Minnesota Bankruptcy Court Applies Injury-in-Fact Trigger to Obligate Multiple Policies to Provide Coverage for Sexual Molestation Claims

In Diocese of Duluth v. Liberty Mutual Group, et al., case no. 16-05012 (Mar. 30, 2017), the Bankruptcy Court for the District Court for Minnesota was faced with determining trigger and the number of “occurrences” related to negligence claims asserted against the Diocese of Duluth by victims of priest sexual abuse. These negligence claims drove the Diocese to file for bankruptcy, and as part of that Bankruptcy proceeding, the Diocese filed an adversary proceeding seeking coverage from five of its insurers. These insurers had issued policies covering several decades. The Court ruled in favor of the Diocese, finding that multiple years of coverage could be triggered and that multiple “occurrences” could be found in each policy year as each victim was a separate “occurrence.”

The Diocese successfully argued that each alleged act of abuse constituted a separate “occurrence” under all insurer’s policies, while conceding that the “occurrence” language in the policies (“arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence”) consolidated multiple instances of abuse of the same victim by the same priest in the same year into one “occurrence” for that year.

Most of the insurers argued for the interpretation that there was only one “occurrence” – the ongoing act of negligent supervision by the Diocese in allowing the continuous and repeated exposure of the victims to the abusive priests – regardless of the number of victims or perpetrators involved. The Continental Insurance Company also argued for one occurrence, or at most, one occurrence per priest or per bishop abuser because all the injuries arose from the Diocese’s decision to allow the abusers access to the children.

The policies provided coverage for damages for personal injury caused by an “occurrence” and included similar definitions of “occurrence.” The Court noted that “the word ‘occurrence’ in occurrence based insurance policies ‘is one of the least understood and most misunderstood word in today’s insurance language[.]”

The Court’s decision focused on Minnesota’s use of the actual injury or injury-in-fact trigger rule, which provides that an “occurrence” take place at the time the complaining party as actually injured, not when the wrongful act was committed. Minnesota courts have also held that “an injury can occur even though the injury is not ‘diagnosable,’ ‘compensable’ or manifest during the policy period as long as it can be determined, even retroactively, that some injury did occur during the policy period.”

Considering these precedents, the Court noted that the underlying facts of the cases were not in dispute – numerous victims were abused by several different priests. As the sexual abuse was what caused the victims damage, “under the actual-injury rule, the occurrence is the time when the victims were sexually abused by the priests. “ The Court further determined that the number of occurrences could be both per victim and per priest – “There are separate occurrences for each separate sexual abuse for each victim and each priest. The victims each suffered separate abuse and it is this occurrence that triggers an insurance policy that is at risk at that time.” The Court also clarified if a victim was injured by two priests during one policy period, that would be two occurrences, although if injured repeatedly by the same priest during one policy period, that would be one occurrence.

It’s not evident from the decision what impact the Court’s decision had on each insurer’s coverage obligations, but certainly determining that multiple policies might be triggered and that there might be multiple occurrences in each year broadened the obligation significantly from what the insurers were arguing for.

A Pennsylvania court also recently faced this issue in connection with the Sandusky scandal at Penn State University, but came to the opposite conclusion while discussing many of the same concerns. Pennsylvania utilizes the “manifestation” trigger outside of the asbestos context, and while this trigger led to a similar conclusion as to when the bodily injury first occurred, the court did not permit Penn State to trigger multiple policy periods for subsequent acts of abuse against the same victim. In Pa. State Univ. v. Pa. Manufacturers’ Ass’n Ins. Co., 2016 Phila. Ct. Com. Pl. LEXIS 158 (Pa. Ct. Com. Pl. May 4, 2016), the court noted that:

Unlike environmental pollution or asbestos damage, which can remain hidden for many years before it manifests, the physical violation (bodily injury) arising from child sexual abuse is experienced immediately by the victim, although the harm often continues to be felt long thereafter. To the extent that PSU’s negligence enabled Sandusky to abuse his victims, such bodily injury manifested when the first abuse of each victim occurred.

