The Complex Insurance Coverage Reporter – A Year in Review

Welcome to CICR’s annual review of insurance cases. Here, we spotlight five (actually, seven) decisions from the last year that you should know about, and five pending cases—all before state high courts—to keep an eye on. The choices were not always easy.

That is because 2018 saw a number of notable insurance coverage developments. Among them was the “Restatement of the Law – Liability Insurance,” a nearly five hundred-page document that the American Law Institute (ALI) adopted after eight years and twenty-nine drafts.

Already, much has been written about the ALI Restatement, including by us. There will be more to come. Going forward, we will continue to highlight significant examples where courts address its provisions.

But for now, as you will see in this issue, there is much more to talk about than just the ALI  Restatement.

We hope that you enjoy this special feature. Thank you for your interest in our publication. As always, we welcome reader feedback.

Five Cases to Know

Century Surety Company v. Andrew, et al., 2018 Nev. LEXIS 112 (Nev. Dec. 13, 2018)

Nevada Supreme Court adopts the minority view and concludes that, even in the absence of “bad faith,” an insurer’s liability for breach of the duty to defend is not automatically capped at policy limits plus the insured’s defense costs, and that the insurer may be liable for “any consequential damages caused by its breach” (potentially including an excess judgment that is “consequential to the insurer’s breach”). Explains that an insurer “refuses to defend at its own peril” and that its liability depends on the “unique facts of each case” and is for a jury to determine.

“[W]e are not saying that an entire judgment is automatically a consequence of an insurer’s breach of its duty to defend; rather, the insured is tasked with showing that the breach caused the excess judgment and ‘is obligated to take all reasonable means to protect himself and mitigate his damages.’”

Harvey v. GEICO General Insurance Company, 2018 Fla. LEXIS 1705 (Fla. Sept. 20, 2018)

A divided Florida Supreme Court concludes that a jury’s finding of “bad faith” for failure to settle was supported by the “totality of the circumstances,” even though the insurer tendered policy limits nine days after a fatal auto accident. Recognizes that negligence is not the standard and that a causal connection between the claimed damages and “bad faith” is required, but (1) qualifies that “[b]ecause the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith” and (2) rejects the suggestion that there can be no “bad faith” liability where the insured’s (in)actions result at least in part in an excess judgment since the focus is on the conduct of the insurer. Further analysis of Harvey by Adam Berardi is available here.

“By adopting a negligence standard in all but name, ignoring the controlling conduct of the insured and the third-party claimant, and relying on unsupported assumptions, the majority incentivizes a rush to the courthouse steps by third-party claimants whenever they see what they think is an opportunity to convert an insured’s inadequate policy limits into a limitless policy.” (Canady, CJ dissenting)

Keyspan Gas East Corporation v. Munich Reinsurance America, Inc., et al., 96 N.E.3d 209 (N.Y. 2018)

New York Court of Appeals rejects the policyholder’s proposed adoption of the so-called “unavailability of insurance exception” to pro rata time-on-the-risk allocation in the context of “long-tail” claims (whereby policyholders try to reallocate to insurers with “available” coverage the periods where insurance was “unavailable”). Adheres to the long-standing rule in New York that, under pro rata allocation, insurers are only responsible for the portion of the damage that occurred during their policy periods. Further analysis of Keyspan by Bob Walsh and Paul Briganti is available here.

“It follows from our holding in Consolidated Edison that the unavailability rule is inconsistent with the contract language that provides the foundation for the pro rata approach — namely, the ‘during the policy period’ limitation — and that to allocate risk to the insurer for years outside the policy period would be to ignore the very premise underlying pro rata allocation.”

Liberty Surplus Insurance Corporation, et al. v. Ledesma & Meyer Construction Company, Inc., et al., 418 P.3d 400 (Cal. 2018)

California Supreme Court rules in the context of the duty to defend that claims against an employer-insured for negligent hiring, retention and supervision of an employee who intentionally injured a third-party (which in this case involved alleged molestation) can be considered “accidental” and therefore an “occurrence” under a commercial general liability policy. Explains that the term “accident” refers to an “unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause” and is “more comprehensive than the term ‘negligence’ and thus includes negligence.” According to the opinion, (1) coverage turns on whether the insured’s liability resulted under tort law from covered causes (i.e., the focus of the analysis is on the alleged negligence of the employer-insured); and (2) the molestation by the employee may be deemed an “unexpected consequence” of the insured’s allegedly negligent employment practices which were “independently tortious acts.”

“Absent an applicable exclusion, employers may legitimately expect coverage for such claims under comprehensive general liability insurance policies, just as they do for other claims of negligence.”

