Burlington Insurance Company wins again. The Ninth Circuit of Appeals issued an unpublished decision a few months ago entitled Burlington Insurance v. Steve’s Ag Services, which appears to perpetuate some of the logic flaws in the original Burlington decision. Although the court refused to explain the underlying facts (instead simply stating "the parties are
Comprehensive General Liability
Relying on Hawaii Insurance Law, New York Court Rules Consequential Damages Properly Awarded Against Insurer
By Tred R. Eyerly on
The New York Court of Appeals recently ruled that commercial property owners can seek “consequential damages” against their insurers who breach the policy. In reaching its decision, the Court relied, in part, on a decision by the Hawaii Court of Appeals, The Best Place, Inc. v. Penn Am. Ins. Co., 82 Haw. 120, …
Additional Insured Covered Even if not Entitled to Contractual Indemnification Due to Negligence
By Tred R. Eyerly on
Under Hawaii law, a party to a construction contract cannot exempt itself from liability for bodily injury caused by its “sole negligence or willful misconduct.” Haw. Rev. Stat. §431:10-222. Texas is similar in that it does not allow an indemnity agreement to cover an indemnitee’s sole negligence, but provides an exception if the …
Ninth Circuit Considers Impact of Cancellation Notice Never Received by Insured
By Tred R. Eyerly on
The Hawaii Insurance Code provides that a cancellation notice sent by the insurer shall not be deemed valid unless evidence of mailing is provided. Haw. Rev. Stat. §431:10-226.5. What if the insurer sends the notice by certified mail, but the notice is returned as undelivered? Although never addressed by the Hawaii Supreme Court, …
Apportionment Issue Addressed by 7th Circuit
By Tred R. Eyerly on
In Sentinel Insurance Company, Ltd. v. First Ins. Co. of Hawaii, Ltd., 76 Haw. 277, 875 P.2d 894 (Haw. 1994), the Hawaii Supreme Court addressed equitable apportionment of liability among two insurers who provided coverage at various times over a number of years during which property damage occurred. In Sentinel, the …
Insuring Sub-Contractor’s Indemnity for Contractor’s Negligence
By Tred R. Eyerly on
The Fifth Circuit Court of Appeals recently considered whether an insurer must cover a subcontractor’s contractual obligation to indemnify the contractor for the contractor’s negligence. XL Specialty Ins. Co. v. Kiewit Offshore Services, Ltd., No. 06-41785 (5th Cir. Jan. 2, 2008). The subcontractor’s employee was killed at a job site explosion …
More on Insurance Policy Assignments (Del Monte Fresh v. Fireman’s Fund)
By Tred R. Eyerly on
Robert gave his initial impressions of this new Hawaii Supreme Court case last week. Del Monte Fresh Produce (Hawaii), Inc. v. Fireman's Fund Ins. Co., 117 Haw. 357, 183 P.3d 734 (2007). I add some thoughts and a summary below. By way of disclaimer, my name appears in the decision as one …
Federal Court Determines Hawaii Law Supports Reimbursement of Defense Costs Where No Duty to Defend
By Tred R. Eyerly on
In February, 2006, Federal District Court Judge Helen Gillmor granted the insurer’s Motion for Partial Summary Judgment, determining there was no duty to defend. Scottdale Ins. Co. v. Sullivan Properties, Inc., 2006 U.S. Dist. LEXIS 11582 (D. Haw., Feb. 27, 2006). The decision invited Scottsdale move for reimbursement of defense costs.
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