The court also followed prior Pennsylvania Superior Court authority which held that each victim constitutes only one occurrence, no matter how many separate instances of sexual abuse took place. General Accident Ins. Co. v. Allen, 708 A.2d 828, 834-835 (Pa. Super. 1998) (one occurrence for each child where three children were sexually abused from 1986 to 1988). Pennsylvania does not appear to have addressed a situation with multiple abusers.

Unfortunately this will likely continue to be an area to watch as courts around the country continue to grapple with trigger and number of occurrences in these sexual abuse cases.

Ninth Circuit Clarifies Excess Insurer’s Options Under For Proposed Settlements That Invades Excess Layer Of Coverage

A recent decision from the Ninth Circuit Court of Appeals clarified an excess insurer’s options under California law when it is presented with a proposed settlement that invades its excess layer and has been approved by the insured and primary insurer. See  Teleflex Medical Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2017 U.S.App.LEXIS 4996 (9th Cir. March 21, 2017). In Teleflex, the court applied the rule set forth in Diamond Heights Homeowners Ass’n v. Nat’l Am. Ins. Co. (1991) 227 Cal.App.3d 563 (“Diamond Heights”) stating that the excess insurer can: (1) approve the settlement; (2) reject the settlement and assume the defense of the insured; or (3) reject the settlement, decline the defense, and face a potential lawsuit by the insured seeking contribution.

In Teleflex, LMA became involved in a lawsuit with a competitor. LMA filed suit seeking recovery of damages for patent infringement and the competitor filed counterclaims for trade disparagement and false advertising. After several years of litigation, the parties agreed to settle their respective claims. As part of the settlement, LMA agreed to pay $4.75 million for the disparagement claims and LMA’s competitor agreed to pay $8.75 million for the patent claims. The settlement was contingent upon LMA obtaining approval and funding from its primary and excess insurers.

LMA’s primary carrier agreed to the settlement, but its excess insurer, National Union requested additional information which was provided by LMA, along with a demand that National Union could accept the settlement, reject the settlement and take over the defense, or reject the settlement, refuse to defend, and face a reimbursement claim. National Union ultimately rejected the settlement without offering to take over the defense.

LMA then brought suit against National Union for breach of contract and bad faith, where a jury awarded LMA damages for both. On appeal, National Union argued, among other things, that the district court erred in applying the rule articulated in Diamond Heights, asserting that it had effectively been overruled by Waller v. Truck Ins. Exch. (1995) 11 Cal.4th 1. National Union argued that under Waller, an insurer can only waive a policy provision through an intentional relinquishment of a known right. Accordingly, National Union asserted that LMA’s claims failed as matter of law because the “no voluntary payments” and “no action” clauses gave National Union the absolute right to reject the settlement. Disagreeing, the Ninth Circuit held that Waller did not mention Diamond Heights and reasoned that it simply reiterated general waiver principles that existed prior to and were not in conflict with Diamond Heights. In so holding, the Ninth Circuit reasoned that regardless of Diamond Heights use of the term “waiver” its rule is really about an insurer’s breach of its obligations under the policy and/or the implied covenant of good faith and fair dealing – not the waiver or expansion of a policy provision addressed by the Waller court.

Of note, the Ninth Circuit also expressed skepticism regarding the application of the “genuine dispute doctrine” to third party claims and held that an insurer was not entitled to a specific jury instruction regarding that defense. The court also affirmed the district court’s ruling that an insured was not entitled to Brandt fees associated solely to the insured’s bad faith and related punitive damages claims.

Based upon this decision, excess insurers should be cognizant of the pitfalls of withholding consents to settlements and should ensure that they have been afforded a reasonable opportunity to analyze the reasonableness of the settlement and adequate time to consider whether to participate or undertake the defense of the insured.

District Court Holds That Pollution Exclusion Bars Coverage For Carbon Monoxide Poisoning

On March 9, 2017, the U.S. District Court for the District of Oregon issued its opinion and order in Colony Ins. Co. v. Victory Constr. LLC, et al., holding that carbon monoxide is a “pollutant” and, therefore, the pollution exclusion unambiguously bars coverage for harm caused by carbon monoxide. 2017 U.S. Dist. LEXIS 34368 (D. Or. Mar. 9, 2017).

