The Latest on the Duty to Defend in Oregon

NW PolicyholderLast year our partner Seth Row reported on an Oregon Court of Appeals decision, West Hills Development Co. v. Chartis Claims, Inc., 273 Or App 155 (2015).

In West Hills, Oregon Auto Insured, a subcontractor, and the liability policy named the general contractor as an additional insured. In an underlying lawsuit by homeowners alleging construction defects, the complaint alleged that the general contractor had negligently supervised its subcontractors, who themselves were negligent, but did not name or identify Oregon Auto’s insured subcontractor. The policy provided that the general contractor, West Hills, was an additional insured “only with respect to liability arising out of [the subcontractor’s] ongoing operations performed for [West Hills].” Oregon Auto refused to defend. In West Hills’ subsequent lawsuit, both the trial court and the court of appeals held that Oregon Auto owed its additional insured a defense. Continue Reading

Washington Court Limits Coverage by Estoppel When Insured’s Assets Are Not at Risk

Many tort lawsuits are resolved by an insured defendant’s stipulating to a judgment in favor of the plaintiff, and the plaintiff’s agreeing not to execute on the judgment against any of the defendant’s assets except for its insurance.  Simultaneously, the defendant typically assigns its claims against its insurer to the settling plaintiff, who then pursues recovery for the judgment directly from the insurer.  Under Washington law, in cases in which the insurer has failed in bad faith to defend, or has engaged in bad faith while defending under a reservation of rights, the insurer is estopped from contending that the underlying claim was not covered.  If certain procedures are followed, courts will also impose a rebuttable presumption that the stipulated judgment was a reasonable settlement that establishes the amount of harm caused to the defendant by the insurer’s bad faith.

Continue Reading

Duty to Cooperate: What Does It Really Require?

Virtually every insurance contract imposes on the policyholder a “duty to cooperate” with the carrier during the fact-gathering and investigation process. Typically, this requires the policyholder to assist its carrier in the investigation, defense, and settlement of a claim or suit, both in the coverage context and in a third-party liability case. The failure to cooperate can have severe consequences, as it did recently in Charter Oak Fire Ins. Co. v. Interstate Mechanical, Inc., where it resulted in complete denial of coverage. There, the insurer won summary judgment on its argument that the insured breached the duty to cooperate by colluding with the plaintiff in the underlying lawsuit. Indeed, the insured and the plaintiff shared a common owner and failed to maintain even the appearance of an arm’s-length relationship. Given such consequences, policyholders would be well-advised to consider what the duty to cooperate really requires, especially because the answer can vary significantly with jurisdiction and context.

Continue Reading

Montana: Insurer Breached Duty to Defend Even if Policyholder Was Defended by Another Insurer

Mission_Mountains_National_Bison_Range_MontanaThe Montana Supreme Court issued a decision Thanksgiving week clarifying that when a
policyholder is owed a defense by multiple general liability insurers, all of those insurers must participate in the defense, or risk severe penalties for breaching the duty to defend.  In J&C Moodie Properties LLC v. Scottsdale Insurance Company the court held that Scottsdale Insurance breached the duty to defend its insured in an underlying construction defect action, and was therefore exposed to extra-contractual remedies, despite the fact that the policyholder was defended by another insurer.  In so doing the court clarified precedent that had seemed to suggest that a co-insurer could escape liability for breach of the duty to defend in such situations, and strengthened the hand of policyholders in Montana. Continue Reading

Additional Insured Promises Mean Companies May Pay Twice for Employee Injuries

Most business owners understand that in exchange for paying premiums for workers compensation insurance, they get immunity from suit from their own injured employees.  This is usually referred to as the workers compensation “exclusive remedy”: if an employee accepts workers compensation insurance benefits, the employee may not sue the employer (subject to certain exceptions for egregious cases).  So why, as the title of this post suggests, do many employers feel like they end up paying twice for their employees’ injuries?  It boils down to three words: additional insured promises.

