HNRK Coverage Corner

On January 18, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Zurich Am. Ins. Co. v. Don Buchwald & Assocs., Inc., Index. No. 655533/2016, holding that an insurer could not rely on “extrinsic discovery” to avoid its duty to defend.

In Zurich, an insurer sought a declaratory judgment that it had “no duty to defend or indemnify defendants in an action proceeding in Florida on the grounds that . . . the acts alleged in the underlying action were outside the scope of defendant Tony Burton’s . . . employment with defendant Don Buchwald & ...

On January 22, 2018, the Second Circuit issued a decision in Beazley Ins. Co. v. ACE Am. Ins. Co., Case No. 16‐2812‐cv, holding that an undefined term in a policy exclusion was not ambiguous because it had a “clear meaning in federal law.” is an insurance coverage action relating to investor lawsuits against NASDAQ in connection with Facebook’s IPO. At issue was a “professional services” exclusion in NASDAQ’s policy, which provided that the insurer “shall not be liable for Loss on account of any Claim . . . by or on behalf of a customer or client of the Company, alleging ...

On December 21, 2017, the Third Department issued a decision in Cromer v. Rosenzweig Ins. Agency Inc., 2017 NY Slip Op 08926, affirming the dismissal on summary judgment of negligence and breach of contract claims against an insurance broker because the plaintiff failed to establish that the insured made a specific request for coverage that was not provided in the policy. Individuals and businesses frequently obtain insurance coverage through brokers, and may rely on the broker’s advice as to what coverage to purchase. An insured who suffers a loss that turns out not to be covered ...

On December 27, 2017, Justice Sherwood of the New York County Commercial Division issued a decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2017 NY Slip Op 32728(U), granting a preliminary injunction directing three excess D&O insurers to advance defense costs for the defense of a federal securities fraud prosecution, and related civil actions (N.B. I represented one of the insureds in this case, and I argued the preliminary injunction motion on behalf of all the insureds. See Law360’s coverage of the oral argument on the preliminary injunction motion here).

The ...

On November 8, 2017, the Second Circuit issued a decision in Nick's Garage, Inc. v. Progressive Casualty Ins., Case No. 15-1426-cv, holding that Section 2601(a) of the New York Insurance Law, which prohibits insurers from "engag[ing] in unfair claim settlement practices," but provides no private right of action, does not preempt a claim against an insurer for "deceptive acts or practices" under Section 349 of the General Business Law.

In Nick's Garage, a car repair shop (the "Garage") brought suit against an automobile insurer as assignee of certain claims for repairs to damaged ...