In Victory, the underlying plaintiffs brought two lawsuits against Victory Construction (“Victory”) after carbon monoxide from a natural gas swimming pool heater filled their home, resulting in carbon monoxide poisoning. The plaintiffs alleged that Victory was negligent in the installation and ventilation of the heater and negligent in failing to warn of the risks of carbon monoxide poisoning associated with operating the heater in an insufficiently ventilated area.

The policy contained a “Hazardous Materials Exclusion,” barring coverage for “’[b]odily injury,’ … which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘hazardous materials’ at any time.” The policy’s definition of “hazardous materials” included “pollutants,” which was defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”

The parties brought cross-motions for summary judgment on the issue of whether Colony Insurance (“Colony”) had a duty to defend and indemnify Victory in the personal injury lawsuits. In granting Colony’s motion and denying Victory’s motion, the Court found that “the only plausible interpretation of the Policy’s terms results in the conclusion that carbon monoxide is a pollutant.”

The Court recognized the wide array of conflicting judicial decisions throughout the country regarding the scope of the pollution exclusion, but found that most decisions fall into “one of two broad camps.” Quoting the Ninth Circuit, the Court noted that some courts apply the pollution exclusion literally because they find the terms to be clear and unambiguous, but other courts have limited the exclusion to situations involving “traditional environmental pollution.” Since the parties did not cite, and the Court did not find, any Oregon case law providing guidance on the scope of the pollution exclusion or its application to carbon monoxide, the Court attempted to predict whether the Oregon Supreme Court would conclude that carbon monoxide is an “irritant” or “contaminant,” and, thus, a “pollutant” under the policy.

The Court strictly adhered to the rules of policy interpretation as set forth in Hoffman Constr. Co. of Alaska v. Fred S. James & Co. of Oregon, 313 Or. 464 (1992). The intention of the parties is determined by the terms and conditions of the policy, beginning with the wording of the policy, applying policy definitions and otherwise presuming that words have their plain and ordinary meaning. If the court finds only one plausible interpretation of the disputed terms, that interpretation controls.

Since the policy did not define “irritant” or “contaminant,” the Court ascertained their plain and ordinary meanings, relying on dictionary definitions. Based on its plain meaning analysis, the Court concluded that carbon monoxide is either an “irritant” (substance that irritates or stimulates an organ) or “contaminant” (undesirable element whose introduction makes an environment unfit for use) and, therefore, is a “pollutant” under the policy.

The Court declined to address Victory’s contentions that the pollution exclusion should apply only to “traditional environmental pollution,” or that the Court should consider the reasonable expectations of the policyholder. “The Policy, as written, does not create any ambiguity that would lead this Court to believe that the Oregon Supreme Court would look outside the plain meaning of the Policy’s terms.”

This is the first reported decision to predict whether the Oregon Supreme Court would apply the absolute pollution exclusion outside the context of “traditional environmental pollution.” It remains to be seen whether Oregon state courts will follow the District Court’s lead.

Texas Supreme Court Interprets “Insured vs. Insured” Exclusion in Insurer’s Favor

The Texas Supreme Court recently reversed a divided Texas appellate court in resolving a dispute over the meaning of an “insured vs. insured” exclusion in a Directors and Officers policy issued by Great American Insurance Company. Great American Insurance Co. v. Primo, 60 Tex. Sup. J. 489 (2017).

The issue was whether an assignee of the insured’s rights under the policy “succeeded to the interest” of the insured for the purposes of triggering the exclusion. The Texas Supreme Court ultimately ruled in favor of Great American, holding that the insured vs. insured exclusion was applicable and that Great American was not required to pay another insured’s defense costs.

The case arose when Named Insured Briar Green, a condominium association, discovered what it believed to be financial improprieties on the part of former Briar Green director and treasurer, Robert Primo. Briar Green claimed Primo misappropriated funds, and it submitted a claim for the loss to its fidelity insurer, Travelers. Travelers paid the claim in exchange for an assignment of Briar Green’s rights and claims against Primo.

Travelers then sued Primo and a litigation explosion ensued. The opinion is somewhat unclear factually, but it appears that Primo may have ultimately been vindicated vis-à-vis the allegation of misappropriation of funds.