Continue Reading

Oregon Employer Liability Ruling Highlights Importance of Additional Insured Status

320px-Yellow_hard_hatEarlier this year the Oregon Supreme Court expanded the potential liability of contractors and others for injury to employees of others on a job site, making it more critical than ever for contractors to ensure that they have additional insured protection. In Yeatts v. Polygon Northwest, an employee of a framing subcontractor on a building project was injured when a railing gave way. The general contractor on the project was Polygon. The injured worker sued Polygon under Oregon’s Employer Liability Law (ELL) (ORS 654.305) alleging that Polygon was a “indirect employer” under the law because Polygon was involved in ensuring job-site safety, and was therefore liable for the injuries.

Continue Reading

If You Purchase Contaminated Property, Is It Covered?

Can a policyholder that knowingly purchases contaminated property be covered for the costs of cleaning up that property under policies of insurance issued before the purchase? Yes, according to a new unpublished decision from the Washington Court of Appeals.

In 1999, the Port of Longview purchased property that had been used from the 1950s through 1982 to treat wood products with creosote and other chemicals. Groundwater contamination had been discovered at the site as early as 1981. The Port knew of the groundwater contamination at the time of purchase, and knew that its acquisition of the site would automatically make the Port liable under the Washington Model Toxics Control Act (“MTCA”) for the contamination there. In 2005, the Washington Department of Ecology (“DOE”) formally notified the Port that it was a potentially liable party (“PRP”) under MTCA for the cleanup of contamination at the site. Continue Reading

What’s in a Relationship? Part 1

Director & Officer Liability insurance (“D&O”) and professional liability insurance are written on a claims-made basis, and through either definitions or exclusions, treat claims that are related as one claim. Why does it matter if various claims made against an insured are related? There are several answers. Whether different claims are related could mean the difference between having insurance coverage or not; whether the insured has to pay one retention or several retentions; or whether one policy limit applies or several limits are available. This post will discuss the last of these.

The purpose of “related claim” language in an insurance policy is to require that separate claims, or lawsuits, are treated as one claim made at the time the earliest claim was made. In an unpublished opinion earlier this year, the Ninth Circuit affirmed a district court’s ruling where 28 lawsuits filed over a three-year period against the insureds were all one claim, and only one policy limit applied. In Previti v. National Union Fire Insurance Co. of Pittsburgh, PA, the insureds were various individuals who owned or controlled numerous affiliated entities. National Union had issued three D&O insurance policies to the insureds—Policy No. 1 (2007-2009), Policy No. 2 (2009-2010), and Policy No. 3 (2010-2011). National Union’s insurance policy defined Related Wrongful Acts as “Wrongful Acts which are the same, related or continuous, or Wrongful Acts which arise from a common nucleus of facts. Claims can allege Related Wrongful Acts regardless of whether such Claims involved the same or different claimants, Insureds, or legal causes of action.” Continue Reading

New Ruling May Require Tailoring Cyber-Ransom Coverage

PayUpCyber-ransom is the talk of the town when it comes to insurance these days, second only to social engineering fraud. A cyber-ransom event typically involves malicious code (malware) being installed on an individual computer or a system, typically through a “phishing” e-mail that contains an innocent-looking link (often to a legitimate site, such as Dropbox) that actually leads to an executable file, downloading malware. Once inside, the malware encrypts the system, shutting it down or hobbling it significantly. The malware then sends a ransom demand, offering to restore access to the system in exchange for payment ranging from a few hundred dollars to thousands. Payment is usually demanded in bitcoins, the “currency” of choice for those who operate in the dark web. Continue Reading

Guest Feature: Apartment Owners’ Liability for Loss of Renters’ Personal Data [VIDEO]

In case you missed this last week, our friends at HFO Investment Real Estate have published an excellent video (posted here with permission) featuring an extensive interview with Vice Presidents Heidi Tapasa and Ted Stark of USI Insurance Services on the subject of cyber liability for apartment owners and managers. You can view the full interview below.

Click here to view HFO’s original post.