Finally weighing in on whether the presence of COVID-19 constitutes direct physical loss or damage to property, the California Supreme Court answered a certified question from the Ninth Circuit by determining there was no coverage under California law. Another Planet Entertainment, LLC v. Vigilant Ins. Co., 2024 Cal. LEXIS 2738 (Cal. May 23, 2024).

Another Planet operated venues for live entertainment. It suffered pandemic-related business losses when its venues closed. It alleged it suffered losses in excess of $20 million. Another Planet submitted a claim to Vigilant for direct physical loss or damage to its properties and consequent economic losses. Vigilant denied coverage contending Another Planet had not shown "physical loss or damage that would implicate coverage."

For Filicia Porter, the insurance bills were the final straw. They’d been climbing steeply for her assisted-living business as Florida was battered with ever more-powerful storms, and eventually, the numbers stopped adding up.

So in March, she finally decided to call it quits, shutting the facility near Palm Beach that she opened just two years ago. That came four months after she closed an older location in Port St. Lucie, opened in 2017. Together, they left a dozen residents scrambling to find another place to live.

Reprinted courtesy of Lauren Coleman-Lochner, Bloomberg and Melina Chalkia, Bloomberg

The Ninth Circuit affirmed the District Court's granting summary judgment to two insurers who denied coverage based upon inaccurate insurance applications. Hughes v. First National Insurance Company of America, 2024 U.S. App. LEXIS 6609 (9th Cir. March 20, 2024).

Plaintiff submitted a claim to First National Insurance Company of America and General Insurance Company of America when her property burned down. After learning that the property was used as a short-term rental and had suffered three prior lossses in the past five years, both insurers denied the claim. They then sought judicial recission of the policites based on material misrepresentations in plaintiff's insurance applications.

Both insurers had applications asking whether the property was used for business or commercial purposes, and whether the applicant had suffered a loss on the property in the last five years. If an applicant answered either question in the affirmative, the application was denied.

The Francis Scott Key Bridge collapse with the crash of container vessel Dali on March 26, 2024, in Baltimore was one of the most significant maritime losses in US history so far. As a result of the damages caused in terms of business interruptions and logistics scrambles, insurers will witness higher claims in 2024 across general insurance lines such as property, liability, and marine, aviation, and transit (MAT) insurance. However, the incident is unlikely to have a significant impact on the overall profitability of US insurers, as the average loss ratio of general insurance is expected to remain at 78.8% over 2024–28, according to GlobalData, a leading data and analytics company.

According to GlobalData's Global Insurance Database, property and motor insurance claims are expected to account for 11.9% and 14.7% share of the total general insurance claims in the US in 2024, amounting to $200.7 billion and $247.7 billion, respectively. Additionally, liability and marine, aviation, and transit (MAT) insurance claims are expected to account for a 6.6% and 1.3% share, amounting to $110.8 billion and $22.7 billion, respectively. However, with this event, the actual claims in 2024 might increase once the complete impact of the damage is realized.

The incident is expected to lead to the biggest marine insurance payout that is expected to cost insurers billions of dollars in losses. It is expected to surpass the marine losses of the Costa Concordia cruise ship disaster in 2012.

Insurance policies usually have cooperation clauses requiring policyholders to work with the insurance company when making a claim. These clauses ensure policyholders actively participate in claims investigations. Failure to cooperate may be a breach of the policy, and the insurer may deny coverage.

Proving non-cooperation, though, is challenging, as seen in a recent Eighth Circuit case, Cardinal Building Materials, Inc. v. Amerisure Insurance Company.[1] Amerisure claimed that its insured, Cardinal, had failed to cooperate in investigating Cardinal’s tornado claim.[2]

Reprinted courtesy of Rachel E. Hudgins, Hunton Andrews Kurth and Adriana A. Perez, Hunton Andrews Kurth

Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
Ms. Perez may be contacted at pereza@HuntonAK.com

A federal court recently ruled that a carrier must defend its policyholder against a claim involving the treasurer’s erroneous payment to a scammer. The ruling shows that a “wrongful act” under a D&O policy need not be an egregious act of wrongdoing, that coverage may hinge on whether extrinsic evidence can establish coverage, and that breach of contract claims are not always uninsurable as a matter of law.

