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March 2018

Submitted by: Alan Rutkin


The Insurance Coverage Section again asks for your support on our expert project.  Under Wystan Ackerman’s leadership, the Section is preparing a directory of experts. If you have already submitted information, thank you! If you have not yet submitted info, please click here to do so today.


Once we have enough material, we will ask FDCC to make our guide available through FDCC’s website.


At the FDCC Winter Meeting on Amelia Island, Jay Sever’s panel (pictured below) was truly a rousing success.  The seats were filled, and people stood in the back.  Also, Jay was a moderator who was really able to engage the audience as well as the panelists.  Congratulations!



At the Annual Meeting this summer in Maui, the Insurance Coverage Section will hold a panel presentation entitled: “Cyber Insurance: Reading Between the Lines of the ISO Forms Before the Attack Happens.”  The presentation will be moderated by David Zizik, and the panel will include FDCC members Wes Ching and Peter Olson, as well as Craig Uradomo of The Island Insurance Companies. The panel will take a practical look at what “cyber insurance” is and why law firms and businesses need it; the evolution of ISO and manuscript forms that cover such risks (and those that don’t) over the past 20 years; and some basic considerations for law firms and corporate legal departments to be thinking about when deciding about the specific coverage they need.  Audience participation will be encouraged!





February 2018

Submitted by: Alan Rutkin



Section Project on Experts


We again ask for your support on our expert project.  Under Wystan Ackerman’s leadership, the Section is preparing a directory of experts. If you have already submitted information, thank you! If you have not yet submitted info, please do so today through this link:


Stephen Carter on the Move


Stephen Carter has been accredited as an ARIAS arbitrator.  He already qualified as a Member of the Chartered Institute of arbitrators.  Last year he was also again listed in Chambers Guide as a Leading Individual in Reinsurance and in Legal 500 as a Leading Individual in Insurance and Reinsurance Litigation.  Congrats!



Traub Lieberman Wins Big for Insurer


Traub Lieberman Straus & Shrewsberry LLP partners Brandt W. Allen and Michael S. Knippen recently obtained dismissal for an excess liability insurer in Illinois state court. The case involved the availability of coverage for an underlying malicious prosecution claim filed against the insured. The coverage dispute arose from the alleged malicious prosecution of an individual for a 1993 shooting, which resulted in the individual’s 1994 conviction for murder, attempted murder and robbery. After nearly two decades of incarceration, the individual’s initial conviction was vacated based on an ineffective assistance of counsel argument. The individual was re-tried in August 2013, which resulted in a hung jury, and again re-tried in July 2014, which resulted in an acquittal. The individual subsequently brought suit against the City and various police officers involved with the individual’s 1994 trial and conviction. The City and the various officers sought insurance coverage for the malicious prosecution claim from its liability insurer from 1994 (when the individual was initially convicted), as well as its general and excess liability insurers from 2010 to 2014 (the years encompassing the individual’s re-trials and eventual exoneration). After the general and excess liability insurers denied coverage for the claim under the 2010-2014 policies, the City brought suit against those insurers seeking a declaration that their policies provided coverage for the individual’s claims.


While the coverage litigation was pending, the City and the individual agreed to a consent judgment against the City, which resolved the underlying malicious prosecution claim. The City and its insurer from 1994 agreed to pay a part of the agreed judgment amount and assigned collection of the remainder of the judgment to the individual to be collected solely from the general and excess liability insurers from 2010 to 2014. After the individual was added as an additional party plaintiff in the coverage action, the insurers moved to dismiss the coverage case arguing, in part, that the allegation of malicious prosecution against the City did not trigger coverage under the 2010-2014 policies. Specifically, the insurers argued that coverage is triggered for malicious prosecution claims when the initial prosecution is initiated and not when the individual is eventually exonerated. Thus, the insurers argued that the City was only entitled to coverage from its 1994 insurer, as that insurer provided coverage to the City when the individual was initially prosecuted. The City and the individual argued that the language in the policies defined personal injury to encompass the offense of malicious prosecution, which they equated with a completed tort or accrual of a cause of action. The City and the individual argued that the offense of malicious prosecution happened upon exoneration and thus, the insurers’ policies in effect when the individual was exonerated were triggered for the underlying malicious prosecution case.


The Court disagreed with the City and the individual and held that their argument was not supported by Illinois law or the terms of the insurers’ policies. The Court held that there was no ambiguity in the policy language nor a legal or factual basis to hold that coverage was triggered upon the individual’s exoneration. Following Illinois precedent and the majority opinion nationwide, the Court concluded that the coverage trigger for a malicious prosecution claim is the initial filing of the malicious action against the accused and not the action’s termination or the accused’s exoneration. The Court observed that while exoneration is a required element and a necessary condition precedent before the malicious prosecution claim accrues, it is not an occurrence that causes injury or ham within the meaning of the policy. According to the Court, to hold otherwise would impermissibly convert the insurers’ occurrence-based policies into claims-made policies. The City and the individual have appealed the ruling.



