HNRK Coverage Corner

On November 27, 2020, Justice Masley of the New York County Commercial Division issued a decision in Alvarez v. XL Specialty Ins. Co., 2020 NY Slip Op 33917(U), holding that a lawsuit against the insureds was not wholly excluded from coverage under a D&O policy where only one part of the lawsuit involved “Wrongful Acts” at issue in an earlier lawsuit that was covered under a prior policy period.

The underlying lawsuit in Alvarez was an action by the Creditors’ Committee of Sears Holdings Corp. against former officers and directors, alleging 35 causes of action, arising from three ...

On October 22, 2020, Judge Román of the SDNY issued a decision in U.S. Specialty Ins. Co. v. Village of Chester, Case No. 19-cv-467(NSR), staying an insurer’s declaratory judgment action pending the resolution of a parallel state court action that would determine the factual issues underlying the coverage dispute.

The Village of Chester sought liability coverage for a lawsuit by a developer who alleged that the City had improperly interfered with the planned construction of a multifamily residential development.  At issue in the underlying litigation was the enforceability of ...

On September 16, 2020, Judge Failla of the SDNY issued a decision in Philadelphia Indemnity Ins. Co. v. Streb, Inc., Case No. 19-CV-366 (KFP), ruling that a CGL carrier had no duty to defend a personal injury action because undisputed “extrinsic evidence” (i.e., facts not alleged in the complaint) conclusively established that an exclusion applied.

The insured (Streb, Inc.), a not-for-profit dance and performance company, was a defendant in a personal injury action brought by a participant in an aerobics class who was severely injured on a trampoline.  Streb’s CGL policy ...

On March 26, 2020, the New York Court of Appeals granted leave to appeal from the First Department's decision in J.P. Morgan Sec., Inc v. Vigilant Ins. Co.,126 A.D.3d 76 (1st Dep't 2018), which held that that a disgorgement payment made as part of the settlement of an SEC enforcement action was a “penalty” and therefore did not qualify as a covered “loss” under a CGL policy. This case has a long history. See our post about the First Department's decision here.

On February 7, 2020, the Second Circuit issued a decision in Lepore v. Hartford Fire Ins. Co., Case No. 19‐778‐cv, holding that a CGL policy exclusion for any suit alleging “an infringement or violation of any intellectual property right” was triggered even though the underlying complaint did not contain a direct IP-infringement claim. The Second Circuit affirmed the trial court’s decision granting summary judgment to the insurer, explaining:

Plaintiffs argue that because no violation of IP rights was asserted in the NL suit, the IP exclusion must be read narrowly, and ...