Ohio Northern University v. Charles Construction Services, Inc., et al., 2018 Ohio LEXIS 2375 (Ohio Oct. 9, 2018)

Ohio Supreme Court rules that a liability insurer had no duty to defend or indemnify its GC-insured against property damage claims due to a subcontractor’s defective work. Applies Westfield Ins. Co. v. Custom Agri Sys., Inc., 979 N.E.2d 269 (Ohio 2012) and holds that property damage caused by faulty work of a subcontractor is not fortuitous and does not meet the definition of an “occurrence” under a commercial general liability policy.

“CGL policies are not intended to protect owners from ordinary ‘business risks’ that are normal, frequent or predictable consequences of doing business that the insured can manage.”

Also Noted

Gilbane Building Company, et al. v. St. Paul Fire & Marine Insurance Company, et al., 97 N.E.3d 711 (N.Y. 2018)

New York Court of Appeals rules that a construction project manager was not entitled to coverage as an additional insured (AI) under a GC’s general liability policy even though the GC had agreed to procure such coverage in its contract with the project owner. Concludes that the policy endorsement conferring AI status on “any person or organization with whom you have agreed to add as an additional insured by written contract. . .” is “facially clear” and unambiguously requires a direct written contract (i.e., privity) between the named insured and the proposed AI, which did not exist here, for coverage to be extended. The phrase “with whom,” when given its ordinary meaning, “can only mean that the written contract must be ‘with’ the additional insured,” the court said.

“[O]ur decision does not ‘undermine[] an industry market solution aimed at efficiently allocating risk among entities involved in construction projects’ (dissenting op, at 1) — it merely requires contracting parties who desire the result proposed by the dissent to remove the word ‘with’ from their future contracts.”

Martin/Elias Properties, LLC v. Acuity, 544 S.W.3d 639 (Ky. 2018)

Kentucky Supreme Court holds that faulty workmanship on the basement and foundation of a townhouse (the only areas where the insured was contracted to work) that resulted in extensive damage to the entire structure was not an “accident”/“occurrence” under the contractor-insured’s commercial general liability policy. Clarifies that the accident analysis focuses on the doctrine of fortuity which encompasses intent (i.e., whether the insured intended the event to occur) and control (i.e., whether it was a “chance event” beyond the insured’s control). Concludes that the resulting damage throughout the property from the insured’s poor workmanship (including areas where the insured did not work) was not a fortuitous event/accident where the insured had complete control over the work and fully intended his actions on the project.

“For an event to be fortuitous, and therefore an accident, it must be ‘beyond the power of any human being to bring. . .to pass, [or is]. . .within the control of third persons. . .’”

Five Cases to Watch

Erie Insurance Exchange v. Moore, et al., 20 WAP 2018 (Pa.)

Pennsylvania Supreme Court accepts review of a decision by the Superior Court that allegations by the underlying claimant that he was accidentally shot during a fight with the insured — who had just killed his ex-wife and would then commit suicide — pleaded facts that “fit the Policies’ definitions of a covered ‘occurrence,’ rather than conduct deliberately intended to inflict harm” (i.e., “fairly portray a situation in which injury may have been inflicted unintentionally”). The Superior Court agreed that legal terminology in the underlying complaint describing the insured’s conduct as “negligent” and “careless” was not determinative, and that the alleged facts (and not the language of an “artful pleading”) control, but concluded that there was a duty to defend since the complaint alleged that the shooting was accidental and that the insured did not “intend[] the resultant damage.” Erie Ins. Exch. v. Moore, 175 A.3d 999 (Pa. Super. 2017), reh’g denied, 2018 Pa. Super. LEXIS 54 (Pa. Super. Jan. 24, 2018), app. granted, 189 A.3d 382 (Pa. 2018). Additionally, the Superior Court explained that it was error for the trial court to base its decision on anything other than the underlying complaint and the policies at issue (e.g., the claimant’s deposition). The issues (as stated by the insurer) before the Supreme Court are:

  1. “Does the Superior Court’s ruling that shooting a person during a fight, in turn, during a planned murder-suicide, constituted an ‘occurrence’ under a liability insurance policy conflict with Pennsylvania law as established by this Court?”
  2. “Does the Superior Court’s ruling conflict with its own decision in American National Property and Casualty Co. v. Hearn, 2014 PA Super 118, 93 A.3d 880 (Pa. Super. 2014), and misconstrue the intentional acts exclusion of a liability insurance policy?”
  3. “Does the Superior Court’s ruling conflict with Pennsylvania public policy, as stated in Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 747 (Pa. 1999), that liability insurance does not cover damages caused as a result of evil or illegal conduct?”

In re: Mt. Hawley Insurance Company, No. 2018-001170 (S.C.)