Primo, a former director and therefore an insured under the Great American policy, sought defense costs from Great American in the Travelers lawsuit. Because Travelers succeeded to Briar Green’s interest in the lawsuit, Great American denied coverage under the insured vs. insured exclusion, which excluded coverage for claims made by an insured against an insured and those made “by, or for the benefit of, or at the behest of [Briar Green] or . . . any person or entity which succeeds to the interest of [Briar Green].”

Primo sued Great American for breach of contract and bad faith, among other things. The trial court granted summary judgment to Great American, but the appellate court concluded an entity that “succeeds to the interest” of another in the insurance context was equivalent to being a “successor in interest” in the construction context, where a successor in interest is one who inherits the assignor’s liabilities as well as its rights. The court therefore held that the exclusion was inapplicable and that Great American must pay Primo’s defense costs.

The dissenting judge, Judge McCally, pointed out that equating “successor in interest” with an entity that “succeeds to the interest” re-writes the exclusion and narrows it considerably. She also noted that one of the purposes of the insured vs. insured exclusion is to prevent collusive lawsuits by insureds, and that if all an insured had to do to avoid the exclusion was to assign its rights under the policy to a third party, collusive lawsuits would actually be encouraged.

The Texas Supreme Court agreed with Judge McCally and reversed the appellate court. Utilizing the plain meaning rule of insurance policy interpretation, it refused to insert language into the policy that was not there and held that Travelers succeeded to Briar Green’s interest in the lawsuit, making the exclusion applicable.

It also analyzed the context surrounding the purpose of the exclusion, which is generally understood to be intended to preclude coverage for lawsuits between directors, officers, and the companies they serve. As happened in this case, such lawsuits can often become highly emotional and expensive, which is why the intent is usually to exclude them from coverage. The Court also agreed that the appellate court’s decision would have the effect of encouraging collusive lawsuits instead of discouraging them. Accordingly, Great American had no duty to pay for Primo’s defense costs based upon the insured v. insured exclusion.

The Oregon Supreme Court Again Offers Expansive View of the Fee-Shifting Statute But Provides Clarity to Insurers on Minimizing Fee Awards

In Oregon, ORS 742.061 authorizes an award of attorney fees to an insured that prevails in an action against an insurer. While there have been several Court of Appeals cases addressing this statute in the UIM context, the Oregon Supreme Court last ruled on ORS 742.061 in 2012, holding that the statute is not limited to actions on policies issued in Oregon, but that it applies broadly, to “any policy of insurance of any kind or nature.” Morgan v. Amex Assurance Co., 287 P.3d 1038 (Or. 2012).

Under a similar analysis, consisting of an examination of the statute’s text and context, along with any useful legislative history, the Oregon Supreme Court addressed another aspect of ORS 742.061 in Long v. Farmers Ins. Co. of Oregon, 360 Or. 791 (2017).  Specifically, the Oregon Supreme Court addressed whether an insurer’s voluntary mid-litigation payments can eliminate the right to attorneys’ fees under the fee-shifting statute.

In Long, Plaintiff discovered a leak under her kitchen sink that caused extensive damage to her home. She filed a claim with Farmers, and on January 17, 2012, and Farmers voluntarily paid $3,300.45 to Plaintiff for the actual cash value of the loss. Around that time, Farmers also paid $2,169.22 to Plaintiff for mitigation expenses. However, the Plaintiff submitted a proof of loss that exceeded the sum that Farmers had paid. The parties had not resolved Plaintiff’s claims a year later, so she commenced a lawsuit against Farmers. After appraisal, Farmers made two additional voluntary payments to Plaintiff – one payment in the amount of $2,467.09 on July 11, 2013 and another payment in the amount of $4,766.80 on August 14, 2013 – for the actual cash value that the appraisers had assigned to certain of Plaintiff’s claimed losses and mitigation costs.

Six months later, in February 2014, shortly before trial, Plaintiff submitted proof of loss for the replacement cost of her losses. Three days later, Farmers voluntarily paid $4,214.18 to Plaintiff for the replacement cost of Plaintiff’s undisputed losses. Farmers subsequently prevailed at trial. Nonetheless, Plaintiff filed a petition for attorney fees under ORS 742.061.