In Bridlewood Estates Property Owners Association v. State Farm General Insurance Co., a California federal district court evaluated whether an insured association may be entitled to coverage for a breach of contract claim under an endorsement to its package liability policy providing directors and officers (D&O) coverage. Because the claims arose from an email spoofing scheme resulting in the association’s treasurer mistakenly issuing payment to a fraudster instead of the contracting party, the court determined that contract claims were based on a “wrongful act” by an officer potentially covered by the policy and that, as a result, the lawsuit triggered the insurer’s defense obligations. The decision shows the potential for D&O coverage for contract claims, as well as highlights the difficulty insurers face to exclude contractual liability on public policy grounds, which vary greatly between states and can be swayed by policy provisions applying one particular state’s laws over another.

Reprinted courtesy of Evan Holober, Hunton Andrews Kurth and Geoffrey B. Fehling, Hunton Andrews Kurth
Mr. Holober may be contacted at eholober@huntonak.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com

Directors and Officers (“D&O”) and cyber-related incidents continued to make headlines while ramped up regulatory enforcement and new legislation significantly altered the insurance landscape for both policyholders and insurers. Other noteworthy decisions reinforced the importance of foundational insurance coverage principals. Now that 2023 has wrapped, we highlight and review some of the most significant decisions and insurance developments that will continue to impact the world of insurance in 2024 and beyond.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth, Latosha M. Ellis, Hunton Andrews Kurth and Olivia G. Bushman, Hunton Andrews Kurth

Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Ellis may be contacted at lellis@HuntonAK.com
Ms. Bushman may be contacted at obushman@HuntonAK.com

The court granted, in part, the insured's motion for summary judgment by finding that matching roof tiles were required under the policy. Bertisen v. Travelers Home and Marine Ins. Co., 2024 U.S. Dist. LEXIS 3907 (D. Colo. Jan. 8, 2024).

The insureds sued Travelers for breach of contract, common law bad faith, and unreasonable delay or denial of benefits. They alleged that their residence was damaged by a hailstorm and that Travelers breached their policy and acted in bad faith in the handling of the claim. The insureds demanded an appraisal to determine the "amount of loss" under the policy and an appraisal award was issued. Travelers then denied payment for all roof tiles that were contemplated by the appraisal award.

The court granted the insured's motion to dismiss the insurer's action for a declaratory judgment on the issue of indemnity when the underlying action was still ongoing. Utica Mut. Ins. Co. v. Crystal Curtain Wall Sys. Corp., NYLJ LEXIS 3255 (N.Y. Sup. Ct. Dec. 1, 2023).

Crystal was a subcontractor to design and install window and curtain systems as well as terrace doors and a glass parapet in the construction of two mixed use residential and commercial buildings. After unit owners took possession, a significant rainstorm allowed water infiltration, causing property damage in the building including moldy conditions. The owners sued, asserting claims against Crystal for the cost of repair or replacement of the allegedly defective curtain wall, damage to personal property, diminution in value of the units, and delay damages consisting of increasing interest and carrying costs that allegedly resulted from delays in completion of the construction work.

In National Casualty Company v. Georgia School Board Association – Risk Management Fund1, the Eleventh Circuit recently affirmed a Georgia rule under which irreconcilable “other insurance” clauses will not be enforced. The Eleventh Circuit found that, under Georgia law, when insurance policies’ “other insurance” clauses are “functionally the same” and cover the same risk, they are irreconcilable, requiring the insurers to provide coverage on a pro rata basis. “Other insurance” clauses are generally written with stock language, and this case affirms the principle that insurers may not escape coverage on the basis that competing clauses leave the insured without a primary policy. When an insured has multiple policies covering the same risk, either one insurer must take the position as primary, or all insurers will be forced to share the obligation on a pro rata basis.

The court granted the insurer's motion to dismiss the homeowner's claim against the insurer because the policy insured the mortgagee, not the homeowner. Barbin v. Integon Nat'l Ins. Co., 2023 U.S. Dist. LEXIS 207192 (E.D. La. Nov. 20, 2023).

The home was damaged by Hurricane Ida. The homeowner claims that Integon National Insurance Company breached the policy and acted in bad faith by failing to make the required payments.