HNRK Coverage Corner

On May 11, 2018, the Second Circuit issued a decision in Hough v. USAA Casualty Ins. Co., Case No. 17-1073, holding that a collision between a driver and a “flagman” at a construction site was not a covered “occurrence” under the driver’s automobile liability and umbrella policies because the injury was “intentionally caused.”  The policies contained the standard definition of a covered “occurrence” as an “accident,” which under the case law connotes “unintended damage.”  Olin Corp. v. Insurance Co. of North America, 221 F.3d 307, 317 (2d Cir. 2000 ...

On March 26, 2018, the New York Court of Appeals issued a decision by Judge Wilson in Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 2018 NY Slip Op 02117, holding that an Additional Insured-By Written Contract endorsement in a general contractor’s liability policy did not provide coverage for a construction manager that had no written contract with the general contractor — even though the contractor was obligated under a contract with the property owner to name the construction manager as an additional insured.  Judge Stein wrote a dissenting opinion, joined ...

On April 27, 2018, Justice Marcy Friedman of the New York County Commercial Division issued a decision in National Union Fire Ins. Co. of Pittsburgh, PA v. Burling Ins. Co., 2018 NY Slip Op 30741(U), holding that a Total Pollution Exclusion did not excuse an excess liability carrier’s duty to defend personal injury lawsuits brought by clean-up workers at the World Trade Center site, who alleged that they suffered respiratory and other injuries from exposure to toxins dispersed in the area after September 11.

The exclusion at issue in National Union applied to any claim for ...

On March 8, 2018, Judge Block of the EDNY issued a decision in Illinois Union Ins. Co. v. US Bus Charter & Limo Inc., Case No. 1:16-cv-06602-FB-RLM, holding that indemnification rights under a liability policy survived a class action settlement in which the insured consented to a $50 million judgment against it, subject to a covenant not to execute the judgment against the insured’s assets. 

The insured in Illinois Union had sought defense and indemnity coverage under a liability policy for a putative class action in which it was accused of sending unsolicited text messages ...

This blog previously covered Justice Sherwood's decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2017 NY Slip Op 32728(U), which granted a preliminary injunction directing three excess D&O insurers to advance attorneys' fees and costs for the defense of a securities fraud prosecution and a related SEC enforcement action.  (N.B. HNRK Partner Bradley J. Nash represented one of the insureds and argued the preliminary injunction motion on behalf of all the insureds.)  On March 22, 2018, the First Department denied the motion of one of the excess insurers (Freedom ...