Under ORS 742.061, an insurer must pay the insured’s attorney fees if, in the insured’s action against the insurer, the insured obtains a recovery that exceeds the amount of any tender made by the insurer within six months from the date that the insured first filed proof of a loss. In Long, the issue before the Court was the meaning of the word “recovery.” The insured argued that the word “recovery” means any kind of restoration of a loss, i.e. judgment, settlement, voluntary payment or some other means, after an action on an insurance policy has been filed. Accordingly, any post-complaint payments made by an insurer would support an insured’s claim for fees under the statute. On the other hand, Farmers argued that the word “recovery” means a money judgment in the action in which attorney fees are sought. Farmers argued that attorney fees may be awarded only if the insured obtains a money judgment that exceeds any tender made by the insurer within the first six months after proof of loss.

Because this dispute is a matter of statutory interpretation, the Oregon Supreme Court examined ORS 742.061’s text and context, as well as any useful legislative history. The Court noted that it has repeatedly instructed that the terms of ORS 742.061 and its predecessors should be interpreted in light of their function within the statute’s overall purpose, and if it heeded that instruction in this case, “it becomes evident that the term ’recovery‘ must be read to include mid-litigation payments such as the ones that Farmers made.”

The Oregon Supreme ultimately concluded that the fact that Plaintiff did not obtain a “judgment” memorializing Farmers’ mid-litigation payments did not make ORS 742.061 inapplicable. The Court further clarified that a “declaration of coverage is not sufficient to make ORS 742.061 applicable; an insured must obtain a monetary recovery after filing an action, although that recovery need not be memorialized in a judgment.” Id. at 805.

Based upon that clarification, the Court held that Plaintiff was entitled to attorney fees for the work performed by her attorney up until the time that Farmers made voluntary payments to Plaintiff in July and August of 2013. This is because by then, Plaintiff had brought an action on her insurance policy and, by virtue of Farmers’ July and August payments, Plaintiff had “recovered” more in that action than Farmers had tendered in the first six months after proof of loss.

The Court continued, however, that Plaintiff was not entitled to her attorney fees that accrued after the July and August 2013 payments. First, the voluntary payments made by Farmers in February 2014 were payments for the replacement value of Plaintiff’s loss, for which Plaintiff filed her proof of loss. That proof of loss for replacement value triggered the six-month period for settlement of Plaintiff’s claim for the replacement value of her losses under ORS 742.061, and Farmers made payments for the replacement cost within the six-month period, as mandated by the statute.

Second, except for the two replacement cost payments that Farmers made in February 2014, Plaintiff did not recover, after August 2013, any amount over and above what Farmers had already paid. At trial, Plaintiff sought but was unsuccessful in obtaining any greater sum. Thus, because Plaintiff’s recovery after Farmers’ August 2013 payment did not exceed Farmers’ timely tender, Plaintiff was not entitled to attorney fees under ORS 742.061 for work performed by her attorney after that date.

This case demonstrates how important it is for insurance companies to keep track of when voluntary payments are made and the potential impact of those payments on their ability to minimize an insured’s entitlement to attorney’s fees under ORS 742.061.

WASHINGTON SUPREME COURT HOLDS THAT INSURANCE FAIR CONDUCT ACT IS ONLY APPLICABLE WHERE THERE HAS BEEN A DENIAL OF COVERAGE AS OPPOSED TO A VIOLATION OF INSURANCE REGULATIONS

On February 2, 2016, the Washington Supreme Court provided some much needed guidance on what actions by an insurer will support a claim under Washington’s Insurance Fair Conduct Act (“the IFCA”). Perez-Crisantos v. State Farm Casualty Co., ___ P.3d ___ (No. 92267-5, Feb. 2, 2017). Although the IFCA was enacted in 2007 and is generally focused on preventing unreasonable conduct by insurers, the federal district courts in Washington have disagreed on what a plaintiff must show to maintain a cause of action. See Langley v. GEICO Gen. Ins. Co., 2015 U.S. Dist. LEXIS 26079 (E.D. Wash. Feb. 24, 2015); Cardenas, et al. v. Navigators Ins. Co., 2011 U.S. Dist. LEXIS 145194 (W.D. Wash. 2011).  The Washington Supreme Court has not spoken on the issue until now.

