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The First Circuit has held, under Massachusetts law, that an insurer’s actual knowledge of a claim does not excuse the insured from reporting the claim to the insurer as required by the policy. President and Fellows of Harvard College v. Zurich Am. Ins. Co., 77 F.4th 33 (1st Cir. 2023). In so holding, the court followed a “well-beaten path” in Massachusetts recognizing that notice provisions in claims-made policies must be strictly enforced regardless of whether the insurer is prejudiced by the insured’s failure to comply with the policy’s notice requirements.…

Continue Reading First Circuit Strictly Enforces Claims Made and Reported Policy Terms and Finds Actual Notice of Claim Insufficient to Excuse Failure to Comply With Notice Requirements

The Eleventh Circuit has held, in a matter of first impression under Georgia law, that a reservation of rights letter including a right to reimbursement did not entitle insurers to reimbursement of defense costs absent policy language expressly providing for such right. See Continental Casualty Co. v. Winder Laboratories, LLC, __ F.4th __, 2023 U.S. App. LEXIS 17852 (11th Cir. July 13, 2023).…

Continue Reading Eleventh Circuit Holds That Georgia Law Does Not Require Reimbursement of Defense Costs Paid Subject to a Reservation of Rights Absent Policy Language Requiring Reimbursement

The Fourth Circuit has held that an insurer correctly denied coverage for costs that the insured law firm and one of its attorneys incurred when the government investigated the attorney because neither a search warrant executed at the firm’s office nor letters the government sent to the attorney were “Claims,” as that term is defined in the subject professional liability policy. See Brown Goldstein Levy LLP v. Federal Insurance Co., No. 22-1023, 2023 U.S. App. LEXIS 12217 (4th Cir. May 18, 2023).…

Continue Reading Fourth Circuit Holds Government Investigation Costs Are Not Covered Under Lawyers Professional Liability Policy Because Search Warrant and Target Conflict Letters Are Not Claims Against An Insured

The Ninth Circuit has held that California Insurance Code § 533 bars indemnity coverage for retaliation claims brought against the County of Sacramento Sheriff’s Department under California’s Fair Employment and Housing Act (“FEHA”). See County of Sacramento v. Everest National Insurance Co., No. 22-15250, 2023 U.S. App. LEXIS 3387 (9th Cir. Feb. 13, 2023).…

Continue Reading Ninth Circuit Holds That California Insurance Code Section 533 Bars Indemnity Coverage for Employment Retaliation Claims

In a recently unsealed opinion, a trial court in Delaware granted summary judgment to three excess insurers holding that a prior knowledge exclusion in warranty letters provided to the excess insurers precludes coverage for government investigations, enforcement actions, and civil and criminal litigation concerning Infinity Q Capital Management LLC (“Infinity Q”). See Infinity Q Capital Management, LLC, et al. v. Travelers Casualty and Surety Company, et al., C.A. No. N21C-07-158 EMD CCLD, 2022 WL 2902803, 2022 Del. Super. LEXIS 363 (Del. Super. Ct., Aug. 15, 2022). …
Continue Reading Delaware Court Holds That Warranty Letters’ Prior Knowledge Exclusion Bars Coverage

After the Fourth Circuit held that a commercial general liability (“CGL”) policy could cover a data incident in 2016, confusion arose as to whether CGL policies would continue to cover data breaches. A recent California lawsuit by the smart-TV maker Vizio against two of its insurance companies shows that this confusion also arises when an insured invokes CGL policies to cover litigation arising from alleged data misuse.
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Continue Reading Somebody’s Watching Me: A Recent Smart-TV Lawsuit Seeks Insurance Coverage for Privacy Litigation