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Tag Archives: insurance

Potential Changes to Chapter 558, Florida Statutes

In an effort “to promote efficient resolution of claims and reduce litigation,” Florida House Bill 295 (related Senate Bill 1488), introduced in October 2019, contains major changes to Florida’s construction defect law, Chapter 558, Florida Statutes. Most notably, the proposed legislation removes an association as a claimant under the statute; requires that all settlement funds Read More…

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The United States Court of Appeals, Fourth Circuit, Finds Wrap-Up Exclusion Does Not Bar Coverage of Additional Insureds

The United States Court of Appeals, Fourth Circuit, recently took a close look at the application of a “controlled insurance program exclusion” (wrap-up exclusion) to additional insureds on a commercial general liability policy. In Cont’l Cas. Co. v. Amerisure Ins. Co., 886 F.3d 366 (4th Cir. 2018), the Fourth Circuit examined the interplay of an enrolled party’s additional insured status on an unenrolled party’s commercial general liability (“CGL”) policy with a wrap-up exclusion. The court applied North Carolina law and found that pursuant to the policy’s own language, the exclusion only applied to the original named insured, not the additional insureds.

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The Importance of the Subcontractor Exception to the “Your Work” Exclusion

Commercial General Liability (CGL) policies typically include a “your work” exclusion, excluding coverage for “’property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’”  These CGL policies define “your work,” in pertinent part, as “work or operations performed by you or on your behalf.” Read More…

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Don’t Plead Your Pass-Through CD Claims Out of Coverage

Failing to plead damage to other property, even in the face of record evidence supporting damage to other property, can result in a ruling that there is no duty to defend. In Florida, a commercial general liability (“CGL”) insurer’s duty to defend its insured is determined by examining whether the allegations in the complaint against Read More…

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Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co.

The Florida Supreme Court issued its opinion in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., Case No., SC16-1420, which answered the following certified question from the United States Court of Appeals for the Eleventh Circuit: Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a “suit’” Read More…

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Insurance Company Not Responsible For Paying Pre-Tender Legal Fees

Insurance carriers can breathe a little easier. The Eleventh Circuit recently ruled, in EmbroidMe.com, Inc. v. Travelers Property & Casualty Co. of America, that an insurer did not have to pay attorneys’ fees incurred by its insured before the insured notified it of the litigation.

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Holding the Bag for Pre-Tender Defense Costs

For a variety of reasons, additional insureds (and even named insureds) under commercial general liability policies will sometimes wait months, and even years, to tender the defense of a claim or lawsuit, incurring significant legal fees in the interim. When the claim finally is tendered, a dispute often arises over who should pay the pre-tender defense costs. Surprisingly, there is very little Florida legal authority specifically dealing with this issue. However, the recent federal 11th Circuit Court of Appeals case of EmbroidMe.com, Inc. v. Travelers Property Casualty Co. of America, No. 14-10616, 2017 U.S. App. LEXIS 368 (11th Cir. Jan. 9, 2017), applying Florida law, addresses the issue head-on and provides CGL carriers with a large hammer in refusing to pay pre-tender fees.

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The Importance of Notice Requirements in a Claims-Made Policy

The Southern District of New York recently made the importance of notice requirements in a claims-made policy abundantly clear.[1] Generally, there are two kinds of insurance policies: (1) claims-made; and (2) occurrence. The Florida Supreme Court defines an occurrence policy as “a policy in which coverage is effective if the negligent act or omission occurs within the policy period, regardless of the date of discovery or the date the claim is made or asserted.”[2] Conversely, its definition of a claims-made policy is a “policy wherein the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurer within the policy term.”[3] The fundamental difference between the two forms of insurance is that under a claims-made policy, it does not matter when a negligent or omitted act actually took place. The important date is the date on which “a claim”[4] concerning the negligent or omitted act is made. The essence of a claims-made policy “is notice to the carrier within the policy period.”[5]

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Eleventh Circuit Considers Whether the Chapter 558 Process Is a “Suit”

Recently, in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., the United States Court of Appeals for the Eleventh Circuit addressed an issue of first impression.[1] In Altman, the Eleventh Circuit evaluated whether an insurer has a duty to defend and indemnify an insured who receives a Notice of Claim pursuant to Chapter 558, Florida Statutes (“Notice of Claim”). The Southern District of Florida previously ruled that a Notice of Claim did not constitute a suit, and thus, does not trigger a duty to defend and indemnify. The insured then appealed that ruling to the Eleventh Circuit, which ruled that the terms “suit” and “civil proceeding,” as found in the subject Commercial General Liability (CGL) insurance policies, may be ambiguous as used in the policies.[2] Due to important public policy considerations, the Eleventh Circuit certified the following question to the Florida Supreme Court: “Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a ‘suit’ within the meaning of the GCL policies issued by C&F to ACI?”[3]

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Federal Court Recently Finds No Coverage Under “Your Work” Exclusion

The United States District Court for the Middle District of Florida recently rendered a decision in Auto-Owners Insurance Company v. Elite Homes, Inc.[1] addressing the duty to defend when a “your work” exclusion exists in Commercial General Liability (CGL) policy. In Elite Homes, Joseph and Emily Crozier sued Elite Homes, Inc. (“Elite”) in state court Read More…

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