Unlike a Washington common law bad faith action, the IFCA allows attorney fees and treble damages for a violation, one of the few instances in Washington where punitive damages are permitted. Unfortunately the language of the primary statute of the IFCA, RCW 48.30.015, is less than clear and has been kindly referred to as “vexing” by a judge in the Eastern District of Washington. Workland & Witherspoon v. Evanston Ins. Co., 141 F. Supp. 3d 1148, 1155 (E.D. Wash 2015).

The dispute centers on whether a violation of certain state insurance regulations, such as where an insurer does not respond to certain communications within 10 days, is enough to support an IFCA cause of action, or whether an insurer must unreasonably deny a claim for coverage or payment of benefits for an IFCA cause of action to exist. In a somewhat rare victory for insurers in the Washington appellate courts, the Washington Supreme Court sided with the insurer and held that there must actually be an actual denial of coverage for the insured to move forward with an IFCA lawsuit.

The case involved an underinsured motorist claim where State Farm paid PIP benefits but balked at paying the additional amounts the plaintiff demanded; an arbitrator subsequently ruled in favor of the plaintiff. The trial court dismissed plaintiff’s IFCA lawsuit on summary judgment and the Washington Supreme Court accepted direct review.

In ruling in State Farm’s favor, the court held that RCW 48.30.015 is ambiguous and therefore turned to its legislative history, including the ballot title that was put before Washington’s voters in 2007. The court concluded that the IFCA was meant to apply to denials of coverage as opposed to violations of the insurance regulations. In doing so it rejected the position of the Washington Pattern Jury Instruction committee, which had developed a jury instruction that contemplated the situation where the IFCA cause of action was based only upon a violation of the insurance regulations.

After Perez-Crisantos, it is now clear that violations of the Washington insurance regulations are relevant to an insured’s claimed damages under the IFCA, but such alleged violations by themselves are insufficient to pursue an IFCA cause of action. For such a cause of action to exist, the insured must show an actual denial of coverage.

No “Occurrence” Found Where Contractor Intentionally Performed Defective Work With The Hope It Would Not Cause Property Damage

The California Court of Appeal, Fourth Appellate District, affirmed in part and reversed in part an order awarding an insurance company its $1 million policy limits used to settle a construction defect claim on behalf of an insured general contractor.

In Navigators Specialty Insurance Company v. Moorefield Construction, Inc., 2016 Cal. App. LEXIS 1132 (December 27, 2016), a building owner, JSL Properties, LLC (“JSL”), and a developer, D.B.O. Development No. 28 (“DBO”), sued a general contractor, Moorefield Construction, Inc. (“Moorefield”), for floor leaks which occurred at a Best Buy electronics store between 2003 and 2009. In its second amended complaint, JSL claimed that Moorefield had defectively installed flooring on top of a concrete slab despite knowing that the existing slab contained excessive moisture levels. Navigators Specialty Insurance Company (“Navigators”) defended Moorefield in the action subject to a reservation of rights under a commercial general liability insurance policy. The litigation settled for $1,310,000 of which Navigators contributed its $1 million policy limits.

Navigators filed a declaratory relief lawsuit against Moorefield seeking a declaration that it had no duty to defend or indemnify the general contractor in the underlying construction defect action. Following a bench trial, the trial court issued a decision in favor of Navigators and against Moorefield. The trial court found that the flooring defects did not constitute an “occurrence” or accident under the policy. The trial court also held that Navigators had no duty to make any payments under the “supplementary payments” portion of the policy. Navigators received an award which required Moorefield to reimburse Navigators its $1 million policy limits contributed to settle claim.

