In 2007, undercover producers from NBC Universal, Inc., attended and surreptitiously recorded a seminar presented by plaintiff-appellant Brokers’ Choice of America, Inc. to teach insurance agents how to sell annuities to seniors. NBC used excerpts and information from the seminar in a “Dateline NBC” episode. Brokers’ Choice and its founder Tyrone Clark (collectively, “BCA”) sued for defamation. This appeal concerned the district court’s dismissal of the amended complaint after it compared the seminar recording with the episode and concluded the Dateline program was substantially true. After review, the Tenth Circuit Court of Appeals affirmed because the Dateline episode was not materially false. View "Brokers' Choice of America v. NBC Universal" on Justia Law

Lexington Insurance denied a claim by its insured, Double D Warehouse, for coverage of Double D’s liability to customers for contamination of warehoused products. One basis for denial was that Double D failed to document its warehousing transactions with warehouse receipts, storage agreements, or rate quotations, as required by the policies. PQ was a customer of Double D whose products were damaged while warehoused there. PQ settled its case against Double D by stepping into Double D’s shoes to try to collect on the policies. PQ argued that there were pragmatic reasons to excuse strict compliance with the policy’s terms. The Seventh Circuit affirmed summary judgment in favor of Lexington. PQ accurately claimed that the documentation Double D actually had (bills of lading and an online tracking system) should serve much the same purpose as the documentation required by the policies (especially warehouse receipts), but commercially sophisticated parties agreed to unambiguous terms and conditions of insurance. Courts hold them to those terms. To do otherwise would disrupt the risk allocations that are part and parcel of any contract, but particularly a commercial liability insurance contract. PQ offered no persuasive reason to depart from the plain language of the policies. View "PQ Corp. v. Lexington Insurance Co." on Justia Law

An entity engaged in the bail bond business may not retain the premium paid on a criminal defendant’s behalf when bail is denied and the defendant is never released from custody. Arthur Bogoraz was indicted on state law fraud charges. Plaintiffs, Bogoraz’s wife and family friends, entered into an indemnity agreement with Ira Judelson, a licensed bail bond agent affiliated with the International Fidelity Insurance Agency, to secure Bogoraz’s release from custody in exchange for a premium of $120,560. The district court denied the bail bond after a hearing, however, and Bogoraz was never released from custody. Judelson refused to return the $120,560 to Plaintiffs. The district court found that the indemnity agreement permitted Judelson to retain the premium. On appeal, the United States Court of Appeals for the Second Circuit certified a question of law regarding the issue to the Court of Appeals. The Court of Appeals held that, under the Insurance Law, an entity engaged in the bail bond business does not earn a premium for a bail bond if a court refuses to accept the bond following a bail source hearing and the principal is not released on bail. View "Gevorkyan v. Judelson" on Justia Law

Plaintiff purchased an automobile insurance policy from Progressive. The policy included UM coverage with a limit of $25,000. Plaintiff was injured in an automobile accident with an uninsured motorist. Plaintiff filed a proof of loss for UM benefits with Progressive. ORS 742.061(1) generally provides for an award of attorney fees when an insured brings an action against his or her insurer and recovers more than the amount tendered by the insurer. Subsection (3) provides a “safe harbor” for the insurer: an insured is not entitled to attorney fees if, within six months of the filing of a proof of loss, the insurer states in writing that it has accepted coverage, that it agrees to binding arbitration, and that the only remaining issues are the liability of the uninsured motorist and the “damages due the insured.” At issue in this case was what the safe-harbor statute meant when it referred to the “damages due the insured.” The insurer, Progressive Classic Insurance Company, responded to plaintiff’s claim by agreeing that the accident was covered by the policy, but challenged the nature and extent of plaintiff’s injuries, as well as the reasonableness and necessity of his medical expenses. Plaintiff argued that, by reserving the right to challenge the nature and extent of his injuries, Progressive raised issues that went beyond the “damages due the insured.” The trial court, Court of Appeals and Oregon Supreme Court all rejected plaintiff’s construction of the safe-harbor statute. View "Spearman v. Progressive Classic Ins. Co." on Justia Law

The Second Circuit held that, when applied, Section 5‐335 of the New York General Obligations Law prohibited Aetna's reduction of plaintiff's disability benefits. In this case, neither the Employee Retirement Income Security Act's, 29 U.S.C. 1001 et seq., preemptive force nor the Plan's choice of law provision compelled a different conclusion; and the court rejected Aetna's forfeiture argument. Therefore, the district court erred in granting Aetna's motion for summary judgment and denying plaintiff's motion for summary judgment in regard to plaintiff's entitlement to the past and ongoing benefits that Aetna has withheld on the ground that they are duplicative of plaintiff's personal injury settlement. Accordingly, the court reversed in part and remanded. View "Arnone v. Aetna Life Ins. Co." on Justia Law

