HNRK Coverage Corner

On November 23, 2021, the New York Court of Appeals issued a decision in J.P. Morgan Secs. Inc. v. Vigilant Ins. Co., 2021 NY Slip Op 06528, resolving a long-standing coverage dispute over whether a disgorgement payment made as part of the settlement of an SEC enforcement action constituted a “penalty” that was excluded from coverage under a liability policy’s definition of “loss.”  The Appellate Division, First Department, in a decision previously covered on this blog, held that the payment was a penalty.  That decision relied principally on a 2017 decision of the United ...

On April 9, 2021, the Second Circuit issued a decision in Fabrique Innovations, Inc. v. Federal Insurance Company, 20-1396-cv, holding that a policy’s “willful acts” exclusions were not triggered by a “simple breach of contract.” (N.B. HRNK insurance recovery partner Joshua Blosveren successfully represented the Appellee in this appeal.) The insured (“Fabrique”) made a claim under a cargo insurance policy that covered damage to fabric and plush merchandise temporarily in storage at specified locations.  The goods at issue were lost “after Hancock Fabrics ...

On December 29, 2020, Justice Masley of the New York County Commercial Division issued a decision in Certain Underwriters at Lloyd's London v. NL Indus., Inc., 2020 NY Slip Op 34331(U), denying CGL carriers’ motions for summary judgment, despite a final judgment in the underlying action holding the insured liable for “intentionally and affirmatively promoting lead paint for interior residential use with actual knowledge of the public health hazard that it would create.”

The coverage dispute in NL Industries involved some “320 insurance policies spanning over 70 ...

On December 30, 2020, the Second Department issued a decision in American W. Home Ins. Co. v. Gjonaj Realty & Mgt. Co., 2020 NY Slip Op 08027, ruling that an insurer was not entitled to recoup defense costs it paid, despite the court’s determination that the insurer had no duty to indemnify.

Under New York law, a liability insurer’s duty to defend is “exceedingly broad” and is triggered whenever there is a “reasonable possibility” of coverage.  Thus, "an insurer may be contractually bound to defend even though it may not ultimately be bound to pay, either because its insured is ...