HNRK Coverage Corner

In an article for Chambers’ 2025 Insurance and Reinsurance Global Practice Guide, insurance recovery partners Brad Nash and Dorothea Regal discuss some of the high-stakes insurance coverage disputes that came out of New York last year, and the resulting insurance litigation trends the industry should have an eye on, including:

• State and federal decisions providing guidance as to when insureds may assert extracontractual claims (such as a common law claim for breach of the implied covenant of good faith and fair dealing or statutory claims for deceptive business practices ...

In the early days of the pandemic, we published a Guide to Insurance Coverage for Business Losses Arising from the Covid-19 Pandemic <https://www.hnrklaw.com/HNRK-Coverage-Corner-Blog/coronavirus-and-business-interruption-claims-a-guide-to-insurance-coverage-for-business-losses-arising-from-the-covid-19-pandemic>, which was subsequently reprinted in the Summer 2020 edition of NYLitigator magazine. 

That article discussed business interruption coverage for businesses that were shuttered by government orders seeking to slow the spread of the Covid-19 virus.  Under standard policy language, such coverage is triggered by an underlying “physical loss of or damage to” the insured’s property.  We noted in our article that “[i]nsurers have already begun ...

Excess policies frequently “follow form” to—that is, incorporate the terms of—the underlying primary policy.  Nevertheless, an excess policy is a separate insurance contract, and the excess insurer is typically not bound by the primary insurer’s coverage decisions. 

After the primary insurer pays out its policy limits, can the excess insurer challenge the propriety of the primary insurer’s coverage determination, and on that basis argue that the  the excess policy is not triggered because the followed policy wasn’t properly exhausted? 

Judge Cooper of the United ...

In a guest article for the New York Law Journal, we provide our perspective on the “expected or intended” defense raised by liability insurers seeking to avoid coverage.  The article discusses the standard applicable to the defense and how New York courts have responded to insurers’ attempts to weaken that standard.

The full article can be read here. 

https://www.law.com/newyorklawjournal/2024/07/26/dont-allow-insurers-to-weaken-the-standard-applicable-to-the-expected-or-intended-coverage-defense/ 

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 ...