HNRK Coverage Corner
On May 29, 2024, Judge John T. Dorsey of the United States Bankruptcy Court for the District of Delaware issued a decision in Insys Liquidation Trust v. XL Specialty Ins. Co., Adv. Proc. No. 23-50484 (JTD), granting an excess D&O insurer’s motion for summary judgment under the policy’s Prior and Pending Litigation Exclusion. The wrinkle here is that the “prior litigation” was a qui tam complaint under the False Claims Act that had been filed under seal before the policy period but was never served. Although the insured did not know—and could not have known—about the lawsuit ...
On May 9, 2024, Judge Theodore C. Zayner of the California Superior Court for the County of Santa Clara issued a decision in Zoom Video Communications, Inc. v. Underwriters at Lloyd’s London, Case No. 22-CV-398878, holding that a civil investigative demand (“CID”) from the Federal Trade Commission (“FTC”) did not constitute a covered “Claim” under an errors and omissions policy issued to Zoom.
Responding to a government investigation can be a costly proposition. The attorneys’ fees and other expenses incurred to comply with a grand jury subpoena or a civil ...
On May 9, 2024, Judge Rennie of the Delaware Superior Court issued a decision in Origis USA LLC v. Great Am. Ins. Co., Case No. N23C-07-102, holding that an insured’s coverage action against its D&O insurers was premature in light of the policy’s “No Action” clause.
The insured’s primary policy (to which three excess insurers followed form) states:
With respect to any Liability Coverage Part, no action shall be taken against the Insurer unless, as a condition precedent thereto, there has been full compliance with all the terms of this Policy, and until the Insured’s
On August 10, 2023, Judge Rennie of the Superior Court of Delaware issued a decision in a pair of cases, Viacom Inc. v. Paramount Global, C.A. N22C-06-016 SKR CCLD and Redstone v. ACE American Insurance Co., C.A. No. N22C-06-020 SKR CCLD, ruling that a D&O policy’s “bump-up” exclusion did not apply to losses arising from a merger transaction.
The coverage dispute arose from a 2019 transaction through which Viacom merged with CBS. As a result of the all-stock transaction, “all assets of Viacom ‘vest[ed] in CBS, and CBS was the surviving corporation.” Shareholders ...
On May 23, 2023, SDNY Bankruptcy Judge Martin Glenn issued an order in In re: SVB Financial Group, Case No. 23-10367(MG), lifting an automatic stay to permit Silicon Valley Bank’s D&O insurers to advance to defense costs to the bank’s officers in connection with litigation arising from the bank’s collapse.
A typical D&O policy offers coverage both to the corporation and to its officers and directors. SVB D&O insurance program consists of 16 so-called “ABC Policies”, which provides three categories of coverage: (1) “Side A” coverage goes directly to directors and ...
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Recent Posts
- Delaware Bankruptcy Court Rules That Qui Tam Action Filed Under Seal—and Never Served—Triggers D&O Policy’s Prior and Pending Litigation Exclusion
- “Related Acts” and the Claims Made Policy—The Policy Provision that “Cannot Be Applied Literally”
- California Court Rules that FTC’s Civil Investigative Demand is Not a Covered Claim Under Technology Errors and Omissions Policy
- Delaware Court Dismisses D&O Coverage Action as Premature Under Policy’s “No Action” Clause
- Chubb Prepares to Pay $350 Million to State of Maryland for Baltimore Bridge Collapse
- Sixth Circuit Rules That Insurer is Entitled to Reimbursement of Defense Costs, Holding That Reservation of Rights Letter Created an Implied-In-Fact Contract
- Fifth Circuit Holds Contract Exclusion Does Not Bar Defense Coverage for Ticket Holders Lawsuit Arising From Festival Cancelled During Covid-19 Pandemic
- HNRK Secures Win for Syngenta in Insurance Coverage Appeal at Delaware Supreme Court
- New York Court Considers Evidence Regarding Insurers Handling of Prior Claims in Denying Insurer’s Motion for Summary Judgment
- HNRK Insurance Recovery Partners Author Article for Chambers 2024 Global Practice Guide
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