Commercial General Liability Dispatch

Tressler’s experienced Insurance attorneys provide the latest commercial general liability news and insights.

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By: Tressler LLP

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dibora berhanu
kathleen danna
danita davis sudac
michael disantis
jamie gende
william mcvisk
anthony tessitore

Latest from Commercial General Liability Dispatch

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In T-Mobile USA Inc. v. Selective Ins. Co. of Am., No. 96500-5, — P.3d —, 2019 WL 5076647 (Wash. Oct. 10, 2019), the Supreme Court of Washington answered the Ninth Circuit’s certified question regarding whether an insurance company is bound by its agent’s written representation — made in a certificate of insurance — that a particular corporation is an additional insured under a given policy. Under Washington law, the answer is “yes” — an insurance company is bound by the representation of its agent in those circumstances where the agent acted with apparent authority even though that agent’s representation turned…
In most circumstances, Illinois courts have followed the “cause test” for determining the number of occurrences under an occurrence-based insurance policy. E.g., Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 418-20 (2006). Under the cause… Continue Reading → The post Number of Occurrences for Toxic Torts appeared first on Commercial General Liability Dispatch.…
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In Cincinnati Ins. Co. v. H.D. Smith Wholesale Drug Co., Case No. 12-3289 (C.D. Ill. Sep. 26, 2019), the court held that Cincinnati Insurance Company (“Cincinnati”) owes coverage for H.D. Smith’s settlement of a lawsuit filed by the State of West Virginia arising out of the opioid crisis (“the West Virginia Lawsuit”). Three years ago, the Seventh Circuit held that Cincinnati owed a duty to defend H.D. Smith in the West Virginia Lawsuit in one of the few published opinions weighing in on whether opioid-related claims may be covered under commercial general liability insurance policies. Relying heavily on…
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In Illinois Tool Works, Inc. v. Ace Specialty Ins. Co., 2019 IL App (1st) 181945, the Illinois Appellate Court upheld the lower court’s grant of partial summary judgment to two insurance companies holding that the insurers had no duty to defend an insured in a pre-suit mediation of environmental contamination claims as said claims did not constitute a “suit” within meaning of the applicable commercial general liability (“CGL”) policy. On appeal, the court also distinguished the case from its 1997 holding in Benoy Motor Sales, Inc. v. Universal Underwriters Ins. Co., 287 Ill. App. 3d 942 (1st …
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In Navigators Ins. Co. v. American Home Assurance Co., 2019 WL 2583253, — S.W.3d —- (Mo. Ct. App. 2019), the Missouri Court of Appeals held that a commercial general liability insurance policy provided no coverage for claims that an electrical cooperative wrongfully installed fiber optic cable on electrical transmission easements. The court held that there was no “property damage” coverage because the use of the easement did not involve tangible property damage and there was no “personal and advertising injury” coverage because the electrical cooperative was not the “owner” of the property on which it was alleged to…
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In Sterngold Dental, LLC v. HDI Global Insurance Company, ___ F.3d___, 2019 WL 2754185 (1st Cir. 2019), the First Circuit was presented the opportunity to address how to construe “the scope of the so-called intellectual property exclusion (IP exclusion) to the personal and advertising injury coverage under a standard commercial general liability policy (the Policy).” Sterngold manufactures and sells dental products. The Policy obtained by Sterngold by HDI Global Insurance Company (“HDI”) obligated HDI to defend and indemnify Sterngold against claims for damages because of “personal and advertising injury,” and contains the IP exclusion, which excluded coverage for…
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In Penn National Mutual Casualty Insurance Company v. Beach Mart, Inc., — F.3d —-, 2019 WL 3483167  (4th Circ. Aug. 1, 2019) (North Carolina law), the Fourth Circuit Court of Appeals reversed and remanded a decision of the United States District Court for the Eastern District of North Carolina which found that an insurer’s exclusion precluding coverage for injuries arising out of oral or written publication of material whose first publication took place before the beginning of the policy period abrogated that insurer’s duty to defend its insured in a dispute with a competitor purveyor of beach merchandise.…
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UPDATE: The Third Circuit recently affirmed the United States District Court for the Eastern District of Pennsylvania in Transportation Ins. Co v. Heathland Hosp. Group LLC, — Fed. Appx. —-, 2019 WL 3383876, at *1 (3d Cir. July 26, 2019), a case which we wrote about last year.  Transportation arose out of a car accident in which the plaintiff’s husband was fatally injured when he was struck by a driver who allegedly became intoxicated at a country club whose drink sales were allegedly managed by the insured. The dispositive issue was whether coverage was barred by liquor liability exclusion,…
