HNRK Coverage Corner

On December 4, 2018, the Second Circuit issued a decision in American Empire Surplus Ins. Lines v. Colony Ins. Co., Case No. 17‐3799, holding that a city agency’s CGL policy did not cover a claim for injuries sustained by employees of a contractor hired by the agency. American Empire arose from a personal injury lawsuit filed against the New York City Housing Authority (NYCHA) by employees of a contractor (Technico) hired to remodel certain buildings owned by NYCHA. Technico’s insurance carrier (American Empire) defended NYCHA in the lawsuit and then filed a lawsuit seeking ...

On September 10, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2018 NY Slip Op 32233(U), denying a D&O insurers’ motion for summary judgment based on a prior and pending litigation exclusion (the “PPL Exclusion”). Freedom Specialty is a D&O coverage litigation arising from a criminal securities fraud prosecution in the EDNY against officers of Platinum Partners, a New York hedge fund.

Last December, Justice Sherwood issued a preliminary injunction directing three excess D&O ...

On June 27, 2018, Judge Oetken of the SDNY issued a decision in Liberty Ins. Corp. v. WSP USA, Inc., Case No. 17-cv-4398(JPO), holding that coverage under a CGL Policy was excluded by a professional liability exclusion.

The insured, WSP, was hired by the Washington State Department of Transportation to “evaluate the repair or replacement of the Alaskan Way Viaduct, a highway project in Seattle.” WSP “agreed to develop an environmental impact statement and to perform ‘associated design work’ for the viaduct project." WSP was sued for negligence by a contractor that worked ...

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 January 22, 2018, the Second Circuit issued a decision in Beazley Ins. Co. v. ACE Am. Ins. Co., Case No. 16‐2812‐cv, holding that an undefined term in a policy exclusion was not ambiguous because it had a “clear meaning in federal law.” is an insurance coverage action relating to investor lawsuits against NASDAQ in connection with Facebook’s IPO. At issue was a “professional services” exclusion in NASDAQ’s policy, which provided that the insurer “shall not be liable for Loss on account of any Claim . . . by or on behalf of a customer or client of the Company, alleging ...