Whether coverage for an allogeneic stem-cell transplant ("allo-transplant") was properly denied by the insurer was at issue in Hawaii Medical Service Association v. Adams, No. 28899 (Haw. Ct. App. May 21, 2009) [here]. An allo-transplant, used to treat myeloma, involves the harvesting and transplanting of stem cells from a matched donor. "Myeloma" is
May 2009
Waiving Stacked Coverage Continues When Additional Cars Added to Policy
By Tred R. Eyerly on
Considering Pennsylvania law, the Third Circuit was asked whether the insured waived "stacked" UIM benefits in subsequent policies that listed additional automobiles? See State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., No. 08-3006 (3rd Cir. May 12, 2009) [here]. In a result consistent with Hawai`i law, the Third Circuit held the initial…
Insured’s and Insurer’s Prior Acts Constitute Admissions of Wind and Flood Damage
By Tred R. Eyerly on
Senior Judge Senter from the Southern District of Mississippi continues to be on the front lines of the Katrina insurance coverage battles. In a case headed for trial, Judge Senter recently denied motions by both the insured and insurer attempting to establish estoppel on coverage issues. See Politz v. Nationwide Mut. Fire Ins. Co.…
Business Auto Policy Does Not Extend to Independent Contractor’s Vehicle
By Tred R. Eyerly on
In Union Standard Ins. Co. v. Hobbs Rental Corp., No. 07-2184 (10th Cir. May 5, 2009)[here], the court determined the insured's business auto policy did not cover vehicles owned and operated by an independent contractor.
The insured company rented oil drilling equipment. It hired an independent contractor to transport a "mud separator"…
No Coverage Where Each Possible Efficient Proximate Cause Excluded
By Tred R. Eyerly on
Coverage under a homeowners' policy was denied by State Farm when corrosion surrounding a nail driven through a pipe caused a leak and extensive water damage many years later. See Freedman v. State Farm Ins. Co., B202617 (Cal. Ct. App. May 5, 2009)[here]. The policy provided "all-risk" coverage, but excluded loss from:…
Insured Cannot Claim Defense Costs Incurred Prior to Giving Notice of Claim
By Tred R. Eyerly on
Determining the duty to defend does not arise until the insurer receives notice of a claim, the Indiana Supreme Court further found the insured has no right to pre-notice defense costs. Dreaded, Inc. v. St. Paul Guardian Ins. Co., No. 49S02-0805-CV-244, Ind. Sup. Ct. April 28, 2009) [here].
In November 2000, Dreaded received a letter from the…
Construction Defects “Expected and Intended” Despite Insured’s Claim of Ignorance
By Tred R. Eyerly on
Whether the insured had sufficient knowledge of a construction defect to justify the insurer's denial of coverage was the issue in Far Northwest Dev. Co., LLC v. Cmty. Ass'n of Underwriters of Am., Inc., Case. No. C-05-2134, 2009 U.S. Dist. LEXIS 34521 (W.D. Wa. April 22, 2009).
In the underlying case, the Homeowner's Association claimed Mr.
Coverage Denied for Subcontractor’s Defective Work
By Tred R. Eyerly on
Coverage for a subcontractor's defective work was the issue presented in Westfield Ins. Co. v. Sheehan Constr. Co., No. 08-3463, 2009 U.S. App. LEXIS 9021 (7th Cir. April 29, 2009).
Moisture problems were found in a residential subdivision for which Sheehan was the general contractor. An investigation determined defective work by one of Sheehan's…
Veternarian Entitled to Defense Under Liability Policy
By Tred R. Eyerly on
A veterinarian was entitled to a defense under his Veterinarian's Professional Liability Policy when sued for testimony given in an animal cruelty proceeding. See Centennial Ins. Co. v. Patterson, No. 08-1521, 2009 U.S. App. LEXIS 8402 (1st Cir. April 23, 2009).
The insured was sued with eighty other defendants by Carol Murphy. Ms. Murphy's suit was based…
Fifth Circuit Finds Flood Exclusion Ambiguous in Excess Policy
By Tred R. Eyerly on
A mixed result for the insured and excess insurers was reached in Six Flags Inc. v. Westchester Surplus Lines Ins. Co., No. 08-30476, 2009 U.S. App. LEXIS 8273 (5th Cir. April 21, 2009)[here]. Although the Fifth Circuit determined most insurers had no further coverage obligation, the flood exclusion in one excess policy…