for reading SDV’s “Top 10 Insurance Cases of 2023.” As you can see, policyholders continue to face litigation and uncertainty arising from various policy forms and factual circumstances. If you have an existing coverage concern—or if you’d like to take proactive measures in mitigating your risk exposure—Saxe Doernberger & Vita, P.C. may be able to help.

For more information or questions, contact Jeffrey J. Vita at JVita@sdvlaw.com, or Michael A. Amato at MAmato@sdvlaw.com.

*SDV extends special thanks to Of Counsel Attorney Janeen Thomas, who researched and wrote the Scott Fetzer Co. analysis, as well as assisted in the quality control of the final draft. SDV also extends special thanks to Michelle Grieco and Andie Martin, two law clerks who played a vital role in the research and production of this article.