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In Pennsylvania Manufacturers Indem. Co. v. Pottstown Industrial Complex, LP, 2019 WL 3281746, — A.3d —- (Pa. Super. Ct. July 22, 2019), the Pennsylvania Superior Court held an insurer owed a duty to defend its insured against a tenant’s claim for damage to its inventory from flooding during rainstorms as a result of the insured’s alleged failure to maintain the roof of the building.  Distinguishing well-established Pennsylvania law holding claims for faulty workmanship do not constitute an “occurrence,” the court held the insurer owed a duty to defend because the complaint alleged the insured’s faulty work resulted in…
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In All America Ins. Co. v. Lampasona Concrete Court., 120 N.E.2d 1258 (Mass.App.Ct. 2019), a Massachusetts appellate court vacated a trial court’s decision and held the trial court erred in ruling that Exclusion J(6) precluded coverage for the cost of removing and replacing a hospital’s flooring structure when the insured subcontractor had only worked on the concrete slab underlying the floor. All America had sought a declaration that Lampasona’s CGL policy excluded coverage for damage to a vapor barrier and carpet tiles resulting from Lampasona’s negligent installation of a concrete subfloor at Beverly Hospital and that it had no duty…
In Hershey Creamery Co. v. Liberty Mutual Fire Ins. Co., No. 1:18-CV-694, 2019 WL 1988397 (M.D. Pa. May 6, 2019), the United States District Court for the Middle District of Pennsylvania held a patent and trademark infringement lawsuit against an insured triggered a duty to defend under “personal and advertising injury” coverage.  The dispositive issue was whether the complaint, which was premised on alleged infringement on the plaintiff’s marks in the insured’s in-store signage and milkshake containers, potentially alleged an “advertisement,” which was defined to mean, in relevant part, “a paid announcement that is broadcast or published in the print,…
Numerous Illinois cases have considered the question of when an insurer must defend or indemnify an additional insured. E.g., Pekin Ins. Co. v. Centex Homes, 2017 IL App (1st) 153601; National Union Fire Ins. Co. of Pittsburgh, PA. v. R. Olson Constr. Conts., Inc., 329 Ill.App.3d 228 (2d Dist. 2002); Commonwealth Edison Co. v. National Union Fire Ins. Co. of Pittsburgh, PA., 323 Ill.App.3d 970 (1st Dist. 2001).  In most additional insured coverage cases, two factors are critical to the outcome. The first is the wording of the additional insured endorsement, and the second is the extent to which facts outside the…
The Illinois Appellate Court for the First District ruled that an insured was entitled to independent counsel where its insurer was reserving rights based on a punitive damages exclusion and the claim for punitive damages was the greatest part of the insured’s exposure. In Xtreme Protection Services LLC v. Steadfast Ins. Co., 2019 IL App (1st) 181501 (Ill. App. Ct. May 3, 2019), the underlying case involved a suit against Xtreme Protection Services LLC for illegal wiretapping and sending threatening or harassing text messages. Plaintiff’s claim against Xtreme in the underlying case sought $800,000 in compensatory damages (within Steadfast’s $1…
In Evanston Ins. Co. v. A&R Homes Development, LLC, 2019 WL 661587 (N.J. Super. App. Div. Feb. 19, 2019), the Appellate Division of the Superior Court of New Jersey affirmed a trial court ruling that an exclusion for an insured’s liability to employees of its contractors or subcontractors was unambiguous and barred coverage. The case is significant on several fronts. First, it reaffirms New Jersey law that where an injured party has been made a party to a coverage action against an insured/defendant and elects not to intervene in a carrier’s efforts to disclaim coverage, the injured party will be…
In Steadfast Ins. Co. v. Greenwich Ins. Co, 2019 WI 6 (2019), the Wisconsin Supreme Court ruled that an insurer that breached its duty to defend did not have to repay the full $1,550,000 that another insurer expended in defending the insured. Instead, the court apportioned the defense costs among the two insurers on a pro rata basis according to each insurer’s policy limits.The court declined to hold that the insurer who breached its duty to defend was responsible for the entire amount as a penalty, but did hold that the defending insurer was entitled to recover its attorney fees…
With social media use on the rise, insurers and insureds alike should be mindful of posts that can implicate the prior publication exclusion to coverage. In Scout, LLC v. Truck Ins. Exchange, 2019 WL 347471 — P.3d —- (Idaho Jan. 29, 2019), the Idaho Supreme Court addressed this issue in a trademark infringement case that began with what seemed like a simple Facebook post. Scout involved an Idaho LLC that purchased and renovated a downtown restaurant in Boise, turned it into a pub and began using the brand name Gone Rogue Pub. On October 10, 2012 Scout shared a public…