Marshall, Conway & Bradley Deliver a Win on Rarely Used Policy Provision


The following case upheld an insurer’s right to disclaim based on the insured’s failure to cooperate.


In Diego Fernandez v. Philadelphia Indemnity Insurance Company, 16-cv-2533, United States District Court, Southern District of New York (Magistrate Judge Judith C. McCarthy), the insured purchased a Collector Vehicle policy for a 1962 Chevrolet Impala with an Agreed Value of $165,000.  The vehicle was reportedly stolen and the insured demanded full policy limits based on the Agreed Value endorsement. 


Ordinarily, under an Agreed Value policy, the insured has no real defenses and must pay the “agreed value” in the event of a covered loss, such as a theft.


However, an insurer is still entitled to investigate the claim and the insured must corporate in this regard, and an insurer may still disclaim if fraud is established. 


During the post-loss investigation, Philadelphia demanded routine documentation i.e., Bill of Sale; proof of upgrades to the vehicle etc.  The insured responded with production of a Bill of Sale and multiple invoices documenting upgrades to the vehicle that exceeded $200,000.  The insured refused to produce tax returns or proof of actual payment of the upgrade invoices.  Philadelphia ultimately determined that the documentation produced was phony and created after the fact.  Philadelphia disclaimed coverage based upon the fraud provision and breach of the corporation clause. 


The insured filed suit contending that under an agreed value policy, once his ownership of the vehicle and theft were established (which they were) the policy requires payment.  The District Court disagreed. 


In a well reason the decision, the District Court, applying New York law, recognized that “an insurance company bears a heavy burden” in disclaiming based on the failure to cooperate.  To establish lack of cooperation, the insurer must prove: (1) it acted diligently in seeking to bring about the insured’s cooperation; (2) its efforts were reasonably calculated to obtain the insured’s cooperation; and (3) the attitude of the insured was one of “willful and avowed obstruction.” Thrasher v. U.S. Liability Ins. Co., 278 N.Y.S.2d 793 (1967).


The District Court concluded that Philadelphia satisfied all three prongs.  It acted diligently in sending numerous letters and continued to follow-up even after the insured failed to respond.  Philadelphia also expressly warned that a failure to comply would jeopardize coverage.


With respect to third prong – “willful and avowed obstruction”, the Court was particularly expansive.  It should be noted that the insured was also quite aggressive in pressing this claim.  In fact, plaintiff’s own counsel, concerned that his client had or was perpetrating a fraud, retained his own personal ethics counsel – a fact that he disclosed to the Court. 


The District Court ultimately ruled, as a matter law, that the insured’s conduct constituted “willful and avowed obstruction.”  The District Court found that the insured had breached the cooperation clause by providing Philadelphia with false documents – a back dated bill of sale and invoices he “prepared” himself.  The District Court noted that a failure to provide “fair and truthful disclosures” constitutes a breach of the cooperation clause, as a matter of law. Nationwide Mut. Ins. Co. v. Graham, 713 N.Y.S.2d 602 (2000).


Despite the fact that plaintiff’s own counsel had advised the Court that the insured had “made-up” the invoices, he nonetheless was undeterred and pressed his case.  The insured contended that while the invoices themselves may not be genuine the actual work described on the invoices to upgrade the car was done.  The insured further contended that any potential misrepresentation was not material.  The insured also challenged Philadelphia’s right to even investigate this claim because it was an Agreed Value policy. The District Court rejected all of plaintiff’s arguments finding that plaintiff’s conduct did not amount to a “honest mistake” and the legitimacy of the bill of sale and invoices were “relevant and germane” to Philadelphia’s investigation.  The Court also determined that it was “too late” for the plaintiff to now attempt to cooperate by acknowledging the documentation was phony and, in effect, requesting an opportunity to prove his case in front of a jury.  The Court noted that cooperation was a “condition precedent” and is an absolute defense to an insurance claim. Blakeslee v. Royal Ins. Co. of Am., 1995 WL 122724 (March 22, 1995). The Court further stated that while the policy at issue required the insurer to demonstrate prejudice, New York is otherwise a “no prejudice” state in this regard. New York City Hous. Auth. V. Hous. Auth. Risk Retention Grp., Inc., 203 F.3d 145 (2000).


Fernandez is instructive for how a relatively benign policy condition can become a potent coverage defense.  The cooperation clause is infrequently asserted and even more rarely upheld by a Court.  Nonetheless, it should not be overlooked, especially when an insured is not being forthcoming in responding to routine and legitimate documents requests during the claim investigation phase.




January 2018

Submitted by: Alan Rutkin & Jay R. Sever



The following two recent cases involve interesting applications of business risk exclusions:

West Side Salvage, Inc. v. RSUI Indemnity Co., No. 16-3928, 2017 WL 6422107, at *1 (7th Cir. Dec. 18, 2017)


In West Side Salvage, the Seventh Circuit addressed the scope of the damage to property exclusion.  In the underlying tort action, the owner of a grain bin noticed that the

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FDCC Europe Regional Meeting

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15th Annual Litigation Management College Graduate Program

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