The Court of Appeal agreed with the trial court that Navigators had no duty to indemnify Moorefield in the underlying action. The appellate court found evidence which established that Moorefield knew about the excessive moisture in the concrete slab and that it deliberately installed the flooring despite this known condition. Thus, the Court of Appeal held that no unexpected or unintended event constituted an “occurrence” to trigger an indemnity obligation under the policy. Moorefield and amicus curiae argued that construction defects could not be considered intentional conduct unless the contractor expected or intended its work to be defective and cause property damage. The Court of Appeal rejected that argument by stating, on the record before it, Moorfield knew about and intended to perform defective work with the hope it would not cause property damage. Even though Moorfield did not intend to cause property damage, the insured’s subjective belief was irrelevant.

However, the Court of Appeal reversed the portion of the trial court’s ruling which found that Navigators had no duty to make payments under the “supplementary payments” provision of the policy. The Court of Appeal determined that Navigators owed a duty to pay for attorneys’ fees and costs as part of the settlement because such amounts were recoverable under the construction contract and were awardable as taxed costs in litigation. Although no duty to indemnify existed, the appellate court found that Navigators was obligated to pay “supplementary payments” as part of its broader duty to defend.

The Court of Appeal also found that the trial court had improperly determined that the entire $1 million settlement payment was made for damages, rather than attorneys’ fees. The evidence indicated that JSL and DBO had only incurred $377,000 in damages related to the floor leaks. The appellate court further held that the trial court had committed prejudicial error in placing the burden of proof for this issue on Moorefield. Accordingly, the Court of Appeal remanded the case for a new trial seeking allocation of the settlement payment between damages and attorneys’ fees.

Click here for the opinion.

The opinion in Navigators Specialty Insurance Company v. Moorefield Construction, Inc., 2016 Cal. App. LEXIS 1132 (December 27, 2016), is not final. It may be withdrawn from publication, modified on rehearing, or review may be granted by the California Supreme Court. These events would render the opinion unavailable for use as legal authority in California state courts.

Insurer Barred From Contesting Coverage Due to Generic Reservation of Rights Letter

In an opinion filed January 11, 2017, the South Carolina Supreme Court held that an insurer’s reservation of rights must contain more than verbatim recitation of policy provisions to properly reserve its right to later dispute coverage. Harleysville Group Insurance v. Heritage Communities, Inc., et al., 2017 S.C. LEXIS 8 (Jan. 11, 2017). The state supreme court also upheld a pro rata allocation of progressive damages under a time-on-risk analysis, and rejected the argument that punitive damages were subject to the time-on-risk allocation. The decision emphasizes the importance of drafting reservations of rights specific to the facts of the case, and informing the insured of why certain provisions may limit coverage under the facts of the case.

The coverage action arose out of two underlying construction defect actions. Harleysville Group Insurance (“Harleysville”) insured related corporate entities that developed and constructed two separate condominium complexes (collectively referred to as “Heritage”), who were sued for damages arising out of alleged construction defects, including significant water intrusion damages. Harleysville agreed to defend under a reservation of rights and retained defense counsel. After verdicts against Heritage for actual and punitive damages were rendered, Harleysville filed a declaratory relief action to determine the amount of covered damages. The matter came before the state supreme court after certification by the court of appeals.

The court first addressed the adequacy of Harleysville reservation of rights, and concluded that the letters were not specific enough to contest coverage. Although Harleysville had quoted policy language verbatim in its initial reservation of rights, the court found that – except with regard to punitive damages – the letters failed to explain how specific policy provisions might preclude coverage and, to the extent exclusions may apply, did not inform the insured that Harleysville may seek declaratory judgment to allocate between covered and non-covered damages. As a result, Harleysville was precluded from raising coverage defenses regarding compensatory damages.

Although the court found Harleysville had properly reserved its rights regarding punitive damages, neither the policy’s insuring agreement nor its “expected or intended” exclusion applied to preclude coverage for punitive damages. According to the court, absent explicit language that excluded coverage for punitive damages, the insuring agreement could not be construed as limiting coverage to compensatory damages only. Regarding the exclusion, the court found Harleysville failed to meet its burden that Heritage acted intentionally and intended the specific type of loss or injury.

Finally, with regard to the compensatory damage award, the court upheld a pro rata allocation of the progressive damage. Because some definable portion of the damage in the underlying cases was unrelated to an injury during the policy period, a progressive damages analysis was proper for the compensatory damages, but not the punitive damage award.

