Relying on well established Hawaii case law that the insurer must defend unless the underlying allegations demonstrate coverage is impossible, the Hawaii Intermediate Court of Appeals vacated the Circuit Court's order granting summary judgment to the insurer. See Island Ins. Co., Ltd. v. Arakaki, 2010 Haw. App. LEXIS 296 (Haw. Ct. App. June 16, 2010).
Duty to Defend
Professional Services Exclusion Bars Coverage
By Tred R. Eyerly on
A broadly drafted professional services exclusion was at issue in Admiral Ins. Co. v. Ford, 2010 U.S. App. LEXIS 10562 (5th Cir. May 21, 2010).
Ford purchased a CGL policy from Admiral. The policy included an exclusion for designated professional services, stating:
SCHEDULE
Description of Professional Services:
1. ALL OPERATIONS OF THE INSURED
…
Determination of Insured’s Fault Not Prerequisite for Defending Additional Insured
By Tred R. Eyerly on
Utilizing a novel argument, the insured contended it had no duty to defend the additional insured until there was a finding of fault against the named insured. The court rejected this argument in 373 Wythe Realty, Inc. v. Indian Harbor Ins. Co., 2010 U.S. Dist. LEXIS 45947 (E.D. N.Y. May 11, 2010).
Wythe…
Endorsement on Scope of Coverage for Additional Insureds Found Ambiguous
By Tred R. Eyerly on
Competing motions for summary judgment regarding the duty to defend an additional insured were both denied by the court in Detroit Public Schools Program Mgt. Team, LLC v. Valley Forge Ins. Co, 2010 U.S. Dist. LEXIS 40904 (E.D. Mich. April 27, 2010).
The Detroit Public Schools Program Management Team was organized to act as an…
Ambiguous Endorsement Means Insurer Must Defend Additional Insureds
By Tred R. Eyerly on
An ambiguous endorsement on the scope of coverage for additional insureds meant the insurer had a duty to defend. See Ames Const., Inc. v. Intermountain Indus., Inc., 2010 U.S. LEXIS 41588 (D. Mont. April 28, 2010).
Ames was the general contractor on a project to expand and upgrade the Missoula Wastewater Treatment…
Hawaii ICA Finds Construction Defects Are Not Occurrences
By Tred R. Eyerly on
Ever since the Ninth Circuit made an Erie guess in Burlington Ins. Co. v. Oceanic Design & Constr. Inc., 383 F.3d 940 (9th Cir. 2004), that the Hawai’i appellate courts would find that construction defects do not constitute an occurrence under a CGL policy, coverage practitioners have waited for an answer. Today, the Hawai`i Intermediate Court of Appeals…
Employer’s Liabilty Exclusion Applies Equally to Additional Insured
By Tred R. Eyerly on
Whether an exclusion for coverage of bodily injury to an employee of "the insured" applied to an additional insured was the issue in James McHugh Construction Co. v. Zurich Am Ins. Co., 2010 Ill. App. LEXIS 318 (Ill. Ct. App. April 13, 2010).
McHugh, the general contractor, hired JMS Electric, Inc. to…
Insured’s Rejection of Counsel Relieves Insurer of Defense Obligations
By Tred R. Eyerly on
Check out today's postover at hawaiioceanlaw.com where my Damon Key colleague, Mark Murakami, discusses a Katrina-related case in which the insured refused to accept the insurer's choice of defense counsel. The choice was risky because the Second Circuit relieved the insurer of having to pay defense costs.
Indemnity Provision Invalid, But Obligation to Cover Additional Insured Upheld
By Tred R. Eyerly on
The court considered the validity of a contractual provision to provide insurance when the indemnity clause was deemed invalid. See Travelers Lloyds Ins. Co. v. Pacific Employers Ins. Co., 2010 U.S. App. LEXIS 7113 (5th Cir. April 6, 2010).
The landlord, The Centre, leased commercial property to the tenant, Best Buy Stores, Inc. Pursuant to the…
Insurer Must Defend Allegations of Failure to Disclose Chemical’s Dangerous Propensities
By Tred R. Eyerly on
Whether a duty to defend was triggered by allegations of the failure to disclose a chemical's dangerous characteristics was the issue in Shell Chemical L.P. v. Discover Prop. & Cas. Ins. Co., 2010 U.S. Dist. LEXIS 30143 (S.D. Tex. March 29, 2010).
Mission Petroleum was an interstate carrier delivering naphtha to one…