Damon Key's current edition of Legal Alert focuses on its litigation practice. See the current edition here.
No Ambiguity Can Exist Between Standard Flood Policy and Its Declaration Page
The First Circuit considered whether an alleged ambiguity on the scope of coverage between the Declarations Page and a Standard Flood Insurance Policy ("SFIP") would allow coverage to the insured. McGair v. Am. Bankers Ins. Co. of Florida, 2012 U.S. App. LEXIS 185911 (1st Cir. Sept. 4, 2012).
The insureds home was damaged
“Personal Injury” Caused By Wrongful Entry Found Ambiguous
The Indiana Court of Appeals found the "personal injury" provisions to be ambiguous when asked whether the migration of sand constituted a "wrongful entry" or "invasion of the right of private occupancy" under the policy. FLM, LLC v. The Cincinnati Ins. Co., 2012 Ind. Ct. App. LEXIS 411 (Ind. Ct. App. Aug. 28, 2012).
FLM
Meaning of “Sudden” in Pollution Exclusion Found Ambiguous
The New Mexico Supreme Court considered whether the word "sudden" found in the pollution exclusion of a liability policy was ambiguous. See United Nuclear Corp. v. Allstate Ins. Co., No. 32,939 (N.M. Aug. 23, 2012).
United Nuclear operated several uranium mines in New Mexico from the 1960s through the early 1980s. At Church
Exception to Exclusion for Water Damage Found Ambiguous
The insured homeowners were successful in establishing coverage for water damage after demonstrating an exception to the exclusion relied upon by the insurer was ambiguous. Plantek v. Town of Hamburg, 948 N.Y.S. 2d 797 (N.Y. App. Div. 2012).
The insureds' basement was flooded after an abutting water main ruptured. Allstate denied coverage
Insurer Has Duty to Disclose Insured’s Interest In Obtaining Written Explanation of Arbitration Award
The issue faced by the Minnesota Supreme Court was whether the insurer had a duty to disclose the insured's interest in obtaining a written explanation of an arbitration award that identified the claims of recovery and the portions of the award attributable to each. Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 2012
Federal District Court Predicts Florida Will Adopt Injury In Fact Trigger
The U. S. District Court for the Middle District of Florida was confronted with determining whether Florida would follow the manifestation or injury in fact trigger in Axis Surplus Ins. Co. v. Contravest Constr. Co., 2012 U.S. Dist. LEXIS 104502 (D. Fla. June 5, 2012).
The homeowner's association sued the insureds for
Judge Kobayashi Determines No Coverage for Construction Defect Claim
Judge Kobayashi of the U.S. District Court, District of Hawaii, largely followed earlier precedent established by Judge Mollway in finding no coverage for construction defect claims. See Evanston v. Nagano, 2012 WL 3800320 (D. Hawaii Aug. 31, 2012).
Evanston issued several liability policies to the insured contractor from 2002 and 2011. The insured
Failure to Provide Timely Notice of Claim Releases Excess Carrier
Receipt of notice of a claim to the excess carrier after the jury awarded damages was insufficient to enforce coverage. See Berkley Reg'l Ins. Co. v. Philadelphia Indem. Ins. Co., 2012 U.S. App. LEXIS 15998 (5th Cir. Aug. 2, 2012).
The underlying case involved a slip-and-fall by a dentist on the premises
No Coverage for Counterclaim Alleging Construction Defects Pled as Breach of Contract
The Colorado Court of Appeals considered whether counterclaims against the insured for alleged faulty construction work were based in contract or constituted allegations of an "accident" under the policy. TCD, Inc. v. Am. Family Mutual Ins. Co., 2012 WL 1231964 (Colo. Ct. App. April 12, 2012).
The developer, Frisco Gateway Center, LLC, contracted