There are various takeaways from this decision, but the most concerning is that the South Carolina Supreme Court expanded the scope of coverage beyond that provided by the policy because it found that the insurer did not properly reserve rights. To avoid such an absurd result, and to properly preserve coverage defenses, insurers should revisit the use of generic or form reservation of rights letters, and consider updating the reservation of rights letter during the life of the underlying case if certain provisions appear to be particularly relevant.

Gordon & Rees Partner Matthew S. Foy Appointed to Chair of DRI’s Insurance Law Committee

San Francisco partner Matthew S. Foy was recently appointed to serve a two-year term as Chair of the Defense Research Institute’s (DRI) Insurance Law Committee. The Insurance Law Committee is one of DRI’s largest and most active committees with more than 2,700 members and is the resource for professionals whose careers are devoted to or influenced by insurance.

________________________________________

Matthew Foy is a partner in Gordon & Rees’s San Francisco office and serves as the National Practice Group Leader for the firm’s Property and Casualty Practice Group. Mr. Foy maintains a national practice and has represented the insurance industry for 20 years at the claims stage, in trial, and on appeal. Matt can be reached at (415) 875-3174 or MFoy@gordonrees.com.

The Scope of Continuous Trigger in Pennsylvania

The continuous trigger rule is well-known to those in the insurance industry. However, the scope of its application continues to evolve as new risks emerge. While the concept of continuous trigger generally came about to address long-tail environmental pollution and asbestos bodily injury claims, the courts that first implemented and adopted the rule were not facing claims based on sexual molestation, sports-related concussions, wrongful incarceration, large-scale construction defects, complex food recalls, etc.

Pennsylvania has long been a first manifestation state, meaning that only the policy on the risk when underlying bodily injury or property damage is first known or reasonably ascertainable must respond to a loss. The Pennsylvania Supreme Court adopted the continuous trigger rule in J.H. France, which involved coverage for asbestos bodily injury claims. J.H. France Refractories Co. v. Allstate Ins. Co., 626 A.2d 502 (Pa. 1993). The continuous trigger rule, over time, has also been applied to pollution cases.

For that reason, the industry took great interest in the St. John case, decided at the end of 2014, in which the Pennsylvania Supreme Court rejected efforts by an insured to trigger four years of consecutive policies in connection with an underlying lawsuit alleging that the insured’s defective installation of a new plumbing system caused damage to a dairy farm. Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1 (Pa. 2014). Specifically, the insured installed the new plumbing system in 2003, the dairy farm’s cows suffered health problems and produced less milk starting in 2004, and the dairy farm owners discovered the cause – contaminated drinking water due to defects in the plumbing system – in 2006. The court ruled that the 2004 policy was the only triggered policy, but it made a few comments that raised eyebrows. The court noted that Pennsylvania follows the first manifestation rule, “with the lone exception of asbestos injury claims” and that “[o]ur holding in J.H. France remains an exception to the general rule under Pennsylvania jurisprudence that the first manifestation rule governs a trigger of coverage analysis for policies containing standard CGL language.”

The Pennsylvania Supreme Court’s strict application of the manifestation trigger, and its characterization of the exception being limited to asbestos claims, caused a ripple effect in non-asbestos related coverage actions such as pollution cases involving damage that occurs across multiple policy periods. While experience thus far has shown that trial courts are hesitant to apply St. John to limit coverage for pollution claims to a single policy year, the issue is still lingering in many cases. St. John most recently surfaced in the Penn State coverage action related to underlying claims brought against the school by victims of convicted child molester Jerry Sandusky. There, a Philadelphia trial court judge ruled that a victim’s continued sexual abuse over time does not justify application of the continuous trigger rule, and that Penn State could only access the policy during which the bodily injury to a particular victim first manifested. Pa. State Univ. v. Pa. Manufacturers’ Ass’n Ins. Co., 2016 Phila. Ct. Com. Pl. LEXIS 158 (May 4, 2016). Interestingly, the court stated that sexual abuse was different from “environmental pollution or asbestos coverage,” meaning that perhaps the court did not read St. John so literally.

Whether the court intended it or not, the sound bites in the St. John decision still have insurers and insureds paying close attention to the scope of the continuous trigger rule.