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PANDEMIC PANDEMIC
The California Supreme Court again declined to hear whether COVID claims are insurable, denying an insurer’s request that it uphold the First Appellate Division’s pro-insurance decision in Apple Annie v. Review Oregon Mutual Insurance Company.
The Michigan Supreme Court on December 7 issued an order denying appeals by Gavrilde Management, Gourmet Deli and Three Won Three Corporation.
In a case involving two local sports teams and a very specific Philadelphia lawsuit number, Judge Baylson granted an injunction against the Philadelphia Eagles Ltd. Partnership v. Factory released Mut. Ins. Co., No. 21-1776 (ED Pa. Dec. 15, 2022) that recent dissenting opinions of the state Supreme Court have convinced him that limited discovery should go forward because it no longer appears that there will be a definitive ruling. establish Pennsylvania law on COVID in the near future. Judge Baylson concluded: “Unusual as it may seem, issues raised by the parties may require discovery because facts can be forgotten or mistaken, and people’s memories are not.” is indefinite, this Court believes it would be fair to permit the plaintiffs to begin limited discovery to at least bring some facts in the possession of the Defendants to ‘the Crown’ which may be informative if they are ultimately, under the judgment court of competent jurisdiction and be held based on Pennsylvania law, that any of these policies contain some ambiguity or that any of Plaintiffs’ other theories are permitted to proceed. Fairness to Plaintiffs without undue prejudice to Defendants, discovery.”
CONSEQUENTIAL ANSWERS
ILLINOIS Secrecy B / “Trade Dress” Violation.
The First District has ruled State Farm Firer & Cas. Co. v. Advanced Inventory Management, Inc., 2022 IL App (1st) 220662 (Ill. App. Ct. Dec. 15, 2022) held that claims that insureds sold counterfeit and misbranded medical devices satisfied the Commerce requirement of Coverage B in breach of suit in insurance advertising. The court rejected State Farm’s claim that the infringement claims regarding “functional” aspects of the product’s design were not protected by “trade dress.” Additionally, the Court of Appeals declined to rule on State Farm’s intentional conduct claims, holding that claims under the Lanham Act permit recovery based on negligent conduct and therefore State Farm could not meet its burden of proof. be respectful. for this exclusion.
OREGON First Party / Ransomware / “Direct Loss”
A federal district court in Yoshida Foods Int’ v. decided in Federal Ins. Co., No. 21-1455 (D. Or. Dec. 6, 2022) to Chubb for an incident in which an unknown hacker gained unauthorized access to Yoshida Foods’ computer system and used malware to encrypt data in the computer. system storage devices. Judge Baylson rejected the Federal claim that Yoshida Foods suffered no “direct loss” from the computer fraud and only damages not attributable to the computer fraud. The company suffered losses when Mr. Yoshida returned the ransom payment he made with his cryptocurrency. Instead, the court ruled that “Both the ransom payment made by Mr. Yoshida and the return of that amount by the Plaintiff were almost entirely due to the hacker’s computer breach made against the Plaintiff’s computer system. The ransom payment , and the payment to Mr. Yoshida, all of which were part of an unbroken chain of events.”
NORTH CAROLINA Long Tail/Retention Trigger
The North Carolina Supreme Court has long clarified state law regarding long tail claims. In Radiator Specialty Co. v. Arrowood Ind. “Liquid Wrench” product and various cleaners, degreasers and lubricants opened coverage from the first appearance, rebutted the “actual injury” arguments by the Fireman’s Fund and insured the Radiator Property that was untouchable years ago because coverage was required. does not apply unless the plaintiff suffers a “known injury.” In a Sixth Circuit opinion, the court expressed concern that limiting coverage to years after the “actual injury” may distort the owner’s insurance rights because then coverage would be excluded under most policies. While upholding the broad RSC initiative, the Supreme Court rejected the insurer’s contention that it should be entitled to coverage on a “whole amount” basis. Instead, the court held that it should apply a “time of risk” rule.In addition, the court held that the insurer could assert exhaustion on a ‘vertical’ basis and therefore could pursue claims against Landmark “until.”[n]o other valid and cumulative insurance was available [RSC] for damages that are in the policy.”
WASHINGTON First Party / “The Situation”
The Washington Court of Appeals ruled in Windcrest Owners Ins. Co. v. Allstate Ins. Co., No. 82836-3-I (Wash. App. Dec. 12, 2022) that the damage to a condominium building was due to the gradual collapse of structural components and that the property “did not collapse suddenly or cave in” as required to cover “Demolition” is required by Allstate policy.
OTHER DEVELOPMENTS OF NOTE
Inside the Insurance Industry
Florida Governor Ron DeSantis signed Senate Bill 2A into law.
Insurance Magazine reports that insurers are rejecting FTX-related crypto claims even as cyber insurers are seeking more information from other insurers about potential links to FTX that could lead to claims.
The content of this article is intended to provide general guidance on the subject. Professional advice should be sought on your particular circumstances.
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