Lessons of Gawker: How Tactical Decisions Lead to Strategic Consequences
on July 5, 2016
The most important decisions in many lawsuits occur before any pleading or motion is even filed: determining which causes of action to pursue, or not pursue, can have a significant impact on the subsequent course of litigation. As demonstrated by the ongoing legal disputes surrounding Gawker Media, this lesson is particularly true in the context of insurance coverage disputes....
A CGL Policy May Not Cover Your Liability Arising from Your Employee's Intentional Acts
on June 06, 2016
Neither the typical definition of "occurrence" nor the intentional-acts exclusion precludes coverage for the negligent actions of an insured that are predicated on the commission of intentional acts by another insured, such as claims for negligent hiring, negligent supervision, and negligent entrustment. The Ohio Supreme Court has held, for example, that a homeowner's policy covered a claim for negligent supervision brought against parents whose son stabbed a classmate. See Safeco Ins. Co. of N. Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718, 913 N.E.2d 426. A policyholder, therefore, may assume that it generally has coverage for these types of claims. Such an assumption may prove unfounded. The Ohio Supreme Court's May 12, 2016, decision in World Harvest Church provides an example of when indemnity coverage is not available. See World Harvest Church v. Grange Mut. Cas. Co., Slip Op. No. 2016-Ohio-2913....
Ohio Court of Appeals Finds Limitation on Bad Faith Discovery
on April 21, 2016
It is established Ohio law that an insurer may not rely on the attorney-client privilege or the work-product doctrine in withholding documents and other information from their claims file showing a lack of good faith in settling a claim or denying coverage. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 1994 Ohio 324, 635 N.E.2d 331 (1994); Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 2001 Ohio 27, 744 N.E.2d 154 (2001); Squire, Sanders, 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, at P 31. Beginning with the Ohio Supreme Court's decision in Moskovitz, and further clarified and expanded in the Court's decisions in Boone and Squire, Sanders, this important principle of discovery in the insurance context acts to provide insureds with information essential to their claims of bad faith—information they could not receive otherwise. The reasoning that holds these cases together is this: when an insurer and its attorney act in bad faith, their communications and any related documents are unworthy of protected status. Boone at 213. Some insurers, however, have questioned whether an insurer may avoid the production of its communications when the communications are located in an in-house attorney's files instead of the file of the assigned claims adjuster....
Stopping the Trojan Horse: Preventing Insurers From Intervening in Underlying Actions to the Prejudice of Their Insured
on April 14, 2016
Insurers frequently attempt to intervene into underlying disputes in which they are providing a defense, ostensibly to assert that there is no coverage for all or part of any damage award against its insured. What is often not acknowledged by the insurer is that once it makes it past the courthouse doors and, into your case, the insurer's presence is laden with the potential for conflicts of interest, prejudicial impacts on your case, and substantial delays in its resolution....
Serious as a Heart Attack: The Sixth Circuit Rules that a Hospital's Late Notice to its Excess Insurer Precluded Coverage under a Claims-Made Policy
on April 13, 2016
Policyholders must comply with policy notice provisions or risk facing arguments from insurers that they have forfeited coverage. Even though many states have case law that prohibits an insurer from denying a claim on the grounds of late notice unless it can demonstrate that the late notice has resulted in prejudice to the insurer, this is not always the case, as one Kentucky hospital recently found out....
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