In this declaratory judgment proceeding, petitioner Exeter Hospital, Inc. (Exeter) appealed a superior court order denying its motion for partial summary judgment as to the amount at which coverage was triggered under an umbrella policy (the policy) issued to Exeter by respondent Steadfast Insurance Company (Steadfast). In the spring of 2012, an outbreak of Hepatitis C infections among patients serviced by Exeter’s cardiac catheterization lab led investigators to discover that a technician had spread the virus to patients “through a clandestine drug diversion scheme.” The technician allegedly injected certain drugs into his body by way of intravenous needles, then reused the needles on patients, thereby infecting them with the virus. Numerous lawsuits were lodged against Exeter by affected patients. Exeter was primarily insured through a Self-Insurance Trust Agreement (SIT), which provided professional liability coverage in the amount of $1 million per medical incident, with a $4 million annual aggregate cap. Exeter also maintained the policy with Steadfast, which provided excess health care professional liability coverage. Steadfast maintained that it would pay damages only in excess of the $100,000 retained limit for each medical incident. Exeter filed this proceeding, seeking a declaration that it was not required to pay $100,000 retained limit per claim. The trial court interpreted the term “applicable underlying limit” as being a variable amount “dependent on the actual coverage remaining under [the] other [limits of] insurance,” here, the limits of the SIT. Because Exeter had paid out the limits of the SIT, the court found that the “applicable underlying limit” was zero, thereby rendering the $100,000 retained limit greater than the “applicable underlying limit.” Thus, the court determined that, pursuant to “Coverage A,” Steadfast was required “to pay damages in excess of $100,000 for each medical incident.” Exeter sought reconsideration of the court’s order, which the court denied. Although the New Hampshire Supreme Court did not agree with every underlying argument pressed by Exeter, it concluded that its overall argument regarding the interpretation of Coverage A was reasonable, and the trial court therefore erred in granting partial summary judgment as to the terms of Coverage A. View "Exeter Hospital, Inc. v. Steadfast Insurance Company" on Justia Law

Where an insurance policy provides that the insurer has the “duty to defend any claim” initiated against the insured, the insurer’s duty to defend does not require it to prosecute affirmative counterclaims on behalf of its insured. In this case, a policy imposed two duties on Insurer with respect to any wrongful termination claim brought against Insured. When a wrongful termination claim was commenced against Insured, Insurer filed a complaint for declaratory judgment seeking a ruling that its duty to Insured did not require that it prosecute or pay for the prosecution of a counterclaim for misappropriation of funds. A federal district court issued a judgment in favor of Insurer. On appeal, the United States Court of Appeals for the First Circuit certified three questions to the Massachusetts Supreme Judicial Court. The court answered the first two certified questions and did not reach the third. View "Mount Vernon Fire Insurance Co. v. Visionaid, Inc." on Justia Law

This case involved an allision causing significant damage to a submerged moor line for a mobile offshore drilling unit used by Shell. Tesla, an offshore survey company, contracted with International to provide and operate the tow vessel. On appeal, International and Tesla challenged the district court's grant of summary judgment dismissing their indemnity and insurance claims. The Fifth Circuit held that a warning to Tesla's party chief that the tow vessel was moving too close to the moor line was a gratuitous act that had no effect on the outcome of the litigation. The court also held that none of the insurance policies were in the record nor was there any other evidence from which the policy language could be definitively discerned. Accordingly, the court vacated the district court's judgment as to Tesla's and International's insurance claims and remanded. View "International Marine, LLC v. Integrity Fisheries, Inc." on Justia Law

Bob Hensley (Buyer) purchased real estate by contract for deed. He sued the insurer of the property's previous owner, State Farm Fire & Casualty, alleging breach of the implied-in-law duty of good faith. Insurer filed a motion for summary judgment and argued buyer was a stranger to the insurance contract and could not bring an action against insurer. The trial court granted the insurer's motion for summary judgment. The judgment was appealed and affirmed by the Court of Civil Appeals. After review, the Oklahoma Supreme Court held the buyer's action in this case for breach of the implied-in-law duty of good faith by an insurer was based upon his status as an insured or third party beneficiary; and buyer's equitable title to property arising from a contract for deed is insufficient by itself to confer upon him the status of an insured. The Court also held the buyer presented facts on the issue whether he was an intended third party beneficiary, and these facts and their inferences were disputed by insurer. Whether buyer was a third party beneficiary and an insured under the policy based upon disputed facts and inferences was a matter for the trier of fact, and summary judgment for insurer was improvidently granted. View "Hensley v. State Farm Fire & Casualty Co." on Justia Law

Reid founded Capitol, which owned commmunity banks, and served as its chairman and CEO. His daughter and her husband served as president and general counsel. Capitol accepted Federal Reserve oversight in 2009. In 2012, Capitol sought Chapter 11 bankruptcy reorganization and became a “debtor in possession.” In 2013, Capitol decided to liquidate and submitted proposals that released its executives from liability. The creditors’ committee objected and unsuccessfully sought derivative standing to sue the Reids for breach of their fiduciary duties. The Reids and the creditors continued negotiation. In 2014, they agreed to a liquidation plan that required Capitol to assign its legal claims to a Liquidating Trust; the Reids would have no liability for any conduct after the bankruptcy filing and their pre-petition liability was limited to insurance recovery. Capitol had a management liability insurance policy, purchased about a year before it filed the bankruptcy petition. The liquidation plan required the Reids to sue the insurer if it denied coverage. The policy excluded from coverage “any claim made against an Insured . . . by, on behalf of, or in the name or right of, the Company or any Insured,” except for derivative suits by independent shareholders and employment claims (insured-versus-insured exclusion). The Liquidation Trustee sued the Reids for $18.8 million and notified the insurer. The Sixth Circuit affirmed a declaratory judgment that the insurer had no obligation with respect to the lawsuit, which fell within the insured-versus-insured exclusion. View "Indian Harbor Insurance Co. v. Zucker" on Justia Law