Tag Archives: duty to defend

Wash. Court of Appeals Gets It Dead Wrong on What Is a “Suit”

Earlier this week Division One of the Washington Court of Appeals issued its much-anticipated decision in the Gull Industries v. State Farm litigation.  The issue was whether a letter from the state equivalent of the EPA constitutes a “suit” under a standard-form legacy GL policy (that is, a policy issued before the ISO form defined “suit”). … Continue Reading

Another Strong Ruling on Prejudgment Interest From Oregon’s Federal Courts

Oregon’s federal court has struck another blow against the insurance industry’s attempts to limit prejudgment interest in duty-to-defend disputes.  Somewhat ironically, this ruling comes a case that has turned into a carrier v. carrier fight over contribution. In the latest ruling in the long-running Northwest Pipe v. RLI coverage litigation, the court held that a non-defending carrier … Continue Reading

Oregon Federal Court Confirms Availability of Prejudgment Interest on Disputed Defense Costs

In an as-yet-unpublished decision in the long-running Ash Grove v. Liberty Mutual case the court recently granted the policyholder’s request for prejudgment interest on defense costs recovered at trial.  Ash Grove (Case No. 09-239-HZ) involves reimbursement of legal fees and costs incurred in defense of claims associated with the Portland Harbor Superfund Site.  After pretrial rulings … Continue Reading

Twenty Questions to Ask Coverage Counsel In Business Litigation

The American Bar Association’s Business Torts committee has posted an excellent article (registration, ABA membership required) on the 20 questions that a business owner should ask coverage counsel about potential coverage issues arising from business litigation.  These are the most critical, and often ignored, issues that must be considered when making decisions about coverage strategy.  Included among … Continue Reading

Washington Federal Court: Insurer Cannot Litigate Contested Issues In Declaratory Judgment While Underlying Case Pending

With characteristic good humor, Judge Robart of the Western District of Washington recently reiterated a very important principle in the resolution of duty to defend issues: the insurance carrier may not seek a determination on the duty to defend while the underlying case is still going on if in doing so the court would be … Continue Reading

Carrier Must Show Prejudice to Rely on Late Notice

Federal judge Anna Brown recently confirmed that under Oregon law, a carrier must demonstrate that it was prejudiced by allegedly late notice of a claim before the court will inquire into whether the delay in providing notice was reasonable.  This case arose from a collision between a commercial vehicle and a train in Texas allegedly caused … Continue Reading

Adjuster Read Canceled Policy, Denied Claim, Committed Bad Faith

One assumption that even many commercial-lines policyholders make is to assume that the insurance adjuster that they are dealing with is an “expert” on their insurance coverage (ref. “You’re in good hands…”).  As if anyone needed one more example that that simply is not a safe assumption to make, read in disbelief the case linked … Continue Reading

“Pay and Chase” Jeopardized by Court of Appeals

Policyholders representing general contractors and developers frequently urge defending carriers to “pay and chase” – in other words, settle with the owner (“pay”) and then subrogate against the subcontractors or design professionals whose work caused the alleged damage (“chase”) to get reimbursed for the settlement with the owners.  Many carriers are increasingly leery of this … Continue Reading

Former Insurance Defense Counsel’s Firm Permitted to Represent Insured Against Carrier

The Portland Harbor Superfund Site continues to generate new coverage-related law on issues beyond environmental contamination.  In a recent ruling from Oregon’s federal court, Judge Acosta permitted Stoel Rives to substitute in as coverage counsel for steel company Evraz, Inc. in litigation between Evraz and many of its former carriers over coverage at the Superfund … Continue Reading

Trial Court Rejects Constitutional Challenge to New Provisions of OECAA

Today the trial court judge in the long-running environmental coverage contribution battle between Lloyd’s and several other carriers for Zidell Marine rejected a constitutional challenge mounted by Lloyd’s to one of the newest provisions of the Oregon Environmental Cleanup Assistance Act (OECAA).  This case has had many zigs and zags but to briefly sum up, … Continue Reading

Presentation on Anderson Brothers Decision

For those of you who missed the OSB Environment and Natural Resources Committee’s CLE on the Anderson Brothers decision yesterday, click here for the presentation visuals (via Prezi) and here for a short article that I wrote for ENR on the decision.  Thanks to everyone who came and for the great questions.… Continue Reading

Oregon Federal Court: Participation in Superfund Site ADR Part of Defense Obligation

Judge Marco Hernandez recently issued his rulings after a bench trial in the long-running Ash Grove Cement Co v. Liberty Mutual et al. environmental coverage litigation.  In 2008 Ash Grove became embroiled in the Portland Harbor Superfund Site when it received a “104(e)” information demand from the EPA.  When Ash Grove’s insurers (including Liberty and … Continue Reading

Insurer Gets Creative Seeking to Defeat SB 814 Independent Counsel Provision

Insurer CNA has filed its brief in the long running Schnitzer coverage litigation concerning defense coverage at the Portland Harbor Superfund Site and it’s interesting reading.  The issue here is not the duty to defend per se, because Schnitzer’s insurers are defending. The issue rather is whether the “independent counsel” provision of SB 814, the amendment to … Continue Reading

Duty to Cooperate Alive and Well in Oregon

Insurers are celebrating the new decision from Oregon’s federal district court in the long-running Charter Oak et al. v. Interstate Mechanical et al. case finding that the policyholder lost all coverage by breaching the duty to cooperate.  In my view, this is a bad-facts-make-bad-law situation involving a fact pattern not likely to be repeated, that will unduly … Continue Reading

Oregon In What Is Now Majority Across the County on Coverage for Construction Defect Claims

Really nice post the other day by our friends at DC-based Dickstein Shapiro on the recent change in tide on something that we in Oregon tend to take for granted: that construction defects that have resulted in property damage may be covered under the standard CGL policy.  Oregon courts have long employed a slightly different interpretation of … Continue Reading

“Bresee” Decision Applied by Oregon Federal Courts

We recently obtained a victory for one of our clients, a developer on the Oregon Coast, in a duty to defend fight with a very aggressive and creative opponent, Catlin Specialty Insurance Company.  Magistrate Judge Coffin’s findings and recommendations, adopted by Judge Aiken, relied on the Oregon Supreme Court’s Bresee decision to find a duty to defend … Continue Reading

Alabama Federal Trial Court Dismisses Bad Faith Claim Over Defense of PRP Letter

One of the issues that we cover closely is environmental coverage litigation, and particularly coverage issues similar to the coverage fights that are taking place about the massive Portland Harbor Superfund Site.  Our firm has been at the forefront of making good law on those coverage issues including the first decision establishing that carriers have … Continue Reading
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