Reducing Uninsurable Risks Part 1: Reputation—A Guest Post

Note: In the following guest post, Rob Fleming of the Clark Nuber consulting firm provides some guidance on how to manage one of the many “uninsurable” risks: reputational harm. We appreciate Rob’s willingness to contribute a guest post to our blog! – Seth


Companies face complex risks each and every day. Not all of these risks are mitigated by insurance products. Risk managers face an increasing universe of risks that are not really insurable. Natural disasters, loss of a key decision maker or cyber-attacks can be insured against—but how do companies minimize exposure for new regulations, new presidential executive orders, or changes in the political or economic landscape? And how can companies respond when these events are often happening at the same time?  Continue Reading

In Extraordinary Ruling, Washington Supreme Court Applies “Efficient Proximate Cause” Rule to Liability Coverage Dispute

On April 27, the Washington Supreme Court created a significant new wrinkle in how courts will approach liability insurance disputes involving policy exclusions. In Xia v. ProBuilders Specialty Insurance Co. RRG, the Court applied the “efficient proximate cause” rule to a third-party liability case for the first time, a move that may effectively render most policy exclusions unenforceable. The Court further held that the insurer’s failure to anticipate this new approach to evaluation of the coverage question in denying coverage constituted bad faith.

The facts of the case are not unusual. Xia purchased a new home built by contractor Issaquah Highlands. She fell ill shortly after moving in. When a Puget Sound Energy service technician was called to the home months later, he discovered that the exhaust vent for a hot water heater had been improperly installed, with the result that carbon monoxide was being pumped directly into Xia’s home. Continue Reading

BEWARE—The Pollution Exclusion Is Alive in Oregon

Contractors, builders, real estate managers, and others should be aware of a March 9, 2017, decision by an Oregon federal judge who found that carbon monoxide is included in the plain meaning of “pollutant” as defined in a liability insurance policy. As a result, an insured contractor had no coverage for its faulty work.

In Colony Ins. Co. v. Victory Constr. LLC, U.S. District Court, Oregon, Case No. 3:16-cv-00457-HZ, Colony Insurance sought a declaratory judgment that it had no duty to defend and indemnify Victory Construction in two state court personal-injury lawsuits. The defendant, Victory, installed a pool and was alleged to have been negligent in the installation and ventilation of a gas heater, resulting in the escape of carbon monoxide into a home, causing the residents to be sick. Victory was insured by Colony, which denied coverage for the residents’ ensuing claims. Colony’s Commercial General Liability Insurance Policy contained a Hazardous Materials Exclusion, i.e., a pollution exclusion. The policy defined “hazardous materials” as: “‘pollutants’, lead, asbestos, silica and materials containing them.” The definition of “pollutants” included “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” The court concluded that because carbon monoxide clearly fell within the definition of a pollutant, there was no coverage. Continue Reading

Washington Federal Court Confirms That EPA General Notice Letters Trigger the Duty to Defend

The United States District Court for the Western District of Washington recently held that several insurers breached their insurance contracts when they refused to defend their insureds against letters from the EPA and the Washington State Department of Ecology identifying them as potentially liable parties at a Washington Superfund site. King Cty. v. Travelers Indem. Co., No. 2:14-cv-01957-BJR, Order Granting in Part and Denying in Part King County’s Motion for Summary Judgment and Denying Travelers’ Motion for Summary Judgment (W.D. Wash. Feb. 10, 2017) (“Order”). While some Washington court of appeals and federal court decisions under Washington law have approached this holding, this is the first clear decision on this point under Washington law. Continue Reading

Washington Supreme Court Narrows Scope of the Insurance Fair Conduct Act

In a decision issued last week, the Washington Supreme Court narrowed the possible relief available to policyholders who are harmed by insurer misconduct, holding that a claim cannot be brought under the Insurance Fair Conduct Act based on claims handling, unless there has been an actual denial of coverage.

In 2007, Washington enacted the Insurance Fair Conduct Act (the “IFCA”) which gives insureds a statutory “bad faith” cause of action against insurers who unreasonably deny coverage. On its face, the IFCA broadly addresses unfair insurer practices. Since enactment, however, Washington courts have been split as to the scope of the law. Policyholders and insurers have hotly contested whether unfair claims-handling practices and regulatory violations are actionable under the IFCA, or whether the law requires an unreasonable denial of coverage. In its recent decision, Perez-Crisantos v. State Farm Fire & Casualty Co., the Washington Supreme Court answered the question in favor of insurers, holding that the IFCA creates a private cause of action only when an unreasonable denial of coverage has occurred.

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Oregon Supreme Court Clears Roadblock to Allow Policyholders to Recover Litigation Costs

In a decision issued yesterday, February 2, 2017, the Oregon Supreme Court reversed several lower-court decisions and held that a policyholder that is forced into litigation with its insurer can recover attorney fees if the insurer settles the case for more than the insurer offered before litigation began, clearing a significant roadblock to resolution of coverage disputes in Oregon.

In Oregon, when a policyholder is forced to litigate a coverage claim against its insurer, the policyholder can often recover its attorney fees if the insurer does not settle the claim within six months of its presentation and the policyholder successfully recovers in excess of any tender made by the insurer within that six-month time frame. See ORS 742.061. This right to recover attorney fees serves the important public policy of ensuring that wronged policyholders will not be forced to bear the financial costs of enforcing their insurance rights. In practice, the costs of enforcing an insurance contract often exceed the value of the underlying claim, and in major coverage cases attorney fees can surpass a million dollars. The recovery of attorney fees is always a critical consideration in deciding whether to initiate insurance coverage litigation. Continue Reading

The Latest on the Duty to Defend in Oregon

Last 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.

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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.

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

The 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