South Carolina Supreme Court, on certified question from the Fourth Circuit, to decide whether an insurer waives the attorney-client privilege when it denies liability in a “bad faith” case. The federal district court, relying on City of Myrtle Beach v. United Nat. Ins. Co., 2010 U.S. Dist. LEXIS 89725 (D.S.C. Aug. 27, 2010) (unpublished), (1) concluded that since the insured and underlying claimants had established a prima facie case of “bad faith,” and the insurer denied liability for “bad faith” failure to defend or indemnify in its answer, the insurer put its claims files “at issue” and waived the privilege as to any relevant attorney-client communications in the files; and (2) ordered the files produced for in camera review. In re Mt. Hawley, 2018 U.S. App. LEXIS 17910 (4th Cir. 2018). The question certified is:

“Does South Carolina law support application of the ‘at issue’ exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer?”

Keodalah v. Allstate Insurance Company, et al., No. 95867-0 (Wash.)

Washington Supreme Court to review a 2018 decision by the State’s intermediate Court of Appeals that an individual employee insurance adjuster can be liable for “bad faith” and Consumer Protection Act (CPA) violations. Calling these issues that “present unresolved legal questions on which courts have divided,” the Court of Appeals found that (1) Washington’s Insurance Code, RCW 48.01.030 (Public interest), “imposes a duty of good faith on all persons engaged in the business of insurance, including individual adjusters;” and (2) a CPA claim does not require the existence of a contractual relationship between the parties. See Keodalah v. Allstate Ins. Co., 413 P.3d 1059 (Wash. Ct. App.), recon. denied, 2018 Wash. App. LEXIS 2813 (Wash. Ct. App. Apr. 20, 2018), rev. granted, 424 P.3d 1214 (Wash. 2018). As stated in the petition for review, the issue presented to the Supreme Court is:

“Does an employee claims adjuster, despite lacking any legal relationship with an insured, owe an actionable, independent duty of good faith to the insured?”

Further analysis of Keodalah by Tony Miscioscia and Tim Carroll is available here.

Montrose Chemical Corporation of California v. Superior Court, No. S244737 (Cal.)

California Supreme Court to address the method of policy exhaustion in environmental coverage action. A state appeals court previously (1) rejected policyholder Montrose’s blanket “elective stacking” approach to vertically exhaust excess policies saying that “[State of California v. Continental Ins. Co., 281 P.3d 1000 (2012)] did not, as Montrose asserts, announce a general principle that insureds covered by multiple policies are entitled to ‘select which policy(ies) to access for indemnification in the manner they deem most efficient and advantageous;’’’ and (2) found that the sequence in which coverage may be accessed must be evaluated on a policy-by-policy basis in light of potentially relevant provisions including “other insurance” clauses. Montrose Chem. Corp. v. Superior Court, 222 Cal. Rptr. 3d 748 (Cal. Ct. App., 2d Dist.), rev. granted, 406 P.3d 327 (Cal. 2017). According to the case summary available on the Supreme Court’s website, the issue on appeal is:

“When continuous property damage occurs during several periods for which an insured purchased multiple layers of excess insurance, does the rule of ‘horizontal exhaustion’ require the insured to exhaust excess insurance at lower levels for all periods before obtaining coverage from higher level excess insurance in any period?”

R.T. Vanderbilt Company, Inc. v. Hartford Accident & Indemnity Company, et al., Nos. SC 20000, 20001 & 20003 (Conn.)

Connecticut Supreme Court to address “trigger,” allocation (adoption of the so-called “unavailability of insurance exception”), and application of pollution and occupational disease exclusions in asbestos coverage action. The state’s intermediate appellate court previously addressed these issues in R.T. Vanderbilt Co., Inc. v. Hartford Acc. & Indem. Co., 156 A.3d 539 (Conn. App. Ct.), certif. granted, 171 A.3d 61, 62 & 63 (Conn. 2017). The questions to be decided by the Supreme Court are:

  1. “Did the Appellate Court properly affirm the trial court’s adoption of a ‘continuous trigger’ theory of coverage for asbestos related disease claims as a matter of law and the trial court’s related preclusion of expert testimony on current medical science regarding the actual timing of bodily injury from such disease?”
  2. “Did the Appellate Court properly affirm the trial court’s adoption of an ‘unavailability of insurance’ exception to the ‘time on the risk’ rule of contract law, which provides for pro rata allocation of defense costs and indemnity for asbestos related disease claims?”
  3. “Did the Appellate Court properly interpret pollution exclusion clauses in certain insurance policies as applicable only to claims arising from ‘traditional’ environmental pollution and not to those arising from asbestos exposure in indoor working environments?”
  4. “Did the Appellate Court properly interpret occupational disease exclusion clauses in certain insurance policies as precluding coverage for claims of occupational disease, regardless of whether the claimant was employed by the policyholder or by a third party user of the claimant’s allegedly harmful product?”